Monday, April 26, 2021

After more than a decade, SCOTUS finally grants cert on big Second Amendment carry case

The Supreme Court ruled in Heller in 2008 that the Second Amendment secured the right to keep arms in the home, and then in McDonald applied this right to the states in 2010.  Most Court watchers thereafter said it was only a matter of time before the Court would need to address whether and how the Second Amendment applies to laws restricting or regulating the carrying of arms outside the home.  But for quite some time, the Supreme Court declined to take up this next big Second Amendment issue. 

But vIa this order list this morning, the Justices agreed to review New York’s concealed-carry laws through a cert grant in New York State Rifle & Pistol Association v. Corlett.  Here is how the Supreme Court framed the question presented via its cert grant:

The petition for a writ of certiorari is granted limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

There will be lots of ink spilled about this grant and lots of amici briefs sure to be filed.  But I wonder if others will think it notable how the Court rewrote the petitioner's question presented in this cert petition, which asked (emphasis added): "Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense." 

Long-time readers may know I have been wondering for a long time about the textual or jurisprudential justification for saying that the Second Amendment does not apply to all "people," but only to so-called "law-abiding" ones (see, e.g., posts here and here and here).  I have long assumed that the "law-abiding" language appeared in Heller and McDonald at the behest of Justice Anthony Kennedy.  With Justice Kennedy no longer on the Court, I cannot help but wonder if the current Justices were eager to remove that Court-invented language from the question presented.   

I bring this issue to the fore, of course, because a broadly applicable Second Amendment that protects all people, and not just the so-called "law-abiding" ones, could have all sorts of implications for all sorts of criminal law and sentencing provisions related to gun possession.  The Supreme Court already has on its docket a case, Wooden, concerning a defendant who received over 15 years in prison under federal law for mere gun possession in his home due to his prior convictions (and at issue in Wooden is just the statutory issue of whether these past convictions triggered the extreme 15-year mandatory minimum term under federal law).  If the Second Amendment is to be anything other than a second-class right, it ought to protect all people (as the language of the Amendment indicates) and not just whatever people the Supreme Court might decide are special as it creates this jurisprudence. 

April 26, 2021 in Gun policy and sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, April 01, 2021

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

April 1, 2021 in Booker in district courts, Booker in the Circuits, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, March 17, 2021

Spotlighting ugly reasons and realities surrounding federal gun sentences

Tana Ganeva has this effective Reason piece giving attention to federal gun sentences.  The full headline highlights its themes:  "743 Years and 3 Months. 117 Years. 51 Years. Why Are These Men's Sentences So Long?  For possessing a gun while committing a crime — even when no one is killed — too many defendants are slammed with sentences decades or even centuries longer than justice demands."  Here are excerpts:

The federal statute 924(c) imposes mandatory minimum sentences in offenses involving a firearm. Federal law requires that the lengthy sentences for possessing a gun while committing a crime be served back-to-back instead of concurrently, even though state laws tend to be much more lax: In Indiana, where [Charles] Scott was caught, robbery is punishable by one to six years in state prison, with a recommended time of three years. Scott's original offense, the robberies, account for a little more than six years of his sentence — the other 45 years were from the 924(c) charges. Scott's draconian sentence is actually lighter than others snagged under the same statute — there are people sentenced to centuries in prison because of 924(c) even if their underlying crimes would have earned them far less time than multiple human life spans.

As of 2016, 14.9 percent of the federal prison population — or 24,905 people — was incarcerated due to a firearm offense carrying a mandatory minimum penalty, according to the Federal Sentencing Commission. Criminal justice reform advocates believe the law wrongly conflates gun violence and crimes where the perpetrator carries, or even just owns, a gun.

"Mandatory minimums around firearms are some of the most frustrating cases," says Kevin Ring, the executive director of Families Against Mandatory Minimums (FAMM), a criminal justice reform organization. "In a country with 340 million firearms, the idea that someone is not going to happen to be in possession of a gun if they commit a crime … the law does not distinguish between someone who uses a gun to commit a crime, and someone who happens to be a gun owner. It's a frustrating, stupid law."...

Although Scott and his family hope for federal clemency, his case isn't a neat fit for today's political climate. Democratic lawmakers brand themselves as advocates for gun control, and so don't have a lot to gain from showing mercy to people who break gun laws. Most Republicans still tend to campaign on tough-on-crime platforms that don't leave a lot of room for second chances.

"For Democrats, mandatory minimums for guns can be a plan B for gun control," says Ring. "And for Republicans, for too long, people resisted the idea that people who own guns … some of those people sell drugs. To fend off gun control, they like to hammer people who have a gun when they commit a crime."

March 17, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (4)

Wednesday, March 03, 2021

More guns = more gun crimes in 2020?

The question in the title of this post is prompted by this new NPR article headlined "Did Record Gun Sales Cause A Spike In Gun Crime?  Researchers Say It's Complicated."  Here is an excerpt (with links from original):

"It's a real challenge to try and disentangle the role of any one single potential cause," says Julia Schleimer, with the Violence Prevention Research Program at the University of California, Davis. "It's particularly challenging during the pandemic," with variables such as mass unemployment and closed schools.

Nevertheless, Schleimer and her colleagues are trying to parse out the effect of all those new guns. Their study of the initial boom in purchases — an estimated 2.1 million extra sales from March to May — concluded there was an association between short-term surges in sales and shootings.

But as the year progressed, Schleimer says that statistical relationship faded.  "We know that there's a strong link between more guns and more gun violence," she says, "but during this pandemic and in our analysis here, that link is less clear."  Setting aside the question of sales, though, there does seem to be evidence that guns were more present in daily life last year — especially during crimes.

"All of a sudden, the number of assaults with guns spiked a lot," says Rob Arthur, a data scientist and independent journalist. In a recent article for the Intercept, he pointed to an increase in the ratio of violent crimes that involved guns to those that didn't.  "That suggested to me that there was some kind of substitution going on," Arthur says. "People who were committing assaults had access to guns more in 2020 than they did before. And so they they were essentially getting upgraded to a worse crime, assaulting someone with a gun, whereas before they might have done it without a gun."

It may be a leap, though, to assume those shooters were part of last year's wave of gun buyers. Mandatory background checks bar felons and other disqualified people from buying guns in stores, and past research shows most guns used in crimes are not newly purchased.  But established patterns may not apply to 2020.  Guns were bought by a much broader cross-section of Americans last year, and the firearms industry estimates 40% were first-time buyers.

"Black gun ownership is way up, Asian gun ownership is way up, Hispanic gun ownership is way up," says Cam Edwards, the editor of BearingArms.com. "So we've seen a democratization...  where Americans who never before would have considered exercising that right have now embraced it."

For some, this "democratization" of gun sales is a matter of exercising a civil right. But it's also likely that the broadening of firearm ownership was driven by people who simply decided, during a turbulent year, that they needed a gun.  Whatever the reasons, it means 8 million new guns are now in the possession of people who potentially have less experience handling them.

March 3, 2021 in Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Thursday, February 04, 2021

Eighth Circuit panel affirms (within-guideline) sentence of 2.5 years for illegal possession of a single bullet

Decade of study can make one nearly numb to the variety of remarkable stories involving our criminal justice systems ordering people to live long periods in cages for what seems like relatively minor crimnal activity.  But I was still struck by an Eighth Circuit ruling this week in US v. Brown, No. 20-1377 (8th Cir. Feb 2, 2021) (available here), highlighting how minor convicted conduct can lead to major federal prison time.  Here are the basics fron a unanimous per curiam unpublished opinion (with cites removed):

The district court1 sentenced Deaviea David Brown to 30 months of imprisonment after Brown pled guilty to being a felon in possession of ammunition—a single bullet. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Brown contends that sentence is substantively unreasonable and violates the Eighth Amendment. We affirm....

Because Brown’s sentence is at the bottom of the Guidelines range, we presume the sentence is reasonable. Brown did not rebut that presumption.  We also note that during the sentencing hearing, the district court specifically addressed the § 3553(a) factors.  We see no basis to conclude either that the district court improperly weighed the § 3553(a) factors or that the sentence it imposed was substantively unreasonable....

[T]he proportionality principle in Eighth Amendment law is quite limited. Under this standard, the proportionality argument presented simply lacks sufficient basis for this court to conclude that Brown’s sentence — which was at the bottom of the recommended Guidelines range — is one of those “exceedingly rare” cases that raises the gross-disproportionality inference.  While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount. The sentence does not violate the Eighth Amendment.

I have not yet found any more information about the district court sentencing online, but I would guess there is a significant backstory as to why Mr. Brown was federal prosecuted and sentenced to 2.5 years in federal prison for possession of a single bullet. (There was a significant backstory when the Sixth Circuit affirmed a 15-year ACCA sentence for possession of seven shotgun shells some years ago.)  But I am always troubled when a serious sentence is based on some unclear backstory rather than on the seriousness of the actual offense conduct that produced the conviction.

Notably and annoyingly, the panel keeps stressing that the 30-month sentence here was at the bottom of the applicable guideline range.  For me, that fact serves to condemn the federal sentencing guidelines, not justify this extreme sentence.  It is also an important reminder that, even 15+ years after Booker made the guidelines advisory, they still have an adverse impact on justice and still need a thorough rewrite.

I am especially troubled by the facile rejection of the Eighth Amendment claim by the panel in these terms: "While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount."  This strike me as tantamount to a statement that there could never be a constitutionally disproportionate sentence for shoplifting a candybar because a severe penalty is critical to keep people from stealing any amount of goods.  Put simply, 30 months of imprisonment for possession of a single bullet does seem disproportionate, and the Eighth Circuit panel should have at least conducted a full Eighth Amendment proportionality analysis (which would show, I think, that this this behavior is not even criminal in many states and not a felony in most).

February 4, 2021 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Sunday, January 24, 2021

Two more new 3582(c)(1)(A) reductions to remedy stacked 924(c) sentences reformed by FIRST STEP Act

As regular readers know, I have made much of the FIRST STEP Act provision now allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  The BOP reports here that a total of 2,693 of these motions have now been granted in the 25 months since the FIRST STEP Act became law.  The vast majority of the sentencing reduction motions brought by federal prisoners and granted by federal district judges these days are focused on the health threat posed by COVID.  But judges are still rightly finding other "extraordinary and compelling reasons" warranting sentencing reductions.

A helpful reader recently flagged for me two great new district court rulings using § 3582(c)(1)(A) to undo the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  Both rulings ought to be read in full as yet another set of examples of the ridiculousness and injustice of (post-trial) sentences that had to be imposed by judges under mandatory sentencing provisions, and to appreciate how the FIRST STEP Act helps to restore at least a little sanity and justice in this ugly part of the federal sentencing world.  I will here just note the openning paragraphs and provide a link to the full opinions:

US v. McDonel, No. 07-20189 (ED Mich. Jan. 13, 2021):

Defendant Robert McDonel, then 21 years old, was sentenced to over 100 years in prison in 2008 after engaging in a spree of auto parts store robberies using a handgun.  That extraordinarily harsh sentence was the product of a statutory sentencing scheme that required enhancing and stacking sentences for multiple firearm brandishing offenses even when the crimes were committed as part of the same episode and charged in a single indictment.  Congress since has corrected that Draconian measure, but the legislation does not help McDonel, as the amendment is not retroactive. He asks the Court for relief under 18 U.S.C. 3582(c)(1)(A)(i), as amended by section 603(b)(1) of the First Step Act of 2018, Pub L. 115-391, 132 Stat. 5194, 5239, which allows a sentence reduction for “extraordinary and compelling reasons.”  The gross disparity created by the legislative changes, which mitigated the harshness in the sentencing scheme to which McDonel was subjected, coupled with McDonel’s youth and rehabilitative efforts, qualify as extraordinary and compelling reasons under section 3582(c)(1)(A)(i). Other factors that the Court also must consider favor relief.  The motion will be granted.

Download McDonel opinion

US v. Nafkha, No. 2:95-CR-00220-001-TC (D Utah Jan. 11, 2021):

Prisoner Mounir Nafkha moves for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), asking the court to reduce his nearly 73-year sentence in the custody of the United States Bureau of Prisons (BOP) to time served.  To date, Mr. Nafkha has served approximately 25 years of his sentence. He asserts that the circumstances surrounding his sentence — which consists of four consecutively “stacked” counts under 18 U.S.C. § 924(c) — constitute extraordinary and compelling reasons for his early release.  The court finds that Mr. Nafkha has satisfied his burden of showing extraordinary and compelling reasons to release him and that the balance of sentencing factors set forth in 18 U.S.C. § 3553(a) warrant his release. Accordingly, his motion (ECF No. 214) is GRANTED.

Download Nafkha Grant

January 24, 2021 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered | Permalink | Comments (1)

Saturday, December 19, 2020

Split Sixth Circuit panel decides FIRST STEP Act's less severe 924(c) mandatory minimums are applicable to resentencing

In this post a full two years ago right after the enactment for the FIRST STEP Act, I flagged some issues regarding which "pipeline" defendants might be able to benefit from the Act's reduced sentencing terms.  (By "pipeline," I meant cases in which offense conduct took place before passage of the FIRST STEP Act, but a sentence was not fully finalized when the Act became law.)  In that post, I noted that Congress in the FIRST STEP Act had expressly provided that the reduced 924(c) mandatory minimums were to be applicable "if a sentence for the offense has not been imposed as of such date of enactment" of the Act.  And then I pondered in that post: "Imagine a defendant already sentenced earlier in 2018, but his sentence is reversed on some other ground and now he faces resentencing in 2019.  Can a defendant get the benefit of any new provisions of the FIRST STEP Act upon resentencing?"

A Sixth Circuit panel this past week spoke to these issues in US v. Henry, No. 19-2445 (6th Cir. Dec 18, 2020) (available here).  The panel split, with the majority eager to give broad application to the FIRST STEP Act's reduced sentencing terms.  The Henry court gives various justifications for its reading of the applicable provision of the Act, including its legislative history: "the legislative history of the First Step Act demonstrates Congress’s intent to remedy overly punitive mandatory-minimum sentences faced by defendants, including defendants resentenced after the Act’s enactment."  Judge Gibbons writing in dissent sees matters differently, explaining "Given the vast sentencing disparities depending on whether the First Step Act applies — 55 years versus 15 years in this case — it is unclear why Congress chose to extend the Act’s protection to a defendant sentenced on the date of enactment but not to a defendant sentenced just one day prior. But whatever the wisdom of that decision, 'Congress has . . . drawn a line in the sand.'"

I am very much in favor of the approach adopted by the majority here, which essentially recognizes that absent a clear "line in the sand" for limiting application of the newer, less severe sentencing terms, it makes sense to give those terms the broadest possible application.  As the dissent notes, a full 40 years of imprisonment is at issue in this matter.  As I see it, if Congress is not 100% clear that an extra four decades of time in a cage  must be imposed, courts ought not mandate its imposition.

December 19, 2020 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, December 09, 2020

Sentencing Council for England and Wales issues new sentencing guidelines for firearm offenses that include drawing drawing sentencers' attention to historic disparities

As reported in this official news release, titled "Sentencing guidelines for firearms offences published," the Sentencing Council for England and Wales has released some new sentencing guides that includes an especially interesting element intended to respond to historic ethnic sentencing bias.  Here are the basics from the release (with some emphasis added):

Today, the Council is launching eight new sentencing guidelines to be used by the Crown Court and magistrates’ courts in England and Wales when sentencing firearms offences. The new guidelines will come into effect on 1 January 2021.

The aim of the guidelines, which will apply to adult offenders, is to help the courts deliver appropriate sentence levels for the unlawful possession of firearms and take a consistent approach to sentencing these offences.

Firearms offences are serious.  Some offences carry life imprisonment, some carry sentences of up to 10 years, and some require minimum sentences of five years, but there are currently no sentencing guidelines in the Crown Court and only one for use in magistrates’ courts.

Analysis conducted by the Council in preparation for the guidelines suggests there are disparities in sentence outcomes for some firearms offences based on ethnicity (see the response to consultation, pages 29-32).  The Council has taken measures in the guidelines to address this, including drawing sentencers’ attention to evidence of sentencing disparities in specific offences as an integral part the sentencing process.  The Council is committed to continuing to investigate apparent disparity in sentencing outcomes across all offences and will take further action as and when there is evidence of effective measures that can be applied to guidelines. 

This new article from The Guardian, headlined "Judges told they should consider previous racial bias before sentencing: Guidelines remind the bench black offenders tend to receive longer sentences for firearms offences," provides some additional context.  Here is an excerpt:

Judges and magistrates are to be given explicit reminders for the first time in sentencing guidelines of the disparity in punishments being imposed by the courts on white, Asian and black offenders. The advice is included in formal directions circulated by the sentencing council to those on the bench about how they should assess penalties for firearm offences.

The offences, which cover possession, discharge and manufacture of weapons, can result in a maximum prison term of up to 10 years. The eight new guidelines come into effect on 1 January.

Judges and magistrates are asked to consider the culpability of offenders according to whether, for example, the gun was loaded, shots have been fired, if it was for criminal purpose and the harm caused to any victim. But it is the inclusion of explicit reminders to judges and magistrates that the courts have in the past not achieved racial parity in the distribution of punishments that is highly unusual and novel.

In the guideline for the offence of possessing a firearm without a certificate, for example, judges and magistrates are reminded: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black and Asian offenders receive an immediate custodial sentence than White offenders and that for Black offenders custodial sentence lengths have on average been longer than for White offenders.”

