Sunday, May 12, 2019

"Next Steps in Federal Corrections Reform: Implementing and Building on the First Step Act"

The title of this post is the title of this terrific new Urban Institute issue brief authored by Julie Samuels, Nancy La Vigne and Chelsea Thomson.  This webpage provides this abstract:

Advocates and legislators across the political spectrum celebrated the passage of the First Step Act in December of 2018, the first large federal prison reform bill in nearly a decade.  This research brief reviews key measures in First Step, describes the actions and oversight needed for faithful and vigorous implementation of the act, and highlights some of the law’s limitations.  Working from the original set of recommendations made by the Charles Colson Task Force on Federal Corrections, we then describe additional measures that represent the next logical — and evidence-based — steps in federal corrections reform.  These steps include expanding eligibility for earned time credits, making all sentencing provisions retroactive, further reducing mandatory minimum penalties, and creating a second look provision for people serving extremely long sentences to petition the court for sentence reductions.

May 12, 2019 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners | Permalink | Comments (0)

Saturday, May 04, 2019

Florida legislature passes it own first (very baby) step act on criminal justice reform

This local article out of Florida, headlined "Legislature OKs criminal justice reforms but no change to mandatory-minimum sentencing," reports on how the Sunshine State is starting to move forward on reform inspired clearly by the federal FIRST STEP Act. But, as the article explains, political challenges have resulted in Florida's first step being even more limited that what has been achieved at the federal level:

The Florida Legislature passed a 296-page criminal justice reform package bill Friday, the last full day of the session, addressing the issue of a bulging prison population that has long eluded resolution....

Reshaping Florida’s tough-on-crime policies and reducing the state’s nearly 100,000-person prison population is a rare issue that has united Trump populists and progressive civil rights groups, yet often results in open and closed-door fights among Republicans over how far to go.

This year, compromise was reached. The House passed the bill unanimously Friday, following the Senate’s near-unanimous passage on Thursday. The bill now heads to Gov. Ron DeSantis’ desk. Despite the victory for Republican Sen. Jeff Brandes of St. Petersburg, who’s long been a leading voice in the Legislature for the need for criminal justice reform, the bill’s passage was bittersweet.

“I am incredibly disappointed,” he said Thursday, referring to several big-ticket reform pieces that were taken out of the bill at the behest of the House. “I’m not surprised we didn’t get there, but I think what we did was advance the conversation.”

House Bill 7125 is the result of private negotiations between the two chambers over the past week and contains many changes proposed by those seeking to reshape Florida’s tough-on-crime laws from the 1990s. That includes making it easier for felons to get professional licenses and allowing state attorneys to decide whether juvenile cases should be transferred to adult court. Currently, that happens automatically if the crime is severe or the child has certain prior convictions.

It also would raise the “threshold” dollar amount at which theft charges go from a misdemeanor to a felony, from $300 to $750. That’s not as high as the House’s original proposal, which was to raise it to $1,000, but it brings Florida’s law closer to the national average. It also eliminates or reduces driver’s license suspensions as a criminal penalty, which lawmakers have said unfairly hampered people’s ability to get to their jobs and continue to make an honest living.

The bill has been dubbed the “Florida First Step Act” after the federal reform law with the same name. Shortly after the bill passed the House, Kara Gross, the legislative director for the American Civil Liberties Union of Florida, said the bill amounted to “a baby step, at best.”...

What didn’t make the cut of the final bill:

▪ Allowing judges discretion over sentences for certain drug crimes that currently have required amounts of time that defendants must serve, called “mandatory minimum” sentences.

▪ Permitting prison inmates convicted of nonviolent felonies to be released after serving a minimum 65 percent of their sentence if they have good behavior and participate in educational and rehabilitative programs (current law is 85 percent).

▪ Retroactive re-sentencing for people who were convicted of aggravated assault back when the state’s punishment for that crime was harsher than it is now.

Email messages between House and Senate staff obtained by the Herald/Times show that the House had, at one point last week, been “comfortable” with modified language related to giving judges more discretion over sentences for nonviolent drug crimes, reducing the length of some sentences. But that didn’t make it into the final bill....

Despite some lukewarm support for giving judges more sentencing discretion, Gov. Ron DeSantis poured cold water on the idea of letting inmates out after serving 65 percent of their sentence, likely one of the reasons that piece was scrapped....

The bill passed with only one “no” vote in the Senate, which came from Sen. Randolph Bracy, D-Orlando, who praised Brandes’ efforts but said that he, too, was frustrated with the compromise. “Honestly, I’m tired of submitting to the will of the House on these types of issues,” he said.

Still, the willingness of the House, traditionally the more tough-on-crime chamber, to cobble together a criminal justice reform package of this size shows a shift of tone, however subtle, toward reducing Florida’s burgeoning prison population.

Friday’s bill also creates a task force to reevaluate Florida’s entire criminal punishment code, and whether the set punishments fit the crime. House Speaker José Oliva said that this bill is the result of several years of discussion on this issue. Lawmakers in both the House and Senate have said they intend on taking up some of the issues that failed next year. “Sometimes ideas take time for people to understand and to have a chance to really let set in. For a lot of years the idea was being tough on crime,” Oliva said recently. He added, though, that data showing the harms of these policies “started a conversation. I think that conversation is now maturing.”

I am sorry to see that Florida is not moving forward on bolder reforms, but there is still good reason to celebrate reform efforts finding expression in this historically tough state.  Given that it took a full 40 years to ramp up incarceration level to historical levels, nobody should expect changes in the forces and laws developed in the tough era to happen quickly or without lots of fits and starts.

May 4, 2019 in Mandatory minimum sentencing statutes, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, May 01, 2019

Virginia Gov explains why he will not sign any mandatory minimum bills for the remainder of his term

A number of folks made sure I did not miss this interesting Washington Post commentary authored by Ralph Northam, the governor of Virginia. The piece is headlined "Ralph Northam: I won’t sign another mandatory minimum sentence bill into law. Here’s why." I recommend the full piece, and here are excerpts:

Over the past few decades, there has been a rise in legislation imposing mandatory minimum sentencing.  These kinds of sentences are determined by elected officials who purport to be tough on crime, particularly drug offenses.  Judges are not given the opportunity to arrive at these sentences by weighing the facts on a case-by-case basis.

This session, I signed one such bill into law, regarding the murder of police officers.  It will be the last mandatory minimum bill that I sign for the remainder of my term as Virginia’s governor.

I believe we have more than enough mandatory minimum sentences — more than 200 — in Virginia state code. In recent weeks,  I have visited with community leaders across the state seeking input on how I can best use the power of the governor’s office to make our commonwealth fairer and more equitable for communities of color.  My commitment today will not solve all of the issues with our criminal justice system, but I believe it is a step in the right direction.

I’m starting with vetoes of two mandatory minimum sentencing bills this week.  The bills demonstrate how we have become too quick to impose mandatory minimum sentencing.  One, House Bill 2042, would impose a 60-day mandatory minimum for assault and battery against a family or household member for someone with a prior assault and battery conviction in recent years.  The other, Senate Bill 1675, establishes a six-month mandatory minimum for killing or injuring a law enforcement animal, which is already a felony under Virginia code.

While violence is unacceptable, these are crimes that can be addressed by a judge with full knowledge of the facts and circumstances of each particular case.

Piling on mandatory minimum sentences has contributed to our growing prison population over the past few decades, to the point that the United States has the highest rate of incarceration in the world.

The 1980s and 1990s saw a rise in the popularity of mandatory minimums pegged to drug offenses, no matter the circumstances.  Mandatory minimums for lower-level drug offenses, along with three-strikes laws, helped accelerate the rise in prison populations in the United States.  At the end of 2016, the United States had 655 people in prison for every 100,000 adults, according to World Prison Population List, compared to a world prison population rate of 145 per 100,000 adults. That is the highest incarceration rate out of 222 countries ranked by the World Prison Brief.

Data do not indicate that mandatory minimum sentences keep our communities safer.  Instead, mandatory minimums are disproportionately harming people and communities of color....

Mandatory minimums are focused on punishment, not rehabilitation.  I have declared May to be Second Chance Month in Virginia, to increase the focus on ways we can make our criminal justice system fairer and more equitable.  We must continue to prepare returning citizens to be successful members of the community.  And we must work harder to address the mental health and substance-use disorders that often lead people into our criminal justice system.

We need to focus on evidence-based approaches that ensure equitable treatment under the law.  And we must focus on ways to rehabilitate returning citizens, particularly nonviolent ones.  I want to give our judges, appointed by the Virginia General Assembly, the appropriate discretion over sentencing decisions.  We must remember that punishment and justice are not always the same thing. We are better as a society when we give our judicial system the ability to discern the difference.

May 1, 2019 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, April 26, 2019

"Individualized Sentencing"

The title of this post is the title of this notable new article available via SSRN authored by William Berry. Here is its abstract:

In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences.  One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.”  The Court’s reasoning in both cases centered on the seriousness of the death penalty.  Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence.

In 2012, the Court expanded this Eighth Amendment concept to juvenile life-without-parole sentences in Miller v. Alabama.  Specifically, the Court held that juvenile offenders also were unique — in their capacity for rehabilitation and their diminished culpability — such that they too deserved individualized sentencing determinations.  The seriousness of the sentence in question, life without parole, also factored into the Court’s decision to extend the individualized sentencing requirement to juvenile life without parole cases.

Felony convictions, however, are serious too.  The current consequences for a felony conviction in most states result in dehumanizing effects that extend far beyond release including loss of right to vote, state surveillance, and loss of the right to own a firearm, not to mention social stigma.  As such, this Article argues for an extension of the Court’s Eighth Amendment individualized sentencing principle to all felony cases.  Doing so would require the Court to overrule its prior decisions, including Harmelin v. Michigan, but the Court’s opinion in Miller hints at a willingness to do just that.

While initially valuable in ensuring that capital cases received heightened scrutiny, the unintentional consequence of the Court’s differentness principle is that non-capital cases have received almost no constitutional scrutiny.  The individualized sentencing determination requirement provides one simple way to begin to remedy this shortcoming.

Adopting this doctrinal extension would have three major consequences: (1) it would provide each defendant his day in court in the face of serious, lifelong deprivations, (2) it would eliminate draconian mandatory sentencing practices, and (3) it would shift the sentencing determination away from prosecutors back to judges.

Part I of the Article describes the evolution of the individualized sentencing doctrine.  Part II exposes the unintended consequences of the differentness concept, and unearths the theoretical principles behind individualized sentencing.  In Part III, the Article argues for the expansion of the current doctrine and explains why the current roadblocks are not insurmountable.  Part IV then explores the consequences of broadening the application of the individualized sentencing doctrine, for defendants, legislators, and judges alike.

April 26, 2019 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

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)

Tuesday, March 19, 2019

Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case

I learned last night of a remarkable new four-page order entered in US v. Marks, No. 03-CR-6033 (WDNY March 14, 2019) (available for download below).  Chad Marks' case has been followed for years by clemency advocates like Amy Povah, and this CAN-DO profile page has lots of background materials about his case, his requests for clemency, and all the positive work he has done since being sentenced many years ago to 40 mandatory prison years due to extreme recidivist stacking § 924(c) firearm charges. 

As informed readers know, the FIRST STEP Act eliminated the provisions of federal law that had required multiple § 924(c) firearm mandatory-minimum sentences to be stacked to include recidivist 25-year terms.  But it did not make this change retroactively applicable to offenders like Mr. Marks' who were subject to its severe terms in prior years.  This new order by US District Judge David Larimer speaks to this reality, and here is part of what it has to say:

Although the First Step Act and the Guideline changes referenced in it benefit many, it does not appear that Marks would benefit directly because the changes to Section 924(c) do not appear to be retroactive. One option now is for those in the system to say to Mr. Marks, “too bad, the changes don’t apply to you and you must serve the lengthy remainder of your 40-year term, and perhaps die in jail.”

Chad Marks has now filed a pro se motion (Dkt. #491) requesting this Court, in part, to request the United States Attorney for the Western District of New York, James P. Kennedy, Jr., to consent to vacating one of Marks’ Section 924(c) convictions, which would, in effect, remove the draconian, mandatory 25-year consecutive sentence.

Admittedly, this is not a typical request. Marks makes this request, though, relying on several cases from other districts throughout the country where the U.S. Attorney did precisely what Marks seeks here. Marks relies principally on the case of U.S. v. Holloway, 68 F. Supp. 3d 310 (E.D.N.Y. 2014). That thoughtful opinion is annexed to Marks’ motion as Exhibit A. In the Holloway case, the defendant was convicted of three Section 924(c) violations for three separate car jackings over a two-day period. He received a mandatory sentence of 57 years. In Holloway, District Judge John Gleeson remarked that such a stacking sentence “would be laughable if only there weren’t real people on the receiving end of them.”

Prosecutors spend their days seeking convictions and appropriate sentences. What is sought here is different, but in his decision in Holloway, Judge Gleeson praised the U.S. Attorney for the Eastern District of New York for agreeing to vacate a prior conviction in that particular and unusual case. He noted that prosecutors can and should use their vast power to remedy injustices in an appropriate case.

So, what to do?  Does this defendant, Chad Marks, deserve this remedy? In my more than 30 years as a district court judge, I have never known a prisoner to do more to make changes in his life while incarcerated. Marks’ acts and accomplishments while incarcerated for the last decade are truly extraordinary. Marks has obtained a college degree, participated in about 100 rehabilitative programs, has received numerous awards and citations, is engaged as a GED teacher and has mentored other inmates. Marks has recounted many of these accomplishments in his motion (Dkt. #491, page 7). The record reflects extraordinary accomplishments.

Extraordinary cases require extraordinary care and sometimes extraordinary relief.  I urge all to review Judge Gleeson’s thoughtful decision in the Holloway case. The criminal “justice” system is about justice and fairness ultimately.  Chad Marks was convicted of serious crimes, but I believe that Marks is not a danger and is not now the person convicted of these charges in 2008, which involved a rather small-scale drug case.  All of Marks’ co-defendants have completed their sentences.

I request that the United States Attorney for the Western District of New York, James P. Kennedy, Jr., carefully consider exercising his discretion to agree to an order vacating one of Marks’ two Section 924(c) convictions.  This would eliminate the mandatory 25-year term that is now contrary to the present provisions of the statute. Congress has now recognized the injustice of “stacking.”

To facilitate that review, I request that Marks’ appointed counsel, Jillian S. Harrington, Esq. provide a filing listing in detail the many, many accomplishments, awards and other matters involving Marks while he has been incarcerated. In addition, counsel should list the scores of rehabilitative programs that Marks successfully completed.  Marks has described many of his accomplishments in his pending motion, but I leave it to counsel to provide a detailed supplement to assist the U.S. Attorney’s review as well as this Court’s.

Download 3-18-19 LARIMER ORDER

I am so very pleased to see this federal judge enter this formal order urging the US Attorney to vacate a charge in order to do justice in this extraordinary and compelling case.  However, I keep using the term "extraordinary and compelling" in this post because I do not think the federal judge here has to rely on the US Attorney to do justice in this case now that the FIRST STEP Act has changed the process around judicial consideration of sentence modifications under 18 U.S.C. § 3582(C)(1)(A).

As noted in this prior post, the FIRST STEP Act now provides that an inmate can bring a request to "modify a term of imprisonment" directly to a sentencing court (rather than needing a motion made by the Bureau of Prison) based on the claim that "extraordinary and compelling reasons warrant such a reduction." This is what gets described often as the "compassionate release" provision of federal law, and most generally assume that it is only applicable to sick and dying prisoners. But, ever the textualist, I am eager to highlight to everyone that Congress only formally requires a judge to find "extraordinary and compelling reasons warrant such a reduction." As I read this new Marks order, I think Judge Larimer has already essentially made such a finding.

That all said, even though I think Judge Larimer has authority to do justice for Mr. Marks without awaiting action by the local US Attorney, I still think it strategically wise to see the prosecution's involvement in his effort to do justice. With the buy-in by the local prosecutor and vacating of a one of Mr. Marks' 924(c) convictions, there would likely be no appeal and likely no impediment to a Mr. Marks getting released in short order. If Judge Larimer were to act on his own using § 3582(C)(1)(A), however, the feds could possibly appeal and seek to block any early release.

March 19, 2019 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, March 08, 2019

Senator (and Prez candidate) Cory Booker introduces "Next Step Act of 2019" with wide array of sentencing and criminal justice reforms

As set forth in this press release, "U.S. Senator Cory Booker (D-NJ), a member of the Senate Judiciary Committee, and Congresswoman Bonnie Watson Coleman (D-NJ) today introduced a sweeping criminal justice bill — the Next Step Act  — that would make serious and substantial reforms to sentencing guidelines, prison conditions, law enforcement training, and re-entry efforts."  Here is more about this new (lengthy) legislative proposal from the press release:

The Next Step Act is the most comprehensive criminal justice bill to be introduced in Congress in decades. "It's been 75 days since the First Step Act was signed into law, and already, it's changing lives," Booker said.  "But the First Step Act is just as its name suggests — it is one step on the long road toward fixing our broken criminal justice system. There's more that remains to be done so that our justice system truly embodies those words etched onto our nation's highest court â?“ 'equal justice under law.' That's exactly what the Next Step Act does. It builds off the gains of the First Step Act and pushes for bolder, more comprehensive reforms, like eliminating the sentencing disparities that still exist between crack and powder cocaine, assisting those coming out of prison with getting proper work authorization and ID documents, reducing the barriers formerly incarcerated individuals face when they try to find jobs, and ending the federal prohibition on marijuana."...

Specifically, the Next Step Act would:

  • Reduce harsh mandatory minimums for nonviolent drug offenses: the 20-year mandatory minimum would be reduced to 10 years, the 10-year mandatory minimum would be reduced to 5 years, and the 5-year mandatory minimum would be reduced to 2 years.

  • Eliminate the disparity between crack and powder cocaine sentences (currently it is 18:1)

  • End the federal prohibition on marijuana, expunge records, and reinvest in the communities most harmed by the War on Drugs.

  • "Ban the Box" by prohibiting federal employers and contractors from asking a job applicant about their criminal history until the final stages of the interview process, so that formerly incarcerated individuals get a fairer, more objective shot at finding meaningful employment.

  • Removing barriers for people with criminal convictions to receiving an occupational license for jobs, such as hair dressers and taxi drivers.

  • Reinstate the right to vote in federal elections for formerly incarcerated individuals (blacks are more than four times as likely than whites to have their voting rights revoked because of a criminal conviction).

