Monday, July 26, 2021

Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity?

At last month's Senate Judiciary Committee Hearing on "Examining Federal Sentencing for Crack and Powder Cocaine," the Biden Administration through the testimony of Regina LaBelle rightly stated that the crack-powder sentencing disparity produces "significant injustice":

The Biden-Harris Administration strongly supports eliminating the current disparity in sentencing between crack cocaine and powder cocaine.  The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color.  The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end.  Therefore, the Administration urges the swift passage of the “Eliminating a Quantifiably Unjust Application of the Law Act,” or the “EQUAL Act.”

In addition, the US Department of Justice submitted testimony (linked below) that rightly stated that "it is long past time" to end the crack-powder sentencing disparity:

The Department strongly supports the legislation, for we believe it is long past time to end the disparity in sentencing policy between federal offenses involving crack cocaine and those involving powder cocaine.  The crack/powder sentencing disparity has unquestionably led to unjustified differences in sentences for trafficking in two forms of the same substance, as well as unwarranted racial disparities in its application.  The sentencing disparity was based on misinformation about the pharmacology of cocaine and its effects, and it is unnecessary to address the genuine and critical societal problems associated with trafficking cocaine, including violent crime.

Download DOJ EQUAL Act Testimony- FINAL

In light of these forceful statements, I have been optimistic that the EQUAL Act might move forward in Congress fairly soon even though the pace of congressional action is always uncertain.  At the same time, I hoped that federal prosecutors under the authority of Attorney General Garland might do what they could ASAP, in the exercise of their charging and sentencing authority, to minimize the impact of the crack-powder disparity as Congress works on a permanent legislative fix.  After all, if DOJ really believes that "it is long past time to end the disparity" and that the disparity is based on "misinformation" which produces "unwarranted racial disparities," then a department purportedly committed to justice surely ought not keep charging crack mandatory minimums and advocating for guideline sentences based on this disparity.

But I have heard from defense attorneys in the know that statements about existing crack sentencing provisions creating "significant injustice in our legal system" have seemingly not trickled down to federal prosecutors, who are still generally charging crack mandatory minimums and arguing for within-guideline crack sentences.  And I have be authorized to share this recent statement from the Federal Defenders to DOJ: "We were glad to see the Department’s recent support for legislation to end the crack-powder disparity but reports from the field indicate that line prosecutors continue to indict mandatory-minimum crack cases and seek guideline sentences that rely on the discredited ratio."

Talking the talk to Congress about reform is an important aspect of what the executive branch can do to improve our justice system. But the Justice Department can and should also be expected to walk the walk.  But so far, it seems, federal prosecutors are not really ready to give up the crack-powder disparity, even though DOJ asserts that "it is long past time" to do so. Sigh.

July 26, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, July 23, 2021

As Eleventh Circuit works though ACCA "occasions different" mess, Judge Newson flags Apprendi "prior conviction" issues

A helpful reader alerted me to an interesting new split Eleventh Circuit panel decision in US v. Dudley, No. 19-10267 (7th Cir. July 22, 2021) (available here), concerning application of the severe mandatory minimum in the federal Armed Career Criminal Act.  As regular readers know, ACCA converts the 10-year maximum prison term for illegal gun possession by a felon into a 15-year mandatory minimum if the defendant has the wrong kind of prior convictions.  The basic issue in Dudley is a topic also to be considered by the Supreme Court this fall in Wooden v. US, namely ACCA's requirement that key prior offenses needed to be "committed on occasions different from one another."  In Wooden, the facts of the prior convictions are not in dispute, and so the Supreme Court will likely just explore the legal meaning of "occasions different from one another."  In Dudley, part of the debate concerns uncertainty about the facts of the prior convictions, and so the Eleventh Circuit panel has to discuss how these facts can be proved.

Working through a variety of complicated ACCA precedents, the majority in Dudley ultimately decides that "the district court did not err in relying on the prosecutor’s factual proffer in Dudley’s plea colloquy to find by a preponderance of the evidence that the three qualifying prior convictions for Alabama assault occurred on three separate, distinct occasions."  For hard-core ACCA fans, the majority's discussion might be interesting.  But hard-core Sixth Amendment fans will especially want to check out Judge Newsom's lengthy partial dissent which flags the significant Apprendi issues raised by prior rulings and this case.  Here is are some passages from the partial dissent to show why the whole opinion is worth checking out:

For starters, why doesn’t judicial factfinding involving ACCA’s different-occasions requirement itself violate the Sixth Amendment?  After all, we’ve described the different-occasions inquiry as a factual one....

Of course, I recognize that we and other circuits have repeatedly rejected constitutional challenges to ACCA’s different-occasions inquiry.  See Maj. Op. 18–19 (collecting cases).  We’ve justified ourselves on the ground that the date of an offense is part of the “factual nature” of the conviction — and thus falls under Almendarez-Torres’s exception to Apprendi....