The note continues: “There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance … [in specific sections of] the Equal Treatment Bench Book.”

In another note, on possession of a prohibited weapon, the reminder states: “Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that where the minimum term applies, a higher proportion of White offenders receive a sentence below the mandatory minimum term, and as a result less severe sentences compared to Black, Asian and Other ethnicity offenders.”...

In 2017, a review by David Lammy QC, commissioned by the Ministry of Justice, highlighted bias against black and minority-ethnic suspects in the criminal justice system of England and Wales.  Among possible reasons for disparities, the sentencing council said, may be the “significance given to previous convictions in sentencing firearms cases.  There is an overrepresentation of black, Asian and other ethnic groups at many stages throughout the criminal justice system compared to the White ethnic group which means that, for example, a black offender may have a more significant record than a White offender of the same age.”

December 9, 2020 in Gun policy and sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, April 27, 2020

SCOTUS dismisses NYC Second Amendment case as moot (and Justice Alito dismisses public safety claims with gun rights at issue)

The Supreme Court resolved a closely watched Second Amendment case this morning, in a manner that is sure to be disappointing to Second Amendment fans.  The Court's two-page per curiam opinion in New York State Rifle and Pistol Association v. City of New York, No. 18–280 (S. Ct. Apr. 27, 2020) (available here), starts this way:

In the District Court, petitioners challenged a New York City rule regarding the transport of firearms.  Petitioners claimed that the rule violated the Second Amendment.  Petitioners sought declaratory and injunctive relief against enforcement of the rule insofar as the rule prevented their transport of firearms to a second home or shooting range outside of the city. The District Court and the Court of Appeals rejected petitioners’ claim.  See 883 F. 3d 45 (CA2 2018).  We granted certiorari. 586 U. S. ___ (2019).  After we granted certiorari, the State of New York amended its firearm licensing statute, and the City amended the rule so that petitioners may now transport firearms to a second home or shooting range outside of the city, which is the precise relief that petitioners requested in the prayer for relief in their complaint.  App. 48.  Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.

Justice Kavanaugh issued a two-paragraph concurrence that concludes this way: "I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court."

Justice Alito, joined entirely by Justice Gorsuch and mostly by Justice Thomas, authored a 31-page dissent. Justice Alito not only disputes the claim that the petitioners' claims are moot, but he also explains why he thinks it "is not a close question" on the merits "that the City ordinance violated the Second Amendment."  Second Amendment fans will like a lot of what Justice Alito has to say, but I think criminal justice fans will want check out how Justice Alito is quick to dispute the claims made by NYPD Inspector Andrew Lunetta in an affidavit explaining why the NYC law was "necessary to address public safety concerns." 

Justice Alito spend four pages explaining why he disputes and discounts and ultimately dismissed the public safety assertions of a 30-year veteran of the New York Police Department.  He calls some of what the police official asserted "not relevant," and says that other statements "actually undermine the City’s public safety rationale."  On another front, he states the NYPD Inspector is making a "strange argument" and call another claim "dubious on its face"  and yet another "more than dubious."  Justice Alito concludes his analysis with this sentence: "The City’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing." 

Though I know that this is just wishful thinking, I sure hope Justice Alito's eagerness to question, dissect and dispute claims made by police — and prosecutors and others who make all sort of debatable claims what is "necessary to address public safety concerns" — will extend to cases involving assertions by individuals of claims under other Amendments like the Fourth and Fifth and Sixth and Eighth.  But I fear only Second Amendment claims lead Justice Alito to question how government officials seek to leverage claims of what public safety makes necessary.

April 27, 2020 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (0)

Monday, March 02, 2020

SCOTUS grants cert in Borden ACCA case to replace Walker case after death of petitioner

As noted in this prior post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  After seeing the facts in the Walker, case, which involved to possession of ammunition and not the possession of a gun, I reached out to some law professor colleagues and we filed this this SCOTUS amicus brief in US v. Walker in early January.

But Mr. Walker died in late January, and so his petition for a writ of certiorari was dismissed.  Today SCOTUS took up a replacement case, Borden v United States, which will given the Justices another chance to decide whether a crime that can be committed by being reckless can be a “violent felony” for purposes of the Armed Career Criminal Act.  Disappointingly, the Borden case involves gun possession, not just ammunition possession, so our amicus brief won't quite work for this new case.  Bummer.

In any event, though sentencing fans have to be excited about yet another ACCA case on the docket, the truly big SCOTUS cert news today concerns ACA, not ACCA.

March 2, 2020 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, January 27, 2020

SCOTUS dismisses Walker ACCA case after death of petitioner (and after robust amicus efforts)

As noted in this post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  Even more than the average ACCA case, the Walker case caught my attention because it involved an elderly man, James Walker, who received 15 years in prison under ACCA based on his possession of 13 bullets that he had found while cleaning a house.

Though the cert grant in Walker involved ACCA statutory interpretation concerning predicate prior offenses, I have long been troubled by any application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  (Indeed, long-time readers may recall I helped file an amicus brief in the Sixth Circuit and another amicus brief in support of a cert petition in a similar case, US v. Young, a few years ago.)  After seeing the cert grant in Walker, I reached out to some law professor colleagues and we filed earlier this month this SCOTUS amicus brief in US v. Walker, and here is part of the brief's Summary of Argument:

This Court’s interpretation of the reach of the Armed Career Criminal Act (ACCA), if properly informed by constitutional principles, must avoid application to Petitioner of the ACCA’s fifteen-year mandatory minimum prison term based on his possession of thirteen bullets in violation of 18 U.S.C. § 922(g)(1).  Because mere possession of ammunition is the most passive of crimes — in fact, most States do not even criminalize this behavior and it almost never results in severe punishment — a mandatory fifteen-year prison term is arguably disproportionately harsh.  That Petitioner possessed a small amount of ammunition, that he lacked any vicious or menacing mens rea, and that his prior convictions are decades old serve as additional factors suggesting that a mandatory minimum fifteen-year federal sentence for Petitioner’s offense is constitutionally suspect under any and all jurisprudential approaches to the Eighth Amendment.

As this Court has explained, the “canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009)....  Given extensive litigation over what predicate offenses qualify for ACCA’s enhanced penalties, there is little question that this Court confronts ambiguous statutory language in this case.  In turn, because any sound approach to the Eighth Amendment suggests serious constitutional doubts about the application of a fifteen-year mandatory sentence for “one of the most passive felonies a person could commit.”  Solem v. Helm, 463 U.S. 277, 296 (1983), the canon of constitutional avoidance provides support for the narrower interpretation of ACCA advanced by Petitioner.  Further, the absence of a modern Court application of the Eighth Amendment to a federal non-capital adult sentence suggests that this constitutional right is precisely the kind of constitutional norm that cautions judicial restraint when interpreting an ambiguous statute.

As this case highlights, broad interpretations of ACCA present a heightened risk of constitutionally questionable mandatory minimum sentences.  This Court should limit that risk by adopting the ACCA interpretation put forward by the Petitioner.

Notably, though I believe our amicus brief was the only one to raise Eighth Amendment issues, another half dozen amicus briefs were filed earlier this month supporting the petitioner.

But, sadly, petitioner's counsel filed this notice last week reporting that James Walker passed away on January 22, 2020.  In accord with its practice, the Supreme Court via this morning's order list, dismissed the writ of certiorari in this case.  I suspect that SCOTUS will before too long take up a replacement case to address the ACCA statutory issue, though I sincerely hope there are not a lot of other cases in the pipeline that also involve application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  If there are, I surely will continue to complain about this extreme sentencing provision.

January 27, 2020 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, November 13, 2019

Attorney General Barr announces "Project Guardian" as part of plan to reduce gun violence

As reported in this Hill piece, the "Department of Justice (DOJ) on Wednesday unveiled a program that aims to reduce gun violence including through the creation of guidelines to prosecute those who make false statements while trying to get a gun." Here is more:

The five-point plan includes coordinated prosecution, enforcing the background check system, improved information sharing, a coordinated response for mental health denials, and crime gun intelligence coordination, according to a DOJ statement.

The department seeks to coordinate prosecution under the "Project Guardian" program by considering federal prosecution for those who were arrested for possessing a firearm, are believed to have used a firearm while committing violence or drug trafficking, or who is suspected of actively committing violent crimes in connection with a criminal organization.

To enforce background checks, attorneys general, in connection with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will create or renew guidelines for prosecuting those who make false statements while trying to get a firearm. Those who have been convicted of violent felonies and domestic violence misdemeanors, among others, will be given special emphasis....

Attorney General William Barr said in a statement that the plan shows the DOJ's commitment to reducing gun violence. "Project Guardian will strengthen our efforts to reduce gun violence by allowing the federal government and our state and local partners to better target offenders who use guns in crimes and those who try to buy guns illegally,” he said.

He also said during a press conference in Memphis, Tenn., that the program would be applied with exceptional "vigor" in areas with high levels of gun violence. "We're going to apply it with special vigor where gun violence is the highest, in places like Memphis," he said....

The attorney general said Wednesday that the administration came up with a series of related legislative proposals, but added they could not move forward due to the probe into the president's dealings with Ukraine. “Unfortunately, our discussions on the legislative aspects of this have been sidetracked because of the impeachment process on the Hill and so we are going forward with all of the operational steps,” Barr said.

“We certainly are always willing to pursue legislative measures that will enhance the fight against violent crime but right now it does not appear to things in Washington are amenable to those kinds of negotiations and compromises,” he added.

Gun violence prevention group March for Our Lives, which was founded after a mass shooting at a school in Parkland, Fla., criticized the program as a "racialized" tough-on-crime plan. "We’ve seen racialized ‘tough on crime’ plans before. It doesn’t work," the group tweeted. "We ought to be tough on injustice, economic oppression and inequality. Our country has a gun violence problem. It’s sources vary, but the common factor is easy access to guns."

I cannot help but wonder if, among the shelved legislative proposals, was some follow up on the talk from a few months ago of draft legislation to expedite the death penalty as part of package response to mass shootings. Even without legislative proposals, the announced "Project Guardian" initiative (set forth in this press release with this linked DOJ guidance memo) provides plenty to wonder about in terms of coming prosecutions and sentencings in the federal system.

As noted in this post, just this past Friday Deputy Attorney General Jeffrey Rosen highlighted in a speech that the current Justice Department has "increased federal firearm prosecutions by over 40 percent compared to the last two years of the previous administration."  I presume that this uptick in firearm prosecutions will continue and perhaps even accelerate as a result of "Project Guardian."  I would welcome comments from anyone working "on the ground" in the federal criminal justice system about whether and how they think  "Project Guardian" could prove consequential.

UPDATE: The Justice Department has released the text of Attorney General William Barr's remarks in Memphis at the launch of Project Guardian. Here is a snippet:

What we are trying to do is take those Triggerlock principles that were successful in the past and revamp this program, resuscitate it, and double down on it nationwide.

This is a national program.  It will be in every district.  The idea is to use our existing gun laws to incapacitate the most dangerous and violent offenders.  As most of you know, with Project Safe Neighborhoods, which is one of the flagship programs of the Department of Justice, we do go after the armed felons.  But that program is regionally based; we go after particular areas.

Project Guardian is a national initiative to comprehensively attack gun violence through the aggressive enforcement of existing gun laws.

This will be implemented nationwide in every federal district.  We are going to apply pressure with vigor where gun violence is the highest in places like Memphis. Local agencies will be involved, but ATF will be leading this effort.  It will involve all federal law enforcement agencies working closely with our state and local colleagues.

November 13, 2019 in Gun policy and sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Monday, September 02, 2019

Talk of draft legislation to expedite death penalty as part of package response to mass shootings

As reported in this new Fox News piece, headlined "White House, DOJ working to expedite death penalty for mass shooters," it appears next week we will see the Trump Administration advance a proposal to expedite executions for mass murderers. Here are the basics:

The White House said Monday it has drafted legislation with the Justice Department that would expedite the death penalty for people found guilty of committing mass shootings, following Saturday's attack in West Texas that left seven dead, according to a pool report.

Vice President Mike Pence's chief of staff, Marc Short, told reporters aboard Air Force Two that the initiative was part of a larger White House gun control package that will be sent to Congress after lawmakers return from their August recess on Sept. 9. Attorney General Bill Barr is involved in active discussions with the vice president's office, Short said, as the plane made its way to Ireland.

The issue could be contentious among Democrats seeking to unseat President Trump in 2020. Former Texas Rep. Beto O'Rourke has sought to revive his struggling candidacy by calling for a mandatory buyback of what he called "assault weapons" -- but he also has insisted, in a recent policy shift, that capital punishment is categorically wrong.

Still, there has been little hesitation from the Trump administration on the issue. In August, Trump said he was “directing the Department of Justice to propose legislation ensuring that those who commit hate crimes and mass murders face the death penalty," adding that he wanted "capital punishment be delivered quickly, decisively, and without years of needless delay.”

Earlier this summer, Barr said the federal government will resume capital punishment and will move forward with plans to execute five inmates on death row for the first time in more than 15 years....

In a letter last month to President Trump, House Speaker Nancy Pelosi, D-Calif., specifically pushed for the House-passed Bipartisan Background Checks Act and the Enhanced Background Checks Act. Some of the House-sponsored legislation would extend the time period for the FBI to conduct background checks on firearm purchases from three days to 10 days and establish new background-check procedures for private gun transfers.

Many Republicans said they hoped to take action to curb gun violence. House Minority Leader Kevin McCarthy, R-Calif., said his party has been interested in “common sense solutions to prevent this from happening in the future while at the same time protecting due process for anyone who is a law-abiding citizen.”...

For his part, Senate Majority Leader Mitch McConnell, R-Ky., has said that so-called "red flag" warning legislation, as well as expanded background checks, would be "front and center" on the Senate floor when Congress comes back in session.

However, red flag laws might be unconstitutional, some conservatives have said, and states and local governments increasingly have sparred over the issue. More than a dozen states have enacted red flag laws. In March, Colorado's attorney general testified that county sheriffs vowing not to enforce the state's anti-gun "red flag" bill should "resign."

Red flag laws generally require friends or family to establish by a "preponderance of the evidence" -- a relatively lax legal standard essentially meaning that something is "more likely than not" -- that a person "poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing or receiving a firearm."

Given the strict constitutional regulation of the death penalty and the practical challenges posed by big capital cases, I doubt any proposed legislation would or could significantly fast-track capital prosecutions and executions. Consider, for example, the big federal capital prosecutions emerging form the Boston Marathon bombing and the Charleston Church shooting. It took nearly two years to secure death sentences for Dzhokhar Tsarnaev and Dylann Roof, and even longer for the (still-pending) direct appeals to take place.  Even if some form of legislation could somehow cut the procedural timelines for these cases, it still seems likely that the better part of a decade or more will always transpire between any mass murder and any ultimate federal execution of its perpetrator.

For these reasons, I am hopeful (but not optimistic) that Democratic leaders will not let general opposition to the death penalty get in the way of building a legislative package of common-sense gun control reforms.  Reasonable gun control efforts might possibly have some impact on the still-extraordinary level gun violence in the US, whereas any legislation looking to speed up capital cases for mass murderers likely will have, at most, a slight impact on a very small handful of cases.

September 2, 2019 in Death Penalty Reforms, Gun policy and sentencing, Who Sentences | Permalink | Comments (12)

Wednesday, July 24, 2019

Eleventh Circuit panel finds federal prisoner can file a second or successive § 2255 based on SCOTUS Davis ruling

A helpful reader made sure I did not miss that an Eleventh Circuit panel issued an intricate ruling yesterday in In Re: Wissam Hammoud, No. 19-12458 (11th Cir. July 23, 2019) (available here), concerning the potential retroactive application of the Supreme Court's recent important vagueness ruling in Davis. Here is part of the opinion that highlight what it is intricate:

In his present application, Hammoud contends that his § 924(c) conviction in Count 5 is no longer constitutionally valid.  Specifically, Hammoud asserts that § 924(c)(3)(B)’s residual clause is unconstitutional, in light of the new rule of constitutional law set forth in Davis, Dimaya, and Johnson, and that his companion solicitation conviction in Count 3 could have qualified as a “crime of violence” only under § 924(c)’s now-defunct residual clause.

To determine whether Hammoud’s proposed Davis claim meets the statutory criteria, we must first address three preliminary issues: (1) whether Davis announced a new rule of constitutional law; (2) if so, whether Davis has been made retroactively applicable to cases on collateral review by the Supreme Court; and (3) whether Hammoud’s Davis claim is barred under our precedent in In re Baptiste, 828 F.3d 1337 (11th Cir. 2016).  Only after addressing these issues may we consider the merits of Hammoud’s claim

This prisoner makes it through all of these hoops, so that this opinion ends: "Accordingly, because Hammoud has made a prima facie showing of the existence at least one of the grounds set forth in 28 U.S.C. § 2255, his application for leave to file a second or successive motion is hereby GRANTED as to his Davis claim regarding his § 924(c) conviction in Count 5."

July 24, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, July 17, 2019

Following his conviction on all counts, Joaquín "El Chapo" Guzmán receives an LWOP (plus 30 years!) federal sentence

As reported in this USA Today piece, "drug lord Joaquín 'El Chapo' Guzmán Loera was formally sentenced Wednesday to life in prison plus 30 years on drug trafficking and weapons charges." Here is more:

Guzmán, 62, a leader of Mexico's Sinaloa narcotics cartel, briefly spoke at the hearing, claiming his trial was "stained" by juror misconduct.