  • Create a federal pathway to sealing the records of nonviolent drug offenses for adults and automatically sealing (and in some cases expunging) juvenile records.

  • Ensure that anyone released from federal prison receives meaningful assistance in obtaining a photo-ID, birth certificate, social security card, or work authorization documents.

  • Improve the ability of those behind bars to stay in touch with loved ones, by banning the practice of charging exorbitant rates for phone calls (upwards of $400-$500 per month) and ensuring authorities take into consideration where someone's kids are located when placing them in a federal facility, a circumstance that acutely impacts women since there are far fewer women's prisons than men's prison.

  • Provide better training for law enforcement officers in implicit racial bias, de-escalation, and use-of-force.

  • Ban racial and religious profiling.

  • Improve the reporting of police use-of-force incidents (currently the Department of Justice is required to report use-of-force statistics to Congress, but states and local law enforcement agencies are not required to pass that information on to federal authorities, creating a significant gap in data that could be used to improve policies and training).

The Next Step Act is an effort to build upon the momentum of the First Step Act, which was signed into law late last year and which represents the biggest overhaul to the criminal justice system in a decade.  Booker was a key architect of the bill — he was instrumental in adding key sentencing provisions to the package after publicly opposing the House-passed version of the First Step Act first released in May 2018.  Booker also successfully fought to include provisions that effectively eliminated the solitary confinement of juveniles under federal supervision and banned the shackling of pregnant women.

The Next Step Act is based upon a number of individual bills Booker has authored, co-authored, or co-sponsored since arriving to the Senate in 2013, including the Marijuana Justice Act, the Fair Chance Act, the REDEEM Act, the Ending Racial Profiling Act, the Smarter Sentencing Act, the Dignity for Incarcerated Women Act, the Democracy Restoration Act, and the Police Reporting Information Data and Evidence Act.

I would be quite excited by a number of the substantive provisions in this bill if it had any chance of moving forward in any form.  But, for a host of political and practical reasons, this bill really serves more as Senator Booker's statement of aspirations rather than as a serious attempt to get something specific passed by Congress in the coming months.  Nevertheless, I am inclined to compliment the Senator for having so many big criminal justice reform aspirations, and the introduction of this bill will help ensure that Senator Booker keeps attention on criminal justice reform as he moves forward with his presidential campaign.

March 8, 2019 in Campaign 2020 and sentencing issues, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Thursday, March 07, 2019

"All Talk and No Action: Arizona’s Mandatory Drug Sentencing"

The title of this post post is the title of this notable new "Policy Perspective" document authored by Greg Glod of the Texas Public Policy Foundation's Right on Crime initiative. The piece includes research, insights and lessons that extend well beyond Arizona, and here is the introduction and part of the conclusion:

Drug use affects millions of people, with more than 23 million people over the age of 12 in the U.S. addicted to drugs or alcohol.  Arizona has some of the strictest drug laws in the country, including mandatory prison sentencing.  Politicians and tough-on-crime state prosecutors claim that mandatory prison sentencing for certain drug offenses helps to reduce crime and drug use.  But are they really working?  Research shows that sentencing drug offenders to mandatory prison time does not reduce crime or drug use — it can actually make both worse. Prisons continue to become overpopulated with drug offenders who are better served with treatment than incarceration.

This paper will provide a brief overview of Arizona’s often confusing drug sentencing laws, discussing threshold amounts that trigger mandatory prison sentencing for drug offenses in Arizona, reasons why they are not working, and will overview what other states are doing instead.  It will conclude by recommending actions for state lawmakers to begin to reverse the negative social and fiscal impact of Arizona’s prison sentencing for drug offenses....

Arizona lawmakers have options for how to deal with the future of Arizona’s mandatory drug sentencing.  To avoid exacerbating the problems that mandatory drug sentencing schemes have created, lawmakers must stop advocating for new mandatory drug sentencing laws.  Nor should they support laws increasing or expanding existing mandatory sentencing schemes.  While every option available in other states is not necessarily appropriate for Arizona, some are, including “safety valve” and de-felonizing marijuana possession.

March 7, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines | 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)

Wednesday, February 20, 2019

"Mandatory Minimums, Crime, and Drug Abuse: Lessons Learned, Paths Ahead"

The title of this post is the title of this "Policy Brief" from The James Madison Institute authored by Greg Newburn and Sal Nuzzo.  I recommend the brief in full, and here is an excerpt from the final section of the paper titled "Lessons for the Future":

In the 1970s, frustrated with an intolerable crime wave and unprecedented drug abuse, New York, Michigan, and Florida tried a new solution.  Their theory was clear: harsh mandatory sentences would scare drug users into getting clean, deter would-be drug dealers from entering the trade, and incarcerate kingpins and major players who could not then continue to bring drugs into the state.  Leaders in each state were confident that their proposed solution would finally be the one that worked.

More than 40 years later, New York and Michigan recognized that the solution in which their leaders had such sincere confidence could no longer be justified by evidence, data, or experience, and repealed their mandatory minimum drug laws.  Those repeals were possible only after policymakers were honest about the failure of their solution to deliver on its promises.

In fact, dozens of states nationwide have reformed or repealed mandatory minimum laws over the past 15 years.  Georgia, Alabama, and Mississippi all have exceptions to mandatory minimum drug trafficking laws.  Texas has never used mandatory minimum drug laws, and, like Florida, is currently enjoying a near 50-year crime low.  (Florida’s drug overdose death rate was 62 percent higher than Texas’ between 1999 and 2017.)  Louisiana repealed its mandatory minimum drug laws in 2017, with the support of the state’s prosecuting attorneys....

Florida, however, has so far refused to join the emerging consensus in favor of mandatory minimum drug law reform.  In spite of overwhelming evidence, Florida still clings to the same solution to drug abuse that has failed the state for 40 years, and continues to ignore the costly unintended consequences of its continued reliance on this failed strategy. Like New York and Michigan, attempts to reform Florida’s mandatory minimum drug laws are invariably met with dire predictions of doom and gloom, and Chicken Little-style warnings that without mandatory minimums Florida risks inviting 1970s-level crime once again.

February 20, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (0)

Tuesday, February 12, 2019

Joaquin "El Chapo" Guzmán found guilty on all 10 federal counts now facing LWOP sentence ... but surely could still provide substantial assistance

As reported in this NPR piece, headlined "'El Chapo,' Notorious Drug Kingpin, Found Guilty After Dramatic Trial In New York," the federal government secured high-profile drug convictions today in New York.  Here are some details:

After a long trial held under heightened security at the Brooklyn, N.Y., federal court, a jury has found Joaquín "El Chapo" Guzmán, one of the world's most notorious drug kingpins who led Mexico's Sinaloa cartel, guilty on all ten counts related to drug trafficking. He 61-year-old faces the possibility of life in prison.

Tuesday's verdict ended a dramatic trial that started in November and was filled with explosive testimony from Guzmán's former cartel associates. It included testimony from more than 50 witnesses, many of whom described Guzmán's use of violence against his enemies.

Guzmán faced 10 charges in the indictment, including engaging in a criminal enterprise — which in itself comprised 27 violations, including conspiracy to commit murder. Other charges included using firearms and manufacturing and distributing cocaine, heroin and other drugs.

Last week, Judge Brian Cogan gave jurors about three hours of instructions for their deliberations. He said he was confident that they had followed his instructions not to read or watch news about the case. The entire jury has been anonymous for their protection. At one point, the judge told the foreperson to sign notes using her name but then corrected that instruction and told her to use her juror number instead to keep her identity secret.

The jurors — four men and eight women — deliberated for days, asking for lengthy testimonies and whether ephedrine was considered methamphetamine.

In laying out their case, prosecutors spent 11 weeks calling witnesses, while the defense took 30 minutes and brought just one witness to the stand. The prosecution and defense delivered their final arguments to the jury in January.

Jeffrey Lichtman, one of Guzmán's defense lawyers, gave an animated presentation, banging the podium, pacing before the jurors and patting his client on the shoulder.... The prosecution had produced a "scripted event," he said, with cooperating witnesses who "lie, steal, cheat, deal drugs and kill people." And if Guzmán was convicted, all of those people would be released, he said.

Lichtman cast doubt on whether some of the murders that witnesses described ever happened. He called Guzmán "the rabbit" that Mexican authorities were chasing when the true mastermind behind the Sinaloa cartel was Ismael "El Mayo" Zambada....

Assistant U.S. Attorney Amanda Liskamm led the prosecution's rebuttal, urging jurors not to fall for the defense's smear. "The day cocaine conspiracies are made in heaven is the day we can call angels as witnesses," she said....

Prosecution witnesses offered testimony that swung from the bizarre to the shocking. According to testimony, he had a diamond-encrusted pistol and a gold-plated AK-47; he kicked off a cartel war after a rival refused to shake his hand; he and a mistress once fled naked through a secret tunnel under a bath tub; he escaped from a Mexican prison with the help of his wife, Emma Coronel Aispuro; and, in one of the most controversial allegations, he bought off Enrique Peña Nieto for $100 million — a claim the former Mexican president has denied....

Guzmán's 29-year-old wife attended the trial nearly every day, even as a mistress testified. She told The New York Times, "I don't know my husband as the person they are trying to show him as." The weeks also brought details of the sophisticated methods that the cartel used to move its contraband, from secret landing strips to container ships and submarines. People who stood in the way were allegedly bribed, kidnapped, tortured or killed....

Guzmán already had humiliated Mexico by escaping from prison twice. Once he made a getaway in a laundry cart. And then there was the mile-long tunnel that began under his maximum security prison cell's shower, a passageway that he told Penn had required sending engineers to Germany for training.

The cartel reportedly built some 90 tunnels between Mexico and the United States. After a long manhunt, he was recaptured in 2016 by Mexican authorities on the outskirts of Los Mochis and extradited to the United States the next year. He arrived on U.S. soil and pleaded not guilty to U.S. federal charges.

Guzmán showed in Mexico that he can devise ways to escape from prison, but I am hopeful US authorities will not have similar prison administration difficulties.  But, as the title of this post is meant to suggest, there is another way Guzmán could now try to work his way out of federal prison, namely by providing substantial assistance in the prosecution of others.

Ultimately, I am not sure Guzmán will be eager even at this point to cooperate with the feds, and I would be quite surprised if the feds would be willing to offer any significant sentencing discount for his cooperation.  But here it seems worth flagging the reality that, in a federal sentencing system that rewards defendants who cooperate, the greatest potential sentencing rewards can go to the most guilty of defendants who have the most potential information to offer.  Guzmán, who I believe is now facing a mandatory life sentence, would seem to be the poster child of the most guilty of defendants with the most potential information to offer.

February 12, 2019 in Celebrity sentencings, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (4)

Sunday, January 13, 2019

"Mandatory minimum sentencing policies and cocaine use in the U.S., 1985–2013"

The title of this post is the title of this notable new research published in the journal BMC International Health and Human Rights and authored by Lauryn Saxe Walker and Briana Mezuk. Here is its abstract:

Background

As of May 2017, the United States federal government renewed its prioritization for the enforcement of mandatory minimum sentences for illicit drug offenses.  While the effect of such policies on racial disparities in incarceration is well-documented, less is known about the extent to which these laws are associated with decreased drug use.  This study aims to identify changes in cocaine use associated with mandatory minimum sentencing policies by examining differential sentences for powder and crack cocaine set by the Anti-Drug Abuse Act (ADAA) (100:1) and the Fair Sentencing Act (FSA), which reduced the disparate sentencing to 18:1.

Methods

Using data from National Survey on Drug Use and Health, we examined past-year cocaine use before and after implementation of the ADAA (1985–1990, N = 21,296) and FSA (2009–2013, N = 130,574). We used weighted logistic regressions and Z-tests across models to identify differential change in use between crack and powder cocaine.  Prescription drug misuse, or use outside prescribed indication or dose, was modeled as a negative control to identify underlying drug trends not related to sentencing policies.

Results

Despite harsher ADAA penalties for crack compared to powder cocaine, there was no decrease in crack use following implementation of sentencing policies (odds ratio (OR): 0.72, p = 0.13), although both powder cocaine use and misuse of prescription drugs (the negative control) decreased (OR: 0.59, p < 0.01; OR: 0.42, p < 0.01 respectively).  Furthermore, there was no change in crack use following the FSA, but powder cocaine use decreased, despite no changes to powder cocaine sentences (OR: 0.81, p = 0.02), suggesting that drug use is driven by factors not associated with sentencing policy.

Conclusions

Despite harsher penalties for crack versus powder cocaine, crack use declined less than powder cocaine and even less than drugs not included in sentencing policies.  These findings suggest that mandatory minimum sentencing may not be an effective method of deterring cocaine use.

January 13, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, January 02, 2019

US Sentencing Commission releases big new report on "Mandatory Minimum Penalties for Federal Sex Offenses"

The US Sentencing Commission has kicked of the new year with this 81-page report titled ""Mandatory Minimum Penalties for Federal Sex Offenses." This USSC webpage provides this summary and key findings from the report:

Summary

This publication examines the application of mandatory minimum penalties specific to federal sex offenses; it is the sixth and final release in the Commission's series of publications on mandatory minimum penalties.

Using fiscal year 2016 data, this publication includes analyses of the two types of federal sex offenses carrying mandatory minimum penalties, sexual abuse offenses and child pornography offenses, as well their impact on the Federal Bureau of Prisons population. In addition to analyzing child pornography offenses generally, this publication analyzes child pornography offenses by offense type, exploring differences in frequency, offender characteristics, and sentencing outcomes for distribution, receipt, and possession offenses. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.

Key Findings

  • Mandatory minimum penalties for sex offenses are applied less often in the federal system compared to other mandatory minimum penalties.
    • Offenders convicted of a sex offense comprised only 4.2 percent (n=2,633) of federal offenders sentenced in fiscal year 2016.
    • Sex offenses accounted for 19.4 percent of offenses carrying a mandatory minimum penalty in fiscal year 2016.
  • Sex offenses, however, increased in number and as a percentage of the federal docket, and sex offenders were more frequently convicted of an offense carrying a mandatory minimum penalty.
    • Offenders convicted of a sex offense increased from 3.2 percent (n=2,317) of federal offenders, in fiscal year 2010, to 4.2 percent (n=2,633) in fiscal year 2016.
    • The number of offenders convicted of sexual abuse offenses has steadily increased since the Commission’s 2011 Mandatory Minimum Report, from 639 offenders in fiscal year 2010 to a high of 1,148 offenders in fiscal year 2016. Additionally, the percentage of sexual abuse offenders convicted of an offense carrying a mandatory minimum penalty also increased substantially, from 21.4 percent in fiscal year 2004, to a high of 63.2 percent in fiscal year 2016.
    • While also increasing over time since 2004, the number of child pornography offenders has remained relatively stable since the Commission’s 2011 Mandatory Minimum Report, decreasing slightly from 1,675 offenders in fiscal year 2010 to 1,565 in fiscal year 2016. The percentage of child pornography offenders convicted of an offense carrying a mandatory minimum penalty, however, has generally increased, from 50.2 percent in fiscal year 2010 to a high of 61.2 percent in 2014, before leveling off to 59.6 percent in fiscal 2016.
  • Sex offenders are demographically different than offenders convicted of other offenses carrying mandatory minimum penalties.
    • In fiscal year 2016, Native American offenders comprised a larger percentage of sexual abuse offenders than of any other offense carrying a mandatory minimum penalty. They constituted 11.7 percent of sexual abuse offenders overall and represented the largest portion (28.2%) of sexual abuse offenders convicted of an offense not carrying a mandatory minimum penalty.
    • White offenders constituted over 80 percent of offenders convicted of any child pornography offense (80.9%), convicted of a child pornography offense carrying a mandatory minimum penalty (83.0%), and those subject to that penalty (83.2%).  In comparison, White offenders comprised 22.7 percent, 27.2 percent, and 31.1 percent of all federal offenders, federal offenders convicted of any offense carrying a mandatory minimum penalty, and federal offenders subject to any mandatory minimum penalty, respectively.
    • The average age for all child pornography offenders and child pornography offenders convicted of an offense carrying a mandatory minimum penalty was 42, five years older than the average age for federal offenders convicted of an offense carrying any mandatory minimum penalty. Nearly half of all child pornography offenders were 41 or older (48.0%).
    • While the average age for sexual abuse offenders was the same as the average age of federal offenders overall (37), of those convicted of a mandatory minimum penalty, 17.6 percent were older than 50 and 20.5 percent were between 41 and 50.
  • Offenders convicted of sex offenses carrying a mandatory minimum penalty are sentenced to longer terms than those convicted of sex offenses not carrying a mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty was nearly three times longer than the average sentence for offenders convicted of a sexual abuse offense not carrying a mandatory minimum penalty (252 months compared to 86 months).
    • The average sentence for child pornography offenders who faced a ten-year mandatory minimum penalty because of a prior sex offense conviction (136 months) was substantially longer than the average sentence for those offenders who were convicted of a possession offense (without a prior sex offense), which does not carry a mandatory minimum penalty (55 months).
    • Child pornography offenders convicted of distribution (140 months) and receipt offenses (93 months), which carry a five-year mandatory minimum penalty, also had a longer average sentence than offenders convicted of possession offenses (55 months), who did not face a mandatory minimum penalty.
  • Although Commission analysis has demonstrated that there is little meaningful distinction between the conduct involved in receipt and possession offenses, the average sentence for offenders convicted of a receipt offense, which carries a five-year mandatory minimum penalty, is substantially longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory minimum penalty.
    • In fiscal year 2016, the average sentence for receipt offenders (without a prior sex offense conviction) was two and a half years longer (85 months) than the average sentence length for possession offenders (without a prior sex offense conviction) (55 months).
  • While still constituting a relatively small percentage of the overall prison population, the number of both sexual abuse offenders and child pornography offenders in Federal Bureau of Prisons custody has steadily increased, with both reaching population highs as of September 30, 2016.
    • Sexual abuse offenders accounted for only 3.5 percent (n=5,764) of the federal prison population as of September 30, 2016, but the number of sexual abuse offenders in a federal prison has steadily increased since fiscal year 2004, from 1,640 offenders to a high of 5,764 in fiscal year 2016. The number of offenders convicted of a sexual abuse offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 276 to 4,055, during the same time period.
    • Child pornography offenders accounted for only 5.1 percent (n=8,508) of the federal prison population as of September 30, 2016, but the number of child pornography offenders in federal prison has steadily increased since fiscal year 2004, from 1,259 offenders to a high of 8,508 in fiscal year 2016. The number of offenders convicted of a child pornography offense carrying a mandatory minimum penalty in the federal prison population has increased at a similar rate, from 118 to 6,303 during the same time period.

