Sentencing Law and Policy

Notable Third Circuit panel ruling finds ineffectiveness in erroneous sentencing plea advice

A helpful reader alerted me to a new panel ruling from the Third Circuit in Baker v. US, No. 23-2059 (3d Cir. July 25, 2024) (available here). The start of the extended opinion highlights why it seems to me notable:

Following a robbery of the First Atlantic Federal Credit Union in Neptune, New Jersey on January 13, 2010, federal prosecutors charged Steven Baker with bank robbery and using a firearm during the robbery, the latter in violation of 18 U.S.C. § 924(c).  They offered Baker a plea agreement, under which he would plead guilty to those two charges and also admit to, but not be charged with, the commission of two other bank robberies while using a firearm.

It was here the problems at the heart of this appeal began.  Baker’s counsel advised him that he faced a total of 1517 years’ imprisonment if he accepted the plea and that, if he did not accept it, the Government would also charge him in connection with the two other armed bank robberies.  As to the three potential Section 924(c) counts, his counsel told him that he faced a consecutive term of 21 years’ imprisonment.  In fact, he faced a consecutive 57-year mandatory minimum sentence under the statute’s “stacking” provision then in effect.  After receiving this highly inaccurate advice, Baker turned down the plea, was charged in connection with the other robberies, and proceeded to trial, where he was convicted on all counts.  His sentence was 57 years on the Section 924(c) counts plus 87 months on the bank robbery charges.

Baker filed a direct appeal, and we affirmed the judgment and sentence.  United States v. Baker, 496 F. App’x 201, 206 (3d Cir. 2012), cert. denied, 568 U.S. 1148 (2013).  He then filed a Section 2255 federal habeas motion, arguing that his counsel was constitutionally ineffective for severely miscalculating his sentence exposure as he weighed the plea offer. 28 U.S.C. § 2255.  The District Court denied relief, determining Baker could not show prejudice.

Considering the significant disparity in Baker’s comparative sentence exposure between accepting the plea offer and going to trial and crediting his testimony that he would have accepted the plea agreement but for his counsel’s error, we conclude that Baker has demonstrated prejudice.  Thus, we reverse and remand.

Helpful review of pending state constitutional litigation over LWOP sentencing for felony murder

This recent State Court Report entry provides a relatively short and quite helpful review of past debates and some present litigation surrounding felony murder.  The full headling of the piece serves as a useful summary: "State Supreme Courts May Abolish Life Without Parole For 'Felony Murder': People serving life in prison in Colorado, Michigan, and Pennsylvania for murder — even though they never meant to kill anyone — are arguing their sentences are unconstitutionally cruel."  I recommend the piece in full for full context, and here are some excerpts (with links from the original):

[T]he felony murder rule, long-ago abolished in England but still alive in 48 states, has persisted as one of American criminal law’s cruelest features.  Shattering norms of criminal liability, felony murder severely punishes people for deaths that they neither caused nor intended to cause, but that in some way flowed from their actions, with the connection often tenuous to the point of nonexistent....

A recent Pulitzer Prize-winning New Yorker article, for example, tells the story of a man who was miles away and handcuffed when his accomplice in some car burglaries accidentally struck and killed two cyclists as he fled from police. Yet the handcuffed man was convicted of murder and sentenced to mandatory life without parole. His obvious and undisputed distance from the killings — both geographically and with regard to his intent — reduced neither his charges nor, given its mandatory nature, his sentence....

Even more than other facets of criminal law, the rule targets the vulnerable and historically marginalized, exacerbating already deep inequities in our criminal legal system. Felony murder yields massive racial disparities, and is often wielded against people who are suffering from addiction (such as if they share drugs with a friend who overdoses), survivors of domestic abuse (including when women are coerced into criminal conduct by abusive men), and young people (who are often punished for the conduct of adults and authority figures or their friends)....

In the coming months, Colorado, Michigan, and Pennsylvania will decide [state constitutional claims] that challenge life without parole sentences for felony murder.

In Pennsylvania, 70 percent of the more than 1,100 people serving life without parole for felony murder are Black.  One of them, Derek Lee, has petitioned the Pennsylvania Supreme Court to rule that his mandatory life sentence violates the state constitution’s ban on “cruel” punishments.  Lee argues that Pennsylvania’s constitution must be construed both independently from and more broadly than the Eighth Amendment, and that the complete disconnect between felony murder and any legitimate penological purpose renders his life sentence unconstitutional.  In amicus briefings, his claim has unusually broad support from, among others, former prosecutors, the Philadelphia District Attorney’s Office, Pennsylvania Gov. Josh Shapiro, and former state Department of Corrections officials who argue that “life without parole sentences for felony murders are financially insensible” and that “many or even most lifers could be released without incident to their communities.”

Meanwhile, another man convicted of felony murder has made similar arguments to the Colorado Supreme Court, with one key addition.  In 2018, when Wayne Sellers was convicted, state law mandated a life without parole sentence.  But Colorado changed the law in 2021, and reduced the sentence for future felony murder convictions to a range of 16 to 48 years — affording both greater leniency and sentencing discretion.  The change did not apply to Sellers, who now asks the state high court to rule that his sentence is unconstitutional.  During oral arguments [last week], some justices appeared hesitant to “substitute [their] judgment for the legislature[’s]” — despite the court’s previous acknowledgment that sentencing reforms are a key indicator of the state’s evolving standards of decency that are central to a constitutional excessive punishment claim.

Finally, the Michigan Supreme Court — which recently surpassed federal case law to prohibit mandatory life without parole sentences for 18 year olds — has asked for briefs on whether “mandatory life without parole for felony murder” violates the state constitutional ban on cruel or unusual punishments.  That case is brought by Edwin Langston, a now-elderly man who in 1976 was held responsible for a murder committed by someone else during a robbery, and for which Langston was not even present.

There remain strong arguments that the Eighth Amendment forbids consigning people to die in prison based on felony murder convictions, even if the current U.S. Supreme Court majority is unlikely to embrace them.  But state constitutional law provides a path to justice that doesn’t require reconciling inconsistent and flawed precedent upholding extreme prison terms for modest crimes.  State supreme courts that take their constitutional obligations seriously should do what both common decency and the law demands: ban life without parole for felony murder.

US Sentencing Commission releases big report on "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System"

Via email, I received news of this big new report from the US Sentencing Commission titled "Methamphetamine Trafficking Offenses in the Federal Criminal Justice System."  This 66-page report provides lots of important facts and figure about the drug offense that is now the basis for the most and most severe federal drug sentences in recent years.  This USSC webpage has an overview and key findings from the report and this USSC news release provide a helpful summary:

A new U.S. Sentencing Commission study found substantial increases in both the prevalence of federal methamphetamine trafficking sentences, and the purity levels of methamphetamine trafficked in the United States.

Over the past 20 years, the number of individuals sentenced federally for methamphetamine trafficking has risen by 168 percent, with methamphetamine now accounting for nearly half (49%) of all federal drug trafficking cases.

The study also revealed that the methamphetamine tested in fiscal year 2022 was on average over 90% pure with a median purity of 98%.  Furthermore, the methamphetamine tested was uniformly highly pure regardless of whether it was sentenced as methamphetamine mixture (91% pure on average), methamphetamine actual (93%) or Ice (98%).  By comparison, in 2000, the Drug Enforcement Administration reported that methamphetamine purity ranged from 10% to 80% depending on location.

Methamphetamine is one of only five controlled substances where purity affects federal statutory and guideline penalties, resulting in higher penalties when purity levels are confirmed by laboratory testing.  By federal statute, it takes ten times as much mixture compared to actual methamphetamine to trigger mandatory minimum penalties.

Because methamphetamine penalties are based in part on purity, penalty exposure and sentencing outcomes are impacted by confirmed purity levels.  The Commission’s study found that testing practices varied across the nation and that testing rates across judicial circuits were inconsistent — ranging from under 60% to over 80% of the time.  Notably, methamphetamine seized in southwest border districts was more likely to undergo laboratory testing (85%) than in non-border districts (70%).

Methamphetamine trafficking sentences averaged 91 months in fiscal year 2022, the longest among the major federal drug trafficking offenses, including fentanyl (65 months) and heroin (66 months). In addition, methamphetamine trafficking offenses carried mandatory minimum penalties more often (74%) than all other drug trafficking offenses (57%).

Supreme Court grants cert on yet another "crime of violence" case

Over at SCOTUSblog here, John Elwood in one of his indispensble "Relist Watch" posts jokingly described the Supreme Court's jurisprudence around violent predict offenses under federal law as an "apparent effort to create perpetual full employment for federal sentencing lawyers."  That effort got yet another boost this morning from this new SCOTUS order list granting cert in Delligatti v. United States, No. 23-825, which presents this question (drawn from this cert petition):

Under 18 U.S.C. §  924(c)(3)(A), a felony qualifies as a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Courts have disagreed about how to apply use-of-force language to crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action.

In the decision below, the Second Circuit held that any crime requiring proof of death or bodily injury categorically involves the use of physical force, even if it can be committed through inaction—such as by failing to provide medicine to someone who is sick or by failing to feed a child....

The question presented is: Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

Though I would actually prefer SCOTUS to be talking up a lot more non-"crime of violence" sentencing cases, I get a strange kick out of the fact that the predicate crime definition issue here could engage generations of philosophers who have debated the moral distinctions between consequences resulting from action and inaction.  Though I doubt the famous trolley problem developed by Philippa Foot and Judith Jarvis Thomson will be central to any amicus briefs in Delligatti, the issue in this case is a reminder that even mind-numbing technicalities in criminal statutes necessarily raises an array of deep philosophical questions about law and life.

Editor's note: upon first blogging, I wrongly assumed Delligatti was an ACCA case, but it is not.  I think I have now properly corrected this post and I thank the commentor for kindly bringing my mistake to may attention.  (And, importantly, ACCA jurisprudence will alos be impacted by the eventual ruling in Delligatti.)

Interesting 6-3 split in ruling for feds in reach of ACCA covering state drug convictions

Regular readers know the Armed Career Criminal Act (ACCA) is a messy statute that has divided the Supreme Court for decades regarding how to categorize various prior convictions as possible triggers for ACCA's 15-year mandatory minimums.  Another divided Supreme Court opinion was handed down in this arena today  in Brown v. US, No. 22–6389 (S. Ct. May 23, 2024) (available here). The opinion for the Court was authored by Justice Alito, and it starts this way:

These cases concern the application of the Armed Career Criminal Act (ACCA) to state drug convictions that occurred before recent technical amendments to the federal drug schedules.  ACCA imposes a 15-year mandatory minimum sentence on defendants who are convicted for the illegal possession of a firearm and have a criminal history that is thought to demonstrate a propensity for violence.  These defendants are subject to ACCA’s enhanced penalty if, among other things, they have “three previous convictions” for “a serious drug offense.” 18 U.S.C. §924(e)(1).  For a state crime to qualify as a “serious drug offense,” it must carry a maximum sentence of at least 10 years’ imprisonment, and it must “involv[e] . . . a controlled substance . . . as defined in section 102 of the Controlled Substances Act” (CSA). §§924(e)(1), (2)(A)(ii). The CSA, in turn, includes five schedules of controlled substances and provides that these schedules must be updated each year by the Attorney General. 84 Stat. 1245, 1247, 21 U. S. C. §§811, 812.

The two cases now before us present the question whether a state crime constitutes a “serious drug offense” if it involved a drug that was on the federal schedules when the defendant possessed or trafficked in it but was later removed.  We hold that such an offense qualifies. 

Intriguingly, five other Justices joined Justice Alito's opinion for the Court, but not the "usual suspects" when there are 6-3 divides on this Court. In this iteration, Justice Sotomayor joins the marjoirty in this ruling for the government, whereas Justice Jackson wrote a dissenting opinion, in which Justice Kagan and Gorsuch joined (though the latter joined only as to Parts I, II, and III of the dissent). Here is how the dissent gets started:

The Court maintains that, “[s]tanding alone,” the text of 18 U. S. C. §924(e)(2)(A)(ii) “does not definitively answer” the question presented in these cases. Ante, at 7. Instead, says the majority, we must look beyond the text to precedent, statutory context, and purpose — which apparently converge to persuade the majority that §924(e)(2)(A)(ii) requires sentencing courts to apply the drug schedules in effect at the time of a defendant’s prior state drug conviction when determining the applicability of the 15-year mandatory minimum in the Armed Career Criminal Act (ACCA). But the relevant text does definitively answer the question presented here. And it establishes that courts should apply the drug schedules in effect at the time of the federal firearms offense that triggers ACCA’s potential application. Nothing else — not precedent, context, or purpose — requires a different result. Therefore, I respectfully dissent.

I am hopeful, but not especially optimistic, that a faculty meeting and other commitments will not prevent me from fiding time in short order to review these opinions closely.

"Context Is Everything In Justices' Sentencing Relief Decision"

The title of this post is the title of this new Law360 commentary that I authored regarding the Supreme Court's work in its recent Pulsifer ruling.  Here is how the commentary starts and closes:

"Context is everything." This adage could have been a mantra for both the U.S. Supreme Court majority and the dissenters in Pulsifer v. U.S., decided March 15. Pulsifer resolved an intricate statutory interpretation issue turning on a single word in a provision of the First Step Act.  The dispute concerned how to interpret the word "and" in the FSA's expansion of the "safety valve" provision of federal sentencing law, which exempts certain drug defendants from severe mandatory minimum sentences.

According to the Pulsifer majority, the narrow context of surrounding words and the provision's function called for reading "and" to limit the safety valve.  The dissent stressed the broader context of federal sentencing reform and practices to argue that "and" should be read to loosen that valve.  In the end, some even broader contexts help account for Pulsifer's resolution and the court's division....

The court repeatedly acknowledges that there "are two grammatically permissible" ways to interpret the revised safety valve, but the government's interpretation is to be adopted because it will "function without a hitch" as it "sorts defendants for relief (or not)."  A particular vision of how Congress would want the safety valve to "function" — and especially the notion that Congress likely would not want too many defendants eligible for a sentence below mandatory minimums — provides a critical undercurrent for the majority's application of the word "and" in this context.

In notable contrast, the dissent stresses individual liberty throughout: early on, the dissent highlights that "the lives and liberty of thousands of individuals" are at issue, and the importance of interpreting laws "in favor of liberty" is stressed at the close.  For the dissent, a particular vision of the court's role in protecting individual liberty — especially given that doing so here means only that a sentencing judge will have the usual authority to "'consider every convicted person as an individual' and pick punishments that 'fit the offender and not merely the crime'" — constitutes a purpose more transcendent than figuring out what interpretation of a criminal statute may "function" better. 

In the end, then, the justices' divergent visions of the judiciary's role may best account for their divergent visions of the meaning of the word "and" in Pulsifer.  The majority, comfortable having the court serve as a kind of agent of Congress, excogitated an interpretation of "and" that ensures not too many defendants "escape from otherwise applicable mandatory minimums."  The dissent, believing the court's work should always advance how a "free nation operates against a background presumption of individual liberty," castigates the majority for adopting "an interpretation that restricts safety-valve relief to thousands more individuals."  And these divergent visions are sure to influence how these justices interpret other words in other statutes in the future.