U.S. District Court Judge Brian Cogan imposed the sentence amid bomb-sniffing dogs, automatic rifle-toting agents and other extra security measures at the Brooklyn federal courthouse. Guzman, who wore a gray suit to the proceedings, has a history of complex and spectacular escapes from Mexican jails.

Guzman was also ordered to forfeit $12,666,191,704 based on the quantity and the value of the drugs in his crimes. There were no details available on how much, if any, money is actually available.

Guzmán, who did not testify in his own defense during the trial, complained to the judge Wednesday about conditions in jail, saying the water was unsanitary and that he was denied sufficient access to his wife and young daughters.

Defense lawyers have signaled that they plan to appeal the conviction, as well as Cogan's recent denial of a motion for an evidentiary hearing and new trial based on what they viewed as potential evidence of misconduct.

“My case was stained and you denied me a fair trial when the whole world was watching,” Guzman said in court through an interpreter. “When I was extradited to the United States, I expected to have a fair trial, but what happened was exactly the opposite.”

In a sentencing letter filed last week, prosecutors reiterated that life behind bars is the mandatory punishment for one of the crimes on which a federal jury found Guzmán guilty five months ago. The case has drawn international attention, and the line to get into the proceeding started forming Tuesday. By dawn on Wednesday, more than 50 media representatives and spectators lined the sidewalk outside the courthouse.

Guzmán is best known as a former leader of Mexico's Sinaloa drug cartel who gained fame by twice breaking out of high-security prisons in his native country – a feat he has thus far been unable to replicate in the U.S. Depending on U.S. Bureau of Prisons decisions, he could be sent to the so-called Alcatraz of the Rockies, the "administrative maximum" prison in Florence, Colorado. There he would join, but likely never meet, fellow inmates such as Unabomber Ted Kaczynski, Boston Marathon bomber Dzhokhar Tsarnaev, Sept. 11 conspirator Zacarias Moussaoui and Oklahoma City bombing accomplice Terry Nichols.

Guzmán's nearly 12-week trial ended in February with a jury of eight women and four men finding the defendant guilty on all counts during the sixth day of deliberations. The charges against Guzmán included drug trafficking and weapons counts stemming from his leadership role in the cartel's smuggling tons of cocaine and other drugs into major U.S. cities during a criminal career that stretched for decades....

The guilty verdict on the charge he engaged in a continuing criminal enterprise mandated a life prison term because of the jury's separate guilty votes on three sentencing enhancements. In a legal quirk, Guzmán's conviction for unlawful use of a machine gun in tandem with the drug crimes means he also faces the mandatory but likely unnecessary 30-year sentence that must run consecutively with the life term.

The sentencing seemingly marks an official end of Guzmán's reign as one of the world's most notorious drug lords, though his more than two years in solitary confinement in U.S. jails before the conviction had already removed him from the narcotics trafficking fray.

By many accounts, however, the Sinaloa cartel continues to thrive as it competes with other international drug trafficking organizations and diversifies into other businesses.

July 17, 2019 in Celebrity sentencings, Drug Offense Sentencing, Gun policy and sentencing | Permalink | Comments (0)

Monday, June 24, 2019

SCOTUS, ruling 5-4, finds part of 924(c) unconstitutionally vague in Davis

This morning the Supreme Court in US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here), has issues another huge ruling finding an important federal criminal statute unconstitutionally vague. The majority opinion in Davis is authored by Justice Gorsuch and starts this way:

In our constitutional order, a vague law is no law at all.  Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them.  Vague laws transgress both of those constitutional requirements.  They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct.  When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

Today we apply these principles to 18 U. S. C. §924(c).  That statute threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes?  The statute’s residual clause points to those felonies “that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” § 924(c)(3)(B).  Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague.  So today the government attempts a new and alternative reading designed to save the residual clause. But this reading, it turns out, cannot be squared with the statute’s text, context, and history.  Were we to adopt it, we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.

Justice Kavanaugh authors a very lengthy dissent for himself and three other Justices that starts this way:

Crime and firearms form a dangerous mix. From the 1960s through the 1980s, violent gun crime was rampant in America.  The wave of violence destroyed lives and devastated communities, particularly in America’s cities.  Between 1963 and 1968, annual murders with firearms rose by a staggering 87 percent, and annual aggravated assaults with firearms increased by more than 230 percent.

Faced with an onslaught of violent gun crime and its debilitating effects, the American people demanded action. In 1968, Congress passed and President Lyndon Johnson signed the Gun Control Act.  That law made it a separate federal crime to use or carry a firearm during a federal felony. Despite that and other efforts, violent crime with firearms continued at extraordinarily dangerous levels.  In 1984 and again in 1986, in legislation signed by President Reagan, Congress reenacted that provision of the 1968 Act, with amendments.  The law now prohibits, among other things, using or carrying a firearm during and in relation to a federal “crime of violence.” 18 U. S. C. §924(c)(1)(A).  The law mandates substantial prison time for violators.

Over the last 33 years, tens of thousands of §924(c) cases have been prosecuted in the federal courts. Meanwhile, violent crime with firearms has decreased significantly.  Over the last 25 years, the annual rate of murders with firearms has dropped by about 50 percent, and the annual rate of nonfatal violent crimes (robberies, aggravated assaults, and sex crimes) with firearms has decreased by about 75 percent.  Violent crime in general (committed with or without a firearm) has also declined. During that same time period, both the annual rate of overall violent crime and the annual rate of murders have dropped by almost 50 percent.  Although the level of violent crime in America is still very high, especially in certain cities, Americans under the age of 40 probably cannot fully appreciate how much safer most American cities and towns are now than they were in the 1960s, 1970s, and 1980s.  Many factors have contributed to the decline of violent crime in America. But one cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violent crimes with firearms.

Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of §924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem.  The Court’s decision today will make it harder to prosecute violent gun crimes in the future.  The Court’s decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting §924(c). The inmates who will be released early are not nonviolent offenders.  They are not drug offenders.  They are offenders who committed violent crimes with firearms, often brutally violent crimes.

June 24, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, June 23, 2019

Were lawyers busy all weekend drafting "Rehaif motions" seeking relief for "tens of thousands of prisoners" potentially impacted by the SCOTUS decision?

The question in the title of this post is prompted by the dire claims appearing in Justice Alito's dissent in Friday's Supreme Court ruling in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here).  At the start of his dissent, Justice Alito frets that the Court's ruling in Rehaif "will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions" and that "[a]pplications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts."  At the end of his dissent, he returns to this lament (with cites removed):

Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g).  It is true that many pleaded guilty, and for most direct review is over.  Nevertheless, every one of those prisoners will be able to seek relief by one route or another.  Those for whom direct review has not ended will likely be entitled to a new trial.  Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating §922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies.  If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court from a distant place of confinement, and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past.  This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.”...

The majority today opens the gates to a flood of litigation that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubting the defendant’s knowledge.

Though I am not sure that the litigation following the Court's decision in Rehaif will amount to a flood, I am sure that it will be interesting to see just how this ruling echoes through the lower courts in the weeks and months ahead.

June 23, 2019 in Gun policy and sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (3)

Friday, April 26, 2019

Recapping a notable week of SCOTUS criminal justice arguments

As flagged in this Monday post, the Supreme Court's final week of oral arguments for this Term, which took place this past week, included hearings on three cases involving notable criminal justice issues.  We likely should not expected written decisions in Mitchell v. Wisconsin, Rehaif v. United States or Quarles v. United States until late June, but SCOTUSblog provides a sense of where the Court might be headed in these cases through these argument analysis posts:

On Mitchell by Amy Howe, "Justices debate warrantless blood draw for unconscious drunk driver"

On Rehaif by Evan Lee, "Court leaning toward requiring the government to prove that a felon in possession knew he was a felon"

On Quarles by Rory Little, "ACCA argument becomes a broader discussion of statutory interpretation"

Interesting jurisprudential developments could emerge from all three of these cases, but the Rehaif case has an issue lurking that could possibly impact lots and lots of federal prosecutions for felon in possession of a firearm under 18 U.S.C. § 922(g).  

April 26, 2019 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, February 25, 2019

After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences?

Intrepid readers may realize that I have paid close attention to a case out of the First Circuit, US v. Rivera–Ruperto, because I thought it involved extraordinarily facts that made for a compelling Cruel and Unusual Punishments argument if that clause was to function as even the most minimal check on the imposition of extreme prison sentences on adult offenders.  But, frustratingly, today's Supreme Court order list has under a long list of cert denials "18-5384  Rivera-Ruperto, Wendell v. United States."  Grrrr.

Of course, I was not the only one who thought this was was exceptional: as noted here, the entire First Circuit issued a remarkable opinion last year while denying en banc review (available here) in which Judge Barron spoke for all his colleagues in urging the Justices to take up the Rivera-Ruperto to reconsider its Eighth Amendment jurisprudence.  I was sincerely hoping that this unusual statement from an entire circuit might at least get Rivera-Ruperto a single relist from the Supreme Court or maybe just a short statement from some Justices about the issue.  A single relist or a statement about a denial of cert would suggest that there was at least a single Justice who might think that a toothless Eighth Amendment is a problem in an era of mass incarceration.  (Tellingly, the legal press and criminal justice twitterverse has also entirely ignored this case, confirming my fears that one need to be a murderer on death row before just about anyone gets interested in an Eighth Amendment claim.)

I still want to hope that maybe a district court or the First Circuit could find a way to do better in this case when Wendell Rivera-Ruperto eventually brings a 2255 claim (which could now juice an Eighth Amendment argument, as I suggested here, on the fact that the FIRST STEP Act has changed the federal law that lead to his 130 years of mandatory-minimum prison time).  But even if Rivera-Ruperto is able to get some relief eventually, I am still this morning left deeply troubled by the notion that not a single Justice seems to be at all concerned about modern Eighth Amendment jurisprudence relating to extreme non-capital sentences.  Sigh. 

A few prior related posts:

February 25, 2019 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, February 10, 2019

Doesn't the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto?

The question in the title of this post is prompted by the interesting intersection of an important sentencing reform in the new FIRST STEP Act and an important Eighth Amendment case that I have had my eye on for some time  finally getting before the Supreme Court.  Let me explain, starting with the FIRST STEP provision.

For those particularly concerned about extreme mandatory minimum sentences, Section 403 of the FIRST STEP Act is a heartening overdue change to federal sentencing law.  This provision, described as a "clarification of Section 924(c)," now eliminates the required "stacking" of 25-year mandatory minimums for using a firearm during other crimes for those offenders without a prior record convicted of multiple 924(c) counts at the same time.  In other words, the extreme 25-year recidivism enhancement of 924(c) is now to apply only to actual recidivists.

The prior requirement of "stacking" 924(c) counts led to Weldon Angelos' extreme 55-year mandatory-minimum sentence for selling marijuana with his personal guns nearby (which is discussed at length here by Paul Cassell, the judge forced to impose the sentence).  US Sentencing Commission data here and here shows that well over 100 offenders each year have been subject to convictions for multiple 924(c) counts.  Just a few of many extreme 924(c) stacked sentences are noted in prior posts here and here and here and here.  Sadly, Congress did not make Section 403 of the FIRST STEP Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.

But there is one particular defendant with a particularly extreme stacked 924(c) sentence that I am hoping might get some indirect benefit from the new law in his on-going Eighth Amendment litigation.  Wendell Rivera–Ruperto, who was paid in 2010 by undercover FBI informants to serve as "armed security" at six faux drug deals, received a federal sentence of nearly 162 years, of which 130 years were for his six stacked convictions under 924(c).  As discussed here a year ago, in a terrific First Circuit opinion denying rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here), Judge David Barron lamented how judges "have no choice but to approve mandatory 'forever' sentences ... so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin."  In so doing, Judge Barron highlights many questionable elements of the Harmelin ruling and, writing on behalf of the entire First Circuit, suggests SCOTUS take up Rivera–Ruperto to reconsider the "three-decades old, three-Justice concurrence in Harmelin."

As of a few days ago, as revealed in this SCOTUS docket sheet, all the cert papers have been finally filled in Rivera–Ruperto, and the Justices will consider the case at their February 22 conference.  Notably, and not surprisingly, the feds now say in opposition to cert that passage of the FIRST STEP Act reduces the important of the case: "future defendants in petitioner's position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance."  But, as the title of this post is meant to suggest, the fact that the Eighth Amendment is supposed to take guidance from an "evolving standards of decency" and be responsive to a "national consensus" against a sentence, I strongly believe the enactment of the FIRST STEP Act primarily operates to make Wendell Rivera–Ruperto's constitutional claim even more substantively potent. 

As I explained here, I see Justice Anthony Kennedy's departure as creating a new window of opportunity for advocates to urge overturning (or cutting back) the terrible Eighth Amendment precedent that is Harmelin.  Thus, I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.   I am fearful the Court will remain fearful of taking on these issues and thus leave the (now-even-stronger) Eighth Amendment claim in this case to be considered anew through an inevitable 2255 motion.  Still, my fingers are crossed to support the cert chances of potentially the biggest non-capital Eighth Amendment case in a generation.

A few prior related posts:

February 10, 2019 in Drug Offense Sentencing, Examples of "over-punishment", FIRST STEP Act and its implementation, Gun policy and sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, January 22, 2019

Supreme Court grants cert in potentially big Second Amendment case out of New York City

In this post from over the weekend, I commented again on the Second Amendment's second-class status as evidenced by how its protections are general understood and applied in lower courts.  In that post, I might also have noted how long it has been since the Supreme Court has even taken up Second Amendment issues given that District of Columbia v. Heller was decided a way back in 2008 and McDonald v. Chicago was back in 2010. But, via this order list today, the Supreme Court has now given itself another opportunity to develop Second Amendment jurisprudence through a grant of certiorari in New York State Rifle & Pistol Association Inc. v. City of New York, New York. Here is how the cert petition sets up the Question Presented in this case:

New York City prohibits its residents from possessing a handgun without a license, and the only license the City makes available to most residents allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city.  The City thus bans its residents from transporting a handgun to any place outside city limits—even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use.

The City asserts that its transport ban promotes public safety by limiting the presence of handguns on city streets.  But the City put forth no empirical evidence that transporting an unloaded handgun, locked in a container separate from its ammunition, poses a meaningful risk to public safety.  Moreover, even if there were such a risk, the City’s restriction poses greater safety risks by encouraging residents who are leaving town to leave their handguns behind in vacant homes, and it serves only to increase the frequency of handgun transport within city limits by forcing many residents to use an in-city range rather than more convenient ranges elsewhere.

The question presented is:

Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

Though debates over gun rights on not always germane to sentencing issues, the various ways gun possession and gun use are approached in constitutional law can have many echo effects on criminal justice systems and case processing. So, though not as big a case for sentencing fans as a few others this Term, New York State Rifle Pistol Association is still one I will be watching closely.

January 22, 2019 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (3)

Friday, January 04, 2019

Supreme Court grants cert on vagueness challenges to 924(c) provision in wake of Johnson and Dimaya

As detailed in this new order list, the US Supreme Court today granted certiorari in a number of new cases.  The cases involving Maryland and North Carolina partisan-gerrymandering are sure to get the most attention, but criminal law fans should be excited about the grant in US v. Davis, No. 18-431, in which the feds petitioned for review of this question:

Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using, or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague

This paragraph from the government's petition for cert explains why and how federal prosecutors are eager to distinguish the statutory provision at issue in this case from those struck down in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) and Johnson v. United States, 135 S. Ct. 2551 (2015):

Although the government has previously advocated an ordinary-case categorical approach to the determination whether an offense constitutes a “crime of violence” under Section 924(c)(3)(B), nothing in the statute or the decisions of this Court requires such an approach.  Section 924(c)(3)(B)’s subsection-specific “crime of violence” definition is applicable only to the conduct for which the defendant is currently being prosecuted, not to any conduct for which the defendant may have been convicted in the past.  It can naturally be read as inviting a case-specific determination as to whether that currently at issue conduct — not the hypothetical conduct of an “ordinary case” — satisfies the substantial-risk test in 18 U.S.C. 924(c)(3)(B).  And, so construed, Section 924(c)(3)(B) does not implicate the constitutional infirmity with the ordinary-case approach that was identified in Dimaya and Johnson v. United States, 135 S. Ct. 2551, 2561 (2015).  Indeed, the Court in those cases “d[id] not doubt” that such a case-specific approach, involving a jury finding beyond a reasonable doubt about the “real-world conduct” proved in the case, would be fully constitutional.  Dimaya, 138 S. Ct. at 1215 (quoting Johnson, 135 S. Ct. at 2561).

Got that? Simple stuff here, and simply fascinating to think about whether the Dimaya five (perhaps joined by the new guy) could be prepared to continue its vagueness movement through the bowels of federal law.

January 4, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

Sunday, October 07, 2018

You be the Illinois judge: what sentence for Jason Van Dyke after second-degree murder conviction in slaying of Laquan McDonald?

Though somewhat eclipsed by Supreme Court confirmation controversies, a high-profile criminal case culminated with a murder conviction on Friday when a jury found Chicago police Officer Jason Van Dyke guilty Friday of second-degree murder in the 2014 shooting of 17-year-old Laquan McDonald.  This CNN article about the verdict details that Van Dyke was also "found guilty of 16 counts of aggravated battery with a firearm [but] found not guilty of official misconduct."  And this AP piece, headlined "With conviction, Van Dyke likely avoided decades behind bars," highlights some of the sentencing realities that attend this verdict:

Jurors convicted Chicago police Officer Jason Van Dyke for murder and aggravated battery in the slaying Laquan McDonald, the black teenager who was shot 16 times as he walked away carrying a knife on Oct. 20, 2014.  But a legal expert explained that the 40-year-old Van Dyke is likely looking at less than 10 years in prison for killing the teen rather than many decades because jurors opted to convict him of second- and not first-degree murder.