January 2, 2019 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (4)

Wednesday, December 26, 2018

Notable pipeline provisions in FIRST STEP Act in the wake of litigation history surrounding FSA of 2010

Long-time readers surely recall the legal uncertainty that followed the last congressional reduction of severe mandatory sentencing provisions in the Fair Sentencing Act of 2010 with respect to "pipeline" cases, i.e., cases in which offense conduct took place, but a sentence had not yet been imposed, before the enactment of the FSA's new crack sentencing provisions.  This legal uncertainty made it all the way up the Supreme Court in Dorsey v. US, 567 U.S. 260 (2012), and here is how the Court's 5-4 majority explained and resolved the issue:

In 2010, Congress enacted a new statute reducing the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1. Fair Sentencing Act, 124Stat. 2372. The new statute took effect on August 3, 2010. The question here is whether the Act’s more lenient penalty provisions apply to offenders who committed a crack cocaine crime before August 3, 2010, but were not sentenced until after August 3. We hold that the new, more lenient mandatory minimum provisions do apply to those pre-Act offenders.

Fast forward to the present day, and Congress this time around has figured out that it can and should address these pipeline issues directly when making statutory sentencing modifications. Specifically, here are the operative pipeline instructions that appear in the FIRST STEP Act with its three important sentencing changes:

SEC. 401. REDUCE AND RESTRICT ENHANCED SENTENCING FOR PRIOR DRUG FELONIES....

(c) APPLICABILITY TO PENDING CASES. This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

SEC. 402. BROADENING OF EXISTING SAFETY VALVE....

(b) APPLICABILITY. The amendments made by this section shall apply only to a conviction entered on or after the date of enactment of this Act.

SEC. 403. CLARIFICATION OF SECTION 924(c) OF TITLE 18, UNITED STATES CODE.... 

(b) APPLICABILITY TO PENDING CASES. This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

Put simply, Congress in the FIRST STEP Act has expressly provided that all cases in the pipeline, as long as a defendant has not yet been sentenced, are to be sentenced in accord with the new and lowered mandatory minimums (section 401) and without stacked 924(c) charges (section 403).  But, in slight contrast, only those pipeline defendants who have not yet been convicted, are able to be sentenced with the benefit of the new and expended safety valve provision (section 402) which allows defendants with a bit more criminal history to avoid the application of otherwise applicable drug mandatory minimums.

I am pleased to see Congress this time around directly addressing pipeline issues and thereby answering the most basic questions about how pending cases are to be handed.  And yet, ever eager to issue spot, I already have some follow-up questions:

  1. 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?
  2. Or imagine a defendant who might benefit from the broader safety valve and has not yet been sentence but did plead guilty earlier in 2018. Could this defendant move to vacate his plea simply in order to plead guilty anew in 2019 so that his conviction will then be "entered on or after the date of enactment of" the FIRST STEP Act?

The pipeline issues after the Fair Sentencing Act of 2010 impacted perhaps thousands of defendants, whereas the issues I raise above may only impact dozens. But for those particular defendants, what is still left uncertain might still certainly be a very big deal.  (I also suspect there are additional pipeline issues I have not yet imagined, and I welcome input on this issue and all other relating to FIRST STEP Act implementation.)

December 26, 2018 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0)

Monday, December 24, 2018

Lamenting lack of retroactive application of new sentencing changes in FIRST STEP Act (... and so rooting again for robust clemency)

This recent piece from The Guardian, fully headlined "Current inmates feel left behind by Trump's criminal justice reform bill; First Step Act reduces the mandatory sentence for three-strikes offenders but the provisions will not be made retroactive," spotlights how certain inmates have gotten left behind even as the inappropriateness of their sentences inspired key sentencing reforms in the FIRST STEP Act.  Here are excerpts:

On paper, Chris Young seems exactly the kind of person a prison reform bill ought to release from federal custody. In the eight years since he was last free, Young has become an avid reader, taught himself to write computer code and worked as a tutor for fellow prisoners. Right now he’s reading Yuval Noah Harari’s Homo Deus “for fun”.  He also says that since he can’t get real-world practice, he re-reads the same passage of a programming book every day after lunch, to make sure it’s committed to memory.

When he was 22, Young was arrested on a third low-level drug charge. Under so-called “three strikes” laws, he was given a mandatory life sentence.  For decades, in cases involving repeat drug offenders, such laws have stripped federal judges of discretion. The judge who sentenced Young, Kevin Sharp, was so shaken by the experience he retired shortly after.  “What I was required to do that day was cruel,” Sharp tweeted earlier this year.

The bipartisan First Step Act, signed into law by Donald Trump on Friday, softens that “cruel” requirement for federal judges, reducing the mandatory sentence in such cases to 25 years. But it will not do anything for Young.  In one of many compromises made by progressive reform advocates to secure conservative support, this and several other provisions were not made retroactive.  “I’m human and I would have loved to have benefited from the bill, but unfortunately I don’t,” Young told the Guardian from federal prison in Lexington, Kentucky. “I don’t necessarily feel left behind, I just feel [lawmakers] don’t understand what goes on with the … actual humans that their choices and politics affect.”...

Advocates believe [the Act] can be a launching point for state and local reform which could have a much greater impact on the US inmate population. After all, just 10% of people incarcerated in the US are in the federal system.  “I absolutely think that this one is going to be catalytic towards other de-carceration campaigns on the local and state level,” said Glenn Martin, a formerly incarcerated reform advocate who helped bring dozens of former inmate-led groups on board for the First Step Act.

“I think that the Senate — a conservative Republican Senate — has just given permission to conservatives all over the country [to become] engaged in criminal justice reform.” Nonetheless, the lack of retroactivity on a majority of the sentencing reforms was “a tough pill to swallow”.

“It’s one of the concessions that hurts the most,” said Martin. “It’s about fairness, and yet there’s this group of people who continue to be harmed because of the lack of retroactivity.”

That includes people like John Bailey, a 71-year-old inmate of the federal prison in Hazleton, West Virginia which is nicknamed “misery mountain”. Bailey’s brother Oliver said he was struggling to understand the logic of the changes not applying to inmates like John, who was imprisoned in 1992 on a non-violent drug charge. “If you recognize the injustice now,” asked Bailey, “how come it doesn’t apply to those that suffered the same injustice before?”

Advocates who worked on the bill said conservatives and politically vulnerable Democrats opposed retroactivity because of how releasing prisoners early might resonate with voters.

There is one bright spot for the Baileys. One provision of First Step that does apply to current inmates is a requirement that prisoners be housed no more than 500 driving miles from their home. Bailey, who is from St Petersburg, Florida, has spent his prison life in Leavenworth, Kansas and now West Virginia, thousands of miles away. Oliver has not seen John since he was jailed. “At this point something’s better than nothing,” he said. “We need to progress from here.”

It’s a common sentiment. Chad Marks is serving a 40-year sentence on drug conspiracy charges, thanks to another provision First Step will restrict. Marks’ sentence was enhanced by “stacking” language in federal law which dramatically increases a sentence if an offender possesses a firearm in the commission of a drug crime, whether or not it is used. “I don’t understand how lawmakers can say that doing this is wrong,” he said, “and that they are going to fix it, but not apply it retroactively. That was a big blow. What has my focus and attention right now is the fact that lawmakers did something, but my focus is also on a second step coming.”...

Young, Bailey and Marks continue to wait for a second step. While they do, all three must place their primary hope for release in an act of clemency: a pardon or commutation issued by the president. Young’s case has been endorsed by Kim Kardashian, who successfully lobbied for the release of another federal prisoner, Alice Johnson, in June. Marks said he was “more than hopeful that I will find relief through clemency”.

“I am praying that president Trump will find me worthy of mercy and grace,” he said. “I won’t let him down or disappoint him.”

As regular readers know, Prez Trump has been letting me down and disappointing me by having so far failed to make good on all the talk from earlier this year that he was looking at "3,000 names" for possible clemencies. I sincerely hope that Prez Trump and those assisting him on clemency matters are going to give extra attention to persons serving extreme sentences that would no longer be applicable under the new sentencing provisions of the FIRST STEP Act.  (I also think persons serving particularly extreme sentences should file (or seek to re-file) constitutional or other challenges to their sentences that might be emboldened by FIRST STEP Act reforms, but I will discuss this idea in a subsequent post.)

A few of many recent related posts: 

December 24, 2018 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Fifty Years of American Sentencing Reform — Nine Lessons"

The title of this post is the title of this notable new paper authored by Michael Tonry now available via SSRN. Here is its abstract:

Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice.  Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending.  Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up.  Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.  Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines.  Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes.  Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.

December 24, 2018 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Friday, December 21, 2018

Prez Trump signs historic (though modest) FIRST STEP Act into law ... and now comes the critical work of implementing it well!!

President Donald J. Trump officially signed the FIRST STEP Act into law today, and I am so very excited that a significant piece of sentencing and prison reform finally became law after years and years and years of talk and effort by so many.  I wish the reform was even more significant, especially on the sentencing side, but something is better than nothing and but for a modest reform to crack sentencing terms, we really have had nothing positive coming from Congress on the sentencing side in more than 20+ years.

The White House has this extended "fact sheet" about the FIRST STEP Act under the heading "President Donald J. Trump Secures Landmark Legislation to Make Our Federal Justice System Fairer and Our Communities Safer."  Here is an excerpt:

CREATING SAFER COMMUNITIES AND A FAIRER FEDERAL JUSTICE SYSTEM: The First Step Act will make our Federal justice system fairer and our communities safer.

  • The First Step Act will help prepare inmates to successfully rejoin society and enact commonsense sentencing reforms to make our justice system fairer for all Americans.
  • Among many reforms, the First Step Act will:
    • Promote prisoner participation in vocational training, educational coursework, or faith-based programs by allowing prisoners to earn time credits for pre-release custody.
    • Expand prison employment program opportunities.
    • Enact fair, commonsense reforms to mandatory minimums.
    • Eliminate the three-strike mandatory life sentencing provisions.
    • Give certain offenders the ability to petition the courts for a review of their sentences.

As the title of this post highlights, I am viewing the enactment of the FIRST STEP Act only as completing stage 1 of achieving significant federal criminal justice reform. Stage 2 involves the critical work of implementation, and so many of the large and small elements of the the FIRST STEP Act involve important and challenging implementation issues. Most obviously, the risk assessment system for prisoner programming and time credits needs to be developed and deployed in a fair and effective way and that is easier said than done. And the instruction that federal prisoners be house, whenever possible, within 500 miles of their homes is easier to describe than to ensure. And the new authority created by the FIRST STEP Act for courts to consider directly so-called "compassionate release" motions for sentence reductions presents a profound opportunity and a profound challenge for taking a second look at extreme (and extremely problematic) sentences.

I could go on and on, but I will save FIRST STEP Act "issue spotting" for the days and weeks ahead (I have created a new category archive for this very purpose).  For now I will just savor needed legal change and congratulate all those on the front lines who worked so very hard to help make this day possible.  Wow!

December 21, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (6)

Thursday, December 20, 2018

FIRST STEP Act approved by US House by vote of 358 to 36, will become law as soon as Prez Trump signs!!

As reported in this UPI piece, the US House of Representatives "overwhelmingly approved a bill overhauling the country's criminal justice system Thursday, sending the legislation to President Donald Trump's desk for a signature." Here is more:

The chamber approved the First Step Act with a 358-36 vote two days after the Senate passed it by a similar margin of 87-12. Lawmakers expect Trump to sign the legislation into law Friday.

The House approved a different version of the legislation earlier this year and had to amend it to make the Senate version.

Trump has described the reform as "reasonable sentencing reforms while keeping dangerous and violent criminals off our streets." "Congress just passed the Criminal Justice Reform Bill known as the #FirstStepAct. Congratulations!  This is a great bi-partisan achievement for everybody.  When both parties work together we can keep our Country safer. A wonderful thing for the U.S.A.!!" he tweeted.

House Speaker Paul Ryan welcomed passage of the legislation, saying it's something he's "believed in for a long time."

"These reforms to our criminal justice system will not only reduce recidivism and make communities safer, but they will help people into lives of purpose," he said.

HUZZAH!!!

Interestingly, when the prison-reform only versions of this bill received a House vote back in May, only two DOP members voted against it while 30+ Dems voted not because of a concern the bill did not go far enough. With the new version including a few modest sentencing reforms, this time around all Dems voted yea and all 36 nays came from GOP members (as detailed in this final vote tally).

Some of the most recent of many prior related posts as FIRST STEP Act gets ever closer to becoming law:

December 20, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, December 18, 2018

After rejection of contentious proposed amendments, FIRST STEP Act passed by Senate by vote of 87 to 12!!!!

In this post back in August I wondered "Could enhanced FIRST STEP Act get more than 90 votes in the Senate if even brought up for a vote?".  Well, it seems I was off by three votes, as tonight the the US Senate voted 87 to 12 to enact the FIRST STEP Act.  With a vote in the House scheduled for later this week, this bill should be on Prez Trump's  desk before the end of this week and law before Prez Trump heads down to Mar-a-Lago for the holidays.  This USA Today article, headlined "Senate passes First Step Act with push from criminal justice groups; bill goes to House," provides this account of today's historic developments:

Alex Gudich and the team from #cut50 weren’t taking any votes for granted. They spent Tuesday knocking on the doors of senators and urging them to support a criminal justice reform bill up for a vote, something they didn't know would happen that night.

"We knew that it would be a tough vote for many members on both sides," said Gudich, deputy director for the national advocacy group pushing to overhaul the nation’s criminal justice system. "We’re here at a very, very pivotal moment."

In a major step in that effort, the Senate voted 87 to 12 late Tuesday to approve the bipartisan "First Step Act" pushed by Sens. Chuck Grassley, R-Iowa, Dick Durbin, D-Ill., Mike Lee, R-Utah and Cory Booker, D-N.J. The bill must now go over to the House for a vote. President Donald Trump has supported the measure....

The Senate defeated amendments proposed by Republican Sens. Tom Cotton of Arkansas and John Kennedy of Louisiana that would have required the Bureau of Prisons to notify victims before a prisoner is released and tracked former offenders after they're released.

Several advocacy groups, including #cut50, and national civil rights groups, including the National Urban League, have been a part of a massive push to get the legislation passed. “It’s been a long time in raising the awareness of how the system of mass incarceration is so destructive and needs to be fixed and reformed,” said Marc Morial, president of the National Urban League. “There’s been a lot of groundwork that has been laid over the years.”

The groups have been working on criminal justice reforms for years, including under then-President Barack Obama, but supporters said the effort got a boost earlier this year with the help of Jared Kushner, President Donald Trump's son-in-law and senior adviser. “We were excited to see a breakthrough this year and a shift," Gudich said.

Gudich called the First Step Act “a compromise bill, but importantly it does not add any new mandatory minimum. There are no sentencing enhancements.” Some advocates, however, have complained the measure doesn’t go far enough. Morial said he would have wanted more provisions to deal with bail reforms and more support for reentry programs, but welcomes the effort. “If we could get a perfect comprehensive bill, we’d do it," he said. “This bill is also the product of some difficult political trade-offs. But it’s better to move this bill with all the things it does than to sit back and wait. We could end waiting another three to four years."

Lawmakers particularly praised the work and input of advocates and civil rights groups. “Formerly incarcerated individuals were incredibly important voices in urging the House to get something done meaningful on prison reform,’’ said New York Rep. Hakeem Jeffries, incoming House Democratic Caucus Chair, a key negotiator. “Nobody is more authoritative on the issue of the victimization that has taken place as a result of over criminalization as a result of the mass incarceration epidemic then those Americans who were directly impacted.”

Indeed, formerly incarcerated people from a host of groups, including #cut50, Prison Fellowship, the National Council for Incarcerated and Formerly Incarcerated Women and Girls, have lobbied Congress to support reforms. Civil and voting rights groups, including the NAACP and the ACLU, have also been key players along with a host of conservative groups. “We as conservatives share common goals,’’ Kevin Roberts, executive director of the Texas Public Policy Foundation, said during a press conference last week. “We want strong communities and institutions. We want those who have done wrong to be punished and then to seize their own redemption without state interference. Most of all we want safe neighborhoods.”

Morial applauded the passage of the First Step Act, but said more needs to be done. “This is something that we have to work on over time. This bill is a good bill, but this not going to be the last effort at criminal justice reform,’’ he said. “There’s already a lot of movement at the state level… This is a growing movement in America – the idea that we have to fix the system of mass incarceration.”

Some of the most recent of many prior related posts:

UPDATE: I just say that Prez Trump has already tweeted here about this significant legislative development, saying "This will keep our communities safer, and provide hope and a second chance, to those who earn it. In addition to everything else, billions of dollars will be saved. I look forward to signing this into law!"

December 18, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Monday, December 17, 2018

Cloture vote on FIRST STEP Act gets super-majority support in Senate

As reported in this article from The Hill, the "Senate advanced a White House-backed criminal justice reform bill on Monday, paving the way for senators to try to pass the bill as early as Tuesday." Here is more on the vote and what comes next:

Senators voted 82-12 to end debate on the legislation, which merges a House-passed prison reform bill with a handful of changes to sentencing laws.

Twelve Republicans voted against advancing the legislation despite President Trump endorsing the measure in November: GOP Sens. John Barrasso (Wyo.), Richard Burr (N.C.), Tom Cotton (Ark.), Mike Enzi (Wyo.), John Kennedy (La.), Jon Kyl (Ariz.), Lisa Murkowski (Alaska), Jim Risch (Idaho), Ben Sasse (Neb.), Dan Sullivan (Alaska), Mike Rounds (S.D.) and Pat Toomey (Pa.).

The Senate is expected to vote on potential changes to the legislation as soon as Tuesday before taking a final vote on the bill. “There are a number of members with outstanding concerns that they feel are still unresolved. ... The Senate will be considering amendments before we vote on final passage later this week,” Senate Majority Leader Mitch McConnell (R-Ky.) said ahead of the vote.

Though supporters rolled out a final version of the bill last week to try to win over more GOP senators, conservatives, led by Cotton and Kennedy, are expected to get votes on three amendments. Cotton, in a National Review op-ed published Monday, said his potential changes would help "limit the damage" and conservatives who had already said they would support the bill "have jumped on the bandwagon too soon."...