On Pulsifer watch again after SCOTUS indicates opinions are coming to close this week.

Regular readers likely recall that I have been watching closely the Supreme Court sentencing case of Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  A resolution of the issue in Pulsifer — which can be imperfectly summarized as a question of whether "and" means "and" or "or" in the context of the Act's expansion of the safety-value mandatory minimum exception — has long been needed and has been a long time coming.

Pulsifer was argued before SCOTUS back in early October 2023 on the very first day of its current Term, and it is relatively rare for a lower-profile case from the start of the Term to still be unresolved by now.  That said, the Justices have been notably slow to issue opinions this Term, and all sorts of emergency matters have surely impacted their usual work flow.   Still, today the SCOTUS hopepage includes a notice that the "Court may announce opinions on Friday, March 15."  This is Court-speak alerting us to the fact that they will hand down at least one opinion (and likely more) Friday morning at 10am, though how many and which one are still matters for speculation.

The last time I was on Pulsifer watch, in early February, I correctly speculated it was likely a bit too soon to expect an opinion given that the oral argument in Pulsifer suggested a divided court, with at least a couple Justices appearing to have strong views on each side of the case.  That reality might still caution against getting hopes up for the Pulsifer opinion this Friday.  Also, though long in coming, there is no obvious time urgency to Pulsifer that might lead the Justices to want to relese this opinion on a Friday rather than just wait until the following week.  But with so much work ahead for the Justices, perhaps the Ides of March might prove to be just the right time for this ruling.  As the Bard of Avon migh caution: "beware."

A few prior related posts about SCOTUS Pulsifer case:

• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 
• Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve 
• Reviewing the big little and/or case, Pulsifer v. US, that will kick off the new Supreme Court Term
• On first Monday in October, another round of previews for SCOTUS's starting sentencing case, Pulsifer v. US 
• Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case
• With possible opinions this week, might SCOTUS soon answer if "and" means "or" in Pulsifer safety valve case?

Defender groups file FOIA seeking records on DOJ's implementation of December 2022 charging and sentencing memos

As reported in this press release, yesterday the "American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and the Federal Public & Community Defenders submitted a Freedom of Information Act (FOIA) request ... seeking public records detailing the Department of Justice’s implementation of December 2022 memoranda establishing new policies for all federal prosecutors’ charging and sentencing practices."  Here is some context from the press release:

On Dec. 16, 2022, Attorney General Merrick Garland issued two memoranda requiring federal prosecutors to make important changes in how they litigate criminal cases.  These changes include charging crack cocaine offenses like powder cocaine offenses in order to avoid unwarranted and racially disparate sentencing outcomes; and reserving charges that carry a mandatory minimum sentence for cases in which the other charges (i.e., those for which the elements are also satisfied by the accused person’s conduct, and do not carry mandatory minimum terms of imprisonment) would not sufficiently reflect the seriousness of the person’s alleged criminal conduct, danger to the community, or harm to victims.

The new policies have been in effect for over one year, but the Federal Public & Community Defenders have received information from attorneys in multiple federal court districts indicating that federal prosecutors are not uniformly abiding by the two memoranda....

The ACLU, NACDL, and FPD seek wide ranging information on implementation of the memoranda, including:

• Data collected in software developed by the Justice Department to track charges brought by the DOJ that include mandatory minimum sentences, and related policy directives and training materials;
• Information related to compliance with the memoranda, including the percentage of charging documents and plea agreements that include charges with mandatory minimum sentences; and
• Further guidance the Justice Department has issued to ensure federal prosecutors seek equal treatment for crack and powder cocaine offenses through their charging and sentencing practices.

The FOIA request highlights the impact, if properly implemented, of the memoranda’s requirement that federal prosecutors exercise greater restraint in using mandatory minimums.  “Reducing the use of mandatory minimums can also ameliorate racial disparities in the sentence lengths between similarly situated Black and white federal defendants. Research has shown that ‘[t]he initial mandatory minimum charging decision alone is capable of explaining more than half of the black-white sentence disparities not otherwise explained by pre-charge characteristics,’” the request reads.

The full 18-page FOIA request is available at this link.

Prior related posts:

• US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine
• Wondering about the impact of AG Garland's new charging and sentencing memos 

The Sentencing Project produces short policy document on mandatory minimums

I learned via email this morning that The Sentencing Project has produced this short new document titled "How Mandatory Minimums Perpetuate Mass Incarceration and What to Do About It."  I was hoping this document might have some new data or analyses about the contribution of mandatory minimums to incarceration levels, but it primarily reviews the standard arguments against mandatory minimums and provides a few anecdotes about some recent reform efforts to reduce or increase use of mandatory minima.  Here is how the document gets started:

Eliminating mandatory minimum sentencing laws is essential to creating a more just and equitable criminal justice system.  Widespread evidence shows that mandatory minimum sentences produce substantial harm with no overall benefit to crime control.  Determined by lawmakers rather than judges, these sentences represent a uniquely American approach to sentencing that has accelerated prison growth.  They constrain judicial discretion, deepen racial disparities in the criminal legal system, and cause far-reaching harm to individuals, families, and communities.

Despite building bipartisan agreement that such sentences are a policy failure, mandatory minimum sentences continue to be promoted as a tool to combat crime, even as the public signals waning support.  This fact sheet identifies the main issues associated with mandatory minimum sentences.  It documents the modest progress toward ending them, as well as efforts to reinstate them, and offers solutions to hasten change that will aid in ending mass incarceration.

"Firearms Carceralism"

The title of this post is the title of this notable new article authored by Jacob Charles and now available via SSRN. Here is its abstract:

Gun violence is a pressing national concern.  And it has been for decades.  Throughout nearly all that time, the primary tool lawmakers have deployed to staunch the violence has been the machinery of the criminal law.  Increased policing, intrusive surveillance, vigorous prosecution, and punitive penalties are showered on gun offenders.  This Article spotlights and specifies this approach — what it calls “firearms carceralism” — and details how a decades-long bipartisan consensus generated a set of state-centered solutions to gun violence that has not meaningfully impacted the problem.  Instead, those policies have exacerbated racial inequity and compounded civic and community harms.

The Article traces the escalating punitive measures visited on gun offenders over the past half century.  It first peers down into one microcosmic exemplar of firearms carceralism etched into federal mandatory minimum provisions and Supreme Court case law magnifying those penalties.  It describes how criminal justice reforms have traditionally excluded those whose offenses are categorized as violent, and specifically and emphatically those who offend with guns by their side.  It then draws out promising hints of a path to including gun offenders in efforts to reform the criminal legal system.  Most fundamentally, however, the Article wages a sustained critique of the system of firearms carceralism that fronts aggressive law enforcement and draconian terms of incarceration.  It describes the unjustifiable breadth and depth of these practices and the harmful, racialized, and exclusionary values they simultaneously draw from and reinscribe.

Finally, the Article argues in favor of three alternative paths for equitable peace and safety.  First, it outlines private sector steps to, for example, dampen illicit firearms supply.  Second, it highlights civil legal interventions like red flag laws and tort lawsuits against irresponsible gun sellers.  Third, and most prominently, it underscores the promise of community violence intervention and restorative justice programs to bring meaningful safety apart from the carceral tools of coercive control.

Some division in headlines covering SCOTUS divisions in ACCA drug priors cases

I flagged here yesterday the Supreme Court's oral arguments scheduled for today in the ACCA cases of Brown and Jackson.  Like so many ACCA cases, the task here of sorting out what prior drug offenses trigger ACCA's 15-year mandatory minimum prison term for illegal gun possession is not for the faint of heart.  The full 85 minutes of argument can be accessed here, and I welcome thoughts about where the Court may seem headed.  The press accounts of the argument, partially linked below, seem to highlight the Justices' division though also suggest that the defense seem perhaps more likely to prevail:

From Bloomberg Law, "Justices Back Criminal Defendants in Firearm Sentencing Rule"

From Courthouse News Service, "Justices split over longer sentences for defunct drug charges"

From Law360, "Justices Hear Dueling Rules In ACCA Drug Definition Case"

From the New York Times, "Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes"

From the Washington Examiner, "Supreme Court divided on how firearm sentencing law applies to criminal drug offenders"

Federal court rules Second Amendment precludes felon-in-possession prosecution for defendant facing 15-year ACCA mandatory minimum

I have not sought to keep track of all the on-going litigation in district courts over whether federal felon-in-possession prosecutions under 18 USC § 922(g)(1) are still constitutional after Bruen.  But this new story in the Chicago Tribune, headlined "Chicago judge rules federal statute barring felons from possessing guns is unconstitutional but says it’s a ‘close question’," seemed notable because it appears that a federal district judge in Chicago has concluded that it violated the Second Amendment to prosecute for gun possession someone who would qualify for the Armed Career Criminal Act's 15-year mandatory minimum federal prison term.  Here are some of the reported details:

As a five-time convicted felon, Glen Prince was facing a mandatory minimum 15 years behind bars when he was charged in federal court with being a felon in possession of a handgun stemming from an armed robbery on CTA train in 2021. Instead, Prince’s case was tossed out earlier this month by a federal judge who ruled the statute barring felons from possessing handguns is unconstitutional in light of a recent U.S. Supreme Court decision.

The ruling by U.S. District Judge Robert Gettleman is the first of its kind to come down in Chicago’s federal court and joins a host of other similar cases that have thrown the decades-old law into a sort of legal limbo as the issue works its way back to the high court. The implications are particularly large in Chicago, where there are hundreds of pending felon-with-firearm cases stemming largely from the U.S. attorney’s office efforts to throw federal law enforcement resources into the fight against the city’s relentless gun violence.

Gettleman’s Nov. 2 ruling in Prince’s case was immediately appealed by the U.S. attorney’s office. The 7th Circuit U.S. Court of Appeals has set a Dec. 19 deadline for prosecutors to file a brief, court records show. It contradicts a handful of recent rulings by other district judges here upholding the felon-with-firearm law, saying that Second Amendment protections on gun possession have traditionally applied only to “law-abiding citizens.”

On the national level, the U.S. Justice Department last month urged the Supreme Court to overturn a lower-court ruling in Philadelphia that the law violated the constitutional rights of a man who possessed a weapon after pleading guilty years earlier to food-stamp fraud. The Biden Administration argued in its petition that the ruling conflicts decisions from two other appeals courts upholding the ban and “opened the courthouse doors to an untold number of future challenges by other felons.”...

In his opinion throwing out the charge against Prince, Gettleman wrote that while the government has historically prohibited certain people from possessing guns, prosecutors had not met their burden “to prove that felons are excluded from ‘the people’ whose firearm possession is presumptively protected by the plain text of the Second Amendment.”

Gettleman said the blanket ban on felons having guns “imposes a far greater burden” on gun rights than other historical categorical exclusions, such as one during the Revolutionary War when “individuals who refused to declare a loyalty oath to the emerging government” were barred from having firearms. The judge also wrote the fact that modern guns are more deadly and violence is more prevalent in today’s society doesn’t “justify a different result.”

“This nation’s gun violence problem is devastating, but does not change this result under Bruen, which this court finds rests on the severity of (the felon-with-firearm law) rather than its categorical prohibition.” Gettleman did, however, note the issue was a “close question” in his mind, as “violence plagues our communities and that allowing those who potentially pose a threat to the orderly functioning of society to be armed is a dangerous precedent.”

Prince, 37, was ordered released from the Metropolitan Correctional Center the day after Gettleman’s decision — but he didn’t walk free, records show. Court records show Chicago police arrested him at the jail at 71 W. Van Buren St. on new charges filed in Cook County accusing him of being an armed habitual criminal. He’s now being held without bond in the Cook County Jail.

According to the charges filed in federal court, Prince was a suspect in the armed robbery of three men on a CTA train in September 2021. After following the usage of a Ventra card stolen during the robbery, police arrested Prince on Sept. 12, 2021, on a CTA train platform in the 200 block of South State Street. He was allegedly carrying a loaded 9mm Smith and Wesson handgun as well as a fully loaded magazine, cocaine, and the victims’ Ventra card. He was originally charged in Cook County with aggravated unlawful use of a weapon by a felon, but those charges were dropped by state prosecutors after the federal indictment was filed last year, records show.

Prince’s criminal history includes three other armed robbery convictions as well as 2014 conviction for aggravated battery to a police officer, court records show.... Prince’s federal case was among more than 600 similar cases filed by the U.S. attorney’s office over the past five years where investigations by Chicago police and other local law enforcement are later removed to U.S. District Court. At least 50 people have been charged in 2023 alone with violating the felon-with-firearm ban, court records show.

The reasons to charge a defendant in federal court vary, but prosecutors generally promote it as a tool to get the city’s most violent, repeat offenders off the street instead of putting them back into the Cook County justice system. The potential penalties also are typically much tougher. Not only does the federal charge of unlawful possession of a weapon by a felon carry a maximum 10-year prison sentence, defendants must serve 85% of their sentence, instead of being eligible for day-for-day credit in the state system. If a defendant, such as Prince, has previously been convicted of three or more violent felonies, federal prosecutors can seek an enhanced, mandatory minimum sentence of 15 years behind bars, or up to life.

UPDATE: The 22-page opinion in US v. Prince, No. 1:22-cr-00240 (N.D. Ill Nov. 02, 2023), is available at this link.

US Solicitor General supports SCOTUS review and application of Sixth Amendment rights for key issue for applying Armed Career Criminal Act

A helpful reader made sure I saw a notable Supreme Court filing by the United States in response to a cert petition in an Armed Career Criminal Act (ACCA) case. Specifically, in Erlinger v. US, No. 23-370, a case scheduled to be conferenced by SCOTUS this week, the Solicitor General starts the discussion section of this filing in this way:

Petitioner renews his contention (Pet. 14-18) that the Sixth Amendment requires a jury to find (or a defendant to admit) that predicate offenses were committed on different occasions under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 595 U.S. 360 (2022), the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context. This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires.

Here is more from the filing:

In Wooden, this Court considered the proper test for determining whether prior convictions were committed on different occasions for purposes of the ACCA.  See 595 U.S. at 364. The government advocated an elements-based approach to determining whether two offenses occurred on different occasions, which it viewed as consistent with judicial determination of a defendant’s ACCA qualification.  See Gov’t Br. at 46, Wooden, supra (No. 20-5279); see also, e.g., Gov’t Br. in Opp. at 5-11, Walker v. United States, 141 S. Ct. 1084 (2021) (No. 205578).  The decision in Wooden, however, rejected the government’s elements-based approach to the different-occasions inquiry. 595 U.S. at 366.

The Court held instead that the inquiry is “holistic” and “multi-factored,” and that “a range of circumstances may be relevant to identifying episodes of criminal activity.” Wooden, 595 U.S. at 365, 369....

In light of the holistic and multi-factored standard adopted in Wooden, the government now acknowledges that the Constitution requires the government to charge and a jury to find beyond a reasonable doubt (or a defendant to admit) that ACCA predicates were committed on occasions different from one another....

It has recently become clear, however, that the courts of appeals will not embrace that analysis without this Court’s intervention. The question presented — which is important to the administration of criminal law — accordingly warrants this Court’s review this Term....