After less than two full days deliberating on three weeks of testimony, jurors returned Friday with 17 guilty verdicts and one acquittal. By far the most serious charge Van Dyke faced originally was first-degree murder.  But Judge Vincent Gaughan told jurors before they started deliberations that they had the option of replacing first-degree murder with second-degree murder.

First-degree required a finding that Van Dyke's use of deadly force wasn't justified — that it was both unnecessary and unreasonable.  But Gaughan said jurors could find that Van Dyke truly believed his life was in jeopardy but that that belief wasn't reasonable.  That's the criteria for second-degree murder.

The jury also found Van Dyke guilty of all 16 counts of aggravated battery with a firearm. Each count corresponded to every bullet Van Dyke shot into McDonald. They acquitted him on the least serious charge, official misconduct....

First-degree murder carries a maximum sentence of life imprisonment. And with enhancements for having used a gun, Van Dyke would have faced a mandatory minimum of 45 years, according to Chicago defense attorney Steve Greenberg, who has defended clients at more than 100 murder trials.  Such a sentence, at Van Dyke's age, could have amounted to life.  The punishment for second-degree murder is no less than four years but no more than 20 years behind bars.

Jurors weren't told anything about the range of punishments for each charge. The judge did tell them that whether one charge might carry a greater or lesser sentence shouldn't factor at all into their decisions.

Each count of aggravated battery carries a mandatory minimum six years and a maximum of 30 years in prison. If Van Dyke had to serve six for each of the 16 counts — and do so one sentence after another - that would add up to 96 years. But Greenberg said judges almost always order defendants to serve such sentences simultaneously.  So, if Van Dyke gets the minimum for each count, he'd serve six years for all the battery convictions.

Another possibility is that the defense will ask, under complicated legal rules, for the judge to merge the crimes for which Van Dyke is convicted for sentencing purposes since they were all tied to a single event, Greenberg said.  That could mean Van Dyke is effectively sentenced only for second-degree murder, with its lower four-year mandatory minimum.

For a man convicted with no previous criminal record, Greenberg said the mandatory minimum is his best guess for a sentence handed down on Van Dyke.  "I would be shocked if he got a day over the four or six years," Greenberg said.

Greenberg said prison conditions for an officer, like Van Dyke, could be rougher than for average convicts. As a white officer convicted of killing a young African-American, prison authorities are likely to conclude he has to be kept away from other prisoners for his own safety. "He will probably be in a cell by himself," Greenberg said.  "It will be very hard time." That may have already started.  At prosecutors' request, Van Dyke's bond was revoked minutes after the verdicts were announced and Judge Gaughan ordered he be held in jail pending sentencing. He stood up from the defense table, then put his arms behind his back as two deputies led him away.

I am not an expert on Illinois sentencing law, but presuming this article has the law corrected, I am struck that the mandatory minimum prison term for second-degree murder in the state is 50% less than mandatory minimum for aggravated battery with a firearm. It is also notable and telling that if the sentencing judge here were permitted and inclined to run the various sentences consecutively rather than concurrently, the defendant here would be facing 100 years in prison as the applicable mandatory minimum.  But if the crimes are found to be "merged" under Illinois law, four years could become the minimum and 20 years the max.

October 7, 2018 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (9)

Thursday, October 04, 2018

En banc Eleventh Circuit finds way to uphold key clause of § 924(c) mandatory-minimum statute against vagueness challenge

If you cannot get enough of debates over federal statutory interpretation and modern "crime-of-violence" vagueness jurisprudence, the Eleventh Circuit today has delivered for you over 150 pages of excitement in the form of an en banc ruling in Ovalles v. US, No. 17-10172 (11th Cir. Oct. 4, 2018) (available here).  Here is part of the start of the majority opinion:

The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague.  As relevant to our purposes, § 924(c) makes it a federal offense — punishable by a term of imprisonment ranging from five years to life — for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A).  The provision challenged here — § 924(c)(3)’s “residual clause” — defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  Id. § 924(c)(3)(B).

This case is in some respects a successor to Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds.  In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come be called the “categorical approach,” the clause is doomed....  In both Johnson and Dimaya, the Court concluded that application of a standard that requires a reviewing court “to ‘imagine’ an ‘idealized ordinary case of the crime’” rendered the challenged clauses impermissibly vague.  Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. Ct. at 2557–58).

On the flip side, Johnson and Dimaya also make clear — and it is common ground here — that if § 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a “conduct-based approach” to the crime-of-violence determination, then the provision is not unconstitutionally vague.  As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical “ordinary case[s],” but rather on the real-world facts of the defendant’s offense — i.e., how the defendant actually went about committing the crime in question....

The obvious (and decisive) question, then: Which is it here — categorical or conduct-based?  Because we find ourselves at this fork in the interpretive road — the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it—we invoke the canon of “constitutional doubt.”  Pursuant to that “elementary rule,” the Supreme Court has long held, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.”  Hooper v. California, 155 U.S. 648, 657 (1895)....

Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach — and therefore, under the constitutional-doubt canon, that it must be.  Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense. 

The rest of the majority opinion runs less than 50 pages, followed by more than 100 pages of concurrences and dissents that cannot be readily summarized. But Judge William Pryor's concurrence, which garners a number of addition votes, gets off to this start which I really appreciate and applaud:

How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.

I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act: by restoring the traditional role of the jury.  The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess.  Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant’s violent conduct applies with equal force to recidivist statutes.  Indeed, the modern abandonment of the jury’s traditional role of making findings about prior convictions has created more problems than it has solved.

October 4, 2018 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)

Saturday, September 15, 2018

Reviewing the continued ugly realities of the application of the Armed Career Criminal Act

Running this week at The Appeal is this notable piece with stories and data on the application of the federal Armed Career Criminal Act.  The piece is headlined in full "Man Sentenced As ‘Career Criminal’ Gets His First Chance At Freedom In 48 Years: Despite a 2015 Supreme Court ruling limiting the mandatory minimum law, few people are seeing relief." I recommend the piece in full, and found this data discussion especially interesting:

A run of Supreme Court decisions capped by the 2015 ruling brought relief to some prisoners who were sentenced under ACCA.  The ruling found part of the act to be unconstitutionally vague — it wasn’t clear what qualified a defendant as a “career criminal.” The decision made hundreds of prisoners serving ACCA-enhanced sentences eligible for resentencing.

The Supreme Court limited the prior convictions that qualified a person for sentencing under the act. It did not eliminate prosecutors’ ability to seek ACCA-enhanced sentences, and U.S. attorney’s offices in a handful of jurisdictions continue to regularly use the enhancement against defendants with prior convictions for drug dealing and qualifying violent crimes....

Three years after the Supreme Court decision, prosecutors continue to use ACCA mandatory sentences in patterns that vary significantly from state to state. Whether a defendant faces an ACCA sentence depends on who is prosecuting.  Prosecutors in California won just one ACCA sentence in 2016, while New York had only two prosecutions.  Florida had 61; Missouri had 29 and Tennessee had 26.  Washington state had one ACCA prosecution in 2016.

“It is incredibly arbitrary,” said Molly Gill, vice president for policy at FAMM, an advocacy organization opposed to mandatory sentences.  “One of the ideas behind mandatory minimums … is that they increase the certainty of punishment,” Gill told The Appeal. “When you look at how the law’s applied, that’s really not true.”

Black defendants are far more likely to receive ACCA-enhanced sentences.  According to U.S. Sentencing Commission statistics, 70 percent of defendants sentenced under the act in 2016 were Black.  Whites, who outnumbered Black defendants that year, accounted for 24 percent of ACCA-enhanced sentences.

Severe sentences and mandatory minimums have long been faulted as unnecessary; the U.S. Sentencing Commission found them onerous and inconsistently applied. They also deliver a compelling advantage to prosecutors during negotiations.

Questioning the government during oral arguments in Johnson v. United States, the case that resulted in the 2015 ruling, Chief Justice John Roberts commented that defendants facing a 15-year minimum will take a deal. “You said … because there are so many years involved, people will litigate hard,” Roberts remarked to Deputy Solicitor General Michael Dreeben during the April 2015 hearing.  “I think because there are so many years involved, people won’t litigate at all. … It gives so much more power to the prosecutor in the plea negotiations.”

About 97 percent of defendants convicted in federal court plead guilty prior to trial. Though ACCA sentences have been declining in recent years, 304 people were sentenced under the act in 2016.

September 15, 2018 in Data on sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (3)

Thursday, September 06, 2018

Noting the uptick in federal gun prosecutions

This Courthouse News Service piece, headlined "Trump Administration Steps Up Prosecution of Gun Crimes," reports on and contextualizes this recent TRAC data report titled "Weapons Prosecutions Continue to Climb in 2018." Here are excerpts from the press piece:

Though Donald Trump ran on a pro-gun, Second Amendment platform, a recent study from Syracuse University shows the administration has stepped up prosecutions of weapons offenses, bringing 8,403 such cases in the first 10 months of fiscal year 2018, a 22.5 percent increase from the previous year.

TRAC Reports, a data-gathering organization at Syracuse University, also reported last week that that nation’s 94 U.S. Attorney’s Offices have prosecuted 41.3 percent more weapons cases than they did 5 years ago, under the Obama Administration.

Attorney General Jeff Sessions told the National District Attorneys Association in July 2017: “I want to see a substantial increase in gun crime prosecutions. I believe, as we partner together and hammer criminals who carry firearms during crimes or criminals that possess firearms after being convicted of a felony, the effect will be to reduce violent crime.”

The Bureau of Alcohol, Tobacco and Firearms handles the lion’s share of prosecutions, the TRAC study said: 64 percent of the prosecutions were recommended by BATF....

In addition to prosecuting people who use guns during crimes, Sessions said prosecutors also are targeting people who are prohibited from owning firearms, such as felons, and guns that are illegal in themselves, such as those with serial numbers scratched off....

However, David Kennedy, director of the National Network for Safe Communities at John Jay College, said the focus on prosecuting federal firearms offenses to too simplistic, because U.S. Attorney’s Offices do too little on their own to deter crime. Most gun crimes are first handled by state and federal law enforcement, Kennedy said, and federal attorneys prosecute the cases they choose to adopt, which is a fraction of the larger pool of gun-related offenses.

“What goes to federal and what doesn’t is effectively completely unpredictable on the street,” Kennedy told Courthouse News. “So if you’re somebody walking around in the community and you’re thinking whether or not to carry a gun or whether to commit a gun crime, you may not even know that the federal policy has changed. If you’re not aware that the U.S. attorney is taking more of these cases, it’s not going to affect your behavior.”

By the time charges are leveled and the accused is standing in a federal courtroom, it’s too late for them to change their behavior, Kennedy said. He said one unintended consequence of focusing on firearm prosecutions is that young, urban black men are overwhelmingly targeted by prosecutors, which makes the communities in which they live more distrustful of police and law enforcement.

Instead of focusing on gun prosecution, Kennedy said, it would be more effective if law enforcement seeks to identify the people most likely to commit violent crime and engage in outreach. He cited Oakland, California’s Operation Ceasefire, which identified the less-than 1 percent of Oakland residents who were associated with two-thirds of the city’s gun violence and provided them with coaching, social services, jobs and other assistance.

September 6, 2018 in Data on sentencing, Gun policy and sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, August 15, 2018

Assailing the new expanded mandatory minimum for "career offenders" being pushed by AG Jeff Sessions

As noted in prior posts here and here, earlier this month Attorney General Jeff Sessions gave a big speech advocating for reform to the Armed Career Criminal Act in part as a response to the Supreme Court's 2015 ruling in Johnson finding a part of ACCA vague.  Writing at The American Prospect, Manuel Madrid has this new piece unpacking the particulars of this effort.  The full headline and subheadline summarizes the themes of the piece: "Jeff Sessions and the Conservative Nostalgia for Harsh Sentencing: A new Republican bill would slap nonviolent criminals with 15-year mandatory minimum sentences. White-collar crimes, property crimes, and drug-related offenses would all count toward being considered a 'career armed criminal'.”  Here are some excerpts:

Attorney General Jeff Sessions’s full-court press for more tough-on-crime policies has found a home in Congress.  Speaking before a crowd of law enforcement officials and prosecutors ... in Little Rock, Arkansas, Sessions called for legislation to reinstate an aggressive Reagan-era sentencing law that targets repeat offenders....

About an hour before the speech, Republican Senators Orrin Hatch of Utah, Tom Cotton of Arkansas, and Lindsey Graham of South Carolina offered a glimpse into what such a fix would look like with their new bill, the Restoring the Armed Career Criminal Act of 2018. The proposed legislation revises the language in the original act and broadens its scope to avoid possible legal challenges, while extending hefty mandatory minimum prison sentences to violent and nonviolent criminals alike....

While the original act might have been defended on the grounds that it at least attempted to hone in on some violent criminals, the Cotton-Hatch-Graham redux abandons all pretenses of even trying.  Under the new bill, nonviolent crimes such as identity theft, fraud, and money laundering could earn a person the label of armed career criminal. And the list goes on: Property crimes like burglary and theft and a score of drug-related crimes would all be on the table.

Before the 2015 Supreme Court decision, about 600 offenders were charged each year under the Armed Career Criminal Act. That number dropped to 265 last year.  The change would likely open the floodgates to more mandatory minimum prison sentences, which already disproportionately affect minorities.  In 2017, more than half of felons charged with unlawful possession of a firearm were black and almost 20 percent were Hispanic.  Only 4.4 percent were charged as armed career criminals....

During his time in the Senate, Sessions, along with Senator Cotton, persuaded other Republicans to join them in torpedoing a bipartisan sentencing reform bill in 2016 which would have shortened existing mandatory minimums and narrowed the scope of drug convictions that triggered them....

The drastic expansion of the Armed Career Criminal Act proposed in the Cotton-Hatch-Graham bill would accelerate the federal government’s backsliding on criminal justice, achieving little more than earning the praise from a minority of conservative politicians nostalgic for the hardline policies of decades past.

Prior related posts:

August 15, 2018 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (2)

Friday, July 06, 2018

Notable District Judge struggles against mandatory minimums, especially stacked gun charges

This new Politico article, headlined "Manafort judge emerges as skeptic of long mandatory minimum sentences," reports on a notable federal judge expressing notable concerns with mandatory minimums.  Here are excerpts:

The judge overseeing former Trump campaign chairman Paul Manafort's looming trial on tax and bank fraud charges is known as a tough jurist, often snapping at attorneys for ignoring his directions and rebuking defendants he views as insufficiently contrite.  But, in recent years, U.S. District Judge T.S. Ellis has begun to direct his public ire at an unusual target for a Reagan-appointed judge: laws that impose lengthy mandatory minimum sentences judges have no authority to waive or reduce.

Ellis has complained directly to Congress about what he's called the "excessive" sentences required for some offenders. He's also publicly lamented the situation, as he did recently during a drug dealer's sentencing that took place in an Alexandria, Virginia courtroom packed with national media, high-powered prosecutors and others awaiting a key hearing in the case against Manafort.

"This situation presents me with something I have no discretion to change and the only thing I can do is express my displeasure," Ellis said last week as he sentenced Frederick Turner, 37, to a mandatory minimum of 40 years in prison for dealing methamphetamine.  "I chafe a bit at that, but I follow the law. If I thought it was blatantly immoral, I'd have to resign. It's wrong, but not immoral."  Ellis told Turner's lawyer that any relief for his client lies with Congress. "I think you're knocking on the wrong door for a remedy. The remedy is across the river," the judge said.

However, in another case, the 78-year-old judge is going even further.  In April, confronted by a 28-year-old armed robbery convict facing a mandatory minimum 82-year sentence, Ellis' frustration grew so intense that he balked at imposing what he called a "very severe" sentence.  Instead, the judge recruited a high-powered law firm to scour the law in search of some way to avoid imposing what is effectively a life sentence on Lamont Gaines, who was convicted of a string of robberies of 7-11 stores and a check-cashing business.

The judge appointed Daniel Suleiman, a former aide to Attorney General Eric Holder, to come up with any argument that might help Gaines win a more lenient sentence. Suleiman, a partner at Covington & Burling, set on one possibility: a Supreme Court ruling in April that invalidated a law very similar to the one requiring the lengthy sentence for Gaines.  In a brief filed last month, Suleiman argued that the April decision has "direct application" to Gaines' case and "would permit this Court not to sentence Gaines to 82 years."

Federal prosecutors rejected that argument last week, insisting that the 82-year sentence is still required in the case. Assistant U.S. Attorneys Alexander Blanchard and Rebeca Bellows filed a brief urging Ellis to consider Gaines "real-world conduct" and reminding the judge that the defendant "endangered...victims' lives and instilled them with the fear they would be physically harmed."  Ellis has yet to signal whether he'll buy into the new argument to cut down the potential sentence in Gaines' case.