Toomey said in a statement that he was still weighing supporting the bill but voted no on Monday because it will block senators from voting on an amendment that he wanted to offer. “The First Step Act contains worthwhile provisions that seek to improve the criminal justice system and reduce offender recidivism, which is why I am seriously considering supporting it. However, today’s procedural vote was designed to preclude amendments, including one I intended to offer to support victims of crime," Toomey said.

The amendment votes are expected to be held with a simple majority threshold, meaning at least a few GOP senators would need to join with all Democrats to block them from getting added to the bill. Sen. Dick Durbin (D-Ill.), who helped craft the deal along with Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah), warned that as currently drafted that he believes Cotton's amendments are "poison pills" meant to undercut the legislation as a whole.

I am pretty sure this all means that the FIRST STEP Act is going to be passed by the Senate in the next few days, though there is still uncertainty as to whether it will be with or without the Cotton-Kennedy Amendments. My understanding is that the House will vote on whatever the Senate passes in short order, so some version of the FIRST STEP Act could be on the desk of Prez Trump even before the end of this week.  Wowsa!

December 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Friday, December 14, 2018

Details on further carve-outs and amendments to FIRST STEP Act sought by Senators Tom Cotton and John Kennedy

I have been able to get copies of proposed FIRST STEP Act amendments that Senator Tom Cotton and Senator John Kennedy will seek votes on next week.  Specifically, I have posted for downloading below a one-page explanation, the text of the proposed amendments, and a letter of support from the National Association of Police Organizations.  Here is key text from the one-pager (with bolding in the original):

AMENDMENT 1: Excluding serious felons from early release to prerelease custody and supervised release

The First Step Act already excludes some classes of felons from using the bill’s early release time credits to transfer into prerelease custody or supervised release for up to one-third of their sentences.  This list has grown as we have identified dangerous crimes — but it is still inadequate. For example, according to career sex-crimes prosecutors, 18 U.S.C. § 2422(b) is a commonly used statute to prosecute attempted child molesters.  Prisoners convicted of this statute are still eligible for early release under the revised bill. This amendment adds nine serious, violent, or sex-related criminal statutes to the “ineligible prisoners” list, excluding them from early release.  These offenders will still receive anti-recidivism programming and are eligible to earn other incentives, but will not be granted early release compared with current law....

AMENDMENT 2: Notifying victims before a offender is allowed to transfer out of prison early

This amendment would require the warden to notify each victim, when applicable, before an offender is transferred early into prerelease custody or supervised release.  It would give the victim an option to make a statement to the warden before the offender is released.

AMENDMENT 3: Tracking the effectiveness of the anti-recidivism programs

This amendment would create transparency by requiring the Bureau of Prisons to track the rearrest data for each prisoner who is transferred out of prison early into supervised release or prerelease custody.  This will provide valuable data to measure the effectiveness of the evidence-based anti-recidivism programs in the bill.

All Three Amendments Are Supported by the National Association of Assistant U.S. Attorneys, the Federal Law Enforcement Officers Association, the National Association of Police Organizations, and victims rights groups Force 100 and Arizona Voices for Crime Victims.

Download Final Cotton Kennedy one-pager on First Step Act Amendment

Download Text Cotton Kennedy First Step Amendment

Download NAPO Supports Cotton-Kennedy Amdt1_S.3649%5b3%5d

I am not a fan of many of the existing 60+ carve-outs in the current draft of the FIRST STEP Act limiting who gets certain incentives for being involved in anti-recidivism programming. Among my worries with these carve-outs is that sophisticated federal prosecutors and defense attorneys may develop (hard-to-see) ways to plead around these carve-outs so that certain federal defendants will be able to avoid their impact while others will not.  This makes the entire sentencing system and the mechanisms being set up by the FIRST STEP Act less transparent and potentially less effective.  So, I hope the Senate will resist even more carve-outs.

The victim-notification provision seems to overlap with The Crime Victims' Rights Act, 18 USC § 3771, which provides that a crime victim has the "right to reasonable, accurate, and timely notice ... of any release ... of the accused."  I am not sure if the federal system consistently complies with this provision of the CVRA, and arguably this proposed amendment serves to expand and enhance the existing statutory right.  And, of course, a large number of federal prisoners, such as those convicted of various drug and immigration and gun possession offenses, did not commit crimes with tangible victims needing to be notified.

And, as regular readers should know, I always support provisions that seek to soundly enhance the requirement of governments to soundly collect and analyze and make public data about sentencing systems and prison programming.  

Some of the most recent of many prior related posts:

December 14, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Thursday, December 13, 2018

Latest developments and discussions surrounding FIRST (baby) STEP Act

Yesterday, the Senate Judiciary released this press statement titled "Senate & House Lawmakers Release Updated First Step Act."   Here are key passages and links from the release:

A bipartisan, bicameral group of lawmakers today released revised text of the First Step Act to continue building support for criminal justice reform. This update was brokered by the White House and a bipartisan group of lawmakers in both chambers of Congress. Majority Leader Mitch McConnell and Speaker Paul Ryan have pledged to take up the revised package before the end of the year....

The revised legislation further clarifies eligibility for earned time credits following successful completion of evidence-based recidivism reduction programs, and expands on the existing list of disqualifying offenses. The changes address points raised by some law enforcement groups and provides for additional transparency in the Bureau of Prisons’ risk assessment framework.  A summary of the update can be found HERE.  Text is available HERE.

The First Step Act is endorsed by President Trump and cosponsored by more than a third of the Senate, evenly balanced among Democrats and Republicans. The recent updates to the bill have garnered the support of additional senators in recent days, including Senators Thom Tillis, Ted Cruz, David Perdue and John Cornyn....

The First Step Act is backed by a number of law enforcement groups, including the nation’s largest police group. It’s also supported by 172 former federal prosecutors including two former Republican U.S. attorneys general, two former deputy attorneys general and a former director of the FBI along with sheriffs from 34 states across the country. The National Governor’s Association, which represents the governors of all 50 states, praised the bill. A broad coalition of conservative and progressive groups along with a host of business leaders and faith-based organizations also support the First Step Act.

As the title of this post indicates, I am tempted to rename the FIRST STEP Act the First Baby Step Act because all of the latest carve outs in the latest version of the bill have made an already watered-down reform effort even more watery. But, because even a baby step is still so much better than no step at all, I remain very excited about the FIRST STEP Act and hope to be able to officially celebrate its enactment in the coming weeks.

And, of course, Senator Tom Cotton is not eager to go down without a fight here, and the press is rightly talking about his prominent role in the debate over this bill.  Here is a sampling of recent coverage:

December 13, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Friday, December 07, 2018

Senator Ted Cruz supports FIRST STEP Act with revisions, Prez Trump tweets for a "VOTE," and the bill's prospects brighten

The US stock market probably can lay claim to being the most volatile and unpredictable metric since last months election, but the ups and downs surrounding the possible enactment of the FIRST STEP Act during the lame duck Congress have certainly been knocking me for a loop.  As of yesterday evening, as reflected in this post, I was ready to put a folk in reform efforts and conclude they were done for now.  But a new day brings all sorts of new developments: (1) Senator Ted Cruz issued this press release reporting "the White House and the sponsors of this bill ... have decided to accept [his] amendment" to exclude violent offenders from being released early so that now he believes "the Senate should take up and pass this important legislation, and (2) Prez Donald Trump posted this tweet:

This new Politico article, headlined "Trump leans on McConnell to vote on criminal justice reform," provides the latest full update, including these mostly encouraging details:

President Donald Trump pressured Senate Majority Leader Majority Leader Mitch McConnell on Friday to pass criminal justice reform, hoping to push a reluctant McConnell to put it on the floor during a crowded lame duck session. After going mostly silent on the bill for several weeks, Trump touted the bill at an event in Kansas City and then singled McConnell out on Friday on his Twitter feed....

A person familiar with the conversations between the two men said the president was using a light touch on the bill, but would call McConnell out if he felt the bill was drifting away. “McConnell said if we’ve got 65 votes then he would allow the bill to get on the floor. And we’ve far exceeded that. And now the president is pushing the president to get the floor time," the person said. "We need to figure out exactly how this fits in in the floor time. Until we can answer that question all the pressure in the world won’t make a difference. What [Trump has] done is he’s expressed very clearly to McConnell that he wants him to figure it out."

Senate Judiciary Chairman Chuck Grassley (R-Iowa) also talked to Trump on Friday and tweeted that "Trump told me he wants it done THIS CONGRESS."

The Trump tweet came on top of a day of rising public support for the bill, with Sen. Ted Cruz (R-Texas) endorsing a revised version of criminal justice reform. The legislation, which would relax some federal sentencing guidelines and reform the federal prison system, is being amended to “exclude violent offenders from being released early,” the Texas Republican said in a statement....

Four other senators endorsed the bill on Friday as it faces a time crunch on the Senate calendar. Sens. Thom Tillis (R-N.C.), Tina Smith (D-Minn.), Michael Bennet (D-Colo.) and Steve Daines (R-Mont.) backed the bill.  Those senators plus Cruz give the bill more than 30 official supporters in both parties, though almost the whole 49-member Democratic caucus is expected to back the bill if it comes up for a vote.

The real issue is on the Republican side, where advocates argue that about 30 of the 51 senators support it, but GOP leaders say the bill’s support is much lower.  Though conservatives like Tom Cotton (R-Ark.) have led the public charge against it, there are quieter opponents of the bill like Sen. Dan Sullivan (R-Alaska), who says his state is in the midst of a “crime wave” from similar legislation.  “It’s a very challenging time in Alaska to be focused on criminal justice reform,” Sullivan said in an interview. He said the bill should not come up this year.

The internal disagreements and opposition from the National Sheriffs’ Association have made McConnell reluctant to bring the bill to the floor, especially with just two weeks left to pass legislation to fund the government. McConnell has repeatedly indicated to the White House and his conference that finding a window to pass the criminal justice reform bill would be challenging. “Until we can kind of figure out how to get the sheriffs on board, we still have a lot of opposition in our ranks,” said Sen. John Thune of South Dakota, the No. 3 GOP leader. “Then, from a timing standpoint, how would we process that in the next two weeks?”...

Sen. Lindsey Graham (R-S.C.) said he spoke to President Donald Trump on Friday and that the president wants the bill to pass, potentially as part of the spending bill along with more money for the border wall. But that plan would surely draw broad Democratic opposition over funding for the wall. And McConnell has mentioned taking up the bill next year after Democrats take the House. But the bill's supporters say that's akin to starting all over after building a fragile compromise this year.

Some of the most recent of many prior related posts:

December 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Thursday, December 06, 2018

Latest seemingly encouraging news on debate over FIRST STEP Act

As lots and lots of folks keep discussing and debating the FIRST STEP Act in various fora, this new Washington Examiner article brings something close to new news about the prospects for the legislation.  The lengthy piece is headlined "Influential First Step Act opponent backs some key provisions, offering hope to supporters," and here are excerpts:

A leading opponent of President Trump's push for criminal justice reform has admitted that he supports key planks of the legislation, giving reformers hope it can pass by the end of the year.

Larry Leiser, president of the National Association of Assistant U.S. Attorneys, told the Washington Examiner he supports in principle three of four major sentencing reforms included in the Trump-backed First Step Act.

Provisions to reduce prison sentences were added last month to satisfy senators pushing for deeper reform after less-controversial prison reform and societal reentry measures passed the House of Representatives in May. Leiser opposes the underlying bill, but said there's merit to the additions.

"This is significant because Larry has been among the loudest and most persistent critics of criminal justice reform and the First Step Act," said Koch Industries general counsel Mark Holden, a supporter of the legislation. "Having him on board with these reforms should help ease any concerns some senators may have about making our sentencing laws more proportional and just."

The First Step Act faces a tight deadline before Democrats retake the House of Representatives in January. Reform advocates fear that a divided Congress will lead to an impasse that results in no reform. Republicans are split on the bill, and Senate Majority Leader Mitch McConnell, R-Ky., has not committed to a vote. Bill supporter Sen. Lindsey Graham, R-S.C., said last month that it would get 80 votes in the Senate, but that the push would likely die when Democrats retake the House and advocate for even farther-reaching changes.

As time dwindles, Holden shared with the Washington Examiner details about a private conversation he had with Leiser, a leader of the opposition, alongside Sen. Tom Cotton, R-Ark. Holden said that nearly a year ago, Leiser said he supported three of four major sentencing changes ultimately added to the bill. In a phone call Wednesday, Leiser confirmed the account, but said that he opposes the overall package, mainly due to concerns about process and provisions that passed the House.

"What Mark Holden is trying to do is pick off the things we agree on and say we support the overall bill, [but] there are parts of the bill that we think are adverse to public safety,” Leiser said. Leiser said he supports repeal of a three-strikes life sentence for drug crimes and an expanded sentencing “safety valve” to allow judges to deviate from harsh drug penalties, though he believes the Senate bill sets the bar too low.

Leiser said he opposes a fourth major sentencing addition to the First Step Act that would retroactively reduce sentences for crack cocaine convicts punished under a since-changed law. Many such sentences, however, already were cut by former President Barack Obama.

Although he supports some of the reforms, Leiser opposes seemingly less-contentious provisions in the bill that passed the House, notably allowing inmates who participate in anti-recidivism programs to transfer early to supervised release, such as living in a halfway house. He said there's no evidence programs reduce recidivism at the federal level and that he suspects reformers are downplaying the bill's potential effects.

December 6, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Thursday, November 29, 2018

Latest chapter of FIRST STEP Act massaging and messaging

Just about day now seems to bring a new development in the saga surrounding a possible Senate vote on some possible version of the FIRST STEP Act.  This new Politico article, headlined "Criminal justice reform bill still alive as McConnell deliberates," reports on the very latest of these developments, and here are excerpts:

Chuck Grassley and other advocates of criminal justice reform are desperately trying to sway Mitch McConnell to stay longer in December to finish their bill. And McConnell isn't ruling it out.

The Senate Judiciary chairman said he's still waiting on an official word from the majority leader on whether he will provide floor time to take up a measure that has drawn heated opposition from some Senate Republicans despite earning President Donald Trump's endorsement....

McConnell said the Senate GOP is still deliberating on whether to move forward, though he left the door open in a brief Thursday interview. “We’re trying to figure out how to proceed on it. We’re still trying to figure that out," the Kentucky Republican said....

Meanwhile, even as a bipartisan group of senators is still working on coming up with a new agreement to win more co-sponsors and the support of the National Sheriffs' Association, a Justice Department draft began circulating on Thursday that rewrites a number of key provisions.

The draft, obtained by POLITICO, would still allow many federal inmates to earn time credits and obtain supervised release but would bar people convicted of violent crimes and major drug trafficking crimes. It would also increase penalties for attacking police officers and fentanyl dealers, a key concern of law enforcement groups and senators from states wracked by the opioid crisis.

But the White House pushed back quickly against the draft, reiterating Trump's call for the criminal justice bill to get a vote this year. "The president has endorsed the Senate compromise on the First Step Act, and the White House is not circulating any other version,” White House deputy press secretary Hogan Gidley said. “All reporting to the contrary is false. The White House is committed to passing this legislation in the lame duck."

One person working in favor of criminal justice reform also slammed the draft as reflecting the efforts of a "rogue DOJ official who always hated the bill." Democrats and Republicans have been working to overcome objections from Republican senators, but "this is not what is being considered," the person said....

Senate Minority Whip Dick Durbin (D-Ill.) said supporters are considering excluding people from sentencing reforms that committed arson, certain drug crimes, and "taking care of the sheriffs' concerns" about sex crimes.

November 29, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (8)

Tuesday, November 27, 2018

FIRST STEP Act, already compromised to cater to tough-on-crime crowd, may be watered down further for Senate vote

The Washington Post is reporting in this new article, headlined "Senate Republicans mull changes to controversial criminal justice bill," that there is talk of further gutting the few sentencing reform provisions in the latest version of the FIRST STEP Act and creating still further prison reform carve outs.  Here are the details:

Senate Republicans are actively discussing changes to a controversial overhaul of the criminal justice system in a bid to win more GOP support that could nonetheless shatter a delicate bipartisan compromise on one of President Trump’s top legislative priorities left for this year.

The changes being mulled, confirmed by senators and others familiar with the talks, reflect in part proposals put forward by the National Sheriffs’ Association, which is opposed to the legislation as written.  Though a slew of law enforcement groups already support the bill, getting more of them on board is almost certain to improve its prospects among Republicans.

One change that has been discussed privately is tightening the “safety valve” provision, which provides more discretion to judges when they issue sentences.  Though the most recent public draft of the bill would allow judges to take advantage of those “safety valves” in more types of cases, Sen. David Perdue (R-Ga.) said senators are talking about reducing the types of convictions that would qualify for the “safety valve” provision.  Perdue also said senators are considering narrowing the kinds of fentanyl-related crimes that would be eligible under the legislation, which broadly is meant to loosen some mandatory minimum sentences and help rehabilitate prisoners.

“I’m probably going to be supportive of it,” said Perdue, who was a vocal opponent of a more expansive version of the legislation two years ago. “It does some things that we’ve been talking about that Georgia and North Carolina and Texas have done, with good results.”

A provision that gets rid of the “stacking” regulation — which is used to add more penalties against those who commit a drug-related crime while possessing a gun, even if the firearm wasn’t used — is also ripe for potential changes to win over Senate Republicans.

The changes under negotiation reflect the messy, closed-door horse-trading that will only grow as Senate leaders begin gauging support for the bill this week, even if attempts to change the legislation are ultimately unsuccessful.  Senate Democrats, who believe they have already made significant concessions, aren’t eager for more changes that would push the bill further to the right, considering it already has Trump’s endorsement and appears it could easily pass the House.

“I’m aware of the discussions, but we have a strong commitment on both sides of the aisle, including the White House, that the bill is what it is,” Sen. Cory Booker (N.J.), one of the main Democratic authors of the bill, said Monday evening of the changes being discussed. “I believe we should all be standing pat and firm.”

The bill’s supporters — both Republicans and Democrats — are also rushing against the clock, scrambling to get the measure signed into law this year before Democrats gain control of the House.  The new majority, particularly the generation of lawmakers partly elected on a message of racial justice, could be more emboldened to push for more sweeping changes than the limited overhaul, upsetting the compromise.

Another change that has been floated privately is including additional categories of sex offenders in the group of inmates who would be ineligible for early release, according to one Senate official....

While the discussions continue, the ranks of publicly opposed senators are growing. Sen. Marco Rubio (R-Fla.) has been privately speaking with Sen. Mike Lee (R-Utah) and Sen. Tim Scott (R-S.C.) — two of his closest allies — but stressed Monday that while he is on board with the overhaul to the prison systems and recidivism programs, he is concerned about the proposed changes to sentencing laws. “Now that we’re getting to the guts of it, I need to have a better understanding,” Rubio said. But “as of now, I can’t support it, given my understanding of it.”