But that explanation, while plausible at first blush, is tough to square with the Court’s characterization of Almendarez-Torres as a “narrow exception” to Apprendi’s general rule.  See Alleyne, 570 U.S. at 111 n.1.  As interpreted by Apprendi, Almendarez-Torres exempts only “the fact of a prior conviction” from the bar on judicial factfinding.  Apprendi, 530 U.S. at 490 (emphasis added).  After all, Almendarez-Torres itself involved only the bare fact that the defendant had been convicted of a prior aggravated assault.  523 U.S. at 226.   Although I don’t question Almendarez-Torres’s continuing vitality — above my pay grade — it seems that we do more than just faithfully apply that decision when we extend its “narrow exception” for the mere “fact of a prior conviction” to include other related facts, such as the date or time of the underlying offense.  Indeed, if Almendarez-Torres authorizes factfinding about more than just the fact of a prior conviction, what’s the limiting principle?  What differentiates the timing of the offense from the fact that it was “violent” for ACCA’s predicate-felony inquiry?  Both, it seems to me, are equally part (or not part) of the “factual nature” of the prior conviction.

July 23, 2021 in Almendarez-Torres and the prior conviction exception, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Thursday, July 22, 2021

House Judiciary Committee votes 36 to 5 to advance the EQUAL Act to reduce federal crack sentences

At a time of problematic and often ugly partisanship inside the Beltway, I have continued to believe and hope that a number of federal sentencing reforms could and should still be able to secure significant bipartisan support.  This belief was reinforced yesterday when the House Judiciary Committee voted 36 to 5 to advance the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act.  Excitingly, not only does this bill reduce crack statutory sentences to the level of powder cocaine offenses, it also provides for all previously convicted crack offenders to obtain a resentencing.  (Recall that neither the Fair Sentencing Act of 2010 nor the FIRST STEP Act of 2018 included full retroactivity for the sentencing reductions in those reform bills.)

I want to believe that the overwhelming vote in support of the EQUAL Act in the House Judiciary Committee means that a vote a passage by the full House will be coming soon.  I also want to believe that the bill, which also has bipartisan Senate support, could move efficiently through the upper chamber and become law this year.  But, because the politics and ways of Congress are always mysterious, I am not assuming passage is a sure thing and I have no idea what the timeline for the bill's potential progress will be going forward.  All I know is that it is now more than a quarter-century since the US Sentencing Commission first explained to Congress why a big crack/powder sentencing difference was unjustified and unjust, so the EQUAL Act cannot become law too soon and is way too late.  But better late than never, I still hope.

Notably, we are already approaching three years since passage of the FIRST STEP Act and there is yet to be a next step.  Though I would like to see many more statutory sentencing reform steps from Congress that go far beyond the EQUAL Act, I still think reforms can and should be happy right now with even baby steps in the right direction from a divided Congress.  And,  critically, the EQUAL Act would be a consequential baby step: USSC data indicate that more than 8000 people are in federal prison for crack offenses now and that more than 100 people are sentenced on crack offenses each month.  So literally thousands of people will be impacted if the EQUAL Act becomes law, and then, if/when this reform is finally achieved, we can work on correcting the next and the next and the next injustice baked into federal sentencing law and practice. 

A few prior related posts:

July 22, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Thursday, July 08, 2021

"Prosecutors, court communities, and policy change: The impact of internal DOJ reforms on federal prosecutorial practices"

Crim12275-fig-0007-mThe title of this post is the title of this important and impressive new empirical federal criminal justice research just published in Criminology and authored by Mona Lynch, Matt Barno and Marisa Omori. Here is the article's abstract:

The current study examines how key internal U.S. Department of Justice (DOJ) policy changes have been translated into front-line prosecutorial practices. Extending courts-as-communities scholarship and research on policy implementation practices, we use U.S. Sentencing Commission data from 2004 to 2019 to model outcomes for several measures of prosecutorial discretion in federal drug trafficking cases, including the use of mandatory minimum charges and prosecutor-endorsed departures, to test the impact of the policy changes on case processing outcomes. We contrast prosecutorial measures with measures that are more impervious to discretionary manipulation, such as criminal history, and those that represent judicial and blended discretion, including judicial departures and final sentence lengths. We find a significant effect of the policy reforms on how prosecutorial tools are used across DOJ policy periods, and we find variation across districts as a function of contextual conditions, consistent with the court communities literature. We also find that a powerful driver of changes in prosecutorial practices during our most recent period is the confirmation of individual Trump-appointed U.S. Attorneys at the district level, suggesting an important theoretical place for midlevel actors in policy translation and implementation.