Ellis' current preoccupation with federal sentencing laws is not that the mandatory minimums for specific crimes are too harsh, but that in cases involving multiple charges the result can be unjust, resulting in decades of extra incarceration for a defendant who chooses to go to trial rather than plead guilty.  While prosecutors often settle for a guilty plea to a single serious charge, carrying, say, a 10-year minimum sentence, the government will pursue several such charges when a defendant goes to trial.  Federal law typically requires that sentences for crimes involving use of a gun run consecutively, a phenomenon often referred to as "stacking."...

In 2015, Ellis wrote to Congress about the "stacking" practice, calling it "grossly excessive and unjust." He said the law was supposed to cover felons who re-offended after leaving prison, but is being applied to those "who never had the chance to learn a lesson from the sentence imposed for the first conviction."

While efforts have been underway in Congress for years to ratchet back some of the mandatory sentences, the Trump administration's policy on the issue has been confusing. White House officials, including President Donald Trump's son-in-law and senior adviser Jared Kushner, have shown interest in criminal justice reform proposals.  However, Attorney General Jeff Sessions sent a letter to the Senate in February slamming a bipartisan bill that would limit the application of mandatory minimum sentences, including by reining in "stacking" of charges.  Sessions said the measure was ill-advised at a time when the U.S. is struggling with an epidemic of opioid abuse and deaths....

Back in 2015, though, Sessions said he believed changes to "stacking" were called for.  "I think the stacking issue is a problem....I would support reform on the stacking provisions," the Alabama senator said at a Judiciary Committee session on a similar reform bill that never passed....

Criminal justice reform advocates say Congress needs to step in and that laments like the one from Ellis last week underscore the urgency of the issue.  "The federal gun stacking law isn’t tough. It’s stupid. It’s irrational.  That’s why even conservative judges like Judge Ellis are urging Congress to fix it," said Kevin Ring of Families Against Mandatory Minimums. "It's a no-brainer."

July 6, 2018 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Monday, May 07, 2018

Reviewing the feds increased pursuit of ever more federal gun cases

The New York Times had this front-page piece about an increase in federal gun prosecutions under the headline "In Fight Against Violent Crime, Justice Dept. Targets Low-Level Gun Offenders." Here are excerpts:

Urged by Attorney General Jeff Sessions to punish offenders as harshly and as quickly as possible, federal prosecutors have increasingly pursued low-level gun possession cases, according to law enforcement officials and an examination of court records and federal crime statistics....  Mr. Sessions is putting into action his own long-held views on criminal justice, forged as a United States attorney in Alabama during the drug war. They reflect a philosophy popular among conservatives and long backed by the gun lobby: that the effective enforcement of existing laws can reduce crime without resorting to the passage of additional legislation.

“I believe very strongly in enforcing gun laws,” Mr. Sessions said in an interview with the far-right Breitbart News this year. “I believe there’s no value in having them on the books if they’re not prosecuted.”

Mr. Sessions’s approach has touched off a debate about whether he is making the country safer from violent crime, as he and President Trump have repeatedly vowed to do, or devoting resources to low-level prosecutions that could instead be put toward pursuing bigger targets like gun suppliers.

“It’s a good idea to enforce the existing gun laws,” said Avery Gardiner, co-president of The Brady Campaign, a nonprofit coalition that works to combat gun violence. “That’s something prosecutors should do. But going only after the people who are purchasing the guns illegally is only part of the story.”

Local police, who have for years sought more muscle from federal law enforcement, welcomed Mr. Sessions’s more aggressive approach. “We have been trying to send a message,” said J. Thomas Manger, president of the Major Cities Chiefs Association, which represents police departments across the country. “The bad guys have a real fear of federal prosecutions versus state prosecutions.”

Penalties for federal gun convictions are steep.  On average, firearms defendants spend six years in federal prison. If they are convicted under the two statutes requiring mandatory minimum sentences, that average jumps to 11 years.

In the three months following a directive from Mr. Sessions last year to pursue gun crimes, possession cases — a relatively routine charge — rose nearly a quarter.  That was part of a 15 percent increase in all federal gun prosecutions in the first nine months of 2017.  Three out of every four federal gun charges filed in the 12 months starting in October 2016 were under a statute forbidding felons from owning or transporting a gun, according to Syracuse University’s TRAC database, which monitors gun crime statistics.  The period encompasses both the end of the Obama administration and the first several months of Mr. Sessions’s term.

Three law enforcement officials described a newfound interest among prosecutors in taking on smaller gun cases — referred to in law enforcement parlance as one-man, one-gun cases for their narrow impact.  Such cases had long been left to state and local prosecutors, freeing Justice Department officials to focus on broader investigations of interstate gun trafficking and criminal networks....

Supporters of Mr. Sessions’s initiatives acknowledge the politics of his approach and remain wary it could be used to sap energy from further legislative or regulatory efforts to combat gun violence, like regulating assault weapons or increasing background check requirements. “We certainly are hoping for some additional legislative fixes by Congress,” Mr. Manger said.

It is difficult to judge the impact of Mr. Sessions’s initiatives.  Many offenders charged with federal gun laws in 2017 are just now going to trial or being sentenced, and some of the cases could still be moved out of the federal system.  Federal firearm prosecutions have historically ebbed and flowed, often spiking in the years following significant court decisions or large-scale mass shootings.  After steadily dropping since 2004, prosecutions began increasing again in 2015, according to the TRAC database.

People convicted of firearms-related crimes make up more than 17 percent of the federal prison population, the second-biggest group after drug offenses, Justice Department data showed. Ninety-six percent of defendants convicted of a federal firearms offense in 2017 were sentenced to prison....

Amid surging public pressure following the mass shooting at a Florida high school in February, Mr. Trump directed Mr. Sessions to more strictly enforce existing gun laws.  Survivors of that shooting have pushed Mr. Trump to ban assault weapons and raise the legal purchasing age for firearms.  Instead, prodded by Mr. Trump, Mr. Sessions pushed federal prosecutors to more strictly enforce background check violations and ban bump stocks, a device that can help semiautomatic weapons fire like machine guns.  Bump stocks were used in the Las Vegas massacre in October.

Mr. Sessions explained his rationale at a speech following the Florida shooting. “It’s not good,” he said, “if we’ve got gun laws that say criminals can’t carry guns and they never get enforced.”

May 7, 2018 in Gun policy and sentencing, Who Sentences | Permalink | Comments (2)

Thursday, March 15, 2018

"Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System"

The title of this post is the title of this notable new 80-page report issued today by the United States Sentencing Commission. Here is the USSC's Summary and account of Key Findings from this webpage:

This publication is the third in the Commission’s series on mandatory minimum penalties. Using fiscal year 2016 data, this publication includes analyses of the two statutes carrying a firearms mandatory minimum penalty, 18 U.S.C. § 924(c) (relating to using or possessing firearms in furtherance of drug trafficking or crimes of violence) and the Armed Career Criminal Act, 18 U.S.C. § 924(e), as well as the impact of those provisions on the Federal Bureau of Prisons (BOP) population. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report....

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for firearms offenses. As part of this analysis, the Commission makes the following key findings:

Firearms mandatory minimum penalties continue to result in long sentences although they have decreased since fiscal year 2010.

  • In fiscal year 2016, offenders convicted under section 924(c) received an average sentence of over 12 years (151 months) of imprisonment, which is 13 months less than in fiscal year 2010. The average sentence length depended on the applicable mandatory minimum penalty under section 924(c), increasing from 118 months for the five-year mandatory minimum penalty to 302 months where a 30-year mandatory minimum penalty applied.
  • Similarly, in fiscal year 2016, offenders convicted of an offense carrying the 15-year mandatory minimum penalty under the Armed Career Criminal Act received an average sentence of over 15 years (182 months) of imprisonment, which is nine months less than in fiscal year 2010.
  • As a result of these long sentences, offenders convicted of an offense carrying a firearms mandatory minimum penalty continued to significantly contribute to the size of the Federal Bureau of Prisons’ population, constituting 24,905 (14.9%) of the 166,771 offenders in federal prison as of September 30, 2016.

Offenders charged with and convicted of multiple counts under section 924(c) received exceptionally long sentences as a result of the statutory requirement that the sentence for each count be served consecutively.

  • While only 156 (7.9%) of the 1,976 offenders convicted under section 924(c) in fiscal year 2016 were convicted of multiple counts under that statute, they received exceptionally long sentences. The average sentence for offenders convicted of multiple counts under section 924(c) exceeded 27 years of imprisonment (327 months), nearly two-and-a-half times the average sentence for offenders convicted of a single count under section 924(c) (136 months).
  • The average sentence for offenders who remained subject to the mandatory minimum penalty required by multiple counts under section 924(c) was even longer at almost 36 years (431 months).

In addition, other charging and plea decisions also play a significant role in the application and impact of firearms mandatory minimum penalties.

  • The majority of section 924(c) offenders (85.5%) were also convicted of another offense, which is consistent with the statutory requirement that an offender must have used or possessed a firearm during and in relation to, or in furtherance of, an underlying federal offense in order to be convicted under section 924(c).
  • Conversely, 14.5 percent of offenders were convicted of an offense under section 924(c) alone, although those cases necessarily involved another federal offense for which they were not charged and convicted.
  • Those offenders convicted of an offense under section 924(c) alone received an average sentence that was five years shorter than offenders convicted under section 924(c) and another offense (99 months compared to 159 months).

Statutory relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the government plays a significant role in the application and impact of firearms mandatory minimum penalties.

  • The 21.6 percent of offenders who received relief from the mandatory minimum penalty under section 924(c) for providing substantial assistance received average sentences of 95 months, compared to 166 months for offenders who remained subject to the mandatory minimum penalty at sentencing.
  • The impact of receiving relief is even more pronounced for offenders convicted of multiple counts under section 924(c). Such offenders received average sentences that were less than one-third as long as offenders who remained subject to the mandatory minimum penalty required under section 924(c)—136 months compared to 431 months.
  • Similarly, almost one-fifth (19.7%) of offenders convicted of an offense carrying the mandatory minimum penalty under the Armed Career Criminal Act received relief for providing substantial assistance, and their average sentence was 112 months compared to 200 months for offenders who remained subject to the mandatory minimum penalty at sentencing.

While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum has been stable, the number of offenders convicted of offenses carrying such penalties has decreased significantly since fiscal year 2010.

  • Less than one-third (30.8%) of all firearms offenders in fiscal year 2016 were convicted of an offense carrying a mandatory minimum penalty, which is almost identical to fiscal year 2010 (30.6%).
  • However, between fiscal years 2010 and 2016, the number of offenders convicted under section 924(c) decreased from 2,360 to 1,976, a 16.2 percent decrease. The number of offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act decreased 51.4 percent from 626 to 304, which is the lowest number of such offenders since fiscal year 2002 (n=292).
  • Firearms offenses accounted for 16.8 percent of all offenses carrying a mandatory minimum penalty in fiscal year 2016 compared to 14.4 percent in fiscal year 2010.

Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group.

  • Black offenders were convicted of a firearms offense carrying a mandatory minimum more often than any other racial group. In fiscal year 2016, Black offenders accounted for 52.6 percent of offenders convicted under section 924(c), followed by Hispanic offenders (29.5%), White offenders (15.7%) and Other Race offenders (2.2%).
  • The impact on Black offenders was even more pronounced for offenders convicted either of multiple counts under section 924(c) or offenses carrying a mandatory minimum penalty under the Armed Career Criminal Act. Black offenders accounted for more than two-thirds of such offenders (70.5% and 70.4%, respectively).
  • Black offenders also generally received longer average sentences for firearms offenses carrying a mandatory minimum penalty than any other racial group. In fiscal year 2016, Black offenders convicted under section 924(c) received an average sentence of 165 months, compared to 140 months for White offenders and 130 months for Hispanic offenders. Only Other Race offenders received longer average sentences (170 months), but they accounted for only 2.2 percent of section 924(c) offenders.
  • Similarly, Black offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act received longer average sentences than any other racial group at 185 months, compared to 178 months for White offenders, 173 months for Hispanic offenders, and 147 months for Other Race offenders. 

March 15, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (1)

Monday, November 20, 2017

"Gun theft from legal owners is on the rise, quietly fueling violent crime across America"

The title of this post is the title of this notable new article from The Trace.  I recommend the piece in full, and here is how it gets started, along with some of the reported data:

American gun owners, preoccupied with self-defense, are inadvertently arming the very criminals they fear.

Hundreds of thousands of firearms stolen from the homes and vehicles of legal owners are flowing each year into underground markets, and the numbers are rising. Those weapons often end up in the hands of people prohibited from possessing guns. Many are later used to injure and kill.

A yearlong investigation by The Trace and more than a dozen NBC TV stations identified more than 23,000 stolen firearms recovered by police between 2010 and 2016 — the vast majority connected with crimes. That tally, based on an analysis of police records from hundreds of jurisdictions, includes more than 1,500 carjackings and kidnappings, armed robberies at stores and banks, sexual assaults and murders, and other violent acts committed in cities from coast to coast.

“The impact of gun theft is quite clear,” said Frank Occhipinti, deputy chief of the firearms operations division for the Bureau of Alcohol, Tobacco, Firearms and Explosives. “It is devastating our communities.”

Thefts from gun stores have commanded much of the media and legislative attention in recent years, spurred by stories about burglars ramming cars through storefronts and carting away duffel bags full of rifles and handguns. But the great majority of guns stolen each year in the United States are taken from everyday owners. Thieves stole guns from people’s closets and off their coffee tables, police records show. They crawled into unlocked cars and lifted them off seats and out of center consoles. They snatched some right out of the hands of their owners....

In most cases reviewed in detail by the Trace and NBC, the person caught with the weapon was a felon, a juvenile, or was otherwise prohibited under federal or state laws from possessing firearms.

More than 237,000 guns were reported stolen in the United States in 2016, according to previously unreported numbers supplied by the National Crime Information Center, a database maintained by the Federal Bureau of Investigation that helps law enforcement track stolen property. That represents a 68 percent increase from 2005. (When asked if the increase could be partially attributed to a growing number of law enforcement agencies reporting stolen guns, an NCIC spokesperson said only that “participation varies.”)

All told, NCIC records show that nearly two million weapons have been reported stolen over the last decade.

The government’s tally, however, likely represents a significant undercount. A report by the Center for American Progress, a left-leaning public policy group, found that a significant percentage of gun thefts are never reported to police. In addition, many gun owners who report thefts do not know the serial numbers on their firearms, data required to input weapons into the NCIC. Studies based on surveys of gun owners estimate that the actual number of firearms stolen each year surpasses 350,000, or more than 3.5 million over a 10-year period.

“There are more guns stolen every year than there are violent crimes committed with firearms,” said Larry Keane, senior vice president of the National Shooting Sports Foundation, the trade group that represents firearms manufacturers. “Gun owners should be aware of the issue.”

November 20, 2017 in Gun policy and sentencing, National and State Crime Data, Second Amendment issues | Permalink | Comments (1)

Monday, October 02, 2017

Anyone have any wise insights after latest and worst US mass shooting?

I am soon to go off-line to prepare and then teach my 1L Criminal Law class in which we are starting an in-depth discussion of homicide laws.  In the wake of horrific events in Las Vegas, which according to the latest reports, involved a gunman's murder of "at least 58 people" and hundreds more injured, I am eager to say something wise to my students before we get started with our regular programming.  But I am not sure I have much wisdom on this front. 

As some long-time readers may recall, after some recent past mass shooting, especially Sandy Hook, I talked up the possibility of smart gun technologies being at least a partial plausible "solution" to mass shootings and extensive gun violence.  (A bunch of those prior posts are linked below.)  But I am not sure such technology could have made any difference in this latest evil killing, and I am sure that the failure of the Obama Administration or progressive states to make any progress on the smart gun front in recent years likely signals that it would be foolish to hope or expect a technological remedy to our massive gun violence problem.

Notably, Nicholas Kristof already has this op-ed up at the New York Times headlined "Preventing Future Mass Shootings Like Las Vegas."  Here are some of his closing sentiments, which strike me as thoughtful, if not quite wise:

It’s too soon to know what, if anything, might have prevented the shooting in Las Vegas, and it may be that nothing could have prevented it. In some ways, these mass shootings are anomalies: Most gun deaths occur in ones or twos, usually with handguns (which kill far more people than assault rifles), and suicides outnumber murders.

But in every other sphere, we at least use safety regulations to try — however imperfectly — to reduce death and injury.  For example, the Occupational Safety and Health Administration has seven pages of rules about ladders, which kill 300 people a year.  Yet the federal government doesn’t make a serious effort to reduce gun deaths, with a toll more than 100 times as high.

The best example of intelligent regulation is auto safety.  By my calculations, we’ve reduced the auto fatality rate per 100 million miles driven by more than 95 percent since 1921. There was no single solution but rather many incremental efforts: seatbelts, air bags, padded dashboards, better bumpers, lighted roads, highway guardrails, graduated licenses for young people, crackdowns on drunken driving, limits on left turns, and so on.  We haven’t banned automobiles, and we haven’t eliminated auto deaths, but we have learned to make them safer — and we should do the same with guns.

The analogy between driving/cars and guns does not quite work for a variety of reasons, but there is surely a kind of wisdom in the idea that we can and should try to improve gun safety in a variety of incremental ways without the political and practical problems posed by proposals involving prohibitions.  And, perhaps ironically, Prez Donald Trump may be better positioned than any recent president to navigate the challenging gun politics that often impeded efforts to improve gun safety.  Though I have little reason to believe Prez Trump will be eager to make improving gun safety a political priority, not long ago I had little reason to believe that there would ever be a Prez Trump.  