Through both their actions and their words, the courts of appeals have made the need for this Court’s review apparent. The Fourth Circuit’s denial of rehearing en banc — premised on the insufficiency of review by a lower court — means that the underenforcement of defendants’ constitutional rights will persist there.  The Eighth Circuit’s refusal to resolve the Sixth Amendment question, after granting en banc rehearing, suggests that its pre-Wooden precedent is also likely to endure.  And despite more than a year having passed since Wooden, no other circuit has reconsidered its pre-Wooden approach.

Wooden it be nice if SCOTUS would grant cert ASAP in this ACCA case?  Notably, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights, so maybe this (little?) ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.

Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case

Regular readers know I have been talking up SCOTUS's first case for oral argument this Term, Pulsifer v. United States, a statutory interpretation case dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  Perhaps because it was the only case on the argument calendar yesterday, the Justice spent almost a full two hours debating the meaning of the word "and" with two capable counsel.  The full oral argument recording and transcript are available here at the SCOTUS website. 

Here are some press discussion of the oral argument in Pulsifer and surrounding realities:

From Courthouse News Service, "Courthouse Rock: Justices play conjunction junction on first day of term"

From The Hill, "Supreme Court opens term with case on prison terms for drug offenders"

From Mother Jones, "Does 'And' Mean 'And'? Or 'Or'? The Supreme Court Will Decide."

From Roll Call, “Congressional conjunction turns Supreme Court argument into grammar class; Justices weigh if ‘and’ means ‘and’ in a criminal sentencing law"

From the New York Times, "On First Day of New Term, Supreme Court Hears Debate Over First Step Act" 

From Slate, "The Supreme Court’s Oddest Pairing Comes out Swinging on Behalf of Criminal Defendants"

Based on a too-quick listen to the full oral argument, I am inclined to guess that this case will end up with a 5-4 vote in favor of the government's proposed statutory interpretation that would restrict the reach of the FIRST STEP Act's expansion of the statutory safety valve exception to drug mandatory minimum sentencing terms.  But I would not entirely discount the possibility that the four Justices who seemed most favorable toward the defendant's reading, particularly Justices Gorsuch and Jackson, might find a way to peel off a key fifth vote (especially since the Chief was pretty quiet throughout and Justice Kagan hinted toward the end that she might be less sure than she seemed at the outset).  

I suppose I can say with certainty that this case will not be resolved 9-0 and that the ultimate opinions likely will be of great interest to statutory interpretation fans as well as to sentencing fans.  I also would guess that we will get ruling in early 2024, though this one might take quite a while if lots of Justices decide to write on lots of broader statutory interpretation topics (like the reach of the rule of lenity and/or the use of legislative history and/or corpus linguistics).  Fun times!

On first Monday in October, another round of previews for SCOTUS's starting sentencing case, Pulsifer v. US

After a rough weekend for US pro golfers and Ohio's pro football teams, I am glad that a new season officially kicks off today with the Supreme Court hearing its first oral arguments to start its October Term 2023.  Actually, the Term arguably got rolling Friday with cert grants in a dozen new cases (though only a couple involved criminal law issues), and also with this morning's lengthy new order list denying cert in hundreds of cases. 

But, for SCOTUS, the first oral argument on the first Monday in October is something like the throwing of the first pitch on baseball's opening day. (And, speaking of baseball, the MLB playoffs should keep October exciting even if SCOTUS does not.)  As I have noted recently, I am especially excited that SCOTUS's first case for argument is Pulsifer v. United States, a statutory interpretation case dealing with a sentencing provision of the FIRST STEP Act.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FIRST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or."  

In this post last week, I noted a few preview pieces about the case, but now I have see a few more worth flagging:

From Lisa-Legalinfo, "SCOTUS Hears Argument Over Meaning Of “And” In First Step Act" 

From SCOTUSblog, "Mandatory minimums, payday lending, and voting rights in first session of Supreme Court term"

From Slate, "The Supreme Court’s First Case Is a Brutal Grammatical Test"

LawProf Aaron Tang authored the Slate commentary, and his closing sentiments seek to connect the (little?) Pulsifer case to the (big?) issues swirling around the Supreme Court at the start of a new Term (with links from original):

If the court wants to push back against the partisan trends in recent terms, it can heed the wise advice once offered by Judge Learned Hand, who remarked that “the spirit of liberty is the spirit which is not too sure that it is right.”

By humbly admitting uncertainty on the perplexing issue in Pulsifer, the court can apply a more promising approach to hard cases.  It can rule against whichever side would be best able to avoid the harm of a mistaken ruling — an approach I’ve called the “least harm principle” of judicial decision-making.

Indeed, criminal law already has a doctrine well suited to this principle. It is the “rule of lenity,” or the idea that where criminal statutes are susceptible to multiple reasonable interpretations, the court should adopt the defendant-friendly reading.

The best reason for this rule is that it is virtually always harder for criminal defendants to avoid the harm of mistakenly harsh criminal punishments than for the government to avoid the harm of lenient sentences.  Indeed, even if it loses this very case, the government would still have discretion to ask a trial judge to impose a harsher sentence on Pulsifer if it believes he is particularly dangerous.

In the end, the Pulsifer case will not be the most high-profile case the court decides this year.  But the case will provide important initial insights into how the justices are planning to respond to a disastrous summer for its public legitimacy — not to mention the costly mass incarceration crisis that is decimating our communities.  Here’s hoping it does so with a dose of humility.

A few prior related posts about SCOTUS Pulsifer case:

• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 
• Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve 
• Reviewing the big little and/or case, Pulsifer v. US, that will kick off the new Supreme Court Term

Reviewing the big little and/or case, Pulsifer v. US, that will kick off the new Supreme Court Term

I am excited that the US Supreme Court starts hearing cases this coming Monday to kick off October Term 2023, and I am especially excited that its first case for argument is Pulsifer v. United States.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FIRST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or."   I have seen only a couple press previews of the case so far:

From the AP, "The Supreme Court will hear a case with a lot of ‘buts’ & ‘ifs’ over the meaning of ‘and’"

From Forbes, "Why Thousands Of Prisoners Could Be Spared Because Of A Supreme Court Case Over The Word ‘And’"

In addition, Balls and Strikes has published a commentary about the case with a eye-catching headline: "How the Supreme Court Could Undercut the Future of Criminal Justice Reform."

Though I do not see the fate and future of criminal justice reform as fully at issue in Pulsifer, the US Sentencing Commission set forth data earlier this year which suggests that the fate and future of thousands of federal drug defendants will be impacted by Pulsifer.  Specifically, on page 11 of this February 2023 document discussing possible guideline amendments, the USSC set forth this analysis:

Using fiscal year 2021 data, Commission analysis estimated that of 17,520 drug trafficking offenders, 11,866 offenders meet the non-criminal history requirements of the safety valve (18 U.S.C. § 3553(f)(2)–(5)).  Of those 11,866 offenders, 5,768 offenders have no more than one criminal history point and would be eligible under the unamended pre-First Step Act criminal history requirement.  Under a disjunctive interpretation of the expanded criminal history provision, 1,987 offenders would become eligible.  The remaining 4,111 offenders would be ineligible.  In comparison, under the Ninth Circuit’s conjunctive interpretation of the expanded criminal history provision, 5,778 offenders would become eligible.  The remaining 320 offenders would be ineligible.

I read this data analysis to mean that in a typical year, nearly 4000 additional federal drug defendants could benefit from the more defendant-friendly interpretation FIRST STEP Act's expansion of the mandatory minimum statutory safety valve (in other words, if "and" means "and" and not "or").  Of course, not all defendants are subject to a significant statutory mandatory minimum term (and some avoid such a term by providing substantial assistance), but the Commission's proposed guideline amendment creates a guideline reduction that makes the safety value functionally significant to every drug defendant.

In addition to helping thousands of federal drug defendants in future cases, a pro-defendant ruling by the Supreme Court could potentially help thousands of federal drug defendants currently in prison.  Given that the FIRST STEP Act reforms have been applicable since Dec 2018, and that a number of circuits rejected the more defendant-friendly interpretation (finding that "and" really means "or" here), I have speculated that perhaps as many as 10,000 or more persons now serving time in federal prison for drug offenses might have a claim that they would have benefitted, and now should benefit, from the defendant-friendly interpretation (though there may be, of course, procedural barriers for any prisoners seeking to secure relief from a positive Pulsifer SCOTUS ruling).

I suspect we will get a sense of the Justices' thinking about this and/or statutory interpretation issue during oral argument on Monday, and I am already excited to have a SCOTUS sentencing oral argument to listen to next week.

Notable debate among Sixth Circuit judges as court turns down en banc review of "resentencing retroactivity" after FIRST STEP Act

Hard-core sentencing fans may want to check out the opinions authored by a trio of Sixth Circuit judges concurring and dissenting from the denial of en banc review US v. Carpenter, in No. 22-1198 (6th Cir. Sept. 18, 2023) (available here) (en banc review denial).  In this case, the circuit panel held earlier this year that the defendant could not benefit at a resentencing from the FIRST STEP Act's reduction in the severity of stacked 924(c) gun mandatory minimums because he original sentencing pre-dated passage of the FSA.   

A petition for rehearing en banc followed (and I noticed SCOTUS advocate of great renown, Jeff Fisher, listed as one of the lawyers on the petiton).  The petition then was circulated to the full court, but less than a majority of the judges voted in favor of rehearing en banc.  Judge Kethledge (joined by a few judges) authored a concurrence in the denial of rehearing en banc.  In that opinion, he explains why he thinks the panel reached the right result under applicable law even though "Carpenter’s sentence was extreme by any measure" and even though "the sentence here would never have been imposed" absent the old pre-FSA mandatory minimums.

Judge Griffin (joined by a few judges) authored a substantive dissent which helps explain the particulars in this opening paragraph:

This appeal arises under the First Step Act, which amended several criminal statutes and reduced mandatory-minimum sentences for certain federal crimes.  For defendant Timothy Carpenter, the Act, if applied, “would reduce his mandatory-minimum sentence on his [18 U.S.C.] § 924(c) convictions by 80 years (from 105 years to 25).” United States v. Carpenter, 2023 WL 3200321, at *1 (6th Cir. May 2, 2023).  But despite the Act’s retroactivity provision extending its benefits to defendants awaiting sentencing, and despite the vacatur of Carpenter’s earlier, invalid, pre-Act sentence, the panel here — following circuit precedent — concluded Carpenter must now be resentenced under the old version of the statute with its outdated sentencing scheme. Id. at *2 (citing United States v. Jackson, 995 F.3d 522, 524–25 (6th Cir. 2021)).  In my view, Jackson was wrongly decided, and this case involves a question of exceptional importance.  Accordingly, I respectfully dissent from the denial of the petition for rehearing en banc.

Judge Bloomekatz (joined by a few judges) dissents to add even more context that, perhaps, is an effort to get at least one Justice's attention. Here is her closing substantive paragraph:

The real human costs that this esoteric legal issue presents also should not be overlooked.  Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states.  Carpenter proves this point.  His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the Third, Fourth, and Ninth Circuits. See Dissent at 7.   The resulting sentencing disparity, along with the other reasons I have outlined, should give us pause enough to consider the decision as a full court.  Indeed, the circuit split, the federal government’s position, the dissent from then-Judge Barrett in Uriate, and the dueling opinions on this en banc petition underscore that the scope of the retroactivity provision is far from clear.  See United States v. Uriate, 975 F.3d 596, 606–09 (7th Cir. 2020) (en banc) (Barrett, J., dissenting).

Couple of final notes of possible interest: (1) I am pretty sure the Timothy Carpenter of this case is the same guy who got the Supreme Court to review his Fourth Amendment claim back in 2018 in Carpenter v. US; (2) I am pretty sure this Timothy Carpenter has already served 10+ year in prisons, and so may soon be eligible for a reduction in sentence under the "unusually long sentences" criteria in the US Sentencing Commission's proposed new “Compassionate Release” policy statement.

"Mandatory Minimum Sentencing, Crime, and Mass Incarceration: The Case of Mississippi"

The title of this post is the title of this new article authored by Mehdi Barati now available via SSRN. Here is its abstract:

The high rates of incarceration and the substantial financial and societal burdens associated with them have prompted state lawmakers to undertake measures to reduce prison populations.  Mississippi, however, has taken a somewhat different approach compared to other states.  In 2014 it passed House Bill 585, which introduced "true minimums" that require both nonviolent and violent offenders to serve a minimum of 25 and 50 percent of their sentence, respectively. This distinction makes the case of Mississippi particularly interesting, providing an opportunity to examine the impact of mandatory minimum sentencing on crime and incarceration rates.  Toward this end, this study employed both difference-in-differences and synthetic control methodologies to evaluate the effectiveness of House Bill 585.  According to the findings, the initial decline in the imprisonment rate resulting from the reforms was not sustained over time.  Moreover, House Bill 585 not only failed to effectively reduce violent crimes but was also found to be associated with an increase in property crimes in Mississippi.

Fascinating accounting of Hawaii's unusual sentencing process and increasing minimum terms

This lengthy new article from Honolulu City Beat provides an interesting review of Hawaii's unique sentencing system and recent trends. The full headline provides the basics: "Hawaii’s Sentencing Process Is Complicating Efforts To Reform The Prison System: More aggressive minimum sentences coincide with severe overcrowding and deteriorating prison conditions." Here are some of the particulars:

In the last six years, of the 10 most common offenses, nine have seen their average minimum sentence increase, a Civil Beat analysis has found. Several offenses have seen spikes in minimums of more than 20%, while second-degree assault minimums more than doubled.  The minimum sentence for first-degree burglary has gone from just under four years to over six years, meaning inmates convicted in 2022 will spend nearly two more years in prison before they’re eligible for parole than their 2017 counterparts.

Hawaii is the only state that assigns a paroling authority the responsibility for setting minimum sentences for felonies, which determine how long before prisoners are eligible for parole.  Inmates can be grilled on their drug and life habits before getting slapped with a minimum sentence well beyond what they might have expected....

The longer minimums also come as severe overcrowding and dilapidated conditions in jails and prisons across the state.  In a July Department of Public Safety newsletter, DPS Director Tommy Johnson said he plans to "shift from what some may see as a punitive incarceration model to a model focused on treatment, education, and successful re-entry."

But the trend toward longer minimum sentences is an "insight into the fact that rather than becoming more therapeutic, the system's becoming more punitive," said former Hawaii Associate Supreme Court Justice Michael Wilson....

The sentencing guidelines on the HPA website lay out a set of criteria but specify that the authority may "deviate from the guidelines" with a written justification to do so. DPS, which encompasses the paroling authority, declined to answer questions about changes in sentencing or provide data on the criteria used, saying in an email that justifications are done on a case-by-case basis. It also declined to provide data on the criteria used in sentencing, saying that was "not in a readily available format."

Deputy public defender Jon Ikenaga said the current parole board has made "it clear that they don't feel bound at all by the trial court decision," making it hard to advise clients on whether to take a plea deal or go to trial.

Part of the struggle to understand parole board decisions comes from a lack of available data.  Data for offense-level minimum terms is available in annual reports posted by the HPA, but there is no information on basic characteristics that can impact sentencing such as prior convictions or level of offense.  Data on demographics like race or gender also is not available....