Trump, meanwhile, has not wavered from his public commitment to the First Step Act and overhauling the criminal justice system — the subject of a Monday roundtable in Mississippi that was sandwiched between two campaign rallies. After endorsing the bill with much fanfare at a White House ceremony this month, Trump again pushed Senate Majority Leader Mitch McConnell (R-Ky.) for a floor vote in a private phone call last Tuesday, according to people briefed on the conversation.

“Well, we’re talking to him, and we’re doing a count,” Trump said Monday in Mississippi of his discussions with McConnell. “We want to make sure that we have the votes because we don’t want to bring it if we don’t have the votes, but another thing we’re looking at right now is that we have more than enough. So at a certain point, we’ll have a talk. But we have the votes, and I’m sure that we’ll be voting soon.”

Especially in light of this new reporting, it is worth watching how Prez Trump talked up the FIRST STEP Act again at this Mississippi roundtable event Monday night, and also worth noting how VP Mike Pence and Senator Lindsay Graham also talked up the bill.  Because of how much Prez Trump seems to be leaning into this legislation, I now think it would be a big loss for him if there isn't a vote on the bill (and Prez Trump himself said at the roundtable event the bill could get 80 votes in the Senate).  So, based on all of this buzz, I am now thinking a Senate vote is going to happen, but that Senator Cotton and perhaps a few other hardliners will find various ways to continue watering down the bill up until a vote finally goes forward.

As I have said repeatedly in this space, any positive reform is better than no reform.  So I am continuing to hope we see a bill become law in the weeks ahead.  But I also hope everyone supporting of real reforms takes to heart that this bill will be, as it name connotes, just a small first step in a very long path toward needed federal criminal justice reforms.

Some of many prior related posts:

UPDATE: The White House has provided here the full transcript of "Remarks by President Trump at FIRST STEP Act Roundtable with Governor Bryant and Law Enforcement Leaders." They start substantively this way:

We’re here today to discuss a landmark prison reform bill called the FIRST STEP Act — so important.  This legislation will help former inmates reenter society as productive law-abiding citizens and it has tremendous support no matter where we go. Tremendous support.  Beyond anything I would’ve expected.

November 27, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Monday, November 26, 2018

Senator Tom Cotton continuing to do everything he can to try to keep the FIRST STEP Act from moving forward

Senator Tom Cotton continues to work with all his might to halt Congress from taking any reform steps via the FIRST STEP Act, and his latest efforts involve this new National Review commentary and what is reported here by Politico under the headline "Cotton wields sex offender report to tank prisons bill."  Here is how Senator Cotton himself gets started at NR:

It remains to be seen whether the lame-duck 115th Congress will debate a sweeping overhaul of our federal criminal-justice system before we adjourn for the year. You may have heard about the legislation at hand, the FIRST STEP Act. I oppose it. I urge my fellow conservatives to take the time to read and understand the bill before signing on in support of this flawed legislation.

The 103-page bill that was released the Friday before Thanksgiving has some good parts, and I don’t question the intentions of the bill’s proponents. But you may have noticed that they talk more about their intentions than about the consequences of the bill. As conservatives, we know that good intentions say little about actual consequences. And to paraphrase Thomas Sowell, intellectuals who generate ideas with good intentions rarely have to face the consequences of those ideas personally.

When proponents of the bill discuss the substance, they claim that “nothing in the FIRST STEP Act gives inmates early release.” Instead of early release, proponents say, it merely provides incentives for inmates to participate in programs. This is nothing but a euphemism. Let there be no doubt: If the bill is passed, thousands of federal offenders, including violent felons and sex offenders, will be released earlier than they would be under current law. Whatever word games the bill’s proponents use will make no difference to the future victims of these felons.

Here is what Politico is reporting:

GOP Sen. Tom Cotton is locked in an awkward fight with fellow Republicans over their push to change federal prison sentencing guidelines. And now he has a new attack line intended to make his rivals squirm: Warnings that sex offenders could get off easy.

A new Justice Department analysis — conducted at Cotton‘s request — found that the Senate’s bipartisan sentencing and prison reform bill could make people convicted of some sex crimes eligible for early release. And though President Donald Trump supports the bill, Cotton says the DOJ confirmation underpins his argument that convicts of certain sex-related crimes could accrue credits making them eligible for supervised release or “pre-release” to a halfway house.

While GOP leaders are beginning to assess the prospects of the bill on the Senate floor, the Arkansas Republican argues that the latest version of the bill has been rushed and contains significant flaws and is hoping to sway undecided Republicans to join him. Cotton and Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah) have been battling over the specifics of the bill since it was released in mid-November, exactly the type of intraparty firefight Senate Majority Leader Mitch McConnell (R-Ky.) has been hoping to avoid.

The argument over the bill's treatment of sex offenders took center stage on Monday, drawing the latest public shots between the warring Republican senators. “Now that the Department of Justice has confirmed that the Senate FIRST STEP Act offers early release to multiple categories of sex offenders in several provisions of the bill, Congress should fix these problems instead of ramming this bill through. There is no such thing as a ‘low-risk violent sex offender’ who deserves earlier release than under current law," Cotton said in an emailed statement.

A spokesman for Lee defended the legislation in response to the DOJ analysis on Monday and accused the bill’s opponents of “spreading fake news” about the bill. “Just because a federal offense is not on the specific list of ineligible offenses doesn’t mean inmates who committed non-specified offense will earn early release. All inmates must first pass a DOJ risk assessment before they can even begin earning good time credits. And then they must secure certification from their warden that they are not a threat to safety before they can be released,” said Conn Carroll, a Lee spokesman. Carroll added that Lee is open to revising the bill if it turns opponents into supporters: “If adding to the list of specifically forbidden offenses would get some senators to yes, we would love to help them do that on the Senate floor.”

Their colleagues are watching closely. Sen. Marco Rubio (R-Fla.) said that a Cotton op-ed panning the bill made a "compelling argument" and indicated his vote is in play. A number of Trump's allies, from Grassley to Sen. Rand Paul (R-Ky.) to Lindsey Graham (R-S.C.) are behind the bill, but in the Senate even a small band of opposed senators can make a floor debate stretch out for a week — all while lobbing attacks at fellow Republicans for being soft on crime.

"I'd like to get it through but we still have a few problems that we ought to work out," said Sen. Orrin Hatch (R-Utah). "I'm for doing it if we can. We have a shot at it but we're going to have a lot of cooperation."

Senior Senate Republicans said on Monday they could not predict what McConnell will do. The president has lobbied McConnell to bring up the bill, but the GOP leader has told Trump the Senate's schedule is crowded over the next month. McConnell has emphasized that funding the federal government by the Dec. 7 deadline and finishing a farm bill are his top priorities. And the House would probably have to vote on whatever the Senate passes on criminal justice reform, and ousted House Republicans may want to head home as soon as the funding bill is finished.

November 26, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

An notable debunking of "Three Myths From Critics of Criminal Justice Reform"

Ken Cuccinelli, the former Attorney General of Virginia, has this lengthy new commentary at The American Spectator headlined "Three Myths From Critics of Criminal Justice Reform: They need to be knocked down." I recommend the piece in full, and here are some excerpts:

Criminal justice reform — thanks, in part, to an overwhelming 360-59 vote in the House on the FIRST STEP Act — has quickly gained momentum, championed by conservatives as a down payment towards ensuring that prisoners re-entering society do so with the tools they need to succeed. President Trump, who campaigned on restoring law and order, has been a vocal supporter of prison reform since earlier this year, and has recently signaled support for various sentencing proposals, as well.

But not everyone agrees. Senator Tom Cotton, a long-time skeptic of criminal justice reform, penned an article in the Wall Street Journal this summer in which he generally praised rehabilitation efforts in federal prisons but took sentencing reform to task, calling it a “foolish approach” that would “endanger communities.”  Meanwhile, now-former Attorney General Jeff Sessions has been critical of reform efforts as well, claiming that changes in drug sentencing risks allowing violent crime to run amok.  Research and, most importantly, experience — particularly in southern red states — inform us that both arguments lie on shaky, outdated foundations.  As the Senate appended modest sentencing proposals to the FIRST STEP Act, it is worthwhile to separate facts from fiction.

Myth #1: Drug crimes are inherently violent.

Among the subtler tactics that critics of federal sentencing reform employ is a simple progression: begin with discussion of America’s real, ongoing problem with drugs; immediately shift the focus to violent crime, as if the two issues are self-evidently identical; and then argue that the reason for America’s historical reduction in violent crime can be traced to the adoption of lengthy mandatory sentences for drug dealing.

This may make for a neatly packaged argument, but reality spins a far more complicated tale. First, plain observation of drug overdoses and violent-crime trends simply doesn’t lend itself to correlation. Between 1999 and 2016, drug overdose death rates increased by over 200 percent, while violent crime rates fell by over 26 percent. These skyrocketing overdose deaths occurred despite an entire bevy of mandatory sentencing tools available to federal authorities that were ostensibly enacted to curb the worst consequences of drug crimes. Instead, such sentences have had no discernible effect on deaths caused by drugs....

Myth #2: Longer prison sentences equals less crime....

While a simple fact is that research has yet to pinpoint the factor(s) most responsible for our historic reduction in crime, the weight of evidence is clearly against those theories which emphasize imprisonment — particularly imprisonment meant to discourage drug use.

According to a comprehensive analysis of the dramatic rise of incarceration rates and its affects by the National Research Council, there is an outward “plausibility to the belief that putting many more convicted felons behind bars would reduce crime.” However, the authors explain that even a cursory examination of the data reveals the “complexity” of drawing meaningful correlations between crime and incarceration rates:

Violent crime rates have been declining steadily over the past two decades, which suggests a crime prevention effect of rising incarceration rates. For the first two decades of rising incarceration rates, however, there was no clear trend in the violent crime rate — it rose, then fell, and then rose again. While incapacitation effects may be effective when targeted towards “very-high rate or extremely dangerous offenders,” the authors conclude that the “incremental deterrent effect of increases in lengthy prison sentences is modest at best.”...

Criminal justice reform is engineered to incentivize participation in substance-abuse treatment and other recidivism-reduction programs, or otherwise to curb overly-punitive sentences which may extract their pound of flesh but also rapidly lose their effectiveness as one moves down the offense severity ladder.

To summarize, weightier factors besides simply “locking up” criminals must be at play to account for crime reduction. Ascribing that reduction solely to lengthy sentences is a theory that doesn’t play well with the data — especially given the fact that thirty states have recently experienced crime rate reductions while simultaneously reducing their prison populations.

Myth #3: No one goes to federal prison for “low-level, non-violent” drug offenses.

It is easy to produce a statistic that there are relatively few people incarcerated for federal drug possession offenses and then brush one’s hands together with satisfaction, believing that the “we overincarcerate” canard has just been dispelled. But while this immediate fact is indeed true, putting it into context makes this line of argument less salient.

First, consider the composition of all federal drug offenders. In 2017, about 48 percent of drug offenders sentenced at the federal level — a majority of whom are trafficking offenders — were in the lowest criminal-history category, having been previously sentenced for, at most, one low-level offense.  Roughly 60 percent were in the lowest two categories.  To be sure, drug trafficking, which includes street-level dealing, involve more serious offenses.  Even so, there are still tens of thousands of federal inmates being incarcerated — for historically longer periods of time — for lower-level drug offenses.  Recidivism is a real problem, but federal prison is a big stick, and shouldn’t be the front-line corrective for every offense. Too often it is, even for simple possessors (over 80 percent of whom receive a term of imprisonment)....

We must begin shifting the paradigm away from using mandatory sentences as the obvious tool against lawbreaking — as states such as Florida, South Carolina, and Texas have done. Crimes should be punished, but the law loses its legitimacy when it punishes disproportionately.  The FIRST STEP Act — along with modest sentencing reforms — will help regain the law’s moral force and make us safer at the same time.

November 26, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, November 21, 2018

Notable account of Acting AG Matt Whitaker's sentencing work as US Attorney in Iowa

The Washington Post has this interesting new piece about the current Acting US Attorney General's sentencing record as a chief federal prosecutor in Iowa. The lengthy piece is headlined, "As U.S. attorney, Whitaker imposed longer-than-usual drug sentences," and merits a full read. Here are snippets:

Raeanna Woody’s crimes hardly seemed like they would add up to a life sentence in prison. She had two nonviolent drug convictions, for possessing marijuana and delivering 12 grams of methamphetamine. But when she was arrested in a third drug case, she said, the office of U.S. Attorney Matthew G. Whitaker decided to make an example of her.

Under Whitaker, who is now acting attorney general, Woody was given a choice: spend the rest of her life in jail, or accept a plea bargain sentence of 21 to 27 years, according to court records. She took the deal.

Federal Judge Robert W. Pratt in the Southern District of Iowa later accused prosecutors of having “misused” their authority in her nonviolent case. He urged President Barack Obama to commute her sentence — and Obama did shorten her term , after she had served 11 years.

Woody’s case highlights one of the most controversial if little-known aspects of Whitaker’s career: his efforts to obtain unusually stiff sentences for people accused of drug crimes. Whitaker spent nearly five years as U.S. attorney for the Southern District of Iowa. His office was more likely than all but one other district in the United States to use its authority to impose the harshest sentences on drug offenders, according to a finding by a different Iowa federal judge, Mark W. Bennett, who it called a “deeply troubling disparity.”

“If the president can look at my case and he can see that what I had done wasn’t severe enough to warrant that many years, then why was I given that many years to begin with, why was that much of my life taken from me?” Woody, a 57-year-old mother of five, said in an interview. “I blame Whitaker’s office and everybody underneath him.”...

The rate at which Whitaker’s office and another one in Iowa imposed the harshest possible sentence was a “jaw-dropping and deeply troubling disparity compared to the vast majority of federal courts in the nation,” Bennett said in a statement to The Washington Post. Whitaker never appeared before him, and he declined to comment about Whitaker’s term as U.S. attorney.

Whitaker’s Southern District of Iowa used enhanced sentences in 84 percent of relevant cases, compared with 26 percent nationwide, Bennett’s finding said. Bennett concluded that a defendant in the Northern District of Iowa — which had a rate of filings similar to Whitaker’s district — was 2,532 percent more likely to be subjected to an enhanced sentence compared with someone convicted of a similar offense in a Nebraska district. “I found their harshness in filing 851 notices inexplicable,” Bennett said....

In Raeanna Woody’s case, the filing was used as leverage by Whitaker’s office. Woody, whose last name at the time was Paxton, appeared before Judge Pratt in the Southern District on July 10, 2008. Her previous drug convictions resulted in little or no jail time. Her third offense occurred when authorities determined that she drove a car in which another individual was pursuing a drug deal.

Woody said a prosecutor from Whitaker’s office, Jason T. Griess, had informed her that, as a third-time offender, her sentence could be “enhanced” to mandatory life in prison under an 851 filing. She said she had no choice but to make a plea bargain that resulted in the sentence of 21 to 27 years. “I remember them saying through Jason that he wouldn’t budge, and ‘me and my office are going to make an example out of you.’ ”...

Pratt [later] then wrote a letter to Obama’s pardon attorney expressing his displeasure with how the case had been handled by Whitaker’s office. Pratt wrote in the May 13, 2016, letter that he was forced to impose a sentence that “was entirely disproportionate” to her crime.

The “most compelling reason” that the president should grant clemency, Pratt wrote, was that Whitaker’s office “misused” its power by threatening Woody with a life sentence by using the 851 filing, “effectively removing my discretion” to give Woody “a fair sentence.” Pratt stressed that Woody “was and is a nonviolent offender. She was not a significant player in the overall ‘conspiracy’ in this case. . . . This was not a conspiracy that involved ‘drug kingpins.’ It was a situation where methamphetamine-addicted individuals resorted to selling the drug to support their own addictions.”

For me, this story is not as much about the work of a particular US Attorney as it is yet another tale about the need to reform federal sentencing laws to reduce the sentencing powers now given to federal prosecutors rather than to federal judges.

November 21, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 19, 2018

Another round of news and notes from the front lines of the debate over the FIRST STEP Act

I am not sure I will need to do regular round-ups of stories and commentary surrounding the prospects of the FIRST STEP Act. But I am sure that there have been lots of notable developments and discussion since I did this last round-up of stories just a few days ago. So, from various sources and various authors (including Jared Kushner):

November 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Friday, November 16, 2018

News and notes from the front lines of the debate over the FIRST STEP Act

The decision by President Donald Trump to support the FIRST STEP Act, discussed here and here, was a critical necessary development for the law to have a chance to passage.  But it was not alone sufficient to ensure the bill even gets a vote, especially as there is talk of Senate Majority Leader Mitch McConnell still being less than eager to advance the bill to the Senate floor.  Various political players and possible ups-and-downs surrounding the bill are well covered in these new articles from the New York TimesPolitico and the Washington Post:

I want so very, very badly to be optimistic about the prospects for the FIRST STEP Act, in any form, to become law very, very soon.  But the pessimistic bet has been a winning one on the federal statutory criminal justice reform front for the last eight years, as politics and gridlock have trumped effective policy advancement.  One would hope that, in a properly functioning democracy, a bill with the support of the President and probably close to 90% of all members of Congress could and would become law.  But I am fearful that these reality may still not be enough to get the FIRST STEP Act into law.  Time will tell (and likely in the next few weeks).

UPDATE Here are some more discouraging headlines and stories for those who may have become unduly optimistic after Prez Trump's endorsement:

November 16, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, November 13, 2018

Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage

This new CNN article, headlined "President Trump to announce support for criminal justice overhaul proposal," reports on encouraging news regarding efforts to get major federal criminal justice reform enacted in coming weeks. Here are the details:

President Donald Trump is expected to throw his support behind bipartisan criminal justice legislation during an event at the White House on Wednesday, two sources close to the process said.

Trump is scheduled to announce on Wednesday that he is supporting the latest iteration of the First Step Act, a bill that his son-in-law and senior adviser, Jared Kushner, has been working to craft and build support for alongside a bipartisan group of senators, the sources said.  The President will be joined by supporters of the legislation during the White House event, the sources said.

Supporters of the measure expect that Trump's explicit backing will help propel the prison and sentencing overhaul bill through Congress.  The President has wavered on whether to throw his support behind the bill in recent months, but the sources said he was swayed to back the bill on Tuesday after meeting with Kushner.