This article includes a data set of over 300,000(!) federal drug cases, and the findings are extremely rich and detailed. I have reprinted one of many interesting charts above, and here is the article's concluding paragraphs (without references):

Recent developments call into question whether the existing workgroup dynamics in the federal system that we have documented here — with prosecutors generally pushing for more punitive outcomes, and judges and defense attorneys acting as a counter to this punitiveness — are likely to persist in the future.  Although there was bipartisan Congressional support for the First Step Act, suggesting that the late twentieth-century punitive policies may continue to wane in appeal, the federal criminal system has also undergone significant change, particularly in the judiciary where lifetime appointments prevail.  The Trump administration was extremely active in appointing new judges to existing vacancies, and as a result, nearly a quarter of active federal judges were appointed during his presidency.  Given the conservative political leanings of many of these judges, it is fair to question whether these judges might in fact oppose a move toward less punitive practices among federal prosecutors.

Even if the Biden administration is successful in scaling back punitive policies and installs U.S. Attorneys who are in ideological alignment with such reforms, prosecutorial power is not limitless in determining case outcomes.  Under advisory guidelines, judges have considerable power to sentence above the guidelines, as long as it is within the generous statutory limits that characterize federal criminal law.  In the face of this possibility, federal prosecutors may opt to exercise their most powerful tool—the discretionary decision to file charges, or not.  Thus, should the dynamics shift to where the current roles are reversed, prosecutors could come to rely on their discretion not to charge in those drug cases where they seek to eliminate the chance that those potential defendants receive long sentences.  In any case, as our results suggest, we should expect that any potential future conflicts among federal prosecutors and judges are likely to play out differently across different court contexts, depending on the conditions and make-up of each local district.

July 8, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Monday, June 21, 2021

US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine"

On the morning of Tuesday, June 22, 2021, the US Senate Judiciary Committee has a hearing set for 10am titled "Examining Federal Sentencing for Crack and Powder Cocaine." The hearing should be available to watch at this link, where this list of witnesses are set out:

Ms. Regina LaBelle, Acting Director, Office of National Drug Control Policy

The Honorable Asa Hutchinson, Governor, State of Arkansas

Mr. Matthew Charles, Justice Reform Fellow, FAMM

The Honorable Russell Coleman, Member, Frost Brown Todd

Mr. Antonio Garcia, Executive Director, South Texas High Intensity Drug Trafficking Area

Mr. Steven Wasserman, Vice President for Policy, National Association of Assistant U.S. Attorneys

Notably, the Washington Post here reports on what Ms. Regina LaBelle will be saying in her testimony as well as some of the political context around this hearing.  Here is part of the story:

The Biden administration plans to endorse legislation that would end the disparity in sentences between crack and powder cocaine offenses that President Biden helped create decades ago, according to people with knowledge of the situation — a step that highlights how Biden’s attitudes on drug laws have shifted over his long tenure in elected office.

At a Senate Judiciary Committee hearing Tuesday, Regina LaBelle, the acting director of the White House Office of National Drug Control Policy, plans to express the administration's support for the Eliminating a Quantifiably Unjust Application of the Law Act, or Equal Act. The legislation, which sponsored by Senate Majority Whip Richard J. Durbin (D-Ill.) and Sens. Cory Booker (D-N.J.) and Rob Portman (R-Ohio), would eliminate the sentencing disparity and give people who were convicted or sentenced for a federal cocaine offense a resentencing.

“The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color,” LaBelle says in prepared written testimony obtained by The Washington Post in advance of the hearing. “The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end. Therefore, the administration urges the swift passage of the ‘Eliminating a Quantifiably Unjust Application of the Law Act.’ ”...

Outside coalitions backing Durbin and Booker’s bill have focused particularly on shoring up conservative support as part of their larger criminal justice overhaul agenda. To that end, one of the witnesses testifying in favor of the bill Tuesday is Gov. Asa Hutchinson of Arkansas, a Republican who led the Drug Enforcement Administration under President George W. Bush.

“Although Congress has taken steps to reduce the disparity and provide some retroactive relief, any sentencing disparity between two substances that are chemically the same weakens the foundation of our system of justice,” Hutchinson says in his prepared remarks, also obtained by The Post.  “Congress now has the opportunity to build on the bipartisan successes of the Fair Sentencing Act and the First Step Act by eliminating the sentencing disparity between crack cocaine and powder cocaine once and for all.  The strength of our justice system is dependent on the perception of fundamental fairness.”

Russell Coleman, a former counsel to now-Senate Minority Leader Mitch McConnell (R-Ky.) and former U. S. attorney for the Western District of Kentucky, will also promote the legislation at the hearing Tuesday morning.