The need for data takes on greater significance considering the influence that the parole board has on the criminal justice system.  A report by the The Robina Institute of Criminal Law and Criminal Justice, a nonpartisan research institute at the University of Minnesota Law School, found that the the parole board in Hawaii is one of the most powerful in the country.

Because minimum sentences are left up to the discretion of the parole board, any patterns or deviations in sentencing are the result of voluntary decision-making on the part of the board members.  Other states have moved away from minimum sentencing, or have minimums set by trial judges who retain a level of judicial independence.  The Hawaii Paroling Authority consists of five members who are appointed by the governor and confirmed by the state Senate....

The Hawaii Correctional System Oversight Commission, the body tasked with moving Hawaii’s prisons and jails to a “rehabilitative and therapeutic model” of corrections, is bringing added scrutiny to the Hawaii Paroling Authority. Commission Chair Mark Patterson said "public confidence is down" in the parole board.  "There's a lack of transparency," Patterson said. "Who are these individuals that were given this power of decision-making?"

This year, legislators passed House Concurrent Resolution 23, creating a task force to study if HPA should have the responsibility of setting minimum terms. On Sept. 12, the task force, which is also chaired by Patterson, will be meeting to discuss the role of the parole board in minimum sentencing. "We just have to take a closer look at whether or not the minimum sentencing process of the Hawaiian Paroling Authority is beneficial to public safety," Patterson said.

Former federal prosecutor describes practice of "retaliation" against drug defendants who exercise trial rights

Brett Tolman, who was appointed as the US Attorney for the District of Utah in 2006 by Prez George W. Bush, has this notable recent opinion piece at Fox News headlined "I'm a former prosecutor. The 'War on Drugs' incentivizes convictions, not justice."   The whole piece merits a full read, and I found notable that this former US Attorney so readily and clearly highlights how prosecutors impose a "trial penalty" as a form of ""retaliation" for defendants who exercise their constitutional rights to trial.  Here are excerpts:

[Alice Marie Johnson's] story was first warped during her trial by prosecutors who manipulated drug laws -- not to nab a drug "queen pin," but to pin the blame on the little guy.  As a former prosecutor, I’m peeling back the curtain on this practice and setting the record straight. 

In the early 1990s, Alice was a single mother of five struggling to make ends meet while coping with the grief of losing her son. Desperate, she became a telephone mule for a drug operation.  Her role was to pass along phone numbers within the organization, but she never once touched or sold a single drug.  Alice was wrong to participate in this operation in any capacity, something that Alice herself has owned up to on many occasions.  But what happened at her trial was a miscarriage of justice.  

When Alice was arrested along with 15 others, the prosecution offered her a deal: plead guilty in exchange for three to five years in prison.  Even three years seemed too long to be away from her family, especially given her minor role in the drug operation.  So, at the urging of her attorney, Alice chose to exercise her constitutional right to a fair and impartial trial.  

What the prosecution did next can only be described as retaliation.  It brought new drug conspiracy charges against Alice that had not been considered before, accusing her of attempted possession of 106 kilograms of cocaine.  No physical evidence was ever found to support this, but physical evidence was not required at the time. Instead, to make its case, the prosecution coerced two of Alice’s co-defendants to change their testimonies in exchange for reduced sentences, pinning the blame on Alice.... 

Today, laws are on the books to prevent convictions without physical evidence.  However, mandatory minimum sentencing laws still exist, and the "trial penalty" -- the increase in sentencing for those who choose to go to trial rather than take a plea deal – is very much alive.  Alice's trial is the perfect example of how perverse incentives within the criminal justice system, spurred by the failed "War on Drugs," ruin lives and tear families apart while doing nothing to improve public safety.

Prosecutors, many of whom go into the profession to pursue the noble ideals of justice and safety, are not immune to these warped incentives that put convictions over justice.  Drug laws are easily manipulated, and low-level players like Alice are sent to prison while higher-level, more dangerous people remain on the streets.

BJS releases big report on "Sentencing Decisions for Persons in Federal Prison for Drug Offenses, 2013–2018"

I am very excited that the Bureau of Justice Statistics has released this new special report providing details on federal drug sentences for drug offenses, though it is something of a bummer that this report only covers fiscal yearends 2013–2018.  This official BJS press release about the report provides some of its highlights:

The number of people held in Federal Bureau of Prisons’ facilities on a drug offense fell 24% from fiscal yearend 2013 (94,613) to fiscal yearend 2018 (71,555), according to Sentencing Decisions for Persons in Federal Prison for Drug Offenses, 2013–2018, a new report from the Bureau of Justice Statistics. These persons accounted for 51% of the federal prison population in 2013 and 47% in 2018. “Although the number of people in federal prison for drug offenses decreased over this 5-year span, they still accounted for a large share — almost half — of the people in BOP custody in 2018,” said Dr. Alexis Piquero, Director of BJS. “At the same time, we saw differences by the type of drug involved, with more people incarcerated for heroin and methamphetamines and fewer for marijuana and cocaine.”

Between 2013 and 2018, there were large decreases in persons serving time in federal prison for marijuana (down 61%), crack cocaine (down 45%) and powder cocaine (down 35%), with a smaller (4%) decline in persons imprisoned for opioids. These reductions were partly offset by growth in the number of persons serving time for heroin (up 13%) and methamphetamine (up 12%)....

Persons who received [mandatory minimum] penalties had been sentenced to 184 months on average, while those who received relief from penalties had an average sentence of 76 months and those not subject to penalties had an average sentence of 89 months. “Additionally, and regardless of any penalties they received, 6 in 10 people in BOP custody in 2018 were serving long drug sentences of 10 years or more,” Dr. Piquero said. “As for those sentenced to at least 20 years, more than half of the males were black and over 40% of the females were white.”

Supreme Court unanimously limits reach of § 924(c)'s consecutive sentence mandate in federal law

The US Supreme Court this morning handed down a unanimous ruling in Lora v. US, 22-49 (S. Ct. June 16, 2023) (available here), which marks yet another victory for a federal criminal defendant this Term. Here is how the opinion for the Court authored by Justice Jackson gets started:

When a federal court imposes multiple prison sentences, it can typically choose whether to run the sentences concurrently or consecutively. See 18 U.S.C. §3584.  An exception exists in subsection (c) of § 924, which provides that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment.” §924(c)(1)(D)(ii).

In this case, we consider whether § 924(c)’s bar on concurrent sentences extends to a sentence imposed under a different subsection: § 924(j).  We hold that it does not. A sentence for a §924(j) conviction therefore can run either concurrently with or consecutively to another sentence.

The full opinion that follows carefully unpacks statutory text to support the Court's conclusion. I am not sure there is much in the opinion that could have broader impact, but perhaps readers might find some language that could have enduring echoes.

How many of the many thousands convicted of federal aggravated identity theft might now have Dubin claims?

As reported in this prior post, the US Supreme Court this morning rejected the Fifth Circuit's (and the Government's) very broad reading of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). The Court explained in Dubin v. US, No. 22-10 (S. Ct. June 8, 2023) (available here), that the two-year mandatory sentence of 1028A only applies "when the defendant’s misuse of another person’s means of identification is at the crux of what makes the underlying offense criminal, rather than merely an ancillary feature."  For a variety of reasons, I hope federal prosecutors have in the past mostly used the hammer of the two-year mandatory prison term of 1028A in "crux" cases rather than "ancillary" cases (and I sense some other circuits have sometimes limited cases in this way).  But the Dubin case and others cited therein certainly suggest that more than a few persons in the past have been wrongly subject to 1028A liability in "ancillary" cases.

Helpfully, the US Sentencing Commission has one of its great "Quick Facts" publications focused specifically on "Section 1028A Aggravated Identity Theft Offenses."  This July 2022 version reports on the total number of 18 U.S.C. § 1028A offenders sentenced from Fiscal Year 2017 through 2021.  Interestingly, in the three pre-pandemic years, there were over 1000 annual total 1028A offenders sentenced in federal courts; but in FY 2020 and thereafter the yearly numbers clocked in at just over 600.  The typical sentence for most of these offenders across a number of years seems to be in the four- to five-year range.  Consequently, using very "back of the envelop" math, I would guestimate there could be as many as a couple thousand 1028A offenders who are currently imprisoned and maybe a few thousand more currently serving terms of supervised release.  I remain eager to believe and hope that most of these folks were soundly convicted in "crux" cases, but surely many may be eager to claim in court that their convictions and added prison terms were wrongly imposed in "ancillary" cases.

Offenders now looking to pursue what might be called "Dubin claims" could, of course, face procedural barriers of all sorts.  But the still open-ended sentence reduction authority of 3582 might be one ready means for at least some (over-sentenced) prisoners to secure relief.  And there are likely more than a few currently pending federal prosecutions that may get a jolt of uncertainty with Dubin now requiring crux/ancillary distinctions in the application of 18 U.S.C. § 1028A(a)(1).  (But, critically, Justice Gorsuch's concurring opinion warns that we ought not try to sort any of this out while driving to summer vacation.  As he sternly explains: "Criminal statutes are not games to be played in the car on a crosscountry road trip.") 

SCOTUS limits reach of aggravated identity theft two-year mandatory statutory add-on sentence

The Supreme Court this morning delivered yet another big win for a federal white-collar criminal defendant with 9-0 ruling limiting the reach of aggravated identity theft federal statute in Dubin v. US, No. 22-10 (S. Ct. June 8, 2023) (available here).  Justice Sotomayor authored the opinion for the Court, which starts this way:

There is no dispute that petitioner David Fox Dubin overbilled Medicaid for psychological testing.  The question is whether, in defrauding Medicaid, he also committed “[a]ggravated identity theft,” 18 U.S.C. § 1028A(a)(1), triggering a mandatory 2-year prison sentence.  The Fifth Circuit found that he did, based on a reading of the statute that covers defendants who fraudulently inflate the price of a service or good they actually provided.  On that sweeping reading, as long as a billing or payment method employs another person’s name or other identifying information, that is enough.  A lawyer who rounds up her hours from 2.9 to 3 and bills her client electronically has committed aggravated identity theft.  The same is true of a waiter who serves flank steak but charges for filet mignon using an electronic payment method.

The text and context of the statute do not support such a boundless interpretation.  Instead, § 1028A(a)(1) is violated when the defendant’s misuse of another person’s means of identification is at the crux of what makes the underlying offense criminal, rather than merely an ancillary feature of a billing method.  Here, the crux of petitioner’s overbilling was inflating the value of services actually provided, while the patient’s means of identification was an ancillary part of the Medicaid billing process.

Justice Gorsuch authored the only separate opinion, which is a notable concurring opinion starting this way:

Whoever among you is not an “aggravated identity thief,” let him cast the first stone.  The United States came to this Court with a view of 18 U.S.C. § 1028A(a)(1) that would affix that unfortunate label on almost every adult American. Every bill splitter who has overcharged a friend using a mobile-payment service like Venmo.  Every contractor who has rounded up his billed time by even a few minutes.  Every college hopeful who has overstated his involvement in the high school glee club.  All of those individuals, the United States says, engage in conduct that can invite a mandatory 2-year stint in federal prison.  The Court today rightly rejects that unserious position.  But in so holding, I worry the Court has stumbled upon a more fundamental problem with § 1028A(a)(1).  That provision is not much better than a Rorschach test. Depending on how you squint your eyes, you can stretch (or shrink) its meaning to convict (or exonerate) just about anyone.  Doubtless, creative prosecutors and receptive judges can do the same.  Truly, the statute fails to provide even rudimentary notice of what it does and does not criminalize.  We have a term for laws like that.  We call them vague.  And “[i]n our constitutional order, a vague law is no law at all.” United States v. Davis, 588 U. S. ___, ___ (2019) (slip op., at 1).

Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve

Though we still await opinions in a number of criminal justice cases this SCOTUS Term (which all should be decided in the next few weeks, some details here), I am already excited for the fascinating little sentencing case the Justices already have on tap for next Term.  As flagged here, the Justices in late February granted certiorari in Pulsifer v. United States.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FRIST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or." 

As I have noted before, federal criminal justice practitioners and sentencing fans should be following Pulsifer closely because its resolution will impact how thousands of drug defendants are sentenced in federal courts every year.  And statutory construction gurus should also be interested in how Pulsifer addresses statutory issues related to textualism, plain meaning and the rule of lenity.  

Though SCOTUS oral argument in Pulsifer will not be scheduled until October of November, the first set of briefs were filed in the last few weeks.  Specifically, SCOTUSblog has assembled on this Pulsifer case page the merits brief filed by Mark R. Pulsifer as well as four distinct amici briefs (three in support of Pulsifer and one in support of neither party).  The briefs all make for interesting reads and reinforce my sense that Pulsifer will be a fun one at oral argument and beyond.

Lots of sentencing coverage as part of Season 1 of "Drugs on the Docket" podcast

I am extremely pleased to highlight that the Drug Enforcement and Policy Center at The Ohio State University has now officially launched Season One of a new podcast, "Drugs on the Docket."  All six episodes of this season are available on Apple Podcasts, Google Podcasts and YouTube.  My colleagues at DEPC have worked remarkably hard to put this content together, and I hope folks find the curated discussions interesting and informative.

Here is how the podcast subject matter is described via this podcast webpage along with episode titles:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Episode 1 – Federal drug sentencing and the evolution of the crack to powder cocaine ratio with Mark Osler

Episode 2 – Ruan v. United States and the intersection of healthcare, criminal law, and the opioid crisis with Jenn Oliva and Kelly Gillespie

Episode 3 – A Special Conversation with former Supreme Court of Ohio Chief Justice Maureen O’Connor

Episode 4 – United States v. Angelos, federal mandatory minimums, and sentencing reform with Weldon Angelos and Paul Cassell

Episode 5 – Data and storytelling in federal drug sentencing and the U.S. Sentencing Commission with Doug Passon and Mark Allenbaugh

Episode 6 – Whren v. United States, Terry v. Ohio, and the Fourth Amendment with Gabriel “Jack” Chin

In helping with this effort, I came to realize fully just how much work is involved in podcast production.  Still, if this first season finds an audience, we may soon begin the hard work of producing another season.  And so recommendations for fitting topics and guests are welcome.

Latest "Relist Watch" flags yet another ACCA issue splitting circuit and likely to get SCOTUS review

In this latest Relist Watch over at SCOTUSblog,John Elwood includes a discussion of yet another issue dividing circuits concerning how to apply the Armer Career Criminal Act's severe 15-year mandatory minimum term for gun possession.  Regular readers know the wide array of technical issues SCOTUS has had to address in the application of ACCA, but this latest issue seems a bit more interesting than most.  Here are John's full descriptions (with links from the original):

[W]e have a group of three relists that raise the same issue. Brown v. United States, Jackson v. United States, and Jones v. United States all concern a single recurring issue involving the Armed Career Criminal Act, a federal sentencing enhancement provision.  The ACCA provides that someone who has been convicted of a felony and possesses a firearm is normally subject to a maximum 10-year sentence.  But if that person already has at least three “serious drug offense” convictions, then the minimum sentence — the minimum — is 15 years.  Courts decide whether a prior state conviction counts as an ACCA “serious drug offense” using a “categorical approach.”  It requires determining whether the elements of a state drug offense are the same as, or narrower than those of its federal counterpart.  If so, the state conviction qualifies as an ACCA predicate offense.  But federal drug law often changes — as here, when Congress decriminalized hemp, narrowing the federal definition of marijuana.  If the state law doesn’t follow suit, sentencing courts face an issue: What if the state and federal offenses matched (and thus the state offense was an ACCA predicate) under an earlier version of federal law, but federal law has since been narrowed? Thus, the court’s choice of which version of federal law to consult dictates the difference between serving a 10-year maximum or a 15-year minimum.