A few recent and older related posts:

October 2, 2017 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (28)

Friday, September 08, 2017

Highlighting through St. Louis the enduring challenges of battling city crime with federal emphasis

Mark Obbie has this terrific lengthy new piece in Politico Magazine with full headline that captures its key themes: "Why Jeff Sessions’ Recycled Crime-Fighting Strategy Is Doomed to Fail: Funneling more gun criminals into federal prison won't reduce homicides. Just look at St. Louis." The article merits a full read, and here are its opening passages:

Newly minted Attorney General Jeff Sessions was in St. Louis, the latest stop on his tour to promote his muscular solution to what he called the “dangerous new trend” of the rising national violent crime rate.  Addressing a crowd of more than 200 federal and local law enforcement officials at the city’s towering federal courthouse in late March, he vowed to “use every lawful tool we have to get the most dangerous offenders off America’s streets.”

The Trump Justice Department has pushed a variety of strategies for reducing violent crime.  But the tool that Sessions prefers, the one he calls the “excellent model,” is to steer more gun-crime cases to federal court, where offenders face an average of six years in prison, compared with the lighter punishments that can result from state convictions — in Missouri, for instance, gun offenders charged under state laws generally get probation.  Sessions has instructed his U.S. attorneys to step up their gun-case loads, and they are heeding his mandate: In the second quarter of this year, federal firearms prosecutions jumped 23 percent over the same period in 2016.

In his St. Louis speech, Sessions praised the city’s U.S. attorney’s office for its aggressive pursuit of gun-law violators, framing its work as the first half of a tidy formula. “The more of them we put in jail,” he said, “the fewer murders we will have.”

But Sessions is dramatically overselling the effectiveness of his prosecution-heavy prescription, those who study gun violence say.  Researchers, in fact, long ago concluded that the long prison sentences and elevated incarceration rates that result from increasing federal prosecutions have scant influence on violent crime rates.  And St. Louis is a signal example of why Sessions’ strategy does not work as he promises.

No other city has already tried harder and longer to do exactly what Sessions is pushing for nationwide.  Since the 1990s, the St. Louis-based Eastern District of Missouri has remained in the top 10 federal court districts for per capita gun prosecution rates, according to data from Syracuse University’s Transactional Records Access Clearinghouse (TRAC).  In more recent years, the St. Louis office has only increased its intake of gun cases, leading the nation in 2016.

At the same time, St. Louis’ rates of homicide and serious crimes of all types are the worst in the country, and have been stuck at or near the top of that dubious list for at least 20 years.  The city recorded 188 homicides in each of the past two years — a two-decade high.  During the first six months of 2017, murders kept pace with those brutal levels. Nonfatal shootings were up an alarming 22 percent.

If St. Louis shows why Sessions’ approach to gun violence is destined to fail, what is a more effective role for federal authorities to play in reducing violent crime?  Public safety scholars say that it starts with recognizing that no two cities’ crime problems are exactly alike.  The next step is to create a menu of interventions tailored to meet local needs — and support them with reliable funding.

September 8, 2017 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, July 30, 2017

Should an uptick in federal gun prosecutions garner bipartisan praise?

The question in the title of this post was my first thought upon seeing this press release from the Justice Department released Friday under the heading "Federal Gun Prosecutions Up 23 Percent After Sessions Memo."  Here is the full text of the press release:

Today, the U.S. Department of Justice announced that, following the memorandum from Attorney General Sessions to prioritize firearm prosecutions, the number of defendants charged with unlawful possession of a firearm increased nearly 23 percent in the second quarter of 2017 (2,637) from the same time period in 2016 (2,149).

“Violent crime is on the rise in many parts of this country, with 27 of our biggest 35 cities in the country coping with rising homicide rates,” said Attorney General Jeff Sessions.  “Law abiding people in some of these communities are living in fear, as they see families torn apart and young lives cut short by gangs and drug traffickers.  Following President Trump’s Executive Order to focus on reducing crime, I directed federal prosecutors to prioritize taking illegal guns off of our streets, and as a result, we are now prosecuting hundreds more firearms defendants. In the first three months since the memo went into effect, charges of unlawful possession of a gun -- mostly by previously convicted felons -- are up by 23 percent.  That sends a clear message to criminals all over this country that if you carry a gun illegally, you will be held accountable.  I am grateful to the many federal prosecutors and agents who are working hard every day to make America safe again.”

In February, immediately after the swearing-in of Attorney General Jeff Sessions, President Trump signed an Executive Order that directs the Attorney General to seek to reduce crime and to set up the Task Force on Crime Reduction and Public Safety.  The Task Force has provided Sessions with recommendations on a rolling basis.  In March, based on these recommendations, Attorney General Sessions sent a memorandum to Department of Justice prosecutors, ordering them to prioritize firearms offenses.

In the three months immediately following the Attorney General’s memo -- April, May and June -- the number of defendants charged with unlawful possession of a firearm (18 U.S.C. 922) increased by nearly 23 percent compared to those charged over the same time period in 2016.  The number of defendants charged with the crime of using a firearm in a crime of violence or drug trafficking (18 U.S.C. 924), increased by 10 percent.

Based on data from the Executive Office for United States Attorneys (EOUSA), in Fiscal Year 2016 (starting October 1), 11,656 defendants were charged with firearms offenses under 18 U.S.C. 922 or 924.  EOUSA projects that in Fiscal Year 2017, the Department is on pace to charge 12,626 defendants with these firearms crimes.  That would be the most federal firearms cases since 2005.  It would also be an increase of eight percent from Fiscal Year 2016, 20 percent from 2015, and an increase of 23 percent from 2014.

Of course, as regular readers on this blog know well, many on the political left have been critical of various efforts by AG Sessions to ramp up federal prosecutions. But much of the criticism is based on concerns about escalating the federal drug war, especially as it applies to lower-lever and nonviolent offenders. As the title of this post is meant to suggest, perhaps this latest data showing a ramp up of gun prosecutions could be met with some applause from political left given the tendency of the left to support tougher restrictions on gun possession. (Of course, some parts of the libertarian-faction of the political right has also expressed concerns about recent work by AG Sessions, and they might be more troubled by these data.)

Critically, without having more information about the "who and how" of increased federal gun prosecutions, I do not feel sufficiently informed to robustly praise or criticize these developments. But I do think it interesting and notably that the first new data being stressed by the Sessions DOJ involves a type of prosecution that could garner support from both sides of the political aisle.

July 30, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Who Sentences | Permalink | Comments (9)

Friday, June 30, 2017

Chicago now an even more fascinating study in federal criminal enforcement and gun crimes

The title of this post is my reaction to this new press release from the Department of Justice titled "Attorney General Jeff Sessions: We Cannot Accept these Levels of Violence in Chicago." Here is how it starts and ends:

Today Attorney General Jeff Sessions issued the following statement on the unacceptable violence plaguing the City of Chicago and outlined steps that the Department of Justice is taking to increase public safety:

"No child in America should have to walk the streets of their neighborhood in fear of violent criminals, and yet in Chicago, thousands of children do every day. Last year, more than 4,300 Chicagoans were shot, and more than 700 were killed — the deadliest year in two decades.”

“The Trump Administration will not let the bloodshed go on; we cannot accept these levels of violence. That's why, under President Trump's strong leadership, we have created the Chicago Gun Strike Force and are sending 20 more permanent ATF agents to Chicago, reallocating federal prosecutors and prioritizing prosecutions to reduce gun violence, and working with our law enforcement partners to stop the lawlessness.”...

The Crime Gun Strike Force, a permanent team of special agents, task force officers, intelligence research specialists, and ATF Industry Operations investigators who are focused on the most violent offenders, in the areas of the city with the highest concentration of firearm violence.

The Strike Force became operational June 1, 2017, and consists of 20 additional permanent ATF special agents, 6 intelligence research specialists, 12 task force officers from the Chicago Police Department (CPD), 2 task force officers from the Illinois State Police, and 4 NIBIN specialists (National Integrated Ballistics Information Network).

I have noted in lots of posts in recent years how remarkable it is that the largest city in the US (New York) keeps having crime declines while the third largest city (Chicago) is struggling with increased crime.  This pattern has been in place for at least a half-decade (see this 2012 post), and I sure hope this new Chicago Gun Strike Force can help matters in Chicago.

June 30, 2017 in Criminal justice in the Trump Administration, Gun policy and sentencing, Who Sentences | Permalink | Comments (6)

Thursday, June 08, 2017

Judge Jack Weinstein talks through general deterrence and gang activity in federal gun sentencing

A helpful reader forwarded to me the latest interesting sentencing opinion authored by US District Judge Jack Weinstein. The full 25-page opinion in US v. Lawrence, No. 16-CR-243 (E.D.N.Y. May 23, 2017), is an interesting read for a lot of reasons, is not readily summarized and is available for download below. Here is how it gets started and ends to provide taste for the full opinion:

Defendant in the instant case pled guilty to a serious crime.  He is either a gang member or on the verge of becoming one.  He recklessly fired an illegally possessed handgun repeatedly down a public street, with the likelihood that a passing pedestrian might be hit: in fact he wounded his companion.

This case presents some of the critical difficulties in federal sentencing. It requires balancing general deterrence (and, relatedly, incapacitation) by a relatively long prison term with specific deterrence (and its other aspect, rehabilitation) by a relatively short term in prison. Both must be considered under section 3553(a)(2)(B) of section [1]8 of the United States Code.  By compromising, and reducing a somewhat draconian sentence (possibly less effective for general deterrence), or increasing the sentence (possibly less effective for rehabilitation), the sentence may risk frustrating either goal.

The subtle weighing of alternatives is made more difficult by the presence of numerous competing vectors (such as family or work or criminal history).  In the present case the court accepted, and acted on, testimony of an expert witness that increasing the length of incarceration does not proportionally increase general or specific deterrence....

The Guidelines do not consider gang membership as a factor in sentencing, except for defendants who are sentenced under 18 U.S.C. § 521 (pertaining to criminal street gangs), where the Guidelines provide for an upward departure. U.S.S.G. § 5K2.18.  Were gang membership a sentencing factor in cases other than those under 18 U.S.C. § 521, courts would give greater weight to this factor.  This court recommends that the Sentencing commission revisit the gang membership problem.

Download Lawrence - Judgment%2c Memo%2c and Order

June 8, 2017 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, April 04, 2017

How many prior sentenced federal prisoners might now have "Dean claims" (assuming Dean is retroactive)?

As reported in this post from yesterday, and as explained a bit more via this write-up I provided to the fine folks at SCOTUSblog, the Supreme Court yesterday in Dean v. United States, No. 15-9260 (April 3, 2017) (available here) ruled that the Eighth Circuit had been wrong to hold that, "in calculating the sentence for [a] predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)."  According to the government's briefing in Dean, most of the circuits had also ruled like the Eighth Circuit (incorrectly) on this statutory sentencing issue — though I suspect that, in practice, a number of district courts did not consistently ignore 924(c) mandates when sentencing predicate offenses.

Given this background, I was surprised I did not think of the question in the title of this post until former AUSA Steven Sanders sent me an email with this query: "Any thoughts on whether Dean applies retroactively on 2255, on the (Montgomery) theory that the decision opens up the range of punishment and thus is substantive for Teague purposes?"   Regular readers familiar with my views about finality rules and sentencing errors (basics here, law review article here) should expect me to have plenty of thoughts about Dean retroactivity, most of which center around the view that Dean qualifies as retroactive.  Put simply, Dean seems to me to be a substantive ruling that applies retroactively.

Assuming Dean is retroactive, this recent "Quick Facts" publication from the US Sentencing Commission suggests there could be thousands (perhaps even tens of thousands) of federal prisoners with plausible Dean claims.  Specifically, that publication indicates that, in Fiscal Year 2015, over 1100 federal defendants were convicted under both section 924(c) and another predicate offense not carrying a mandatory minimum, and that the average sentence for this group was over 11 years in prison. Assuming 2015 was a fairly representative year — and the USSC publication actually suggests a larger number of defendants getting longer sentences in prior years — it is possible that well over 10,000 defendants (and maybe many more) could be in federal prison serving sentences that were imposed based on an understanding of applicable sentencing principles that Dean has now disrupted.

For various procedural and practical reasons, I doubt we will see thousands of "Dean resentencings" in the federal courts in the coming months even if thousands of prisoners got sentenced based on the wrong understanding of the applicable laws here.  But I do expect that there will be many more than just a handful or "Dean resentencing" efforts.

April 4, 2017 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, March 15, 2017

AG Sessions talks again about "the challenge of violent crime and drugs" and about support for law enforcement

Jeff-sessions-attorney-general-630x354The Department of Justice now has posted here an extended speech delivered by Attorney General Jeff Sessions today in Richmond, Virginia (which just happens to be where I am headed tomorrow for a faculty workshop).  Those who have been following what AG Sessions has been saying in recent months (and really throughout his whole career) will likely not find anything all that new or surprising in this latest speech.  Nevertheless, I still found the entire speech and especially the following passages worth flagging in this space.  And I have highlight two particular sentences in the discussion of drugs that I have not previously seen and that could and perhaps should capture a lot of attention:

First, we should keep in mind some context. Overall, crime rates in our country remain near historic lows. Murder rates are half of what they were in 1980.  The rate of violent crime has fallen by almost half from its peak....  In the past four decades, we have won great victories against crime in America. This happened under leadership from both political parties, and thanks above all to the work of prosecutors and good police using data-driven methods and professional training.  Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we’ve seen warning signs that this progress is now at risk.  The latest FBI data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 10 percent — the largest increase since 1968.  And all of this is taking place amid an unprecedented epidemic of heroin and opioid abuse....

My fear is that this surge in violent crime is not a “blip,” but the start of a dangerous new trend.  I worry that we risk losing the hard-won gains that have made America a safer and more prosperous place.  While we can hope for the best, we can’t afford to be complacent.  When crime rates move in the wrong direction, they can move quickly....

Last month the President gave us clear direction, issuing three executive orders that direct the federal government to reduce crime and restore public safety. This task will be a top priority of the Department of Justice during my time as Attorney General. I’d like to talk briefly about how we’re tackling this challenge.

First, we’re making sure the federal government focuses our resources and efforts on this surge in violent crime.  Two weeks ago, I announced the formation of a Department of Justice Task Force on Crime Reduction and Public Safety. It includes crime reduction experts from throughout the Department of Justice, including the heads of the FBI, the ATF, the DEA and the U.S. Marshals Service.  The task force will evaluate everything we are doing at the federal level.

Second: We need to use every lawful tool we have to get the most violent offenders off our streets. In recent years, we have seen a significant shift in the priority given to prosecuting firearms offenders at the federal level.  This trend will end.  This Department of Justice will systematically prosecute criminals who use guns in committing crimes....

Third: To turn back this rising tide of violent crime, we need to confront the heroin and opioid crisis in our nation — and dismantle the transnational cartels that bring drugs and violence into our neighborhoods.

Our nation is in the throes of a heroin and opioid epidemic.  Overdose deaths more than tripled between 2010 and 2014.  According to the CDC, about 140 Americans on average now die from a drug overdose each day.  That means every three weeks, we are losing as many American lives to drug overdoses as we lost in the 9/11 attacks.  Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction, and misery.  We have also seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs.  As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

There are three main ways to fight the scourge of drugs: criminal enforcement, treatment and prevention.  Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product.  One of the President’s executive orders directed the Justice Department to dismantle these organizations and gangs — and we will do just that.

Treatment programs are also vital. But treatment often comes too late to save people from addiction or death.  So we need to focus on the third way we can fight drug use: preventing people from ever taking drugs in the first place.

I realize this may be an unfashionable belief in a time of growing tolerance of drug use.  But too many lives are at stake to worry about being fashionable.  I reject the idea that America will be a better place if marijuana is sold in every corner store.  And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana — so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.

In the ’80s and ’90s, we saw how campaigns stressing prevention brought down drug use and addiction.  We can do this again. Educating people and telling them the terrible truth about drugs and addiction will result in better choices. We can reduce the use of drugs, save lives and turn back the surge in crime that inevitably follows in the wake of increased drug abuse.

Finally: The federal government alone cannot meet the challenge of violent crime and drugs — so we need to protect and support our brave men and women in law enforcement. About 85 percent of all law enforcement officers in our nation are not federal, but state and local. These are the men and women on the front lines — the ones doing most of the tough and often dangerous work that keeps our neighborhoods safe....

The new challenge of violent crime in our nation is real — and the task that lies before us is clear. We need to resist the temptation to ignore or downplay this crisis. Instead, we must tackle it head-on, to ensure justice and safety for all Americans. We will enforce our laws and put bad men behind bars. We will fight the scourge of drug abuse. And we will support the brave men and women of law enforcement, as they work day and night to protect us. Together, let us act to meet this challenge, so that our children will not look back and say that we let slip from our grasp all we had done to make America a safer place.

I find it quite interesting and significant that AG Sessions, in the first sentence highlighted above, has highlighted the severity of the current US drug problem in term of the number of deaths caused by the worst and deadliest terrorist attack in US history.  The decision to frame the problem in these terms reveals just how seriously the Attorney General sees the problem, and I am in some sense inclined to respect and applaud this framing in part because I fear a lot of people who have not been directly touched by the modern opioid epidemic do not fully appreciate how many lives are being lost to it.