Trump's support came after several law enforcement associations announced their backing for the legislation.  The National District Attorneys Association, which represents 2,500 district attorneys and 40,000 assistant district attorneys, became the latest law enforcement organization to support the bill, according to a letter the group's president addressed to Trump....

The prosecutors' association's support for the legislation came on the heels of backing from several other law enforcement organizations, including the Fraternal Order of Police, International Association of Chiefs of Police, Law Enforcement Leaders to Reduce Crime and Incarceration and the National Organization of Black Law Enforcement Executives, which also penned a letter of support to Trump.

The Major Cities Chiefs Association and Major County Sheriffs of America also withdrew their opposition to the legislation, writing in a letter to Kushner dated Tuesday that they "endorse the objectives of the First Step Act" and the legislation "strengthens how Federal prisoners may be integrated into the community and set on a path to live positive and productive lives."  Less than two weeks ago, the groups wrote to Kushner to say they could not back the bill.

Opposition from since-ousted Attorney General Jeff Sessions and Republican Sen. Tom Cotton of Arkansas, in particular, served as key stumbling blocks to advancing the legislation, with both touting opposition within law enforcement circles -- an argument that is quickly fading as groups back the proposal.  Sources close to the process said the support from law enforcement associations is key to advancing the measure and securing the President's full-throated support.

Proponents of the bill made several changes to it to win backing from law enforcement groups, including stiffer sentencing guidelines for fentanyl-related offenses and a compromise provision to modestly expand the definition of a serious violent crime.

Now the question is whether enough Democrats will rally to support the compromise package or hold out for a more ambitious overhaul of the nation's sentencing laws. Sen. Cory Booker of New Jersey, who had announced his opposition to a previous version of the bill because he felt it did not go far enough, said Tuesday that he is still looking to get more changes to the bill.

Though I am not going to count any sentencing reform chickens until they are hatched and have been signed into law, I am inclined to start predicting that we are on the verge of a remarkable federal criminal justice reform achievement that will be the most consequential statutory reform in nearly 35 years.  (I am also inclined to recall pieces from late 2016, like the one blogged here, that astutely suggested federal criminal justice reform might still be a real possibility in the Trump era.)  I am not quite yet ready to start patting a whole lot of folks on the back, but I am getting close to wanting to start celebrating the culmination of five years of very hard work by lots of folks inside and outside the Beltway.  Fingers crossed.

Some of many prior related posts:

UPDATE: A few other recent press reports reinforce my sense and concern that nothing here is a done deal yet:

From the Washington Post, "Trump receptive to compromise criminal justice overhaul backed by Kushner"

From The Hill, "Criminal justice reform faces a make-or-break moment"

November 13, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (0)

Monday, November 12, 2018

Latest push for passage of FIRST STEP Act with sentencing reforms now afoot

The New York Times and CNN are reporting this evening on the latest chapter in efforts to enact significant federal criminal justice reforms.  This lengthy New York Times piece is headlined "Bipartisan Sentencing Overhaul Moves Forward, but Rests on Trump," and here are excerpts:

A bipartisan group of senators has reached a tentative deal on the most substantial rewrite of the nation’s sentencing and prison laws in a generation, giving judges more latitude to sidestep mandatory minimum sentences and easing drug sentences that have incarcerated African-Americans at much higher rates than white offenders.  The lawmakers believe they can get the measure to President Trump during the final weeks of the year, if the president embraces it.

The compromise would eliminate the so-called stacking regulation that makes it a federal crime to possess a firearm while committing another crime, like a drug offense; expand the “drug safety valve” allowing judges to sidestep mandatory minimums for nonviolent drug offenders; and shorten mandatory minimum sentences for nonviolent drug offenders, according to draft text of the bill obtained by The New York Times.

It would also retroactively extend a reduction in the sentencing disparity between crack and powder cocaine signed into law in 2010, potentially affecting thousands of drug offenders serving lengthy sentences....

The support of the famously mercurial Mr. Trump is by no means guaranteed.  But if they can secure an endorsement, senators say they can move quickly on the kind of bipartisan achievement that has eluded Mr. Trump — and bedeviled senators and outside advocates of the overhaul for years....

If Mr. Trump supports the package, senators will still be up against a rapidly closing legislative window — Congress is set to break in mid-December — and certain opposition from conservative Republicans in both the Senate and the House. Democrats could also throw up roadblocks if liberals think they could get a better deal once Democrats take control of the House....

Lawmakers may have also gotten a boost with the departure of Jeff Sessions as attorney general last week. Mr. Sessions had used his post to order federal prosecutors to pursue the toughest possible charges and sentences for crime suspects, reversing Obama-era efforts to ease such penalties for some nonviolent drug offenders.  And he vigorously opposed legislative compromise, going head-to-head not only with Mr. Grassley but also with Mr. Kushner.

Mr. Kushner has had several meetings with Matthew G. Whitaker, the new acting attorney general, who has signaled that he is open to the changes.  The effort could be revived in the next Congress if he and allies are unable to succeed in the short term. Mr. Kushner has also traveled with Vice President Mike Pence in recent days to brief the vice president on the latest developments, the administration official said.

This CNN report is headlined "Senators, Kushner prepare to launch sentencing overhaul push in lame duck session," and starts and ends this way:

White House officials and a bipartisan group of senators are mounting an ambitious effort to push criminal justice legislation through Congress by the end of the year, four sources close to the process told CNN.

But first, Jared Kushner, President Donald Trump's son-in-law and senior adviser, who has been leading the White House's prison and sentencing overhaul push, must ensure the President is on board with the latest version of the measure.  Kushner is slated to meet with Trump on Tuesday to press him to back the legislation, a senior administration official said....

One person close to the matter said that while the prospects for the measure several weeks ago seemed glum, its odds of passing now are above 50%.  The White House and Republican leaders on Capitol Hill agreed in August to postpone the legislation until after the midterm elections.

One source close to the process said that after the midterms -- which will bring shifting partisan dynamics to Congress in January -- White House officials working on the effort recognized they needed to move forward now.  "It's the lame duck or never strategy," one source close to the process said.

November 12, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, November 10, 2018

Fraternal Order of Police now supporting FIRST STEP Act with some sentencing reform provisions

Roughly nine months ago, the President of the Fraternal Order of Police (FOP) wrote this three-page letter to the President of the United States expressing opposition to the Sentencing Reform and Corrections Act.  But yesterday, in what seems to me to be a important and encouraging development, the FOP released this one-page statement headed "FOP Partners with President Trump on Criminal Justice Reform."

The new FOP release should be read in full, as it indicates support for adding modest sentencing reforms to the FIRST STEP Act bill that was passed by the House earlier this year.  In addition, the sub-heading of the press release says "Revised and amended First Step Act to be introduced next week." This strongly suggests that "Beltway insiders" are prepared and planning to try to get big federal statutory sentencing reform done in a matter of weeks.

November 10, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Thursday, November 08, 2018

Brennan Center wasting no time advocating for sentencing reforms after election and ouster of AG Jeff Sessions

The folks over at the Brennan Center already have two short pieces up making the case for Congress to move forward with federal sentencing reforms and for the Senate Judiciary Committee to seek to ensure the next Attorney General cares about criminal justice reform.  Here are links to the pieces with some excerpts:

"Sentencing Reform Should Be a Top Post-Election Priority for Congress

As Congress prepares to enter a lame-duck session following yesterday’s midterm elections, it has a rare opportunity to pass bipartisan legislation that will help reform our criminal justice system and end mass incarceration. And sentencing reform must be included in any meaningful effort to reduce the number of people entering the federal prison system....

Criminal justice reform is a rare point of bipartisan consensus in today’s polarized climate. In fact, 71 percent of Americans surveyed – including a majority of Trump voters – agree that it’s important to reduce the country’s prison population. And there’s substantial support from key members of Congress – both Republican and Democrat – for comprehensive reform. In fact, Senate Majority Leader Mitch McConnell has signaled he would call a vote after the midterm election if more than 60 senators support the bill.

With that momentum, one of Congress’s first agenda items for this year’s “lame-duck” session should be to pass legislation that will help reduce mass incarceration. And any successful effort will start with sentencing reform.

"With Sessions Gone, the GOP Can Show It Cares About Criminal Justice Reform"

Sen. Chuck Grassley (R-Iowa) is a reliable and trusted ally for criminal justice reform advocates, both right and left.  So when President Trump nominated Jeff Sessions to lead the Justice Department, it came as something of a surprise that Grassley, as chair of the Senate Judiciary Committee, cleared the deck for him, ensuring a quick and easy Senate confirmation.

If Grassley later came to regret that — and there’s reason to believe he did — today offers a chance to correct it.  Against the backdrop of our looming, slow-burning constitutional crisis, Grassley can and should make support for criminal justice reform a litmus test for the next attorney general.  He has that power.  Now is the time to use it....

[I]f Trump is serious about criminal justice reform, he should simply refuse to nominate someone who doesn’t support sentencing reform.  And whether or not he follows through, Grassley should refuse to confirm anyone who will oppose or sabotage similar reform efforts.

Realistically, though, the best chance for guaranteeing a supportive attorney general rests with Grassley and other supporters of criminal justice reform on the Judiciary Committee, like Mike Lee (R-Utah), Dick Durbin (D-Ill.), and even, sometimes, Lindsey Graham (R-S.C.).  By demanding an attorney general who will back their words with action — and faithfully implement rather than sabotage any reform package they pass — Grassley and his committee could effect a major reset, giving the country a chance to move on from at least one aspect of the last two years.

November 8, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Tuesday, November 06, 2018

Mandatory minimum drives US District Judge to countenance arguments for jury nullification in federal child porn case

Over at Reason, J.D. Tuccille has this remarkable report about a remarkable federal prosecution in Connecticut under the headline "Federal Judge Advocates Jury Nullification After Being Shocked by Overzealous Child Pornography Prosecution."  Based on the description that follow under the headline, I am not entirely sure it is quite right to say the judge is advocating for nullification. But readers should click through and here is a piece of the story:

"This is a shocking case. This is a case that calls for jury nullification."

Many have had similar reactions when confronting cases involving authorities running roughshod over people with bad laws, punitive sentences, and ill-considered prosecutions. But this time, the person invoking jury nullification was a federal judge — District Judge Stefan R. Underhill of the District of Connecticut — and he spoke in court about a case over which he presided.

The prosecution that shocked Underhill involves Yehudi Manzano, a 30-something man charged with producing and transporting child pornography after saving, and then deleting, a video of his teenage sex partner to and from his own phone and its associated Google cloud account. "The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me.

But that, prosecutors say in the indictment, was enough for the federal government to proceed with charges under the assumption that Manzano acted "knowing and having reason to know that: such visual depiction would be transported and transmitted using any means and facility of interstate and foreign commerce."  And that's important, because the mandatory minimum sentence under federal law for recording video of sex with an underage partner is 15 years.

That draconian sentence — independent of what was in store in the entirely separate state trial for sex with a minor — was too much for Judge Underhill.  "I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government," he said in court.  "I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."

Judge Underhill acknowledged that he's not allowed to encourage jury nullification, but "if evidence comes in about the length of the sentence, or if Mr. Pattis chooses to argue, I do not feel I can preclude that.  I don't feel I'm required to preclude that.  And I think justice requires that I permit that."...

"Juries exist for a reason," Pattis argued in court.  "They stand between the government and the accused, and they provide the accused with an opportunity to hold the government to its burden of proof.  And in certain trials in our history, juries have done more than that.  They've said the law is wrong, and we, the people, say it's wrong."

In response to that, Neeraj N. Patel bluntly told the court on behalf of the U.S. Attorney's office, "you should take steps to prevent jury nullification and not inform the jury of the sentencing consequences."  Normally, that's where the matter would have remained.  Judges don't generally want jurors told they can pull the plug on a prosecution because they don't like the law or the possible sentence.  They're generally not permitted to inform juries about nullification, and they're discouraged from informing juries about the consequences in store for convicted defendants.

However, that doesn't mean judges must ban all discussion of jury nullification and sentencing from trials. And occasionally you run across one who is horrified by what prosecutors have in mind. That's why Pattis, who passionately believes in the right to nullification, keeps arguing for a principle that generally gets shot down in court. And last week, he found a judge sympathetic with his arguments.

The U.S. Attorney's Office for the District of Connecticut declined to comment on this case, but did provide me with a copy of the emergency motion it filed seeking a stay in the trial. Prosecutors want time to get a higher court to prevent Judge Underhill from allowing Manzano's defense counsel to inform jurors of the potential sentence and argue for jury nullification.

I have long thought that juries should be informed of the basic sentencing consequences that go with guilty verdict (and I am also generally a fan of jury sentencing). I also think informing juries of sentencing consequences might reasonably be viewed as a requirement of the Sixth Amendment and the Apprendi line of cases.

And, speaking of provisions of the Constitution, it seems to me that this case, if there were a conviction, calls for serious consideration of the Eighth Amendment's limits on grossly disproportionate sentences. If the full offense here is just taking (and then deleting) a video of a teenager having consensual sex, I have a very difficult time seeing how one would not conclude, in the word of Harmelin v. Michigan, that "a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality."

November 6, 2018 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (5)

Monday, November 05, 2018

Could the FIRST STEP Act, with sentencing reforms added, get through Congress in just a matter of weeks?

The question in the title of this post is prompted by this new Washington Examiner article headlined "Prison reform bill to include sentencing, setting up post-election fight." Here are excerpts:

Criminal justice reform advocates say sentencing reform provisions will be included in legislation unveiled shortly after midterm elections Tuesday, triggering an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill.

The First Step Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms, at the behest of Republican opponents.  Reform advocates expect rapid legislative action after a pre-election pause, and believe there will be enough votes to pass the expanded legislative package.

Two people close to the process tell the Washington Examiner that a bipartisan group of senators has agreed to attach a set of sentencing reforms to the House-passed bill.

The additions include shortening federal three-strike drug penalties from life in prison to 25 years, reducing two-strike drug penalties from 20 years to 15, allowing a firearm sentencing enhancement to run concurrently with the underlying penalty, and allowing retroactive sentencing for crack cocaine cases judged under tougher historical laws.

“We are very excited about it. We think that the four reforms that are in the bill are ones that make sense,” said Mark Holden, the general counsel of Koch Industries and an influential conservative reform advocate. “From what we understand, there are enough votes — plenty — for it to happen,” Holden said. Holden said it’s his understanding that the sentencing language will also expand a “safety valve” option for judges to use discretion.

Both Holden and another person close to the legislation drafting process, who asked not to be identified, said there is wording to reduce concern about illegal immigrants benefiting from sentencing reform. The second person said the provision is being finalized, but there will be “a clarification saying this does not change existing statutes relating to undocumented individuals in the federal system.”

A spokeswoman for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, an influential advocate of the reforms, did not respond to requests for comment.

Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill.  Last month, Trump said in a Fox News interview that Attorney General Jeff Sessions’ longstanding opposition to reforms did not represent him. "If he doesn't [support reform], then he gets overruled by me.  Because I make the decision, he doesn't," Trump said Oct. 11....

It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell, R-Ky., has promised a whip count after the election, and advocates believe it will make it clear with overwhelming support....

Last month, clemency advocates including Amy Povah of CAN-DO Clemency and Alveda King, the anti-abortion evangelical leader, hosted a panel at a Women for Trump event at Trump International Hotel in Washington.  Povah hopes that Congress passes the legislation, and that Trump will supplement the reform with generous use of his constitutional pardon powers. Last month, Trump said "a lot of people" are jailed for year for "no reason" and that he was actively looking to release some.

Povah said clemency would be particularly appreciated around the holiday, including Thanksgiving, when presidents pardon turkeys, disillusioning people who are looking for one. “I think Trump said it best, he said that he’s going to release a lot of people and I think a lot of people in prison took that seriously and literally," Povah said.  "He sent a lot of hope in that humans may be in line, maybe for the first time included in the Thanksgiving pardon."...

Trump has spoken repeatedly about his desire to release inmates from prison after commuting the life sentence of drug crime convict Alice Johnson in June at the request of celebrity Kim Kardashian West.  At a second Trump-Kardashian meeting, the TV star urged freedom for Chris Young, who was arrested at 22 and sentenced to life in prison for drug dealing. She brought with her former federal judge Kevin Sharp, who had imposed the sentence due to rigid federal laws he argued made little sense.  On his own, Trump mentioned another inmate, Matthew Charles, who returned to prison this year after a court found his drug sentence was reduced in error.

Some of many prior related posts:

UPDATE: I just saw that Law360 also has a new article on this front under the headline "Hard Decisions Loom In Lame-Duck Push For Sentencing Reform."  This lengthy piece starts with this sentence: "Over the next two months, Republican lawmakers have a chance to pass the most comprehensive criminal justice reforms in a generation, a combination of prison and sentencing reforms that stand to improve the lives of more than 180,000 federal inmates."

November 5, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Clemency and Pardons, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)

Saturday, November 03, 2018

"The Power and Prejudice of DAs on Drugs"

03c3e6a3-d023-4cc0-aef0-579709278f31The title of this post is the title of this interesting investigation by Rory Fleming published at Filter, which is a relatively new resource seeking "to advocate through journalism for rational and compassionate approaches to drug use, drug policy and human rights." I recommend the piece in full, as well as these associated "Interactive Graphics," and here is how it gets started:

Public opinion is souring on the criminalization of drug use. But what prevents this from translating into practice?

While politicians makes laws and police officers can arrest whoever they find in possession of drugs, it’s prosecutors who turn arrests into criminal charges. Prosecutors have the final say in who to charge with a crime, which charge to use, and what punishment will be sought. In short, they’re in a position to inflict great harm.

Amy Weirich, district attorney for Shelby County, Tennessee (which includes Memphis), charged women with child abuse for being dependent on drugs while pregnant. She justified this by stating that she uses the “velvet hammer” of drug court to force them into treatment.

In Tucson, Arizona, Pima County Attorney Barbara LaWall sent the ACLU a cease-and-desist letter to try to stop the organization from talking about her support of mandatory minimum prison sentences for drugs.

Commonwealth’s Attorney Raymond Morrogh of Fairfax, Virginia went to Washington, DC to accuse former US Attorney General Eric Holder of trying to reward drug prisoners with “lighter sentences because America can’t balance its budget.”

There are over 2,000 elected local head prosecutors, most commonly known as district attorneys, in the United States. And overall, these powerful individuals do not care what people think about the War on Drugs. They are going to fight it anyway, and hope that the voting public doesn’t notice.