The question presented in these three cases is: Whether the “serious drug offense” definition in the Armed Career Criminal Act incorporates the federal drug schedules that were in effect at the time of the federal firearm offense, or the federal drug schedules that were in effect at the time of the prior state drug offense.  The U.S. Courts of Appeals for the 3rd, 4th, 8th, and 10th Circuit have gone with federal law at the time of the firearm offense; the U.S. Court of Appeals for the 11th Circuit has gone with federal law at the time of the prior state drug offense.

The government has told the Supreme Court that there is a circuit split on the issue and recommends that the court should grant review in Jackson, and hold Brown and Jones for that case.  I also rate Jackson a likely grant.

We should know more after the court releases its order list next Monday.

In addition to having an eye out for these ACCA cases, I am hopeful (though still not quite optimistic) that Monday's SCOTUS order list might also include some action on the long-pending acquitted conduct cases (background here).

"Prosecutors as punishers: A case study of Trump-era practices"

The title of this post is the title of this notable new article authored by Mona Lynch for the journal Punishment & Society that is now available online. Here is its abstract:

Recent punishment and society scholarship has addressed the limits of policy reforms aimed at reducing mass incarceration in the U.S.  This work has focused in particular on the political dimensions of penal legal reform and policy-making, and the compromises and shortcomings in those processes.  Nearly absent in this scholarship, however, has been empirical and theoretical engagement with the role of front-line prosecutors as facilitators and/or resistors to downsizing efforts.

Using the case of the U.S. federal criminal legal system's modest efforts to decrease the system's racially disparate and punitive outcomes, this paper elucidates the fragile nature of such reforms by delineating the critical role that front-line prosecutors play in maintaining punitive approaches.  Focusing specifically on federal prosecutorial policy and practices in the Trump era, I draw on a subset of data from an interdisciplinary, multi-methodological project set in distinct federal court jurisdictions in the U.S. to examine how front-line prosecutors were able to quickly reverse course on reform through the use of their uniquely powerful charging and plea-bargaining tools.  My findings illustrate how federal prosecutors pursued more low-level defendants, and utilized statutory “hammers,” including mandatory minimums and mandatory enhancements to ensure harsh punishments in a swift return to a war-on-crime.

"Evaluating the (F)utility of Mandatory Minimum Sentencing Laws in Pennsylvania"

The title of this post is the title of this new article recently published in the Justice Evaluation Journal and authored by Nicole Frisch-Scott, Anat Kimchi and Kristofer Bucklen.  Here is its abstract:

In the current criminal justice policy sphere mandatory minimum sentencing serves two important purposes 1) they are used as a punitive response to immediate crime concerns and 2) their removal is viewed as a tool to conserve resources, decarcerate, and promote fairness in sentencing.  Though much research explores how the passage of these laws relates to crime, the literature has not focused on the public safety implications of removing mandatory minimum sentences. Using a comparative interrupted time-series approach, the present work investigates whether a Pennsylvania Supreme Court decision that invalidated several mandatory minimum sentencing provisions impacted the state’s crime rate.  We find little to no evidence of a discrete shift in overall or type-disaggregated crime rates, or changes in the slope of any crime trend when the state reduced their use of mandatory minimums.  These findings tentatively suggest that many mandatory minimums can be repealed without risking public safety.

With Prez Biden's blessing, majority of Senate Dems vote to reject DC criminal code reforms

The state of federal politics on crime and punishment came to the fore this week as the US Senate voted last night on whether to reject a proposed new District of Columbia criminal code.  This New York Times piece, headlined "Senate Clears Bill to Block D.C. Crime Law, Sending It to Biden After Reversal."  Here are excerpts:

The Senate on Wednesday voted overwhelmingly to block a new District of Columbia criminal code that reduces mandatory minimum sentences for some violent offenses, with Democrats bowing to Republican pressure to take a hard line on crime in a move that underscored the rising political potency of the issue ahead of the 2024 elections.

The 81-to-14 vote, with one senator voting “present,” cleared the Republican-written measure to undo the District’s law, sending it to President Biden, who after initially opposing it abruptly changed course last week and said he would sign it.

It was a sudden turn of events for the District’s council and its overhaul of local sentencing laws. Just a few weeks ago, Mr. Biden weighed in against congressional action to block the measure, accusing Republicans of meddling in local affairs.

But the high-profile incidence of carjackings and homicides in the capital and growing nationwide evidence that voters were casting their ballots based on candidates’ response to violent crime spurred a rapid retreat.  Dozens of House Democrats joined Republicans in opposing the District’s criminal code, and a growing number of Senate Democrats signaled they were inclined to follow suit, prompting Mr. Biden’s turnabout.

On Wednesday, 31 Democrats and two independents joined Republicans in supporting a resolution of disapproval of the criminal code, sending it to the president for his signature. Senator Raphael Warnock, Democrat of Georgia, voted “present.”

Republicans, using the authority of Congress to review all District laws, forced the showdown in an effort to paint Democrats as weak on law enforcement. They said the outcome demonstrated that any trend toward leniency was at an end. “We need to make certain that we send a strong message that the American public have had it with crime in America,” said Senator Bill Hagerty of Tennessee, the chief Republican author of the resolution. “The crime spree that is happening in our major cities must come to an end.”

But if Democrats were hoping that their opposition to the new criminal code would stop Republican attacks on their party’s image on crime in next year’s elections, they were likely to be disappointed based on comments made by Senator Mitch McConnell, Republican of Kentucky and the minority leader.  “Nobody will confuse Washington Democrats’ last-minute reversal on this one resolution for a road-to-Damascus moment on the crime issue,” Mr. McConnell said. “The American people are a lot smarter than that.”...

Local officials lamented the interference and even tried to pull back the criminal code before it was rejected by the Senate.  But the process to block it had already been set in motion, and Congress ignored the attempt to short-circuit the outcome.

The rewrite of the criminal code, which was years in the making, had split local officials as well.  The law was vetoed by Mayor Muriel E. Bowser, who was overridden by the District council. Her opposition, however, opened the door to Democrats abandoning their usual support of the District and voting in favor of overturning the law.

The White House’s handling of the issue angered House Democrats, who felt they were hung out to dry by the president after he said early last month that he would oppose the resolution of disapproval.  As a result, when the matter came before the House in early February, most Democrats backed the District council and voted against the effort to rescind the sentencing package, believing they were siding with the president, who would veto it.

Instead, Mr. Biden arrived on Capitol Hill last week and told Senate Democrats in a private luncheon that he would sign the measure if it reached his desk, undercutting House Democrats and District officials.  He said the crime legislation had gone too far even though he supported autonomy for the District of Columbia.  White House officials noted that the president had never explicitly pledged to veto the measure, only that the administration opposed it.

Some Senate Democrats stood by the District and argued that its democratically elected officials should be free to write their own laws without being subjugated to Congress. Senator Cory Booker, a New Jersey Democrat who has been active on criminal justice issues, mounted a defense of the District’s law in a party luncheon on Tuesday, according to senators who attended....

But the president’s reversal, the mayor’s veto and rising public unease with violent crime drove most Democrats to rally behind blocking the law, including Senator Chuck Schumer of New York, the majority leader, as well as both senators from neighboring Virginia, Mark Warner and Tim Kaine.  Mr. Kaine is among the senators up for re-election next year.  Both Democrats from Maryland, the other adjoining state, Senators Benjamin L. Cardin and Chris Van Hollen, voted “no.”

I was not familiar enough with all of the particular of the proposed DC Code reform to have a detailed and nuanced view of its pros and cons.  But I am certain that very few member of Congress voted on this matter based on any nuanced particulars of the proposed DC Code reform.  This issue turned into a "tough" versus "soft" on crime vote (with a hint of DC independence), and the political winds — which Prez Biden feels and also impacts — blew this vote a particular way.  It will be interesting to see if and how this vote and these winds shape future policy and politics, not only with respect to the work of Congress but also as campaign 2024 picks up steam.

"Mandatory Sentences as Strict Liability"

The title of this post is the title of this new paper authored by William W. Berry III now available via SSRN.  Here is its abstract:

Strict liability crimes — crimes that do not require a criminal intent — are outliers in the world of criminal law. Disregarding criminal intent risks treating the blameworthy the same as the blameless.

In a different galaxy far, far away, mandatory sentences — sentences automatically imposed upon a criminal conviction — are unconstitutional in certain contexts for the exact same reason.  Mandatory death sentences risk treating those who do not deserve death the same as those that might.

Two completely separate contexts, two parallel rules of law.  Yet courts and commentators have failed to see the similarities between these two worlds, leaving an analytical black hole.  Indeed, equity in criminal sentencing may depend upon recognizing the connections between these parallel universes.

This Article aims to fill this analytic gap, proposing a rethinking of mandatory sentences in light of the way criminal law treats strict liability crimes.  Specifically, the Article argues that courts should re-conceptualize mandatory sentences as a type of strict liability.  To that end, it proposes a series of possible statutory and constitutional limits on mandatory sentences.

An interesting (and dubitante) SCOTUS argument in Dubin

I flagged in this post from last November the Supreme Court's cert grant in Dubin v. United States, which concerns the reach of the federal criminal law that adds a mandatory two-year prison term for using another person’s identity in the process of committing another crime.  That statute, 18 U.S.C. § 1028A, is titled "Aggravated identity theft," but the statutory language would seem to cover a whole lot more conduct than what most think of as identify theft.  In fact, the government seem to be claiming that waiter who adds for himself an unauthorized $1 tip when swiping a patron's credit card would be guilty of credit card fraud and an additional two-year mandatory prison term under § 1028A.  

This matter was argued before the Supreme Court yesterday and the lengthy argument had all sorts of interesting elements.  (The transcript, running over 100 pages, is available here; the audio is available here.)  As detailed in the pieces linked below, it seems nearly all the Justices believe there have to be some limiting principles for application of this statute.  But while the Justices seem to generally doubt the government's broad statutory reading, it is unclear what part of the statutory text may provide real limits and on what terms.  Stay tuned:

From Bloomberg Law, "Justices Appear Ready to Limit Breadth of Identity Theft Law"

From the New York Times, "Supreme Court Seems Skeptical of Broad Sweep of Identity Theft Law"

From SCOTUSblog, "Justices lean toward narrow reading of aggravated identity theft"

From Security Boulevard, "Supreme Court: Does BIlling Fraud Violate Federal ID Theft Statutes?"

SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve

As predicted in this post a couple days ago, sentencing fans now get to turn their attention to the Supreme Court for the next chapter of a fascinating FIRST STEP Act statutory interpretation issue.  Specifically, in this morning's SCOTUS order list, one of the two cases receiving certiorari grants was Pulsifer v. United States.  Here is the (lengthy) question presented as set forth in the defendant's cert petition:

The “safety valve” provision of the federal sentencing statute requires a district court to ignore any statutory mandatory minimum and instead follow the Sentencing Guidelines if a defendant was convicted of certain nonviolent drug crimes and can meet five sets of criteria.  See 18 U.S.C. § 3553(f)(1)–(5).  Congress amended the first set of criteria, in § 3553(f)(1), in the First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221, broad criminal justice and sentencing reform legislation designed to provide a second chance for nonviolent offenders. A defendant satisfies § 3553(f)(1), as amended, if he “does not have — (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1) (emphasis added).

The question presented is whether the “and” in 18 U.S.C. § 3553(f)(1) means “and,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense (as the Ninth Circuit holds), or whether the “and” means “or,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, or (C) a 2-point violent offense (as the Seventh and Eighth Circuits hold).

Notably, as regular readers know, the circuit split on this issue has deepened to include two more circuits on both sides of the debate.  Federal criminal justice practitioners and sentencing fans certainly will be following this case closely because its resolution will impact thousands of drug defendants sentenced in federal courts every year. But statutory construction gurus (and isn't that everyone) will also surely be interest in the debates this case can present about textualism, plain meaning and the rule of lenity. Stay tuned.

Split over reading of the FIRST-STEP-amended safety valve provision appears ready for SCOTUS review

In this post a couple of days ago, which discussed the latest notable circuit opinion interpreting the language Congress used in the FIRST STEP Act to expand the statutory safety valve enabling more federal drug defendants to be sentenced below mandatory minimum terms, I suggested it was only a matter of time before SCOTUS takes up the statutory interpretation dispute that has deeply divided lower courts.  And this new Relist Watch post by John Elwood at SCOTUSblog suggest it may actually be only a matter of days before cert is granted on this issue:

The Supreme Court will meet this Friday to consider whether to grant review in a group of around 95 petitions and motions. They will be considering eight cases for the second time....

Under the “safety-valve” provision of federal sentencing law, a defendant convicted of certain nonviolent drug crimes can obtain relief from statutory mandatory minimum sentences if, among other things, her criminal history satisfies criteria in 18 U.S.C § 3553(f)(1): she “does not have — (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

Pulsifer v. United States and Palomares v. United States present the question of how that provision should be read: whether a defendant is ineligible for relief from the mandatory minimum if her criminal history runs afoul of any one of the disqualifying criteria in subsections (A), (B), or (C), or is ineligible only if her criminal history runs afoul of all three disqualifying criteria, subsections (A), (B), and (C).  The government agrees that the circuits are divided and review is warranted, and recommends that the court take Pulsifer, which it says is the better vehicle.  Counsel for Palomares and Pulsifer trade barbs in their reply briefs about which is the better vehicle.  Probably at least one will get the grant.

I share the view that, if the Justice Department is advocating for review, we ought to expect a grant on one of these cases perhaps as early as Monday.  My understanding is that a grant now would set the case up for Fall 2023 argument and likely no decision from SCOTUS until early 2024. 

Fourth Circuit panel joins minority of circuits giving broad reading to FIRST-STEP-amended safety valve provision

I have noted in a handful of prior posts some of the notable circuit rulings concerning the complicated language that Congress used in the FIRST STEP Act to expand the statutory safety valve enabling more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  A helpful reader made sure I did not miss the latest opinion on this topic, this one coming from a Fourth Circuit panel in US v. Jones, No. 21-4605 (4th Cir. Feb 21, 2023) (available here).  Here is how the opinion starts and concludes:

The safety valve provision found in the First Step Act allows a district court to impose a sentence without regard to a mandatory minimum if certain criteria are met.  Relevant here, the court must find that the defendant “does not have . . . more than 4 criminal history points, . . . a prior 3-point offense, . . . and a prior 2-point violent offense” (the “criminal history characteristics”). 18 U.S.C. § 3553(f)(1) (emphasis added).  Cassity Jones has more than four criminal history points but does not have a prior three-point offense or two-point violent offense.  The district court concluded that a defendant must have all three criminal history characteristics to be ineligible for relief and applied the safety valve in sentencing Jones.  The sole issue on appeal is whether the word “and” in § 3553(f)(1) connecting the criminal history characteristics applies conjunctively or disjunctively.  We conclude that “and” is conjunctive and affirm the district court’s decision....