Ironically, though, the kind of wise intensity I see reflected in the first sentence highlighted above is undercut but what strikes me as a misguided intensity reflected in the second sentence highlighted above.  Because tens of thousands of individuals are dying for opioid overdoses and nobody dies from a marijuana overdoes, it make a whole lot of sense to me that a whole lot of people would see a whole lot of value in encouraging people to trade an opioid dependency for a marijuana dependency.  (And this simple analysis, of course, leaves out the statistically reality that the vast majority of people who use marijuana do not become dependent on it.) 

March 15, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Gun policy and sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (20)

Sunday, March 05, 2017

Deep dive into litigation over Chicago “Stash House Stings”

Because the President of the United States has often expressed concerning about crime in Chicago and has tweeted about sending in the feds, I hope the Prez and his advisers find time to check out this recent lengthy Chicago Tribune article about some of the work of the feds in this city in the recent past.  The article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," merits a full read, and here is an extended taste:

For four years, Mayfield had been struggling to turn his life around after more than a decade in prison. To escape the street life, he moved to Naperville with his fiancee's family and managed to find a full-time job at a suburban electronics facility that paid 12 bucks an hour. It was there that a co-worker lured him into the robbery after weeks of effort, promising a big score.

Now, inside the police vehicle, the sounds of flash-bang grenades still ringing in his ears, Mayfield started to piece it all together. There was no stash house, no cartel drugs or associates to rob. It was a crime dreamed up by federal authorities and carried out with the help of Mayfield's co-worker to reel him in when he was at his most vulnerable.

Eight years later, Mayfield, 48, and dozens of others are at the center of a brewing legal battle in Chicago's federal court over whether the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives' signature sting operation used racial bias in finding its many targets.

A team of lawyers led by the University of Chicago Law School is seeking to dismiss charges against more than 40 defendants in Chicago. The undercover probes, a staple of the ATF since the mid-1990s, have ensnared hundreds of defendants across the country. A recently unsealed study by a nationally renowned expert concluded that ATF showed a clear pattern of racial bias in picking its targets for the drug stings. The disparity between minority and white defendants was so large that there was "a zero percent likelihood" it happened by chance, the study found.

The vast majority of those swept up in the stings in Chicago were minorities, and a close examination of the criminal backgrounds of some of those targeted raises questions about whether they were truly the most dangerous gun offenders whom ATF was aiming to remove from the street.

Some had trouble even coming up with guns to do the job — including one crew that after months of preparation managed to find only one World War I-era pistol with a broken handle that could barely fire a round. Others had no history of carrying out high-risk armed robberies — a key provision in the ATF playbook designed to make sure targets were legitimate, defense lawyers argued in recent court filings....

Earlier this month, federal prosecutors filed a lengthy motion vehemently disputing that minorities were unfairly targeted in the stash house cases, saying the expert report filed by the defense was "riddled with false assumptions that were designed to manufacture a racial disparity where none exists." The dispute sets up what could be an unprecedented hearing at the Dirksen U.S. Courthouse in the coming months involving a panel of district judges hearing the multiple criminal cases at once.

"It's almost like a criminal class action," said Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School, which represents most of the defendants in the dozen cases they are seeking to be dismissed. "Judges are seeing this as a coordinated litigation. It's a very unusual situation."...

According to the ATF, stash house stings are a key part of the agency's national effort to target people who "show a propensity of doing harm to the public through violent behavior." Launched in Miami during the cocaine-war days of the early 1990s, the stings have been honed over the years and are run by experienced agents who use a tightly controlled playbook.

They typically begin when an informant provides the ATF information about a potential target who has expressed interest in taking part in a robbery. The informant then introduces the target to an undercover agent who poses as a disgruntled courier for a drug cartel and offers an opportunity to steal large quantities of drugs from a stash house guarded by men with guns.

In a series of conversations captured on undercover wire, the target is told if he is interested he must assemble an armed team to commit the robbery. The target and his crew are arrested after they show up on the day of the supposed crime. "At the time of arrest, the home invasion defendants are poised, at any moment, to invade a stash house, steal kilograms of cocaine guarded by armed cartel members, and in the process, kill or be killed," prosecutors wrote in their recent court filing.

In order to avoid arguments of entrapment in court, the stings are supposed to target only established robbery groups. ATF criteria also require that at least two of the participants have violent backgrounds and that all must be criminally active at the time the investigation is launched. Not only were the operations a boon for the ATF but the resulting prosecutions also netted eye-popping sentences — sometimes up to life in prison — in part because defendants were criminally liable for the amount of imaginary drugs they believed they were stealing. It didn't matter that the robbery was fake or that no drugs actually existed....

The lengthy sentences were just one pattern that raised red flags for the criminal defense bar. In case after case, the ATF stings seemed to be targeting only minorities. In early 2013, a handful of private attorneys and assistant federal defenders, all veterans at the Dirksen U.S. Courthouse, were so troubled by a stash house case they were defending that they asked the U.S. attorney's office for a complete list of all the defendants in similar cases sorted by race. Prosecutors rebuffed this admittedly unorthodox request. "ATF does not maintain statistics on the nature in question at either the local or national level," Assistant U.S. Attorney Philip Fluhr wrote in response, court records show.

The defense lawyers then asked the judge overseeing the case to order prosecutors to turn over detailed information on how the stash house stings are run and the race of the defendants who had been charged so far. They included their own research showing more minorities were targeted. Prosecutors strenuously objected. But a few months later, U.S. District Chief Judge Ruben Castillo allowed the discovery to go forward. "History has shown a continuing difficult intersection between the issue of race and the enforcement of our nation's criminal laws," wrote Castillo, concluding that the defense team had "made a strong showing of potential bias."

Similar motions in other stash house cases soon followed, but the effort to prove racial bias was being made case-by-case with no coordination. Then in 2014, the University of Chicago's Federal Criminal Justice Clinic agreed to focus all its efforts on the 12 stash house cases and their 43 defendants. This allowed the defense attorneys to address the alleged racial bias in a coordinated effort, a critical undertaking given the government's massive resources, the attorneys said....

As the movement to fight the stash house cases gathered steam among defense attorneys, the judiciary also weighed in with some key decisions. In November 2014, the full 7th Circuit U.S. Court of Appeals granted Mayfield a new trial in a rare decision that concluded Potts had "targeted Mayfield at a moment of acute financial need and against a backdrop of prolonged difficulty finding permanent, family-supporting work."

In a 2012 dissenting opinion as the case was winding through the court, appellate Judge Richard Posner had put an even finer point on it, referring to the stings as a "disreputable tactic" that used government informants to target people at a vulnerable time in their lives. Meanwhile, another ruling in July 2015 by the appellate court in Chicago resulted in the government turning over more data on the stash house stings sought by the defense. The ruling allowed the defendants to move ahead with what is believed to be the most thorough analysis of the stings anywhere in the country....

The debate is now potentially headed for a court hearing involving all defendants. The outcome could set precedent for judges in other states. "Courts tend to give law enforcement a lot of leeway," said University of California-Irvine law professor Katharine Tinto, a criminal law expert who has written extensively about the stash house stings. "… The fact that an expert is saying a federal law enforcement agency is discriminating on the basis of race is something everybody should be watching."

March 5, 2017 in Drug Offense Sentencing, Gun policy and sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Tuesday, February 28, 2017

Telling comments about violent crime from AG Sessions in speech to NAAG

Campaign-2016-sessions-profile.jpeg-1280x960Attorney General Jeff Sessions gave this lengthy speech at the winter meeting of the National Association of Attorneys General (NAAG).  The speech is focused on what AG Sessions calls a "disturbing rise in violent crime in our nation," and the full speech should be read by any and everyone eager to get a sense for the perspectives and thinking of our new Attorney General. Here are some passages that especially caught my attention:

First, let’s put things in context.  Overall, crime rates in the United States remain near historic lows. Murder rates are half of what they were in 1980.  The rate of violent crime has fallen by almost half from its peak in the early 1990s. Many neighborhoods that were once in the grip of gangs and drugs and violence are now vibrant places, where kids can play in the park and parents can enjoy a walk after sunset without fear.  There is no doubt that in the past four decades — under leadership from both political parties, and thanks above all to the work of prosecutors and good police using science and professional training — we have won great victories against crime in America.  Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we’ve seen clear warning signs — like the first gusts of wind before a summer storm — that this progress is now at risk.  The latest FBI official data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 11 percent — the largest increase since 1968. The rape rate increased by over 4 percent, and the aggravated assault rate rose by nearly 4 percent.

If this was a one-year spike, we might not worry too much.  But the preliminary data for the first half of 2016 confirmed these trends.  The number of violent crimes in the first half of last year was more than 5 percent higher than the same period in 2015.  The number of murders was also up 5 percent over the same period the year before, and aggravated assaults rose as well.

Just last week, the Wall Street Journal reported that since 2014, the murder rate in 27 of our country’s 35 largest cities has gone up. Homicide rates in Chicago, Baltimore, Milwaukee and Memphis have returned to levels not seen in two decades.  Last year, Chicago had more than 4,000 shooting victims and 762 murders, and Baltimore’s murder rate was its second-highest ever.

These numbers should trouble all of us.  My worry is that this is not a “blip” or an anomaly, but the start of a dangerous new trend that could reverse the hard-won gains of the past four decades — gains that made America a safer and more prosperous place....

While this spike in violent crime is not happening in every neighborhood or city, the trends should concern all of us.  It is a basic civil right to be safe in your home and your neighborhood.  We are diminished as a nation when any of our citizens fears for their life when they leave their home; or when terrified parents put their children to sleep in bathtubs to keep them safe from stray bullets; or when entire neighborhoods are at the mercy of drugs dealers, gangs and other violent criminals.

So we need to act decisively at all levels — federal, state and local — to reverse this rise in violent crime and keep our citizens safe.  This will be a top priority of the Department of Justice during my time as Attorney General.

We know the first step in fixing something is recognizing you have a problem.  For anyone who still doubts that today’s rise in violent crime is real and significant, I’ve done my best here to make that case.  And I’m not alone, because police chiefs and sheriffs and mayors across our country are saying the same thing.

Once we recognize the problem, we need to examine the causes and take action. It’s still early, but people with long experience in law enforcement and crime research are beginning to draw some conclusions.

We know that our nation is in the throes of a heroin epidemic, with overdose deaths more than tripling between 2010 and 2014.  Meanwhile, illegal drugs flood across our southern border and into cities and towns across our country, bringing violence, addiction and misery.  In particular, we’ve seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs.  As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

In recent years, we’ve also seen a significant shift in the priority given to prosecuting gun and drug offenders at the federal level.  While numbers don’t tell the whole story, I still find the following statistics troubling: at the end of 2015 there were more than 7 percent fewer federal gun prosecutions than five years before. In that same five-year period, federal drug prosecutions declined by 18 percent.

Under my leadership at the Department of Justice, this trend will end.  Our agents and prosecutors will prioritize cases against the most violent offenders, and remove them from our streets so they can no longer do us harm.

We’ve also heard from law enforcement leaders, including the FBI Director and many police chiefs, that something is changing in policing.  They tell us that in this age of viral videos and targeted killings of police, many of our men and women in law enforcement are becoming more cautious.  They’re more reluctant to get out of their squad cars and do the hard but necessary work of up-close policing that builds trust and prevents violent crime.

This is a terrible place to be, because we know that tough and effective law enforcement can make a real difference. It can reduce crime and save lives. We’ve seen it happen in our country over the past four decades — and many of you in this room have been part of this noble work.

The immense social costs of crime are indisputable. Yes, incarceration is painful for the families of inmates, and every conviction represents a failure on multiple levels of society.  But the costs of rising crime are even more severe.  Drug crimes and violent felonies change the lives of victims forever.  Neighborhoods hit by rising crime suffer deep economic harm.  And if more young men choose to commit crimes because jail time is less daunting than before, that means they are forgoing more hopeful courses for their lives and their communities.  In the midst of a terrible heroin epidemic and a rise in violent crime, we should not roll back the tools law enforcement has to go after federal drug trafficking and firearms felons, or release thousands more.

The federal government has a key role to play in addressing this crisis.  I pledge that under my leadership at the Department of Justice, we will systematically prosecute criminals who use guns in committing crimes.  We will work to take down drug trafficking cartels and dismantle gangs. And we will enforce our immigration laws and prosecute those who repeatedly violate our borders.

I also pledge to listen to the stories and concerns of those who are most affected by this rise in violent crime.  Over the coming months I plan to travel around the country, from border towns to big cities, to talk with and learn from our law enforcement partners, crime victims, community leaders and others.

Earlier this month, the President also gave us clear direction. He signed three executive orders aimed at reducing crime and restoring public safety, protecting our law enforcement personnel, and dismantling the transnational cartels that are bringing drugs and violence into our neighborhoods.

To carry out the first of those orders, today I’m announcing the formation of a Department of Justice Task Force on Crime Reduction and Public Safety.

The Deputy Attorney General will chair the task force, which will include crime reduction experts throughout the Department of Justice, including the heads of the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Drug Enforcement Administration (DEA) and the U.S. Marshals Service.  The task force will evaluate everything we are doing. It will look at deficiencies in our current laws that have made them less effective in reducing crime, and propose new legislation.  It will make sure we’re collecting good crime data, and think of ways to improve that data so we can all better understand crime trends.  We will insist that every agent and prosecutor is deployed effectively, fully supported and highly productive.  Finally, the task force will consult with our partners in law enforcement at all levels, as well as law enforcement organizations, victims’ groups and community groups....

Unfortunately, in recent years law enforcement as a whole has been unfairly maligned and blamed for the unacceptable deeds of a few bad actors.  Our officers, deputies and troopers believe the political leadership of this country abandoned them. Their morale has suffered. And last year, amid this intense public scrutiny and criticism, the number of police officers killed in the line of duty increased 10 percent over the year before. To confront the challenge of rising crime, we must rely heavily on local law enforcement to lead the way — and they must know they have our steadfast support.

For the federal government, that means this: rather than dictating to local police how to do their jobs — or spending scarce federal resources to sue them in court — we should use our money, research and expertise to help them figure out what is happening and determine the best ways to fight crime. We should strengthen partnerships between federal and state and local officers. And we should encourage proactive policing that ensures our police and citizens are communicating and working well together.

The new challenge of violent crime in our nation is real — and the task that lies before us is clear. As President Reagan used to say, there are no easy answers, but there are simple ones; we only need the courage to do what is right.  We need to resist the temptation to ignore or downplay this crisis and instead tackle it head-on, to ensure justice and safety for all Americans. We need to enforce our laws and put bad men behind bars.  And we need to support the brave men and women of law enforcement as they work day and night to protect us.

February 28, 2017 in Criminal justice in the Trump Administration, Gun policy and sentencing, Who Sentences | Permalink | Comments (12)

Thursday, February 16, 2017

Notable accounting of what Mayor Emanuel sought from AG Sessions to deal with Chicago's gun violence

This local article, headlined "Emanuel used meeting with Sessions to get specific on fed help," reports on the requests Chicago's mayor made to the new Attorney General to help combat violence in a city that has been a frequent talking point about violent crime for Prez Trump.  Here is how the article starts:

Attempting to turn President Donald Trump’s talk into federal action, Mayor Rahm Emanuel said Tuesday he used his first meeting with U.S. Attorney General Jeff Sessions to present a list of ways the federal government can help stop the bloodbath on Chicago streets. “On the FBI, DEA, ATF, send more agents [who] are permanently placed here in Chicago to cooperate and work with our Chicago Police Department. They do it in a number of areas today. But, we don’t have the full expanse of what we need to do the job and we have a good relationship with those three federal entities,” the mayor said.

“Second is invest in the technology that you saw in Englewood in the 7th District and the 11th District — the strategic predictive analytic rooms — help us take that to other police districts in the city.”

The mayor’s wish list goes beyond policing to expansion of mentoring, summer jobs and after-school programs from which both the state and federal government have been AWOL, as he put it. “I talked about making sure that our kids have an alternative consistent with what I’ve said about BAM [Becoming A Man] as a mentoring program,” Emanuel said. “There’s an account that deals with ex-offenders. We would like to see that because we have the largest ex-offender program. . . . And help us with summer jobs and after school where the federal government has actually been cutting those resources.”

Emanuel said he also renewed his call for the U.S. Justice Department to step up federal prosecution of gun crimes. A Chicago Sun-Times story last year found that federal weapons charges in Chicago have fallen slightly over the past five years — despite the local rise in firearm offenses. Federal prosecutors in some other major urban areas — Manhattan, Brooklyn, Milwaukee, Detroit and Baltimore — have charged far more people with weapons offenses than the U.S. attorney’s office in Chicago has.

Sources said the meeting with Sessions focused exclusively on ways the Justice Department can assist Chicago in stopping the unrelenting gang violence on city streets.

February 16, 2017 in Gun policy and sentencing, National and State Crime Data, Who Sentences | Permalink | Comments (4)

Tuesday, January 10, 2017

"Want to fix gun violence in America? Go local."

The title of this post is the headline of this new Guardian special report that does an impressive job mapping and unpacking the locales of gun violence throughout the United States.   Here is how it gets started:

The map of America’s gun violence epidemic can seem overwhelming.  There were more than 13,000 gun homicides in the US in 2015, across nearly 3,500 cities and towns.  But the toll of this gun violence was not distributed equally.

Half of America's gun homicides in 2015 were clustered in just 127 cities and towns, according to a new geographic analysis by the Guardian, even though they contain less than a quarter of the nation’s population.

Even within those cities, violence is further concentrated in the tiny neighborhood areas that saw two or more gun homicide incidents in a single year.