A few prior related posts:

June 21, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, June 16, 2021

"Undoing the Damage of the War on Drugs: A Renewed Call for Sentencing Reform"

The title of this post is the title of the scheduled congressional hearing called by the Subcommittee on Crime, Terrorism, and Homeland Security of the U.S. House Committee of the Judiciary. The hearing is to take place on Thursday, June 17, 2021 at 10am and can be streamed here. The witness list, available here, should make this a must-see event:

Rachel E. Barkow, Vice Dean and Charles Seligson Professor of Law, Faculty Director, Center on the Administration of Criminal Law, NYU School of Law

William R. Underwood, Senior Fellow, The Sentencing Project

Kyana Givens, Assistant Federal Public Defender, Office of the Federal Public Defender for the Eastern District of North Carolina

Kassandra Frederique, Executive Director, Drug Policy Alliance

Marta Nelson, Director, Government Strategy, Advocacy and Partnerships Department, Vera Institute of Justice

Jillian E. Snider, Director, Criminal Justice & Civil Liberties, R Street Institute

John Malcolm, Vice President, Institute for Constitutional Government, Director, Meese Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation

June 16, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Thursday, June 10, 2021

Some early coverage of big new SCOTUS ruling limiting ACCA in Borden

A busy day on other matters means I have only had a chance to skim Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), the big win for the defendant today in an ruling limiting the reach of the Armed Career Criminal Act.  I hope in the coming days to have a lot to say about Borden ruling itself and its possible aftermath, but for now I can and will round up some early press and blog coverage:

From Bloomberg Law, "Divided High Court Sides With Defense on Repeat-Offender Law"

From Crime & Consequences, "Fractured Supreme Court Cripples Armed Career Criminal Act"

From The Hill, "Gorsuch, Thomas join liberal justices in siding with criminal defendant"

From Law & Crime, "Kagan Goes After Kavanaugh for Lengthy Footnote: There’s Nothing ‘Unfair’ About This Outcome"

From the New York Times, "Supreme Court Limits Sweep of Law on Mandatory Minimum Sentences"

From SCOTUSblog, "Court limits definition of 'violent felony' in federal gun-possession penalty"

From The Volokh Conspiracy, "Justice Thomas Takes One For The Team in Borden v. U.S."

June 10, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

In 5-4 decision, SCOTUS limits reach of ACCA mandatory minimum "violent felony" predicates by holding a "reckless offense cannot so qualify"

The last big SCOTUS sentencing ruling of this Term that I have been eagerly awaiting was (yet another) one concerning application of the Armed Career Criminal Act.  Today the wait was over, as this morning the Court handed down it opinion in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here).  And it is a big win for the defendant with Justice Kagan authoring the key opinion for four Justices (with Justices Breyer, Sotomayor and Gorsuch joining), which starts this way:

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), mandates a 15-year minimum sentence for persons found guilty of illegally possessing a gun who have three or more prior convictions for a “violent felony.”  The question here is whether a criminal offense can count as a “violent felony” if it requires only a mens rea of recklessness — a less culpable mental state than purpose or knowledge.  We hold that a reckless offense cannot so qualify.

Justice Thomas writes a concurring opinion that starts this way:

This case forces us to choose between aggravating a past error and committing a new one. I must choose the former.  Although I am “reluctant to magnify the burdens that our [erroneous] jurisprudence imposes,” Ring v. Arizona, 536 U.S. 584, 610 (2002) (Scalia, J., concurring), I conclude that the particular provision at issue here does not encompass petitioner’s conviction for reckless aggravated assault, even though the consequences of today’s judgment are at odds with the larger statutory scheme.  The need to make this choice is yet another consequence of the Court’s vagueness doctrine cases like Johnson v. United States, 576 U.S. 591 (2015).

Justice Kavanaugh writes a lengthy dissenting opinion (which is longer than the other two opinions combined) which concludes its opening discussion this way:

In my view, the Court’s decision disregards bedrock principles and longstanding terminology of criminal law, misconstrues ACCA’s text, and waves away the Court’s own recent precedent. The Court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence. I respectfully dissent.

There is a lot here to take in, but I hope to figure all this out before too long. The key takeaway is that, thank to Justices Gorsuch and Thomas, Borden is the slimmest of victories for the defendant here and likely the start of yet another chapter of uncertainty about what comes next in ACCA jurisprudence.

June 10, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, June 09, 2021

GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses"

In this new Fox News commentary, Arkansas Gov Asa Hutchinson makes a notable pitch for the EQUAL Act (discussed here).  The piece is headlined "It's time to fix an old wrong and end the disparity between crack and cocaine offenses," and I recommend it in full.  Here are excerpts:

In America, the principles of fairness and equal treatment are fundamental to the rule of law.  When we fall short of these principles, we lose confidence in our justice system and weaken the foundation of our country.  Since 1986, there has been a substantial difference in prison sentences for crack and powdered cocaine offenses, a disparity that has not only encouraged a misapplication of limited law enforcement resources, but has also been the source of unequal punishment for basically identical crimes....

During my time in Congress in the 1990s, and as the head of the Drug Enforcement Administration (DEA) from 2001-2003, I saw first-hand the impact of this disparity, and found it was failing on three fronts.  First, it rarely led to the prosecution of major drug traffickers and sellers.  Instead, it led to increased prosecutions of small-time dealers and peripheral supporters, almost all of whom were replaced immediately.