Ultimately, whether or not this is a prudent policy choice is not for the judiciary to decide: that determination lies solely with the legislative branch.  And “[t]he [G]overnment’s request that we rewrite § 3553(f)(1)’s ‘and’ into an ‘or’ based on the absurdity canon is simply a request for a swap of policy preferences.” Lopez, 998 F.3d at 440.  We cannot “rewrite Congress’s clear and unambiguous text” simply because the Government believes it is better policy for the safety valve to apply to fewer defendants. Id. “The remedy for any dissatisfaction with the results in particular cases lies with Congress and not with this Court.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982); see also id. (“Congress may amend the statute; we may not.” (citations omitted)).

Accordingly, we are persuaded that the plain text of § 3553(f)(1) requires a sentencing court to find that a defendant has all three of the listed criminal history characteristics before excluding a defendant from safety valve eligibility.

Helpfully, a footnote early in the opinion details the circuit split over whether "and" means "and" or "and" means "or" in the context of this FIRST STEP Act revision of the application statute:

The circuits are split on this issue.  Compare United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en banc) (concluding that only a defendant with all three criminal history characteristics is ineligible under § 3553(f)(1)), and United States v. Lopez, 998 F.3d 431 (9th Cir. 2021) (same), with United States v. Palomares, 52 F.4th 640 (5th Cir. 2022) (concluding that having any one of the criminal history characteristics renders a defendant ineligible under § 3553(f)(1)), United States v. Pace, 48 F.4th 741 (7th Cir. 2022) (same), United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022) (same), and United States v. Haynes, 55 F.4th 1075 (6th Cir. 2022) (same). We find the Eleventh and Ninth Circuits’ decisions convincing and join those circuits.

This split make plain that it is only a matter of time before SCOTUS takes up this matter. And I would hope that SCOTUS would move quickly: according to US Sentencing Commission data, thousands of federal drug defendants each year are being subject to different laws and treated differently at sentencing based on this statutory conflict.

New CRS explores "When Is a Mandatory Minimum Sentence Not Mandatory Under the First Step Act?"

The Congressional Research Service has this notable new "Legal Sidebar" discussing how the statutory "safety valve" allowing sentences below federal mandatory minimum terms operate.  The four-page document highlights the new legal debates resulting from FIRST STEP Act reforms, and here are excerpts:

Congress created the safety valve for certain drug offenses carrying mandatory minimum penalties after becoming concerned that the mandatory minimums could result in equally severe penalties for both more and less culpable offenders.  The Commission “worked directly with Congress to enact new legislation that would address the impact of mandatory minimum penalties on low-level drug-trafficking offenders.”  These efforts culminated in the first safety valve, which was introduced as part of the Violent Crime Control and Law Enforcement Act of 1994.  Under this statute, to be eligible for the safety valve, a federal judge could impose a sentence below a drug-related mandatory minimum if the federal defendant satisfied five criteria, including not having “more than one criminal history point, as determined under the Sentencing Guidelines.”... The Commission adopted a corresponding Sentencing Guideline provision, allowing for a two-level reduction in the Guidelines offense level based on the same 1994 criteria.

In 2011, the Commission reported to Congress that the safety valve was underinclusive.  The Commission therefore urged Congress to expand the safety valve to encompass “certain non-violent [drug] offenders who receive two, or perhaps three, criminal history points under the [G]uidelines” and “low-level, nonviolent offenders convicted of other offenses carrying mandatory minimum penalties.”...

The First Step Act addressed mandatory minimums in multiple ways.  In addition to reducing the mandatory minimum penalties for certain drug-trafficking offenses, the act expanded eligibility for safety-valve relief to defendants with more significant criminal histories.  Whereas federal defendants with one or zero criminal history points under the Sentencing Guidelines could receive relief under the prior law, the act made drug offenders with minor criminal records eligible for the safety valve provision....

Due to the current judicial divide over the scope of the First Step Act’s safety valve, whether a defendant may receive relief from a mandatory minimum sentence under the act may depend upon the happenstance of geography: a defendant may be disqualified in one circuit when that same defendant might be eligible for relief in a different circuit.  Given that sentencing disparities may appear at odds with the stated statutory policy of promoting consistency and uniformity in federal sentencing outcomes, Congress may wish to consider amending the safety valve to clarify whether the criminal history criteria are disjunctive or conjunctive.

In addition, the Sentencing Commission is exploring revisions to the Sentencing Guideline provision that is analogous to the act’s safety valve: the Commission identified two options under consideration.  One option would not make any change to the Guidelines and thus would permit courts to interpret the Guideline disjunctively or conjunctively.  A second option would adopt the disjunctive approach.  Regardless of which option the Commission approves, Congress always has the opportunity to review and revise any amendments to the Guidelines.

"Circumventing Mandatory Minimum Sentences Through Legal Representation – An Integrated Methods Study of Drunk Driving Violations"

The title of this post is the title of this notable new article now available via SSRN authored by Jonathan Hasson and Abraham Tennenbaum.  Here is its abstract:

Most common law nations impose minimum sentences for drunk driving.  Israel introduced a mandatory minimum law in 1995 requiring a two–year license disqualification regardless of intoxication level.  In theory, the new law allows minimal room for deviation. In practice, however, our study demonstrates that the law in action has diverged significantly from “blackletter law.”  Through an integrated historical, quantitative, and qualitative analysis that follows the law from its inception to the present day, we explore the root causes of this deviation and the mechanisms of circumvention.

Based on quantitative data collected on drunk driving cases between 2008 and 2022 and a survey of professionals specializing in traffic law, we highlight how the law’s perceived harshness has contributed to plea bargains becoming the normative means of circumventing the law.  This circumvention undermines the law’s original intention, that is, uniformity, proportionality, and equity in sentencing.  Multiple variables including appearances in court, legal representation, jurisdiction, and the judge’s identity result in comparably guilty defendants receiving different sentences.  Given these disparities, we propose replacing the current minimum sentence with a graduated minimum based on intoxication levels; limiting prosecutorial and judicial discretion; and providing court date reminders and public counsel to minimize harm to vulnerable populations.

"Felony Sentencing in New York City: Mandatory Minimums, Mass Incarceration, and Race"

The title of this post is the title of this new report from the Center for Court Innovation authored by Fred Butcher, Amanda B. Cissner, and Michael Rempel.   The full report runs over 30 pages, but this CCI webpage provides this two-page summary which includes this brief accouting of the report's findings:

Of the more than 65,000 such arrests in 2019, we found a third of people arrested were potentially subject to a mandatory minimum.  That doesn’t mean everyone ultimately received a minimum prison sentence, but the wide eligibility confers outsized power on prosecutors; in plea negotiations, prosecutors can wield the threat of a higher charge with guaranteed, generally lengthy, prison time against someone hesitant to accept a plea.

Arrests, and with them exposure to charges eligible for a mandatory minimum, are the formal entry-point to the criminal legal system.  Our analysis found Black people accounted for 51% of people arrested on a felony in New York City in 2019, more than double their representation in the general population; for white people, the figure was 11%. For arrests with exposure to a mandatory minimum, the disparity was even more striking: Black and Hispanic/Latinx New Yorkers combined to make up 91% of such arrests; for white people, the proportion was only 7%.

Looking at the subgroup of those convicted of a felony, Black people were also more likely to suffer imprisonment and almost six of ten convictions carrying a mandatory minimum sentence went to a Black person.

Indeed, while race was a significant predictor of whether someone convicted of a felony received a prison sentence — 58% of Black versus 43% of white people — an even stronger predictor was a prior felony conviction. Here the overlap — or, for people of color, doublebind — is considerable.  Systemic issues such as underinvestment paired with over-policing of Black and Brown communities increase the likelihood that members of these communities will acquire the kind of criminal history that can trigger, not only a sentence of incarceration, but also exposure to a mandatory minimum (whether actualized or used against them to leverage a less favorable plea).

Looking back and looking forward on federal crack sentencing after new AG Garland memos

As noted in this post, US Attorney General Merrick Garland issued new federal charging guidelines this past Friday.  There are lots of thinkgs to say about a lot of the particulars of these guidelines (including why they took so long to be produced), although the bulk of the media coverage has been about the AG Garland's specific instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses."   That intruction alone justifies lots of discussion, but I will start with one "looking back" matter and one "looking forward" matter:

1.  Shouldn't past crack sentences merit "equivalent treatment" via compassionate release?   This US Sentencing Commission data analysis from January 2022 suggests that there may be 8,000 or more current federal prisonsers serving crack sentences that are much longer than they would have received if they had receicved "equivalent treatment" to powder offenders at their initial sentencing.  Though it may be claimed that not all current crack prisoners may be able to demonstrate "extraordinary and compelling reasons" for a sentence reduction under § 3582(c)(1)(A), certainly some of them are likely to be able to do so.  Presumably, federal prosecutors can and will now be fully supportive of efforts by crack prisoners to seek such reductions to at least the powder sentencing equivalent whenever there are any other bases to claim that "extraordinary and compelling reasons" support a sentence reduction.  Moreover, as I see it, the historic problems and injustices of crack sentencing is alone an "extraordinary and compelling reasons" support a sentence reduction.  I doubt federal prosecutors will agree with this assertion, but federal courts could certainly make such a finding and I would hope DOJ would not appeal such a finding if some district courts so rule.

2.  Isn't future congressional crack sentencing reform tougher now?  Literally hours before seeing the new AG charging guidelines, I blogged news reports that Congress was closing in on a deal to lower crack sentences so as to reduce (but not elimited) the statutory crack/powder disparity.  Thoughthe AG issuing discretionary charging guidelines ought not directly impact how legislators think about statutory reform, everything that happens inside the Beltway can echo through all the work other others inside the Beltway.  And, discouragingly, I have now seen this new report, headlined "U.S. Senate Talks on Cocaine Sentencing Reform Hit Roadblock," suggesting crack sentencing reform is not likely to get done:

Negotiations in the U.S. Senate to narrow sentencing disparities between crack and powder cocaine have stalled, two sources said on Monday, in what could prove a blow for criminal justice reform advocates....  [I]n the last three days, negotiations to tuck the measure into the year-end spending bill, considered key for its passage, have largely ground to a halt, the sources said.

A Friday decision by Attorney General Merrick Garland to instruct federal prosecutors to end disparities in the way they charge offenses involving crack and powder upset some Republican legislators, who accused the Justice Department of usurping congressional authority.  Separately, bipartisan negotiators have encountered unexpected opposition from top Senate Republican Mitch McConnell, one of the people said.

"A bipartisan group of lawmakers, including myself, just recently came to an agreement on statutory changes that could possibly be included in the year-end funding bill," Senator Chuck Grassley, the top Republican senator on the Judiciary Committee, said in a Friday statement.  "That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands."

Perhaps AG Garland already knew that Senator McConnell was going to block crack sentencing reform before issuing his bold charging guidelines. But, if there was still a realistic chance at crack sentencing reform that AG Garland disrupted simply by not waiting a few more days to issue these (long-overdue) guidelines, then this was an epic blunder in timing.

UPDATE:  This new Politico article about the omnibus bill to be passsed by Congress indicates that crack sentencing reform is not included AND that AG Garland's charging memo is the reasona why:

A bipartisan deal to narrow the sentencing disparities between crack and powder cocaine was also booted from the bill after Attorney General Merrick Garland instructed federal prosecutors last week to eliminate the sentencing disparities, sparking frustration from Sen. Chuck Grassley (R-Iowa), who accused him of blowing up the Senate deal.

Especially for federal drug sentencing statutes, it "turns out that 'and' has more meanings than one might suppose"

A couple of weeks ago in this post, I noted the notable Eleventh Circuit en banc ruling in US v. Garcon giving a broad reading to the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  Thanks to a helpful reader, I see that today a split panel of the Sixth Circuit came out the other way in US v. Haynes, No. 22-5132 (6th Cir. Dec. 19, 2022) (available here).  Here are some passages from the majority opinion explaining the court's reasoning:

Aaron Haynes argues that the district court misinterpreted 18 U.S.C. § 3553(f)(1) when it denied him “safety valve” relief from his mandatory-minimum sentence. We agree with the district court’s interpretation of the statute and affirm....

The question presented is whether — as the government argues and the district court held — this provision requires the defendant to show that he has none of the criminal history described in subsections (A)-(C); or whether instead — as Haynes argues — the defendant must show only that he lacks the criminal history described in any one of those subsections. The answer to that question, everyone agrees, depends on the meaning of the word “and” as used in § 3553(f)(1)(B).

It turns out that “and” has more meanings than one might suppose.  By way of background, grammatical rules are an archetype of rules of conduct with which we often comply without conscious awareness of doing so.  Small children comply with any number of grammatical rules without awareness even of their existence; and adults comply with rules concerning the pluperfect and subjunctive tenses, for example, without consciously knowing what those rules are.  We likewise understand language according to these same grammatical rules, again often without awareness of their existence.  Thus, a particular grammatical rule might strike us as impossibly esoteric, and yet shape our understanding of language every day.  The task of determining the ordinary meaning of a word or phrase, therefore, is sometimes one of excavating — and taking conscious account of — rules as to which our compliance is often unconscious....

Here, the government’s interpretation of § 3553(f)(1) is logically coherent. Again by way of background, when § 3553(f)(1) was first enacted in 1994, it provided that any defendant with “more than one criminal history point” was ineligible for safety-valve relief.  See 18 U.S.C. § 3553(f)(1) (1994).  Congress amended § 3553(f)(1) in the First Step Act of 2018 to read as it does now. Under the government’s interpretation — for a defendant to obtain relief from an otherwise mandatory-minimum sentence — the defendant must not have any of three disqualifying conditions in his criminal record: first, “more than 4 criminal history points,” itself a fourfold increase over the prior cap; second, a prior offense serious enough to add three points to his criminal record; and third, a prior 2-point “violent offense[.]”  Each of those conditions on its face is quite plausibly an independent ground to deny a defendant the extraordinary relief afforded by the safety valve — which means this reading is logically coherent.

The same is not true of Haynes’s interpretation, which would require that all these conditions be present for a defendant to be ineligible for safety-valve relief. Consider, for example, a defendant with 25 criminal history points, generated in part by six convictions for assault with a deadly weapon and six convictions for domestic assault.  (Both can be two-point violent offenses.  See, e.g., United States v. Delgado-Hernandez, 646 F.3d 562, 564 (8th Cir. 2011).)  Under Haynes’s interpretation, this defendant would qualify for safety-valve relief because of the fortuity that his criminal record lacks “a prior 3-point offense[.]” 18 U.S.C. § 3553(f)(1)(B).  Or consider an incorrigible recidivist with, say, 24 criminal-history points, comprising a half-dozen convictions for robbery and two convictions for possession of explosives with intent to terrorize. (Both are often three-point offenses.  See, e.g., United States v. Henderson, 209 F.3d 614, 616 (6th Cir. 2000); United States v. Priest, 447 F. App’x 682, 684 (6th Cir. 2011).)  This defendant too would be eligible for safety-valve relief, for want of a prior two-point violent offense. Results like these appear arbitrary enough to be implausible — which makes Haynes’s interpretation akin to an interpretation of beer-and-wine in the joint sense rather than the distributive one.  Haynes does offer a thoughtful response: namely that the district court serves as a gatekeeper in cases where § 3553(f)(1) generates results as bizarre as these.  But an ordinary reader would expect that § 3553(f)(1) itself would serve as a gatekeeper — and not an arbitrary one.  That indeed is the whole point of the provision.  The government’s reading of § 3553(f)(1) is therefore better than Haynes’s reading.