Four and a half million Americans live in areas of these cities with the highest numbers of gun homicide, which are marked by intense poverty, low levels of education, and racial segregation.  Geographically, these neighborhood areas are small: a total of about 1,200 neighborhood census tracts, which, laid side by side, would fit into an area just 42 miles wide by 42 miles long.

The problem they face is devastating. Though these neighborhood areas contain just 1.5% of the country’s population, they saw 26% of America’s total gun homicides.

Gun control advocates say it is unacceptable that Americans overall are "25 times more likely to be murdered with a gun than people in other developed countries". People who live in these neighborhood areas face an average gun homicide rate about 400 times higher than the rate across those high-income countries.

Understanding this dramatic clustering of America’s of gun violence is crucial for the effort to save more lives. “We can’t do much about crime prevention of homicide if we try to attack it as a broad, global problem, throwing money at it in a sort of broad, global way,” said David Weisburd, a leading researcher on the geographic distribution of crime at George Mason University.

America’s gun policy debate is usually driven by high-profile mass shootings that seem to strike at random, and it focuses on sweeping federal gun control or mental health policies. But much of America’s gun homicide problem happens in a relatively small number of predictable places, often driven by predictable groups of high-risk people, and its burden is anything but random.

The concentration of gun homicides in certain census tracts mirrors what criminologists have discovered when they look at crime patterns within individual cities: roughly 1.5% of street segments in cities see about 25% of crime incidents, a trend dubbed “the law of crime concentration”.

January 10, 2017 in Gun policy and sentencing, National and State Crime Data | Permalink | Comments (5)

Wednesday, September 07, 2016

En banc Third Circuit find as-applied Second Amendment violation in federal firearm prohibition for certain criminals

Long-time readers know that I have been expressing constitutional concerns about broad federal criminal firearm prohibitions even since the Supreme Court in Heller decided that the Second Amendment includes an individual constitutional right to keep arms. Today, the Second Amendment took a bite into federal firearm laws via a fractured Third Circuit opinion that runs 174 pages(!) in a case that might now be headed to the Supreme Court. Here is how the en banc ruling in Binderup v. US AG, No. 14-4550 (3d CIr. Sept. 7, 2016) (available here) gets started:

Federal law generally prohibits the possession of firearms by any person convicted in any court of a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Excluded from the prohibition is “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” Id. § 921(a)(20)(B).  And there is also an exemption for “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored,” where the grant of relief does not expressly preserve the firearms bar. Id. § 921(a)(20).

In United States v. Marzzarella we adopted a framework for deciding facial and as-applied Second Amendment challenges.  614 F.3d 85 (3d Cir. 2010).  Then in United States v. Barton we held that the prohibition of § 922(g)(1) does not violate the Second Amendment on its face, but we stated that it remains subject to as-applied constitutional challenges. 633 F.3d 168 (3d Cir. 2011).

Before us are two such challenges.  In deciding them, we determine how a criminal law offender may rebut the presumption that he lacks Second Amendment rights.  In particular, a majority of the Court concludes that Marzzarella, whose two-step test we reaffirm today, drives the analysis.  Meanwhile, a separate majority holds that the two as-applied challenges before us succeed.  Part IV of this opinion sets out how, for purposes of future cases, to make sense of our fractured vote.

September 7, 2016 in Collateral consequences, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (0)

Sunday, July 24, 2016

Two new US Sentencing Commission "Quick Facts" on federal gun sentencing

The US Sentencing Commission late last week released two new Quick Facts publications, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format." Here are links to the latest publications and their summary description from the USSC:

In fiscal year 2015, there were 2,119 offenders convicted under 18 U.S.C. § 924(c) accounting for 3.0% of all offenders sentenced under the guidelines.  The number of offenders convicted of multiple counts of section 924(c) has decreased from 174 offenders in fiscal year 2011 (7.5% of all section 924(c) offenders) to 119 in fiscal year 2015 (5.6% of all section 924(c) offenders).

In fiscal year 2015, there were 4,984 offenders convicted under 18 U.S.C. § 922(g) accounting for 7.0% of all offenders sentenced under the guidelines.  The number of offenders sentenced under this statute has steadily decreased over the last five years from 5,761 in fiscal year 2011 to 4,984 offenders in fiscal year 2015.

July 24, 2016 in Federal Sentencing Guidelines, Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)

Thursday, June 30, 2016

Highlighting what brought Justice Thomas and Sotomayor together in Voisine

Noah Feldman has this effective Bloomberg commentary about the recent SCOTUS Voisine ruling headlined "When Opposites Converge Over Domestic Violence." Here are excerpts:

Some two-thirds of the states define assault in a way that includes reckless conduct.  The court was therefore under substantial practical pressure to hold that reckless misdemeanor domestic assaults count for purposes of the federal gun law.  If it had not, the federal law would have had to be changed or else it wouldn't have applied in those states....

Thomas’s vote [in dissent] can be explained partly on the basis that he doesn’t want to infringe gun ownership.  He added a final section to his dissent suggesting as much.  But Sotomayor, who didn’t join that section of Thomas’s dissent, can’t have been actuated by this motive.  So why did the court’s most liberal member join its most conservative?

What Thomas and Sotomayor share in common -- along with being the court’s two members of racial minorities -- is a long-term concern with the overreach of federal criminal law.  Thomas’s worry has to do with federalism and the encroachment of the federal government into state law matters.  Sotomayor’s concern is more with the status of the individual defendant, who may be subject to long federal sentences.

Yet it’s noteworthy that both right and left saw the court’s decision as potentially troubling.  Neither Thomas nor Sotomayor is an apologist for domestic violence.  But both saw the court as extending the reach of federal criminal law unnecessarily under the shadow of concern about the dangers of domestic violence.  In their own way, each tries to be a conscience on a court that often acts pragmatically.  This time, the two consciences converged.

Prior related post:

June 30, 2016 in Gun policy and sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Monday, June 27, 2016

By vote of 6-2, SCOTUS upholds broad application of federal prohibition on firearm possession by certain misdemeanants

Confirming that the Second Amendment has far more bark than bite when push comes to shove (puns intended), the Supreme Court this morning rejected a narrow interpretation of the federal criminal statute that forever prohibits any firearm possession by any persons who are convicted of certain misdemeanors. The opinion for the Court authored by Justice Kagan in Voisine v. US, 14-10154 (S. Ct. June 27, 2016) (available here), gets started this way:

Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. §922(g)(9).  That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use . . . of physical force.”  §921(a)(33)(A).  The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do.

Justice Thomas authored a dissent in Voisine, which was partially joined by Justice Sotomayor.  His dissent is nearly twice as long as the opinion for the Court, and it starts and ends this way:

Federal law makes it a crime for anyone previously convicted of a “misdemeanor crime of domestic violence” to possess a firearm “in or affecting commerce.” 18 U.S.C. §922(g)(9).  A “misdemeanor crime of domestic violence” includes “an offense that . . . has, as an element, the use or attempted use of physical force . . . committed by [certain close family members] of the victim.” §921(a)(33)(A)(ii).  In this case, petitioners were convicted under §922(g)(9) because they possessed firearms and had prior convictions for assault under Maine’s statute prohibiting “intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann., Tit. 17–A, §207(1)(A) (2006).  The question presented is whether a prior conviction under §207 has, as an element, the “use of physical force,” such that the conviction can strip someone of his right to possess a firearm.  In my view, §207 does not qualify as such an offense, and the majority errs in holding otherwise.  I respectfully dissent....

At oral argument the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine.  Tr. of Oral Arg. 36–40.  Compare the First Amendment.  Plenty of States still criminalize libel....  I have little doubt that the majority would strike down an absolute ban on publishing by a person previously convicted of misdemeanor libel.  In construing the statute before us expansively so that causing a single minor reckless injury or offensive touching can lead someone to lose his right to bear arms forever, the Court continues to “relegat[e] the Second Amendment to a second-class right.”  Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 6).

In enacting §922(g)(9), Congress was not worried about a husband dropping a plate on his wife’s foot or a parent injuring her child by texting while driving.  Congress was worried that family members were abusing other family members through acts of violence and keeping their guns by pleading down to misdemeanors.  Prohibiting those convicted of intentional and knowing batteries from possessing guns — but not those convicted of reckless batteries — amply carries out Congress’ objective.

Instead, under the majority’s approach, a parent who has a car accident because he sent a text message while driving can lose his right to bear arms forever if his wife or child suffers the slightest injury from the crash.  This is obviously not the correct reading of §922(g)(9).  The “use of physical force” does not include crimes involving purely reckless conduct. Because Maine’s statute punishes such conduct, it sweeps more broadly than the “use of physical force.”  I respectfully dissent.

June 27, 2016 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (18)

Sunday, June 19, 2016

Even after Orlando shootings, GOP leaders in Congress unwilling to allow more medical research into gun deaths

Though I generally favor so-called "common-sense" gun regulations, I am not sure that more gun regulations will really help to reduce gun violence.  But I am sure that more research on gun violence and gun-related deaths could and should help us better engineer laws to advance public safety.  Consequently, I was saddened and disappointed to see this recent article in The Hill.  It is headlined "GOP rebuffs doctors on gun research," and here are excerpts:

The American Medical Association’s new push to unfreeze federal funding for gun research is hitting a wall of resistance in the Republican Party. In the wake of the mass shooting in Orlando, the nation’s leading doctors group announced Tuesday it plans to “actively lobby” against a nearly 20-year-old budget rule that has prevented federal researchers from studying gun-related deaths.

The near-unanimous vote, which took place two days after Orlando shooting early Sunday morning, puts the powerful doctor’s lobby at odds with Second Amendment supporters who have argued that gun-related violence is no different from other violent acts.

Dr. Alice Chen, the executive director of the nonprofit Doctors for America, called the move a “game changer” for the long-standing fight to lift the research restrictions. “The strength of the AMA's vast membership, plus that of the over 100 medical and public health groups across the country, will be hard for Congress to ignore,” she said.

But Republicans in Congress, including those in the House Doctors Caucus who are members of the group, are soundly rejecting the AMA’s calls for research into gun-related deaths. “I don’t particularly see the need for it, quite frankly,” Rep. Tom Cole (R-Okla.), who leads health funding for the House Appropriations Committee, told The Hill on Thursday.

Rep. Michael Burgess (R-Texas), a member of the House Doctors Caucus, said he also opposed the policy change. “Although I’m a member of the AMA, I don’t always agree with the position they take,” Burgess told The Hill on Thursday. “It seems to have worked well. I don’t favor changing it,” Burgess said of federal researchers staying away from the issue of guns....

It’s becoming increasingly unlikely that the gun research will be part of Congress’s response to the Orlando shooting. Cole, the Oklahoma Republican, said GOP leaders are much more likely to boost funding for the FBI to improve background checks. “Research is good, but unfortunately, this administration has used terrorism despicably to advance their gun control issue. It doesn’t shock me to tears that he might use [Centers for Disease Control and Prevention] research rules to do the same,” Rep. Trent Franks (R-Ariz.) said Thursday.

Democrats this week already forced the GOP-led House Energy and Commerce Committee to vote on the research issue during its markup of a mental health bill. That amendment, from Rep. Tony Cárdenas (D-Calif.), failed on a party line vote of 23-29.

The moratorium on federal gun research stems from a 1997 budget amendment that prohibits federal funds “to advocate or promote gun control” — language that researchers say has had a chilling effect. Republicans adopted the so-called Dickey amendment, named after Rep. Jay Dickey (R-Ga.), in 1997 after strong lobbying from groups such as the National Rifle Association. Gun rights supporters have long argued that government agencies use studies to advance gun control, something researchers deny.

Dickey has since reversed course and is now campaigning to change the wording in the law.  Other gun rights advocates have remained strong in their opposition.  Larry Keane, general counsel for the National Sports Shooting Association, said the Centers for Disease Control and Prevention has “misdiagnosed the issue.”

“Our view is that criminal violence involving firearms is a criminal justice [issue],” Keane said in an interview Thursday. “The CDC should focus on its mission, which is addressing diseases and illnesses like cancer and preventing an outbreak of the Zika virus.”

The renewed push for lifting the federal research restrictions began on Tuesday, after the AMA’s policy-making arm, the House of Delegates, decided by voice vote to “actively lobby” on the issue.  It also officially declared gun violence to be a "public health crisis” for the first time, over the protest of some members.

American Academy of Family Physicians president, Dr. Wanda Filer, who attended the meeting in Chicago, said she heard “very few nay votes” during the vote.  The resolution had been drafted late into the night on Sunday by a group of young doctors who skipped planned conference festivities to draft it.

It was the second year in a row the AMA’s conference was interrupted by reports of a mass shooting. Last year, the AMA held a moment of silence after the shooting at a historic black church in Charleston, S.C., that killed nine people....

Filer said the AMA’s vote adds momentum to the cause that many physician groups, like hers, already supported. “Without research and being brave enough to ask the questions, we’re going to have ill-informed, emotional arguments,” Filer said Thursday. “What we’re saying is, we need research.”

Importantly, I do not disagree with the gun rights advocates' view that "criminal violence involving firearms is a criminal justice [issue]," but accepting that notion does not logically justify precluding medical research on gun-related deaths. If our society is truly committed to reducing gun deaths, we ought to have bright researchers working in all disciplines studying this grave problem to try to discover evidence-based strategies to improve public safety.  But, sadly, it seems that even after the worst mass shooting in recent US history, partisan politics can still preclude sensible policymaking.

June 19, 2016 in Gun policy and sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Saturday, April 30, 2016

Emerging news about two new notable gun control and gun safety efforts

These two recent stories about gun control and gun safety efforts from the folks in California and from the federal government have caught my eye lately:

Long-time readers ikely know I have long thought both governments and others ought to be investing in smart gun technologies to try to cut down on gun violence and related harms. At the very least, I think modern guns ought to have some kind of built in technology that could provide, though could/GPS technology, some kind of digital trace whenever used by someone other than their licensed owner (I have in mind a kind of Lojack system that would only report when the licensed owner is not the user).

April 30, 2016 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (1)

Saturday, April 09, 2016

Death penalty abolition, broadened gun rights, heroin surge, police (mis)conduct, reduced sentences ... so many suspects in Chicago murder spike and NYC murder decline

The headline of this post is my effort to make some sense of this past week's dueling crime news headlines coming from two of America's largest cities:

As the title of my post is meant to suggest, I think there are so many notable legal and social developments that could be referenced in an effort to account for the increased mayhem in Chicago and the increased mildness in New York City.  Indeed, what is so remarkable is the reality that all of the high-profile developments referenced in the title of this post have occurred nearly in parallel in both jurisdictions over the last decade, and yet the potential impact of all these developments seems to be playing out so very differently.

In a number of prior posts in recent years (some of which I have linked below), I have tried to figure out what seems to be working and not working in these two big US cites and various others to reduce or increase violent crime. But, as some of the posts below suggest, it often seems that the only simple explanation for dynamic crime rate data is that they seem to defy simple explanations:

April 9, 2016 in Death Penalty Reforms, Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (1)

Tuesday, March 22, 2016

Unanimous Supreme Court suggests Second Amendment can preclude state felony prosecution for public weapon possession

I wanted a chance to review closely the Supreme Court's notable Second Amendment work yesterday in Caetano v. Massachusetts, No. 14-10078 (S. Ct. March 21, 2016) (available here), before blogging about what strikes me as a significant constitutional ruling.  But even after doing some more review, I am still scratching my head a bit regarding both the Court's brief per curiam opinion and the lengthy and forceful concurring opinion authored by Justice Alito and joined by Justice Thomas.

Caetano strikes me as significant primarily because the Supreme Court has not ruled on the merits in a Second Amendment case since the 2010 McDonald ruling, and also because both McDonald and its landmark precursor, the 2008 Heller ruling, left so much uncertain about the reach and limits of the Second Amendment.  In addition, the merits of the Caetano case seem significant because it involved (1) possession of a weapon other than a traditional firearm (a stun-gun), and (2) a state criminal conviction affirmed by a state Supreme Court based on possession of this weapon outside the home.  Finally, as the title of this post suggests, it seems significant that not a single Justice dissented from the the Caetano per curiam ruling to vacate the judgment of the Supreme Judicial Court of Massachusetts based on the Second Amendment.

But Justice Alito's concurrence, which seems like it might have been initially drafted to serve as an opinion for the full Court, reasonably complained that the Court’s per curiam opinion was "grudging" because it seems open to the possibility that the defendant might still have her felony conviction for possession of a stun-gun outside her home affirmed on some other grounds.  Thus, as the title of this post is meant to indicate, I think the Caetano ruling only suggests a broadened application of the Second Amendment to limit a state felony prosecution.

This Lyle Denniston post at SCOTUSblog captures these themes in its title: "The Second Amendment expands, but maybe not by much."  And here is a telling excerpt from that post:

The Court set aside the state court ruling, and told that tribunal to take another look.  The decision left in doubt whether the conviction in the case would stand, and whether the state could come up with other reasons to support its ban.  It is possible that the state’s highest court will call for new legal briefs or a hearing on what to do about the Boston woman in the case, Jaime Caetano.

Her defense lawyer, Boston public defender Benjamin H. Keehn, said after the ruling Monday that he would seek to have her conviction vacated.  Although she was found guilty of a serious crime (a felony) under the Massachusetts procedure used in her case, she was not given a jail sentence or a fine.  Keehn said he was “not positive” what the Supreme Court ruling meant, and said he was studying whether there had been comparable situations in other cases returned to lower courts without specific instructions.

March 22, 2016 in Gun policy and sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)