Second, it became clear that the disparity was built on a misunderstanding of crack cocaine’s chemical properties and effects of the body.  Crack and powdered cocaine were chemically the same, and the violence that was linked to crack cocaine was not related to the properties of the drug.  Instead, it was the general product of the drug trade and the historically violent trends in areas where crack is predominantly used and sold.

Third, it undermined community confidence in the fairness of the criminal justice system. I talked with drug task force officers and front-line agents at the DEA who said this sense of injustice had a real impact in the fight against illegal drugs; it made it more difficult for agents to build trust and work with informants in the areas most impacted by the crack epidemic.  The disparity in sentencing led to more harm than help in our federal anti-crime efforts.

The bipartisan Fair Sentencing Act, sponsored by Sens. Dick Durbin, D-Ill., and Jeff Sessions, R-Ala., dramatically reduced the disparity, from 100:1 to 18:1.  In 2018, the First Step Act, signed into law by President Donald Trump, made that reduced disparity retroactive.

Those were important steps, but the new sentencing laws continue to cause disproportionate harm and decreased trust in communities of color.  For example, in 2019, Black people accounted for 81% of all federal crack cocaine convictions. Those convictions led to prison terms 18 times longer than they would have been for equivalent amounts of chemically identical powdered cocaine.

It is time for Congress to finish what it started, and finally and fully end the disparity between crack and cocaine offenses.  The bipartisan Equal Act would bring federal sentencing law in line with most states that have eliminated, reduced or never instituted, these unjust disparities. That includes my home state of Arkansas, where possession of crack and powdered cocaine are treated the same under state law....

The strength of our justice system is totally dependent on the perception of fairness and the concept that punishments should fit the crimes.  The clear and pernicious injustice of crack and powdered cocaine sentencing disparities harms our communities, limits law enforcement in their fight against illegal drugs, and weakens the foundation of our entire system of justice.

Congress has the opportunity to fully and finally eliminate this injustice by passing the Equal Act.  To get it done, lawmakers of all different backgrounds will need to put partisanship aside and work in the best interests of the American people.  I can’t think of a worthier cause than preserving our founding principle — that all Americans are treated equally under the law.

I am fully supportive of efforts to equalize federal crack and powder sentencing rules which are now based largely around the quantity of drugs involved in the offense.  But, for truly effective reform, I believe we need to not only move entirely away from any quantity-based approaches to drug offense sentencing, but also start moving away from punitive criminal justice responses to drug activities.

A few prior related posts:

June 9, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, June 02, 2021

Fascinating split Third Circuit ruling on federal drug distribution prohibition (and death resulting 20-year mandatory minimum)

A helpful colleague made sure I did not miss yesterday's notable new ruling from a Third Circuit panel in US v. Semler, No. 19-2319 (3d Cir. Jun. 1, 2021) (available here). This split (non-precedential?) decision address the persistently problematic issue of when and how social sharing of drugs constitutes distribution and all of the potentially severe consequences that can follow.  Here is how the majority opinion authored by Judge Roth gets started: 

Emma Semler is an addict who bought and injected heroin with a fellow user, then failed to intervene as that user overdosed and died.  She now appeals her conviction and sentence under the Controlled Substances Act for distribution of heroin resulting in death, a charge that carries a mandatory minimum sentence of twenty years’ imprisonment.

We hold that the definition of “distribute” under the Controlled Substances Act does not cover individuals who jointly and simultaneously acquire possession of a small amount of a controlled substance solely for their personal use.  Because a reasonable jury could find that Semler and the decedent jointly acquired possession of the heroin in question for their personal use, we will vacate Semler’s conviction and remand this case for a new trial so that the jury can be instructed on the correct legal standard.

The dissent authored by Judge Porter starts this way:

The Controlled Substances Act prohibits the distribution of certain drugs.  In that statute, Congress carefully defined the meaning of “distribute.”  Dissatisfied with the breadth of Congress’s handiwork, the majority vacates Emma Semler’s judgment of conviction.  It holds that Semler did not “actually transfer” heroin when she handed it to Jennifer Werstler.  Because that “is flatly contrary to standard English usage” and contradicts our Court’s precedent, I respectfully dissent.  Kansas v. Garcia, 140 S. Ct. 791, 802 (2020).

A few prior posts on drug-causing-death prosecutions and punishments:

June 2, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Thursday, May 27, 2021

In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision

In recent posts here and here, I have spotlighted a significant recent Ninth Circuit panel 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 a helpful reader flagged in a comment to one of these posts that an Eleventh Circuit panel reach an opposite interpretation of this statutory language just days earlier in US v. Garcon, No. 19-14650 (11th Cir. May 18, 2021) (available here).  Here is a key passage from the start and from the central analysis in Garcon