I believe that we now have the Fifth, Sixth and Seventh Circuits adopting the government's approach to the new statutory safety valve, and the Ninth and Eleventh Circuits on the defendants' side.  It is now seemingly only a question of when, rather than if, the Supreme Court takes up this issue and tells us which meaning of "and" is to be applied in this context.

New crack sentence reductions (but not equalization or retroactivity) reportedly in Congress's year-end lawmaking

I think I am excited — though I might also be more than a bit disappointed — to see reports from a few press sources that Congress may be getting close to passing a version of crack sentencing reform, though apparently not one that will fully equalize powder and crack sentencing terms or that will make new reforms retroactive.  This Reuters piece, healdined "U.S. Senate set to address cocaine sentencing disparity in funding bill," provides these details:

Negotiators in the U.S. Senate have reached a tentative deal to narrow sentencing disparities between crack and powder cocaine and plan to tuck the measure into a bill funding the government, according to four people briefed on the matter....

Under a deal reached by bipartisan negotiators, that [crack/powder weight disparity] would be narrowed to 2.5 to 1, said the people, who requested anonymity to discuss private talks. Congress is likely to attach the measure to a year-end spending bill that lawmakers are currently hashing out, they added.

Legislation that would completely eliminate the sentencing disparity between crack and powder passed in the House of Representatives by a wide margin last year, though it has not advanced in the Senate.

Several Senate Republicans, including Chuck Grassley, the party's highest-ranking member on the Judiciary Committee, have publicly supported a 2.5-to-1 proportion instead. Grassley's office did not respond to a request for comment. Senator Dick Durbin, the No. 2 Senate Democrat and a key actor in cocaine sentencing talks, declined to comment.

The tentative deal does not include retroactive relief for people already convicted of crack-related offenses, which sentencing reform groups had been pushing for, the people said.

The disparities between crack and powder date back to war-on-drugs policies of the 1980s. In 1986, Congress passed a law to establish mandatory minimum sentences for drug trafficking offenses, which treated crack and powder cocaine offenses using a 100-to-1 ratio. Under that formula, a person convicted for selling 5 grams of crack cocaine was treated the same as someone who sold 500 grams of powder cocaine. That proportion was narrowed to 18 to 1 in 2010.

While the people involved in negotiations see the passage of the cocaine sentencing compromise as likely, they warned the deal could still fall apart as Congress races to pass the sweeping, expected $1.7 trillion government funding measure.

I always welcome "half-a-loaf" criminal justice reforms and better than getting nothing done at all.  And I had come to think this Congress was going to get nothing done at all on this front.  So, I am keen to be excited about something seemingly on a path to enactment.

But Senator Grassley's original proposal for a 2.5-1 cocaine sentencing ratio, as detailed here, called for essentially increasing punishment levels for powder cocaine along with loweing punishments for crack cocaine.  Given that US Sentencing Commission data show that there are now nearly three times as many powder cases sentenced in federal courts as crack cases, it is possible that efforts to reduce disparities here (depanding on the particulars) could actually raise sentences overall.  My guess is that any deal being stuck is likely to have a net reduction in expected prison time, but the devil will be in the statutory details.  In addition, how the new US Sentencing Commission responds to any statutory reforms will be most consequential in the long run.

SCOTUS grants cert. on two new criminal cases, including one involving a sentencing issue

The Supreme Court this afternoon granted cert on four new cases in this order.  Two of the new cases to be argued in early 2023 are criminal cases, and here is an account of them from this SCOTUSblog post about the grants:

In United States v. Hansen, the justices agreed to review the constitutionality of 8 U.S.C. § 1324(a)(1)(B)(i), a federal law that makes it a crime, punishable by up to 10 years in prison, to encourage or cause unauthorized immigrants to enter or reside in the United States.  Three years ago, the court agreed to take up this question in another case, United States v. Sineneng-Smith, but it did not resolve it.  Instead, a unanimous court ruled that the U.S. Court of Appeals for the 9th Circuit had improperly injected the issue into the case.

The question returns to the court in the case of Helaman Hansen, who was convicted under Section 1324(a)(1)(B)(i) for running a program that, in exchange for fees of up to $10,000, promised to help adult unauthorized immigrants become U.S. citizens through adoption.  On appeal, he argued — and a panel of the 9th Circuit agreed — that the statute violates the First Amendment because it is so broad that it would also apply to speech protected by the Constitution — for example, a statement that merely encourages someone to stay in the United States. After the 9th Circuit declined to rehear the case, the federal government came to the Supreme Court, which agreed on Friday to weigh in....

In Lora v. United States, the justices agreed to decide whether federal criminal sentencing laws require a New York man convicted for his role in a drug-trafficking-related murder to be sentenced to consecutive, rather than concurrent, sentences.

John Elwood in his most recent "Relist Watch" SCOTUSblog post provided these additional details about the Lora case:

Next up is Lora v. United States, presenting an issue of federal criminal sentencing.  District courts have discretion to impose either consecutive or concurrent sentences unless a statute mandates otherwise.  Section 924(c)(1)(D)(ii) of Title 18, which imposes penalties for using or carrying a firearm during and in relation to a crime of violence or drug-trafficking crime, specifies that sentences imposed “under this subsection” must run consecutive to other sentences. Efrain Lora was convicted and sentenced for a drug-trafficking-related murder under a different subsection, Section 924(j).  Lora therefore argued that the district court had discretion to impose concurrent sentences because Section 924(j) creates an offense distinct from Section 924(c)(1)(D)(ii).  But the U.S. Court of Appeals for the 2nd Circuit ruled that the district court was required to impose consecutive sentences because it concluded that Section 924(j) is essentially an aggravated form of the Section 924(c) offense.

Lora argues that four circuit courts have reached the same conclusion as the 2nd Circuit, and at least two circuits have disagreed.  The government acknowledges what it calls a “narrow conflict in the circuits as to whether [Section] 924(c)’s consecutive-sentence mandate applies to a conviction for the greater-included offense under [Section] 924(j).”  But it argues that the issue “has limited practical importance” and notes that the Supreme Court has repeatedly denied cert on the issue.

So, sentencing fans, we have a new sentencing case on the SCOTUS docket, but it is one of "limited practical importance."  I suppose any water in the desert will have to do.

En banc Eleventh Circuit now gives broad reading to FIRST-STEP-amended mandatory-minimum safety valve provision

Last year in posts here and here, I spotlighted a significant Ninth Circuit ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), which interpreted the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  But, as I noted in this post, days earlier in US v. Garcon, No. 19-14650 (11th Cir. May 18, 2021) (available here), an Eleventh Circuit panel reach an opposite interpretation of this statutory language.  The Garcon ruling went en banc, and today resulted in this set of opinions running 85 pages with an array of opinions from a court split 7-5.  Writing for six judges, Chief Judge (and former USSC Acting Chair) Bill Pryor start the opinion for the Eleventh Circuit this way:

The question presented in this appeal of a grant of safety-valve relief is whether, in the First Step Act, the word “and” means “and.” The Act empowers a court to grant a criminal defendant relief from a mandatory minimum sentence, but that relief is available only if “the defendant does not have” “more than 4 criminal history points,” “a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense.” 18 U.S.C. § 3553(f)(1) (emphasis added). Julian Garcon, who pleaded guilty to attempting to possess 500 grams or more of cocaine with intent to distribute, has a prior 3-point offense but does not have more than 4 criminal history points or a prior 2-point violent offense. The district court concluded that Garcon remained eligible for relief under the Act because he did not have all three characteristics. We agree. Because the conjunctive “and” joins together the enumerated characteristics, a defendant must have all three before he is ineligible for relief.  We affirm.

Tennessee Supreme Court finds state's uniquely harsh automatic life sentences unconstitutional for juvenile offenders

On Friday of last week, as summarized at this court webpage, the Tennessee Supreme Court issued a set of notable opinions addressing the constitutionality of the state's automatic life sentencing scheme for juveniles.  Here is, from the court website, links to: "the court's opinion in Tennessee v. Tyshon Booker, authored by Justice Sharon G. Lee and joined by Special Justice William C. Koch, Jr., the separate opinion concurring in the judgment authored by Justice Holly Kirby, and the dissenting opinion authored by Justice Jeff Bivins and joined by Chief Justice Roger Page."  Together, all the opinions run more than 50+ dense pages; they are all worth a read and cannot be easily summarized in a blog post.  But I can provide a poor-man's account (and also link to this local press coverage).

As explained in these opinions, Tennessee law requires a minimum term of 51 years in prison before parole consideration for murderers even for juveniles.  As the opinion for the court explains:  "Compared to the other forty-nine states, Tennessee is a clear outlier in its sentencing of juvenile homicide offenders.  So much so that Tennessee’s life sentence when automatically imposed on a juvenile is the harshest of any sentence in the country.  No one, including the dissent, disputes that a juvenile offender serving a life sentence in Tennessee is incarcerated longer than juvenile offenders serving life sentences in other states."

And so, decides the majority:

Tennessee is out of step with the rest of the country in the severity of sentences imposed on juvenile homicide offenders.  Automatically imposing a fifty-one-year-minimum life sentence on a juvenile offender without regard to the juvenile’s age and attendant circumstances can, for some juveniles, offend contemporary standards of decency....

Tennessee’s automatic life sentence when imposed on juvenile homicide offenders is an outlier when compared with the other forty-nine states, it lacks individualized sentencing which serves as a bulwark against disproportionate punishment, and it goes beyond what is necessary to accomplish legitimate penological objectives.  For these reasons, we hold that Tennessee’s automatic life sentence with a minimum of fifty-one years when imposed on juveniles violates the Eighth Amendment.

As for the remedy:

We exercise judicial restraint when remedying the unconstitutionality of the current statutory scheme for sentencing juvenile homicide offenders.  Rather than creating a new sentencing scheme or resentencing Mr. Booker, we apply the sentencing policy adopted by the General Assembly in its previous enactment of section 40-35-501.... Under this unrepealed statute, Mr. Booker remains sentenced to a sixty-year prison term and is eligible for, although not guaranteed, supervised release on parole after serving between twenty-five and thirty-six years.  Thus, at the appropriate time, Mr. Booker will receive an individualized parole hearing in which his age, rehabilitation, and other circumstances will be considered.

The dissenting opinion starts this way:

I respectfully dissent from the result reached by a majority of the Court today.  Quite frankly, I find the policy adopted as a result of the plurality opinion of Justice Lee and the concurring opinion of Justice Kirby to be sound.  However, it is just that.  It is a policy decision by which the majority today has pushed aside appropriate confines of judicial restraint and applied an evolving standards of decency/independent judgment analysis that impermissibly moves the Court into an area reserved to the legislative branch under the United States and Tennessee Constitutions.

SCOTUS takes up case to address reach of federal two-year mandatory minimum added prison term for identity theft

I missed late yesterday that the Supreme Court issued a tiny order list on Thursday that granted cert on a single new case.  This news is exciting for those of us interest in seeing a bit more criminal action on the SCOTUS docket, and this SCOTUSblog posting has the details:

The Supreme Court announced on Thursday afternoon that it will weigh in on what it means to commit identity theft. After holding their private conference a day early because Friday is a federal holiday, the justices released a one-sentence order list that added one new case to their merits docket for the 2022-23 term: Dubin v. United States.

The defendant in the case is David Dubin, who was convicted of Medicaid fraud.  As the dispute comes to the Supreme Court, Dubin is challenging a separate conviction under a federal law that makes it a crime to use another person’s identity in the process of committing another crime.  Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld Dubin’s conviction and sentence, and on rehearing a deeply divided full court affirmed that decision. Dubin appealed to the justices in June, and they agreed on Thursday to take up his case, which will likely be argued sometime early next year.

Here is how the question in the case is presented by the defendant in his cert petition:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

Notable comments on drug sentencing policies from rival Senate candidates in Pennsylvania

NBC News has recently run a couple of interesting pieces based on interviews with the Pennsylvania US Senate candidates that probed some sentencing issues. Here are links to the pieces and some of the passages:

"Fetterman says his stroke recovery 'changes everything' but that he’s fit to serve as senator"

He also pushed back on Republicans who accuse him of being soft on crime. Though he used his seat on a state parole board to advocate for the early release of some prisoners — including felons convicted of murder and other violent crimes — Fetterman said paroles were only granted in a small fraction of cases and to convicts who had demonstrated remorse through years of good behavior....

He also praised President Joe Biden’s decision last week to pardon thousands of people convicted only on charges of marijuana possession at the federal level; he said earlier this year that he had pressed Biden to decriminalize pot.

At the same time, Fetterman told NBC News that he favors strengthening federal drug laws to make it easier to apply mandatory minimum sentences to fentanyl dealers, an idea incorporated into GOP legislation on Capitol Hill.

Pennsylvania, like many states, has grappled with the abuse of pain-killers such as fentanyl, a powerful synthetic opioid that can be lethal in small doses. Despite his approval for releasing some violent criminals early, and without committing to signing onto a GOP bill in Congress, Fetterman endorsed the basic aim of the legislation.

“I’d have to see what’s in front of me when it’s there. But the bottom is that being an addict, you know, we haven’t been able to arrest our way out of, you know, to the addict,” he said. “But it’s the, actually the pushers and the dealers, that’s a completely different issue. And they deserve to be in prison.”

"Oz says he supports Biden on marijuana pardons and opposes federal mandatory minimum prison sentences":

Mehmet Oz opposes federal mandatory minimum prison sentences and thinks President Joe Biden made a “rational move” by announcing a broad pardon for certain marijuana users, Oz, the Republican Senate nominee in Pennsylvania, said Thursday in an exclusive interview with NBC News.

The remarks represent a slight tack to the center in the final days of a race in which Oz, who trails in public polling, has repeatedly attacked Democratic rival John Fetterman as being too soft on crime.

Oz said he supports Biden’s decision to clear the records of ex-convicts who were in federal prison solely on charges of simple marijuana possession, a rare area of agreement with Biden and Fetterman.

“Going to jail for marijuana is not a wise move for the country. I think folks who have used marijuana and that’s the only reason they’re in jail should not have those criminal — those rulings — held against them,” Oz said, crediting Biden with a “rational move.”

He also said he broadly opposes federal mandatory minimum prison sentences, just days after Fetterman voiced support for applying them in more cases involving fentanyl dealers in an exclusive interview with NBC News.

“I really think judges should be empowered to make the difficult decisions, and they generally do it well,” Oz said. “When we tie their hands by making laws at the federal level, it hinders their ability to do what needs to be done.”