That is the conclusion of an exclusive investigation from Filter, which surveyed the top prosecutors of the nation’s 50 most populous counties. (We included incumbents, outgoing incumbents, incoming DAs and challengers, making 61 individuals in total.) ...

After collecting public statements and reviewing cases, we emailed each prosecutor a short questionnaire about their positions on four key issues: marijuana legalization, drug-induced homicide prosecutions, mandatory minimum sentences for drugs, and the criminalization of relapse.

Around half of their offices never responded, even after a round of reminders. We telephoned 10 offices, which listed no email address for a media representative on their government websites.  One of them — that of Wake County, NC District Attorney Lorrin Freeman—hung up immediately on hearing the word “reporter.”

Many of the prosecutors surveyed have stated publicly that we must treat drug use as a “public health issue,” rather than a criminal justice one. But our findings show that the vast majority nonetheless support or implement practices that drive criminalization, inequality and large-scale human suffering.

November 3, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Wednesday, October 31, 2018

"The defendant faces a maximum possible penalty of death, or life without parole, followed by a consecutive sentence of 535 years’ imprisonment."

The title of this post is a sentence near the end of this Department of Justice press release fully titled "Pennsylvania Man Charged with Federal Hate Crimes for Tree Of Life Synagogue Shooting: Robert Bowers Indicted on 44 Counts Including Hate Crimes Resulting in Deaths." Here is how the release gets started:

A federal grand jury sitting in the U.S. District Court for the Western District of Pennsylvania charged a Pennsylvania man with federal hate crimes, including the murder of 11 people, for his actions during the Oct. 27, 2018 shootings at the Tree of Life Synagogue in Pittsburgh’s Squirrel Hill neighborhood. United States Attorney General Jeff Sessions, Acting Assistant Attorney General John Gore for the Civil Rights Division, U.S. Attorney for the Western District of Pennsylvania Scott W. Brady, and FBI-Pittsburgh Special Agent in Charge Robert Jones made the announcement.

Robert Bowers, 46, of Baldwin, Pa., was charged in a 44-count indictment returned today.

According to the indictment, on Oct. 27, 2018, Bowers drove to the Tree of Life Synagogue in Pittsburgh, Pennsylvania, where members of the Tree of Life, Dor Hadash, and New Light Jewish congregations gathered to engage in religious worship. Bowers entered the building armed with multiple firearms, including Glock .357 handguns a Colt AR-15 rifle. The indictment alleges that while inside the Tree of Life Synagogue, Bowers opened fire, killing and injuring members of the three congregations, as well as injuring multiple responding public safety officers. While inside the Tree of Life Synagogue, Bowers made statements indicating his desire to “kill Jews.”

Specifically, the indictment charges:

  • Eleven counts of obstruction of free exercise of religious beliefs resulting in death;
  • Eleven counts of use and discharge of a firearm to commit murder during and in relation to a crime of violence;
  • Two counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon and resulting in bodily injury;
  • Eleven counts of use and discharge of a firearm during and in relation to a crime of violence;
  • Eight counts of obstruction of free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon, and resulting in bodily injury to a public safety officer; and
  • One count of obstruction of free exercise of religious beliefs involving use of a dangerous weapon and resulting in bodily injury to a public safety officer.

Prior related post:

October 31, 2018 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)

Friday, October 26, 2018

Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"

6a00d83451574769e201b7c9134b4d970b-320wiI recently received a kind offer from Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, for an update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," on this topic.  Alison's update is so detailed and interesting, I will need three posts to report all she has to report.  This first one covers what she calls "sentencing Victories":

The Federal Criminal Justice Clinic that I founded and direct at the University of Chicago Law School has engaged in systemic litigation against fake stash house robbery cases in Chicago. Our litigation has resulted in dramatically lower sentences for scores of clients and is changing the law around the country.

Sentencing Victories

Several years ago, the Federal Criminal Justice Clinic (FCJC) filed pretrial Motions to Dismiss for Racially Selective Law Enforcement on behalf of 43 defendants charged in the 12 pending fake stash house cases in Chicago, alleging that the ATF had unconstitutionally discriminated on the basis of race in targeting people of color.  The FCJC approached the legal issue of racially selective law enforcement in an innovative fashion by coordinating across cases and bringing empirical evidence to bear.  See ATF Sting Operation Accused of Using Racial Bias in Finding Targets—the Majority of Them Being Minorities, Chicago Tribune (Mar. 3, 2017).  Last December, the 9 federal judges presiding over these cases held a joint evidentiary hearing on our motions, an unprecedented occurrence. See Was Racial Profiling Behind ATF Stash House Stings? Chicago Judges to Take Up Landmark Case Today, Chicago Tribune (Dec. 13, 2017); Court Decision Could Force Changes to ATF’s Undercover Operations, NPR: Morning Edition (Dec. 15, 2017).

When the FCJC began this litigation, our clients were facing 15-to-25-year mandatory minimums and far higher sentences under the federal Sentencing Guidelines.  In the wake of the hearing, the U.S. Attorney’s Office in Chicago made highly unusual plea offers in all of the cases, offering to dismiss all of the remaining mandatory-minimum gun and drug charges. See Under Pressure by Judges, Prosecutors to Offer Plea Deals in Controversial Drug Stash House Cases, Chicago Tribune (Feb. 21, 2018).

Of the 43 clients who participated in our selective enforcement challenge, 34 have now been sentenced.  Fully 27 of the 34 received sentences of “time served,” despite requests by the government for within-Guidelines sentences that ranged as high as 12 years.  The remaining clients received significantly below-Guidelines sentences.  The chart linked here depicts these incredible outcomes and is being filed publicly with the judges to show that time-served sentences are now the norm in these cases.  As a result of the plea offers and time-served sentences, clients on bond were allowed to remain in the community, clients in custody were promptly released, and our clients collectively were spared hundreds of years in prison.  These remarkable results are attributable to the tremendous efforts of everyone in the FCJC: Professor Erica Zunkel (the Associate Director of the FCJC), Professor Judith Miller, and the many students who worked on the litigation.

These extraordinary sentencing outcomes show the power of litigating creatively and demonstrate that sometimes the fight alone can bring about systemic change, regardless of the legal outcome.  The FCJC did not win the motions to dismiss, but the U.S. Attorney’s Office and the ATF have entirely stopped bringing fake stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere.  The FCJC’s litigation also changed the judges’ perspective on these cases.  Although Chief Judge Castillo “reluctantly denied” the FCJC’s Motion to Dismiss in his two stash house cases, he wrote: “Our criminal justice system should not tolerate false stash house cases in 2018.”  United States v. Brown, 299 F. Supp. 3d 976, 984 (N.D. Ill 2018).  In particular, he said, “The inherent problems of this District’s false stash house cases must be seen through the lens of our country’s sad history of racism,” id. at 985, and implored the government to “relegat[e]” them to “the dark corridors of our past,” id. at 984; see also Editorial: Even Fighting Capone, Feds Knew Better Than to Resort to Cheap Tricks, Chicago Sun Times (Mar. 13, 2018).  In another FCJC case, Judge Gettleman issued a sentencing opinion “express[ing] this court’s disgust with the ATF’s conduct in this case.” United States v. Paxton, 2018 WL 4504160, at *2 (N.D. Ill. Sept. 20, 2018).

October 26, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Thursday, October 11, 2018

Set your DVR for HBO's showing of documentary "The Sentence"

1468824_CC-CSR_NYLFF_TheSentence_v02_x1aThe folks at FAMM have been hosting advanced screenings of a new documentary about the impact of mandatory minimum sentencing, and in a few days HBO will make it possible for everyone to see "The Sentence."  Here is how HBO describes the film:

First-time filmmaker Rudy Valdez’s The Sentence tells the story of his sister Cindy Shank, a mother of three who received a 15-year mandatory sentence for conspiracy charges related to her deceased ex-boyfriend’s crimes. The documentary offers a searing look at the consequences of mandatory minimum sentencing and received critical acclaim when it premiered at the 2018 Sundance Film Festival.

The Sentence draws on hundreds of hours of footage shot by Valdez, who initially copes with his sister’s incarceration by filming the family moments Shank misses in prison. In the midst of Shank’s sentence, Valdez discovers his voice as a filmmaker and activist.

During the last months of the Obama administration’s clemency initiative, the family starts to fight for Shank’s release. The aching question at the core of this deeply personal portrait is whether their attempts to free Shank will succeed.

This lengthy Newsweek piece provides more details and context about the movie and the issues it raises. Here is an excerpt:

The Sentence, which won the Audience Award at Sundance and airs October 15 on HBO, tells Shank’s story. Filmmaker Rudy Valdez, her younger brother — at the time a pre-K assistant teacher — began making home videos of his nieces on a spare camera, as a way to record Shank’s children growing up. Before long, he began to see it as an opportunity to tell the story of mandatory minimum sentencing through “the people left behind,” says Valdez. His sister was eager to cooperate: “Tell everyone,” she told him. “Please, somebody see us.”...

Through Shank, Valdez exposes a broken justice system, one that began with the Reagan administration’s war on drugs. Mandatory minimum sentences for nonviolent cocaine and marijuana crimes were introduced as part of the Anti-Drug Abuse Act of 1986 — an attempt by Democrats to respond to the crack cocaine epidemic following the highly politicized, fatal overdose of college basketball player Len Bias. Mandatory sentences are lengthy for drug offenses; in 2016, the average carried 7.8 years — more than double the average sentence for a drug offense without a minimum. As a result, defendants are encouraged to consider accepting a plea bargain — the option Shank rejected — to receive a lesser sentence than the minimum.

In theory, plea bargains — ruled constitutional by the Supreme Court in 1970 — offer leniency to criminals who accept responsibility for their actions, allowing the accused and the state to avoid a time-consuming and expensive trial. In reality, defendants, even if they proclaim their innocence, are often pressured to plead guilty; go to trial, they are told, and you will likely get a much longer sentence. Such bargains have now become the norm: A 2017 New York Times investigation found that 98 percent of felony convictions occurred after a plea deal. And according to annual reports published by the Administrative Office on the U.S. Courts, total jury trials for U.S. criminal cases had dropped by roughly half between 1997, when there were 3,932 cases, and 2017, when there were 1,742.

The system “allows prosecutors to hold all of the cards,” says litigator Marjorie Peerce, co-chair of the National Association of Criminal Defense Lawyers Sentencing Committee. "Even if the government doesn’t have sufficient evidence, people will still plead guilty, for fear that they’ll be convicted and then sentenced with a mandatory minimum. People should not be penalized for exercising their constitutional right to trial.”

And of those penalized, the majority are black or Latino. A 2014 study found that black offenders were 75 percent more likely to face a charge carrying a mandatory minimum sentence than a white offender who committed the same crime. In 2016, Latinos represented the largest racial group in federal prison convicted of an offense that came with such a sentence. (Shank is Latina.)

October 11, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Wednesday, October 10, 2018

Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward

This short piece from The Hill, headlined "McConnell looking at criminal justice reform after midterms," provides an encouraging update on the prospects for federal criminal justice reform after next month's  election:

Senate Majority Leader Mitch McConnell (R-Ky.) says he will move a criminal justice reform compromise after the Nov. 6 election if it has 60 votes.

The Senate GOP conference is divided on the package, which merged a House-passed prison-reform bill with bipartisan sentencing reform provisions crafted by the Senate....

“Criminal justice has been much discussed,” McConnell told reporters Wednesday. “What we’ll do after the election is take a whip count and if there are more than 60 senators who want to move forward on that bill, we’ll find time to address it.”

It’s a significant commitment from McConnell who has resisted bringing criminal justice reform legislation up for a vote because it divides his conference.

I blogged here a prior Hill article from a couple of months ago during Senate negotiations over the FIRST STEP Act which indicated that the White House back then had secured "30 to 32 ... 'yes' votes among Republican senators [and hoped] that the number of GOP supporters could eventually grow as many as 40 to 46."  That article led me to speculate in August that a version of the FIRST STEP Act could perhaps garner up to 90 votes in the Senate, and I do not think this head-counting is likely to change all that dramatically after the election (though one never knows).  Even if "only" 30 GOP Senators favor moving forward on the FIRST STEP Act, that will be more than enough for Senator McConnell to move ahead unless a whole lot of Democratic Senators decide they want to hold out for a more ambitious bill (which I think is unlikely). 

In other words, I am starting to think that the prospect of the FIRST STEP Act becoming law before the end of the year might be pretty darn good.  I am never inclined to count on Congress on get anything done, but on this front it does seem we are getting closer and closer.

Some of many prior recent related posts:

October 10, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

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)

Monday, September 24, 2018

US Sentencing Commission releases new report on application of mandatory minimum penalties specific to federal identity theft offenses

6a00d83451574769e201b8d28f7af6970c-320wiVia email, I learned that the US Sentencing Commission has released another big report as part of its terrific series of recent reports diving into the application of federal mandatory minimum sentencing provisions.  This latest report is titled "Mandatory Minimum Penalties for Federal Identity Theft Offenses," and its basic coverage and key findings are outlined on this USSC webpage.  Here are excepts from the summary:

This publication examines the application of mandatory minimum penalties specific to identity theft offenses. Using fiscal year 2016 data, this publication includes analyses of 18 U.S.C. § 1028A, which provides for a two-year mandatory minimum penalty, as compared to identity theft offenses that do not carry mandatory minimum penalties, as well as the impact of these offenses on the Federal Bureau of Prisons (BOP) population....

Key Findings

Mandatory minimum penalties for identity theft offenses are applied less often in the federal system compared to other mandatory minimum penalties.

Offenders convicted under section 1028A comprised only 1.6 percent (n=978) of federal offenders sentenced in fiscal year 2016....

The percentage of identity theft offenders convicted under section 1028A has steadily increased, more than doubling from 21.9 percent in fiscal year 2006 to 53.4 percent in fiscal year 2016. This percentage is more than ten percentage points higher than reported in the Commissions 2011 Mandatory Minimum Report, when it was 42.6 percent....

Sentences imposed pursuant to section 1028A are longer than sentences imposed for identity theft offenses not carrying a mandatory minimum penalty.

In fiscal year 2016, the average sentence length for offenders convicted of at least one count under section 1028A was more than double the average sentence length for offenders convicted of an identity theft offense not carrying a mandatory minimum penalty (51 months compared to 22 months)....

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

The average sentence for offenders who were convicted under section 1028A and another statute was more than double the average sentence for offenders convicted only under section 1028A (54 months compared to 22 months)....

The section 1028A mandatory minimum penalty impacts Black offenders more than any other racial group.

Black offenders were convicted under section 1028A at a higher rate than any other racial group. In fiscal year 2016, Black offenders represented 49.8 percent of all identity theft offenders, yet accounted for 58.7 percent of offenders convicted under section 1028A....

Black offenders were also convicted under section 1028A at the highest rate when considering identity theft offenders within each racial group.  In fiscal year 2016, a majority (63.1%) of Black identity theft offenders were convicted under section 1028A, which was higher than the rate for White offenders (47.8%), Other Race offenders (42.0%), and Hispanic offenders (41.1%).

Black offenders were also most likely to be convicted of multiple counts under section 1028A, comprising 58.5 percent of such offenders, followed by White offenders (25.5%), Hispanic offenders (13.2%), and Other Race offenders (2.8%).

Because I do not follow this area of federal sentencing all that closely, I do not know just what to make of the racial data reported here. But I must admit to being persistently discouraged by criminal justice data that persistently shows more application of our toughest penalties against persons of color.

September 24, 2018 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

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)

Friday, September 14, 2018

Marijuana, mandatory minimums and jury nullification, oh my: split Ninth Circuit affirms panel federal convictions, though remands to address DOJ spending rider

A big, long and split decision by a panel of the Ninth Circuit yesterday in US v. Lynch, No. 10-50219 (9th Cir, Sept. 13, 2018) (available here), prompted the weak "Wizard of Oz" reference in the title of this post.  There is so much of interest in Lynch for sentencing fans and others, I cannot cover it all in this post. The majority's introduction provides a sense of the case's coverage:

Charles Lynch ran a marijuana dispensary in Morro Bay, California, in violation of federal law.  He was convicted of conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of the dispensary.  In this appeal, Lynch contends that the district court made various errors regarding Lynch’s defense of entrapment by estoppel, improperly warned jurors against nullification, and allowed the prosecutors to introduce various evidence tying Lynch to the dispensary’s activities, while excluding allegedly exculpatory evidence offered by Lynch.  However, Lynch suffered no wrongful impairment of his entrapment by estoppel defense, the anti-nullification warning was not coercive, and the district court’s evidentiary rulings were correct in light of the purposes for which the evidence was tendered.  A remand for resentencing is required, though, on the government’s cross-appeal of the district court’s refusal to apply a five-year mandatory minimum sentence, which unavoidably applies to Lynch.

Following the filing of this appeal and after the submission of the government’s brief, the United States Congress enacted an appropriations provision, which this court has interpreted to prohibit the federal prosecution of persons for activities compliant with state medical marijuana laws. Lynch contends that this provision therefore prohibits the United States from continuing to defend Lynch’s conviction.  We need not reach the question of whether the provision operates to annul a properly obtained conviction, however, because a genuine dispute exists as to whether Lynch’s activities were actually legal under California state law. Remand will permit the district court to make findings regarding whether Lynch complied with state law.

Judge Watford dissented from the panel majority in Lynch, and his dissent starts this way:

I would reverse and remand for a new trial. In my view, the district court went too far in trying to dissuade the jury from engaging in nullification.  The court’s actions violated Charles Lynch’s constitutional right to trial by jury, and the government can’t show that this error was harmless beyond a reasonable doubt.

By its very nature, a case of this sort touches a sensitive nerve from a federalism standpoint.  At the time of Lynch’s trial in 2008, the citizens of California had legalized the sale and use of marijuana for medicinal purposes; the federal government nonetheless sought to prosecute a California citizen for conduct that arguably was authorized under state law. Because federal law takes precedence under the Supremacy Clause, the government could certainly bring such a prosecution, notwithstanding the resulting intrusion upon state sovereignty interests.  See Gonzales v. Raich, 545 U.S. 1, 29 (2005).  But the Framers of the Constitution included two provisions that act as a check on the national government’s exercise of power in this realm: one stating that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”; the other requiring that “such Trial shall be held in the State where the said Crimes shall have been committed.” U.S. Const., Art. III, § 2, cl. 3.  The Sixth Amendment further mandates that in all criminal prosecutions the accused shall enjoy the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed.”  Thus, to send Lynch to prison, the government had to persuade a jury composed of his fellow Californians to convict.