Julian Garcon pleaded guilty to attempted possession of 500 grams or more of cocaine with intent to distribute in violation of the Controlled Substances Act and faced a five-year statutory minimum sentence.  21 U.S.C. §§ 841(a)(1); 841(b)(1)(B)(ii); 846.  At sentencing, Garcon sought safety valve relief as provided in the First Step Act, 18 U.S.C. § 3553(f)(1).  The district court interpreted the “and” in § 3553(f)(1)(A)–(C) as conjunctive, meaning that Garcon was only disqualified from safety valve relief due to his prior convictions if he met all three subsections of § 3553(f)(1) or, in other words, if he had (1) more than four criminal history points, excluding any points resulting from one-point offenses; (2) a prior three-point offense; and (3) a prior two-point violent offense.  The district court then found that Garcon was eligible for relief because he had only a prior three point offense, as described in § 3553(f)(1)(B).  The government appealed, arguing that § 3553(f)(1) is written in the disjunctive and, thus, Garcon is ineligible for safety valve relief because he met one of the three disqualifying criteria — here, he has a prior three-point conviction.  After careful review and with the benefit of oral argument, we find that, based on the text and structure of § 3553(f)(1), the “and” is disjunctive.  Accordingly, we vacate Garcon’s sentence and remand for resentencing....

The contextual indication that the “and” in § 3553(f)(1) is disjunctive is that if the “and” is read conjunctively so that a defendant must have all three requirements before he is disqualified from the safety valve, then subsection (A) would be superfluous. If we read the “and” conjunctively, there would be no need for the requirement in (A) that a defendant must have more than four criminal history points total because, if he had (B)’s required three-point offense and (C)’s required two-point violent offense, he would automatically have more than four criminal history points.  Thus, Garcon’s suggested reading violates a canon of statutory interpretation, the canon against surplusage.

In short, last week produced a crisp circuit split on the proper interpretation of a key provision of the FIRST STEP Act on a matter that impacts many hundreds of federal drug cases every month.  Data from the US Sentencing Commission shows there are typically more than 1500 drug cases sentenced in federal court each and every month, with over 250 each month in the Ninth Circuit and over 100 each month in the Eleventh Circuit.  Not all these cases will be impacted by this statutory dispute over the reach of the new safety valve, but many can be.

It is surely only a matter of time before other circuit weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.  Along the way, it will be interesting to see if future rulings find this existing circuit split to be evidence of ambiguity in the statutory text (which, in turn, should lead to rulings in favor of the defendant based on the rule of lenity).  Notably, the Eleventh Circuit panel in Garcon states in support of its narrow interpretation that the "text and structure of § 3553(f)(1) provide a clear meaning."  Garcon, No. 19-14650, slip op. at 9.  But the Ninth Circuit in Lopez states in support of its broader interpretation that it must apply "Congress’s clear and unambiguous text."  Lopez, No. 19-50305, slip op. at 19.  To me, the only thing that seems actually "clear" about this statute's text is that SCOTUS is going to have to resolve how it should be applied.

Prior related post:

May 27, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, May 26, 2021

Notable (and huge) sentence reductions used to remedy stacked 924(c) sentences for crooked cops

As reported in this Baltimore Sun article, headlined "Corrupt former Baltimore Police officers get sentences reduced from 454 years to 20 years," a couple of crooked cops this week got their sentences reduced considerably to undo the now-repealed harshness of severe stacking mandatory minimum 924(c) counts thanks to the FIRST STEP Act.  Here is a summary from the press account:

Two former Baltimore Police officers sentenced to a combined 454 years in federal prison for shaking down citizens in the early 2000s had their prison terms reduced to 20 years each by a federal judge Monday.

U.S. District Judge Theodore D. Chuang agreed with arguments put forward by attorneys for William King and Antonio Murray earlier this year under the First Step Act, noting that since their convictions in 2006 Congress has passed sentencing reforms that would have led to significantly shorter sentences if the officers were sentenced today....

The U.S. Attorney’s Office agreed that the sentences should be reduced, but to 30 years for Murray, and 65 years for King. “Neither sentence is unreasonable given the offense conduct in this case,” Assistant U.S. Attorney Sandra Wilkinson wrote.

The officers’ attorneys noted that former Gun Trace Task Force Sgt. Wayne Jenkins, who pleaded guilty to years of robberies and drug dealing, received 25 years in prison in 2018....  Chuang agreed, saying 20 years for King and Murray “roughly corresponds with the type of sentences presently imposed in comparable police corruption cases in this District.”...

Prior to the Gun Trace Task Force case, the case of King and Murray was one of the highest-profile Baltimore police corruption cases.  The officers, who were assigned to the BPD’s public housing drug unit, were called out in the “Stop Snitching” underground video, with a man on the tape saying the officers looked out for certain drug dealers.  A man they shook down went to the FBI, and authorities launched an investigation that found the officers were detaining and robbing drug dealers.

At the time, the officers “maintained that their activities were all in furtherance of legitimate police activity in an effort to develop sources to lead to arrests of drug distributors,” said prosecutors, adding the officers claimed they used their ill-gotten money to pay informants who could help them catch those higher up in the drug gangs.  King later said the tactics were imported by the department’s New York police leadership, and blamed immense pressure to reduce crime as the reason he and some colleagues went bad.