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

• Three-Strikes enhancements affect a large share of the currently incarcerated prison population, but a smaller share of admissions to prison.  Less than one-third of prison admissions since 2015 involve a strike enhancement, with most receiving a doubled-sentence enhancement and a smaller percentage receiving a third-strike enhancement. At a given point in time however, individuals with strike enhancements constitute a larger proportion of the incarcerated population because they serve longer sentences

• Nearly 65% of admissions to prison with a doubled-sentence enhancement are for a non-violent, non-serious offense.

• Given the longer sentences imposed for serious or violent offenses, the reverse is true for people currently incarcerated: approximately 71% of those with doubled-sentence enhancements were convicted of a serious or violent offense.

• Black individuals are heavily over-represented among people serving sentences with third-strike enhancements, and to a lesser degree, with doubled-sentence enhancements. Overrepresentation exists relative to the racial/ ethnic composition of the prison population, and overwhelmingly relative to the racial/ethnic composition of the resident population of California.

• Judicial and prosecutorial discretion can mitigate the severity of strike enhancements.  The data suggests that judges and prosecutors may mitigate the severity of doubled-sentence enhancements by choosing (or accepting) lower sentence length options, but the effect of discretion on overall sentence length is modest.

• The use of strike enhancements varies widely across counties.  While third-strike sentences are considerably more rare today than in past years and the ordering across counties has changed over time, high-use and low-use counties documented in the early 2000s are largely similar in terms of rank today.

• The implementation of Three Strikes does not explain statewide declines in crime over time.  Early evaluations claiming large impacts on crime fail to account for national crime trends and also suffer from methodological flaws. More recent research suggests that Three Strikes may have a modest deterrent effect on relatively less serious crime, but likely does not account for the declines in California’s crime rates beginning in the mid-1990s.  Crime fell contemporaneously throughout the nation, and comparisons of crime trends in California to states that did not pass Three-Strikes laws reveal very similar trends over the subsequent two decades.

Prez Biden "Safer America Plan" seeks more cops and fewer (state) mandatory minimums with a federal drug sentencing kicker

Via this new "Fact Sheet," the While House today provides lots and lots more details on the "Safer America Plan" that Prez Biden announced a few weeks ago.  There are far too many particulars to summarize them here, and here are the points emphasized at the outset of this Fact Sheet:

Today, the President is providing greater details regarding the Safer America Plan. President Biden’s fiscal year 2023 budget requests a fully paid-for new investment of approximately $35 billion to support law enforcement and crime prevention -- in addition to the President’s $2 billion discretionary request for these same programs.  The Safer America Plan details how this $37 billion will be used to save lives and make communities safer.

Specifically, the Plan:

1. Funds the police and promotes effective prosecution of crimes affecting families today, including by funding 100,000 additional police officers who will be recruited, trained, hired, and supervised consistent with the standards in the President’s Executive Order to advance effective, accountable community policing in order to enhance trust and public safety;
2. Invests in crime prevention and a fairer criminal justice system, including by investing $20 billion in services that address the causes of crime and reduce the burdens on police so they can focus on violent crime, and by incentivizing the reform of laws that increase incarceration without redressing public safety;
3. Takes additional commonsense steps on guns to keep dangerous firearms out of dangerous hands, including by calling on Congress to require background checks for all gun sales and ban assault weapons and high-capacity magazines.

The request to fund 100,000 additional police officers and to advance various gun control measure will surely garner the most attention, but there are some items that ought to be of particular interest for sentencing fans. For example:

The Plan establishes a new $15 billion over 10 years Accelerating Justice System Reform grant program that jurisdictions can use to advance strategies that will 1) prevent violent crime and/or 2) ease the burden on police officers so they do not have to respond to non-violent situations that may not merit police intervention.  Doing so not only enhances public safety, but also delivers evidence-based criminal justice reform that advances racial equity....

[I]n order to receive these critical grants, jurisdictions must repeal mandatory minimums for non-violent crimes and change other laws that contribute to increased incarceration rates without making our communities safer.  The Plan calls on Congress to appropriate $14.7 billion in mandatory funding for this new program, which will add on to the $300 million request in the President’s FY23 discretionary budget to fully fund this effort.

In addition, this Plan address drug enforcement and sentencing in two ways:

Impose tough penalties on all forms of fentanyl.  Over 100,000 people have died from drug overdoses in the past 12 months, many of them from the synthetic opioid fentanyl. The federal government regulates fentanyl as a Schedule I drug, meaning it is subject to strict regulations and criminal penalties.  But drug suppliers have found a loophole: they can easily alter the chemical structure of fentanyl — creating “fentanyl related substances” — to enhance the drug’s psychoactive properties and try to evade regulation of fentanyl. The Drug Enforcement Administration and Congress temporarily closed this loophole, but it will reopen in January 2023 unless Congress acts.  The Safer America Plan includes the Administration’s 2021 proposal to permanently schedule all fentanyl related substances into Schedule I so traffickers of these deadly substances face the penalties they deserve....

End the crack-powder disparity and make the fix retroactive. The Safer America Plan calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.  This step would provide immediate sentencing relief to the 10,000 individuals, more than 90 percent of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity.

I cannot help but note that federal law includes lots of mandatory minimum provisions for non-violent crimes (such as drug offenses) that contribute to increased incarceration rates without any clear evidence that those provisions make our communities safer.  Notably, when on the campaign trail, candidate Joe Biden stated that he "supports an end to mandatory minimums" and that "as president, he will work for the passage of legislation to repeal mandatory minimums at the federal level."  Though I am pleased to see Prez Biden fulfill a campaign promise to "give states incentives to repeal their mandatory minimums," I hope he might before too long focus needed attention on federal mandatory minimum repeal as well.

With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?

The question in the title of this post is prompted by this New York Daily News article headlined "Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’."  Here are excerpts:

Senate Majority Leader Chuck Schumer on Monday called on lawmakers to end a sentencing disparity between crack and powder cocaine that has had a disproportionate effect on Black Americans. “We have a moment to balance the scales of justice,” the New York Democrat said at a news conference outside the Thurgood Marshall U.S. Courthouse in lower Manhattan. “It’s common sense: Cocaine is cocaine, and the sentencing should be equal.”

In September, the House overwhelmingly passed legislation to end a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. The bipartisan vote was 361 to 66. Democrats and Republicans embraced the chance to correct what activists, researchers and law enforcement view as a historical wrong. Pricey powder cocaine has long been seen as the province of the wealthy, while crack is cheaper and generally associated with poorer Americans....

But the bill, called the Eliminating a Quantifiably Unjust Application of the Law Act, has not yet landed on the floor of the Senate this spring, with both parties moving cautiously ahead of the pivotal midterm elections in November.

Schumer, who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor. In the Senate, Sens. Rob Portman (R-Ohio) and Cory Booker (D-N.J.) are sponsoring the legislation to end the sentencing disparities. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer told reporters Monday. “We want to get this done as soon as we can.”

Booker’s office said Monday that the legislation has picked up 21 cosponsors, including 11 Republicans, since it was introduced in the Senate in January. Booker said in a statement he was “pleased that Leader Schumer has called for a vote on the bill.” “For decades, our nation’s drug laws have been overly punitive and fraught with racial disparities, but perhaps no law has been as fundamentally flawed as the crack and powder cocaine sentencing disparity,” Booker said in the statement. “I look forward to passing the EQUAL Act as soon as possible.”

Beginning in 1986, mandatory minimum sentences for crack cocaine and powder cocaine crimes were formulated using a staggering 100-to-1 ratio. The Fair Sentencing Act of 2010, signed into law by President Barack Obama, changed the ratio to 18 to 1. “Some of our colleagues would say, ‘Well, I’ll lower it, but I won’t make it equal,’” said Schumer, who at one point held up sweetener packets as props during the news conference. “100 to 1 was horrible, but 18 to 1 was just as horrible, which it is now. 1 to 1 is fair.”

Senator Schumer is wrong to assert current crack sentencing after the Fair Sentencing Act is "just as horrible" as it was under the 100-1 ratio.  It is a bit better, but still not actually fair.  The EQUAL Act finally presents the prospect of getting to the 1-1 sentencing ratio that the US Sentencing Commission urged way back in 1995.  More than a quarter of a century later, I hope Senator Schumer is right about the fact that now is finally, finally "a moment to balance the scales of justice."

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act

GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act

Regular readers should be aware from my prior postings that Congress seems poised to pass the EQUAL Act to entirely eliminate the crack and powder cocaine sentencing disparity.  This disparity and its racialized impacts have been an ugly part of the federal sentencing landscape for over 35 years (when Congress first created the 100:1 disparity), and the Fair Sentencing Act of 2010 only partially reduced the disparity (down to 18:1).  But after the US House voted overwhelmingly, 361-66, to pass the EQUAL Act to end disparity last year, and after the Senate version had secured 11 GOP sponsors, I was hopeful the powder and crack cocaine disparity could and would finally be ended this year.

But, this press release from Senator Chuck Grassley's office, titled "Senators Introduce Bill To Reduce Crack-Powder Sentencing Disparity, Protect Communities From Criminals Most Likely To Reoffend," now has me concerned that a competing bill might now muck up the works.  Here are the details from the release:

Sens. Chuck Grassley (R-Iowa), Mike Lee (R-Utah), Roger Wicker (R-Miss.) and Lindsey Graham (R-S.C.) today introduced the SMART Cocaine Sentencing Act, which will reduce the sentencing disparity between crack and powder cocaine offenders tried in federal courts. The legislation aims to make sentencing fairer while also preserving the ability of courts to keep those most likely to reoffend off the street.

“I’ve worked on this issue for many years. I cosponsored the 2010 legislation led by Senators Durbin and Sessions to reduce the disparity in sentencing from 100-to-1 to 18-to-1.  It’s high time to do more to address this important issue and make our criminal code more just and fair.  Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties.  Powder cocaine is being trafficked across the border in historic volumes, so we also need to take precautions that ensure these traffickers also face justice for spreading poison through our communities,” Grassley said....

This sentencing disparity between crack and powder cocaine offenders has had a disparate impact on communities of color across the country.  Reducing this disparate impact is critical, but must be thoughtfully enacted to prevent likely reoffenders from returning to communities just to violate the law again.

Separate legislation has been introduced in the Senate to completely flatten the differences between sentences for crack cocaine and powder cocaine offenses.  This approach does not account for the differences in recidivism rates associated with the two types of cocaine offenses.  According to a January 2022 analysis from the U.S. Sentencing Commission (USSC), crack cocaine offenders recidivate at the highest rate of any drug type at 60.8 percent, while powder cocaine offenders recidivate at the lowest rate of any drug type at 43.8 percent.  Raising additional public safety concerns, USSC data reveals that crack cocaine offenders were the most likely among all drug offenders to carry deadly weapons during offenses. These statistics show the need for a close look at all available government data before we consider an approach to flatten sentencing for crack and powder cocaine offenses. 

The SMART [Start Making Adjustments and Require Transparency in] Cocaine Sentencing Act will reduce the current crack-to-powder cocaine sentencing disparity from 18:1 to 2.5:1. It reduces the volume required to trigger 5-year mandatory minimum sentences for powder cocaine from 500 grams to 400 grams, and from 5 kilograms to 4 kilograms for 10-year mandatory minimum sentences.  For crack cocaine, the volume triggering a 5-year mandatory sentence is increased from 28 grams to 160 grams; the volume for the 10-year mandatory sentence is lifted from 280 grams to 1,600 grams.

Critically, the SMART Cocaine Sentencing Act also requires an attorney general review and certification process for any retroactive sentencing adjustments. It provides for new federal research from the Drug Enforcement Administration and the Department of Health and Human Services regarding the lethality and addictiveness of these substances as well as what violence is associated with cocaine-related crimes. The legislation also requires a new report from the USSC on crack and powder cocaine offenses, including data on recidivism rates....

Full legislative text of the SMART Cocaine Sentencing Act can be found HERE.  

Kevin Ring has an effective Twitter thread here criticizing various aspects of this proposal, which he calls the "The Grassley Unequal Act."  I hope that this bill does not impede progress on the EQUAL Act, but the fact that the EQUAL Act has not become law already make me concerned about the fate and future or long-overdue efforts to end the crack/cocaine sentencing disparity.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?

UPDATE:  This new New York Times article, headlined "Drug Sentencing Bill Is in Limbo as Midterm Politics Paralyze Congress," details why the EQUAL Act may not get to the finish line in this Congress.  Here are excerpts:

[W]ith control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of the measure is in doubt. Democrats worry that bringing it up would allow Republicans to demand a series of votes that could make them look soft on crime and lax on immigration — risks they are reluctant to take months before they face voters.

Even the measure’s Republican backers concede that bringing it to the floor could lead to an array of difficult votes.  “I assume the topic opens itself pretty wide,” said Senator Roy Blunt, Republican of Missouri, who became the 11th member of his party to sign on to the Equal Act this month, giving its supporters more than the 60 votes needed to overcome procedural obstacles....

Though Mr. Schumer endorsed the legislation in April, he has not laid out a timeline for bringing it to the floor.  Democrats say he is giving backers of the bill a chance to build additional support and find a way to advance the measure without causing a floor fight that could take weeks — time that Democrats do not have if they want to continue to win approval of new judges and take care of other business before the end of the year....

Its supporters say that they recognize the difficulties but believe that it is the single piece of criminal justice legislation with a chance of reaching the president’s desk in the current political environment.  “Of all the criminal justice bills, this is the one that is set up for success right now,” said Inimai Chettiar, the federal director for the Justice Action Network. “It is not going to be easy on the floor, but I think it is doable.”

The problem is that the push comes as top Republicans have made clear that they intend to try to capitalize on public concern about increasing crime in the battle for Senate and House control in November....  Senator Mitch McConnell, the Kentucky Republican and minority leader, this week reprised his criticism of Judge Jackson and attacked Mr. Biden for having issued his first round of pardons and commutations, including for those convicted of drug crimes.  “They never miss an opportunity to send the wrong signal,” he said of Democrats.

Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to let the Equal Act sail through. He has said that if the disparity is to be erased, penalties for powder cocaine should be increased.  “My opposition to the Equal Act will be as strong as my opposition to the First Step Act,” Mr. Cotton said.

The legislation encountered another complication on Thursday, when Senators Charles E. Grassley of Iowa and Mike Lee of Utah, two top Republican supporters of the previous criminal justice overhaul, introduced a competing bill that would reduce — but not eliminate — the sentencing disparity between crack and powder cocaine. They said that research showed that crack traffickers were more likely to return to crime and carry deadly weapons.  “Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties,” said Mr. Grassley, the top Republican on the Judiciary Committee.

Sponsors of the Equal Act say they intend to push forward and remain optimistic that they can overcome the difficulties.  “We’ve got an amazing bill, and we’ve got 11 Republicans and people want to get this done,” said Senator Cory Booker, Democrat of New Jersey and the lead sponsor of the legislation. “My hope is that we are going to have a shot to get this done right now.”

With strong advocates of the EQUAL Act now saying that getting this to the floor of the Senate is "doable" or can "have a shot," I cannot help but think it is quite a long shot this Congress.  Sigh.