One of the fundamental attributes of trial by jury in our legal system is the power of the jury to engage in nullification — to return a verdict of not guilty “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138 (1920).  The jury’s power to nullify has ancient roots, dating back to pre-colonial England.  See Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800, at 236–49 (1985) (discussing Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670)).  It became a well-established fixture of jury trials in colonial America, perhaps most famously in the case of John Peter Zenger, a publisher in New York acquitted of charges of seditious libel.  See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 871–74 (1994).  From ratification of the Constitution to the present, the right to trial by jury has been regarded as “essential for preventing miscarriages of justice,” Duncan v. Louisiana, 391 U.S. 145, 158 (1968), in part because the jury’s power to nullify allows it to act as “the conscience of the community,” Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 87 (1994).

Cross-posted at Marijuana Law, Policy and Reform.

September 14, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, August 21, 2018

Still more on Senator Cotton's efforts to thwart significant federal criminal justice reforms and responses there to

In posts late last week here and here, I noted the commentary from Senator Tom Cotton attacking the federal criminal justice reform bills moving through Congress and some responses it has already engendered.  Now Politico has this new article on this beat headlined "Sentencing reform tests Cotton’s sway with Trump."  Here are a few highlights from a lengthy article:

Tom Cotton is going all out to defeat a last-ditch effort to pass sentencing reform before this year’s midterm elections, hoping to win a high-stakes influence campaign over President Donald Trump on the issue.

Cotton is lambasting the proposal as a “jailbreak” that would “let serious felons back on the streets,” taking on a daunting coalition fighting for the package that includes the Koch political operation, White House adviser Jared Kushner and a number of powerful GOP senators. But Cotton believes that, in the end, President Trump and Senate Majority Leader Mitch McConnell (R-Ky.) will side with him.

“The president went to Singapore and agreed with the Singaporeans that we should give the death penalty to drug dealers. I can’t imagine the president wants to reduce mandatory minimum sentences for drug dealers,” the Arkansas Republican said in an interview. “I believe Sen. McConnell shares my view that we should not let serious felons out of jail and we should not shorten the sentences for drug dealers.”

Even opponents of sentencing reform will privately admit it would likely pass if McConnell brings it up. But Cotton’s loud opposition may determine whether or not McConnell even allows a vote given his reluctance to summon up legislation that divides the conference — right before the election, no less....

The conflict is pitting some of Trump’s closest allies against each other. On one side are Cotton and Sen. David Perdue (R-Ga.), who calls the sentencing component “troubling” and wants to concentrate on prison reform. On the other are Sen. Rand Paul (R-Ky.), who wants to go even further on criminal justice reform but would be willing to accept the slimmed-down proposal, and Sen. Lindsey Graham (R-S.C.), who supports it....

Though the president supports the standalone prison reform effort, no one is quite sure where exactly Trump is going to come down on the sentencing piece that’s being added by Senate Judiciary Chairman Chuck Grassley (R-Iowa). Advocates for sentencing reform are hoping the president will offer a crucial endorsement to get the legislation across the finish line after commuting the sentence of Alice Johnson for drug offenses, while opponents say he’s unlikely to undercut his law-and-order persona....

“There is not a constituency, certainly among Republican voters, to let serious felons out of prison or slash their prison sentences,” Cotton said in the interview. “It’s ill-advised policy and even more ill-advised timing.” Countered Paul, another close Trump ally with opposing views: “We have a lot of non-violent criminals in our prison and they’re taking up space that could be better put to use for violent criminals."

Cotton also has strong allies, including Attorney General Jeff Sessions, who has long opposed sweeping sentencing reforms. The two have frustrated people working on the bill.

Yet many on the law enforcement side, a key Trump constituency, are working with Cotton. Jonathan Thompson, the National Sheriff Association's executive director, has spoken to the president twice about sentencing reform in the past year and half: “The president knows we’re concerned.” “We think what he’s doing is terrific. Sen. Cotton recognizes that it’s a very flawed bill,” said Larry Leiser, president of the National Association of Assistant U.S. Attorneys. “We’re hopeful the president won’t [endorse it].”

Unless Trump makes a major push for the legislation and takes on his critics like Cotton, there are many reasons for McConnell not to bring up the bill before the election. It would likely take at least a week for the Senate to process, time that McConnell might think is better spent processing lifetime judicial appointments ahead of an uncertain midterm outcome. Plus it would invoke an ugly intraparty foodfight, squaring Cotton off with proponents of sentencing reform like Grassley, who has been tweeting that the president “wants something done on prison/crim justice reform. So do I.”

“The consensus is the prison reform stuff,” said Senate Majority Whip John Cornyn (R-Texas). “There are people who want to do more, but it’s the usual issue: Do you want try and do more and fail, or do you want to do what’s possible?”

Despite the long odds, the battle is raging behind the scenes. Internal discussions of the subject at Senate lunches have been heated, according to Republican sources, a preview of what might happen on the Senate floor if the chamber takes it up. It’s the same dynamic that kept McConnell from bringing up a larger criminal justice reform package in 2016 as Cotton railed against it and declared the United States has an "under-incarceration problem.”

Trump’s “for prison reform, I’m for prison reform. What I don’t support is sentencing reductions under the guise of prison reforms, and that’s unfortunately what many senators are moving towards,” Cotton said in the interview. A number of conservative senators have quietly expressed their opposition to the sentencing reform component, according to groups working to defeat it. But Cotton's taken a bigger gamble by getting out front to stop a bill that hasn’t even produced yet.

Meanwhile, over here at the Daily Signal, John G. Malcolm and Brett Tolman have this lengthy new commentary under the headline "Why It’s Not ‘Soft On Crime’ to Support Criminal Justice Reform." Here is a snippet focused on mandatory minimums:

Cotton and others argue that mandatory minimum charges are reserved for kingpins and other major drug dealers, and low-level dealers are rarely subjected to mandatory minimum penalties. However, the U.S. Sentencing Commission, a bipartisan independent agency that collects and analyzes federal sentencing data, found that a surprisingly large number of low-level drug couriers are subjected to mandatory minimum penalties.

It is easy to see how that happens. Under federal law, a defendant charged as part of a drug conspiracy—even a low-level courier, who may be acting solely to support his own addiction—can be charged and sentenced based on the total amount of drugs sold by everyone who participated in that conspiracy. That’s true even if the courier never knew who these people were or what quantity of drugs they sold.

Of course, the courier should be punished. But how badly? Remember, we are talking about mandatory minimum penalties. A judge can always impose a higher sentence, up to the statutory maximum, for deserving drug traffickers and violent criminals. The proposed reductions are, in truth, quite modest.

Senators are currently debating the possibility of reducing the mandatory minimum penalties for second-time drug offenders from 20 years to 15 years, and for third-time drug offenders from life in prison without the possibility of parole to 25 years. Does anyone really think that minimum penalties of 15 and 25 years are not serious? 

Some of many prior recent related posts:

August 21, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, August 17, 2018

Will Trump White House soon "deploy its assets ... to stump" for federal criminal justice reform? It may be critical.

The question in the title of this post is prompted by this new Hill commentary authored by Holly Harris headlined "Connect Beltway to America to get federal criminal justice reform done." Here are excerpts:

When it comes to excuses to pass over federal criminal justice reform, I have heard them all, from “it takes at least 10 years to pass legislation like this” to “there is no way move a criminal justice bill in an election year.” But the one that really burns me is “you cannot point to state success because the federal system is much more complicated.”

The arrogance of the Beltway is incredible.  Of the more than 2.3 million people serving time behind bars in this country, more than 1.3 million are housed in state prisons, and about 615,000 sit in local jails.  Only 225,000 are housed in a federal facility. The Texas prison system alone holds more inmates.  State prison systems deal with overcrowding, stifling budget cuts, and drug epidemics that show no signs of abating.  Because they can see and experience this crisis first hand, governors on the left and the right are passing strong criminal justice reforms that offer alternatives to incarceration such as drug treatment programs, provide opportunities that put people back to work, and save millions of taxpayer dollars.

Now these governors are invading the federal reform effort, seeking to finally connect Beltway leaders to what is happening in their own backyards.  President Trump, in a savvy move, convened a criminal justice roundtable at his resort in New Jersey and invited Republican and Democratic governors from states like Louisiana, Mississippi, Kentucky and Georgia, all of which have passed strong criminal justice reforms with bipartisan support that decrease incarcerated populations, improve reentry programs, and ultimately lower crime and recidivism.  This is all part of a strategy to take the fight to pass a federal bill straight to the people and away from the status quo in Washington....

Keenly aware that red states like Georgia, Oklahoma, Mississippi and Kentucky have made aggressive changes to their justice systems, including sentencing reforms and felony expungement laws, [Jared] Kushner has showed the president these success stories.  In this latest roundtable, Trump included the Democratic governor of Louisiana, John Bel Edwards, who shared that reforms implemented in his state led to a 20 percent decrease in the number of people imprisoned for nonviolent crimes, which frees up valuable resources to fight dangerous crimes and reduce recidivism.

While the public safety benefits of reform are undoubtedly impressive to a “tough on crime” president, the overwhelming public support for these issues must be equally attractive.  Voters across the country are looking to Congress to act. Polling from earlier this year shows that 75 percent of voters, a clear supermajority crossing all partisan, geographic, education, income, racial and ethnic boundaries, believe the criminal justice system needs to be reformed and support changes such as fixing our cash bail system and replacing mandatory minimum sentencing laws.

In the final stretch to a Senate vote, do not be surprised to see this White House deploy its assets to the states to stump for a bill they know the American people want.  There will be folks from every walk of life lining up behind them, from business leaders and military veterans to civil rights advocates and faith leaders.  Just this week, people from 50 organizations of all political stripes and bipartisan senior legislative staff met to talk details. When the phone lines light up in offices all over Capitol Hill demanding a vote, Washington may well be out of excuses.

Candidly, I will be quite surprised if this White House were to deploy its assets to stump for reform, but I certainly hope this will happen.  I am fairly confident that if Prez Trump were to do a series of tweets in support of a federal criminal justice reform bill, that bill would have a much greater chance of getting to his desk.  And Prez Trump does not have to change minds about pending reforms: there is already overwhelming bipartisan support for the basic substance of nearly every serious sentencing and prison reform bill. 

The current challenge is  getting congressional leadership to settle on which version of which bill will be brought up for a vote. Senate leadership has been the bottleneck lately, and the White House surely could and should focus, publicly and privately, on advocacy toward leadership to settle on a bill and finally allow a vote.  (Notably, the FIRST STEP Act got 86% approval when it got to a vote in the House of Representatives, so it seems informed legislators are even more supportive of federal reform than the poll numbers.) 

This piece by Holly Harris highlights just why passage of federal criminal justice reform could be a huge win for this Administration, and I hope Prez Trump sees the potential political value to pushing reform over the finish-line.  Presidents always have unique powers and unique opportunities to grease the legislative process, and a congressional reform discussion that has been going strong for now five years with no tangible results can certainly uses as much grease as it can get. 

Some of many prior recent related posts:

UPDATE: I have just added to the title of this post after seeing this new Politico piece headlined "Criminal justice deal faces steep Senate hurdles despite Trump’s push."  Here is an excerpts that has me thinking reform does not get done unless and until the Trump White House puts all its might behind the effort:

Trump has stepped up his own calls for a deal on the prisons overhaul that the House passed earlier this year, holding two events so far this month.  And groups off the Hill say they're closing in on a path to pass the legislation through the Senate by adding some of the sentencing changes Judiciary Chairman Chuck Grassley (R-Iowa) spent years negotiating with Democrats.

But interviews with a dozen GOP senators show that those talks remain in a precarious state.  That’s because the handful of Republicans who have long protested reducing mandatory-minimum sentences leave Majority Leader Mitch McConnell (R-Ky.) without any incentive to call up legislation that would split his conference.

One of those longtime critics of adding sentencing to the House-passed prisons bill bluntly predicted Thursday that McConnell would not “bring the bill to the floor any time soon.”

“I’m not sure that we can put together a deal,” Sen. John Kennedy (R-La.) said in an interview. “I’m not sure we should.”...

Close involvement from Trump will likely be required for the GOP to get past its internal schism over reducing mandatory minimum sentences as part of a prisons package. Grassley's bipartisan package of sentencing and prison reforms boasts 15 Republican cosponsors, but Attorney General Jeff Sessions opposes even the narrower prisons-only approach the House has passed.

August 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, August 16, 2018

Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system

With Jeff Sessions now in the role of Attorney General, Senator Tom Cotton is one of the last members of Congress eager to push a tough-and-tougher agenda.  Despite the US position as world leader in incarceration, Senator Cotton asserted a few years ago, as noted here, that "we have an under-incarceration problem."  His thinking today finds expression in this new Wall Street Journal article headlined "Reform the Prisons Without Going Soft on Crime: Proposals to give judges more discretion and cut mandatory minimums endanger public safety."  Regular readers will be familiar with many of the moves in this piece (even though we've not heard much from Bill Otis lately).  Here is a sample:

The U.S. faces a drug epidemic today, exactly the wrong time to go soft on crime.  According to the National Institute on Drug Abuse, in 2017 more than 72,000 Americans died of drug overdoses, a 37% increase from 2015 and a nearly 100% increase since 2008.  Violent crime has declined since the 1980s because mandatory minimums adopted then locked up violent criminals.  But in 2015-16, the most recent years for which full data are available, violent crime increased at its fastest rate in a quarter-century, though preliminary data suggest it might have leveled off in 2017....

This naive policy ignores the reality of recidivism.  Five out of six prisoners end up rearrested within nine years, according to a recent Justice Department study. In fact, on average reoffenders are rearrested five times — and not for minor crimes.  Only a handful of ex-convicts return to prison exclusively for parole violations, whereas 77% of drug offenders are rearrested for serious nondrug crimes, such as murder and rape.  Most criminals will commit more crimes after being released from prison, even with improved rehabilitation programs.  The last thing Congress should do is shorten their sentences or allow them to “serve time” in home confinement....

What is the logic of such leniency?  Activists say they want to reverse “mass incarceration.”  That is a curious characterization when less than half of crimes are even reported to police and more than 80% of property crimes and 50% of violent crimes that are reported go unsolved, according to Pew Research Center.  Tell those victims denied justice that the U.S. locks up too many criminals.

Virtually no one goes to federal prison for “low-level, nonviolent” drug offenses, especially mere drug use or possession. In 2015, there were 247 inmates in federal prison for drug possession. In these rare cases, the inmates usually pleaded down from a more serious offense.  In the extreme case of a manifestly unjust sentence, the pardon power is a better instrument of justice than broad sentencing reductions. President Trump has shown himself more than willing to intervene to redress such cases.

Some fiscal conservatives believe that America spends too much on the prison system.  Yet the Bureau of Prisons costs taxpayers less than $8 billion a year, or about 0.2% of the entire federal budget.  After national security, the government’s most basic responsibility is to protect its citizens from crime. The costs of crime and disorder — personal and economic — far outweigh the downsides of putting serious criminals behind bars.

Mandatory minimums and truth-in-sentencing laws work. Rather than eliminate them, Congress should improve access to faith-based and other antirecidivism programs in federal prisons.  American families deserve safe communities and protection from drugs and crime.  Criminals, especially first-time offenders who grew up in rough environments, deserve second chances — once they have done their time.

I suspect most readers can readily see logical flaws in Senator Cotton's advocacy here (e.g., how do poor clearance rates for violent crimes justify excessive drug sentences?).  Most fundamentally, the bills with a chance for passage in Congress do not get anywhere close to "eliminating"  mandatory minimums or truth-in-sentencing laws, and they in fact sadly do not really do all that much more than enhance antirecidivism programs in federal prisons.  But even the modest bills with a shot at passage (which have the support of Prez Trump) are too much for Senator Cotton.

John Pfaff has this twitter thread in which he describes the effort as "horrifically dishonest." John attacks various numbers in the op-ed, and I will just stress a telling flip-flop on the clemency front. Senator Cotton says "the pardon power is a better instrument of justice than broad sentencing reductions," but many folks on the right criticized Prez Obama's use of clemency at the end of the term by saying it should be Congress in charge of granting any serious sentencing relief.  Senator Cotton here also says here "President Trump has shown himself more than willing to intervene to redress such cases," but he has so far only commuted two extreme federal sentences (roughly .001% of the federal prison population).  Prez Trump has promised to do more, but he can not be expected to nor depended upon to do the kind of reform via clemency that Congress should be doing in the first instance.

UPDATE: Mark Holden has this new commentary, headlined "Correcting the Record About Sentencing Reform and Mandatory Minimums," which goes point-by-point through key claims made by Senator Cotton and provides different perspective on his assertion.

ANOTHER UPDATE:  Derek Cohen over at Right on Crime also has this notable response to Senator Cotton's piece under the headline "Setting the Record Straight"

August 16, 2018 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, August 12, 2018

FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act

As noted in this recent post, the latest buzz from inside the Beltway is that four sentencing reform provisions from the Sentencing Reform and Corrections Act might get added to the FIRST STEP Act in the Senate to produce a final federal criminal justice reform bill that will finally get voted on in both houses of Congress. Helpfully, the folks at FAMM have produced this extended document reviewing which SRCA sentencing provisions are seemingly in play.  The document is styled as a memo to Congress members and staff under the heading "Facts sheets explaining potential sentencing additions to FIRST STEP Act."  Here is part of its introduction:

In May, the U.S. House passed the FIRST STEP Act (H.R. 5682) by a vote of 360 to 59. Some Senate leaders have argued that any criminal justice reform bill considered by the Senate must include sentencing reform. Earlier this month, President Trump expressed a willingness to consider adding four sentencing reform provisions to the FIRST STEP Act.

As Members of Congress consider adding some commonsense sentencing provisions from the Senate Judiciary Committee-approved Sentencing Reform and Corrections Act (SRCA, S. 1917), we thought it would be useful to provide some background on the four sentencing provisions under consideration. In the four factsheets that follow, we explain the problem that current sentencing law is creating, provide an example of how it is harming real people, share the proposed reform found in SRCA, and relay the potential financial impact based on studies conducted by the Congressional Budget Office and the U.S. Sentencing Commission. We recognize that the reforms included in SRCA might change during negotiations and that the impact of these reforms will change accordingly.

For those interested in a detailed (pro-reform) accounting of what sentencing reform provisions now seem to have a real chance of passage, this FAMM document is very much worth checking out. Also, here is a list of just some of the (too) many prior posts I have done about the policy and political debates over federal reforms just this year:

August 12, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)