The men were convicted of robbery, extortion, and drug and handgun offenses, which each had penalties that were “stacked” at sentencing.  The sentencing judge, J. Frederick Motz, lamented at the time that the sentences were “absolutely disproportionate to the crimes that were committed” but said he had no discretion to depart from the mandatory sentencing laws.

The opinions from the district court in these two cases can be downloaded below:

Download United States v. William King No 05-cr-00203 (May 24 2021 D. Md.)

Download United States v. Antonio Murray No 05-cr-00203 (May 24 2021 D. Md.)

May 26, 2021 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered | Permalink | Comments (0)

Sunday, May 23, 2021

Another accounting of Ninth Circuit's significant FIRST STEP safety-valve expansion Lopez ruling

6a00d83451574769e20224df387165200bIn this post yesterday, I flagged the significant new Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), concerning the proper interpretation of the FIRST-STEP-amended statutory safety valve.  Professor Eric Fish alerted me to this important new ruling, and he also kindly wrote up this thoughtful account of it:

The Ninth Circuit just issued a major opinion, United States v. Lopez, that makes it significantly easier to avoid mandatory minimums in federal drug cases.  All three judges signed on to the result, and on balance it was a relatively conservative panel.  The opinion is a highly technical exercise in textualism that turns on the meaning of the word “and.” One could see its reasoning succeeding in the current Supreme Court.

To understand the opinion, it is first necessary to understand the “safety valve” exception.  This exception lets defendants avoid mandatory minimum sentences in federal drug cases, but only if they satisfy five criteria: (1) the crime cannot result in death or serious bodily injury, (2) the defendant cannot use violence or possess a dangerous weapon, (3) the defendant cannot be an “organizer, leader, or manager,” (4) the defendant must provide all information they have about the crime to the government, and (5) a rule excluding defendants based on their criminal history.

This last exclusion, based on criminal history, was at issue in Lopez.  Up until 2018, anybody with more than one “criminal history point” under the Sentencing Guidelines was excluded from safety valve.  This meant that anyone who had been sentenced to more than 60 days in jail or had more than one conviction of any kind (including misdemeanors) was excluded.  The First Step Act expanded this rule to the following (codified at 18 U.S.C. 3553(f)(1)):

(1) the defendant 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;

After the First Step Act was enacted, judges and attorneys assumed that someone whose criminal history met the criteria in A, B, or C could not get safety valve.  So someone with more than 4 points, a 3-point conviction (meaning any conviction with a sentence over 13 months), or a 2-point “violent offense” couldn’t avoid the mandatory minimum.  But is that what the provision means?  Apparently not, says the panel!  Read it again – the three items are connected by a conjunctive “and,” not a disjunctive “or.”  And the plainest reading of three items connected by “and” is that the list includes all three.  So, reasoned the panel, to be excluded from safety valve you must have every item on the list.

The prosecutors’ strongest argument was that if “and” is read to mean “and,” then (A) becomes surplusage. If someone has a 3-point offense and a 2-point violent offense, they necessarily have “more than 4 criminal history points.”  The majority deals with this by observing that “2-point violent offense” could be read to mean “2- or 3-point violent offense,” since any 3-point offense also contains two points.  So someone could have a 3-point violent offense satisfying (B) and (C), but not have 4 or more points for (A).  The concurrence by Ninth Circuit judge Milan Smith Jr. disagrees with that reading of (C), but still concludes that “and” means “and” notwithstanding any surplusage.

Only a small number of defendants meet all three criteria.  The Lopez opinion thus lets many more people avoid mandatory minimum sentences.  With the available data it is difficult to estimate exactly how many more people would qualify, but the number is significant.  

Prior related post:

May 23, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Saturday, May 22, 2021

Ninth Circuit panel interprets FIRST STEP amendment to statutory safety valve to greatly expand who can avoid federal mandatory-minimum sentences

A helpful reader made sure I did not miss a significant new Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here).  Here is how the opinion gets started:

Title 18 U.S.C. § 3553(f), commonly called the “safety valve,” allows a district court to sentence a criminal defendant below the mandatory-minimum sentence for certain drug offenses if the defendant meets the criteria in § 3553(f)(1) through (f)(5).  In 2018, Congress amended one of the safety valve’s provisions: § 3553(f)(1).  See First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221. Section 3553(f)(1) focuses only on a criminal defendant’s prior criminal history as determined under the United States Sentencing Guidelines. See generally 18 U.S.C. § 3553(f)(1). As amended, § 3553(f)(1) requires a defendant to prove that he or she “does not have” the following: “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense.” Id. § 3553(f)(1)(A)–(C) (emphasis added).

As a matter of first impression, we must interpret the “and” joining subsections (A), (B), and (C) under § 3553(f)(1). If § 3553(f)(1)’s “and” carries its ordinary conjunctive meaning, a criminal defendant must have (A) more than four criminal-history points, (B) a prior threepoint offense, and (C) a prior two-point violent offense, cumulatively, before he or she is barred from safety-valve relief under § 3553(f)(1).  But if we rewrite § 3553(f)(1)’s “and” into an “or,” as the government urges, a defendant must meet the criteria in only subsection (A), (B), or (C) before he or she is barred from safety-valve relief under § 3553(f)(1). Applying the tools of statutory construction, we hold that § 3553(f)(1)’s “and” is unambiguously conjunctive. Put another way, we hold that “and” means “and.”

I believe that this statutory construction means that even more federal drug defendants will be able to benefit from the statutory safety valve thanks to the FIRST STEP Act than some may have thought. But, as the main opinion explains as it concludes, it is the statutory text that ultimately matters:

We recognize that § 3553(f)(1)’s plain and unambiguous language might be viewed as a considerable departure from the prior version of § 3553(f)(1), which barred any defendant from safety-valve relief if he or she had more than one criminal-history point under the Sentencing Guidelines.  See Mejia-Pimental, 477 F.3d at 1104.  As a result, § 3553(f)(1)’s plain and unambiguous language could possibly result in more defendants receiving safety-valve relief than some in Congress anticipated.

But sometimes Congress uses words that reach further than some members of Congress may have expected.  See Bostock, 140 S. Ct. at 1749 (noting that Congress’s plain language sometimes reaches “beyond the principal evil [that] legislators may have intended or expected to address,” but courts remain obligated to give Congress’s language its plain meaning) (citation and quotation marks omitted).  We cannot ignore Congress’s plain and unambiguous language just because a statute might reach further than some in Congress expected.  See id. (“[I]t is ultimately the provisions of [Congress’s] legislative commands rather than the principal concerns of our legislators by which we are governed.”) (emphasis added) (citation and quotation marks omitted).

Section 3553(f)(1)’s plain and unambiguous language, the Senate’s own legislative drafting manual, § 3553(f)(1)’s  structure as a conjunctive negative proof, and the canon of consistent usage result in only one plausible reading of § 3553(f)(1)’s “and” here: “And” is conjunctive.  If Congress meant § 3553(f)(1)’s “and” to mean “or,” it has the authority to amend the statute accordingly.  We do not.

May 22, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes | Permalink | Comments (1)

Tuesday, April 20, 2021

Mixed messages on mandatory minimums from executive branch in New Jersey witrh a retroactive kicker

In this post last month, I flagged the debate in New Jersey where the Governor was threatening to veto a bill to repeal mandatory minimums for certain non-violent crimes because it repealed too many mandatory minimum sentences.  Sure enough, that veto happened yesterday, but so too did an interesting related action from the NJ Attorney General.  This Politico piece, headlined "Murphy vetoes mandatory minimum bill as Grewal unilaterally eliminates some sentences," provides these details (with some emphasis added):

Gov. Phil Murphy on Monday vetoed a bill that would do away with mandatory minimum prison terms for non-violent crimes, excising sections that would eliminate the sentences for corruption offenses.  At the same time, Attorney General Gurbir Grewal issued a directive requiring that prosecutors make use of a provision in New Jersey law allowing them to set aside mandatory minimum sentences for drug-related crimes.

“I am particularly troubled by the notion that this bill would eliminate mandatory prison time for elected officials who abuse their office for their own benefit, such as those who take bribes.  Our representative democracy is based on the premise that our elected officials represent the interests of their constituents, not their own personal interests,” Murphy wrote in his veto message, which also took a shot at former President Donald Trump.  “I cannot sign a bill into law that would undermine that premise and further erode our residents’ trust in our democratic form of government, particularly after four years of a presidential administration whose corruption was as pervasive as it was brazen.”

The two executive actions are the culmination of an eight-month political fight between the Murphy administration and the Democrat-controlled Legislature over what began as benign legislation that followed exactly the recommendations of the New Jersey Criminal Sentencing & Disposition Commission.  The commission, in a November 2019 report, recommended eliminating mandatory sentences for a wide swath of mostly drug and property crimes with the aim of reducing racial disparities among the incarcerated.

Murphy’s conditional veto essentially returns the legislation, NJ S3456 (20R), to its initial form — which did not address corruption offenses — before state Sen. Nicholas Sacco began a successful effort to change it. Grewal’s directive may help allay the concerns of criminal justice advocates who did not want to see mandatory minimum sentences upheld over a political fight, leading some to throw their support behind the legislative effort.  The directive goes further than the legislation would have, applying retroactively to prisoners serving mandatory minimum sentences for drug offenses.  The directive does not apply to mandatory minimum sentences for non-violent property crimes, and it was not immediately clear how many inmates are serving time under those laws.

“It’s been nearly two years since I first joined with all 21 of our state’s County Prosecutors to call for an end to mandatory minimum sentences for non-violent drug crimes,” Grewal said in a statement.  “It’s been more than a year since the Governor’s bipartisan commission made the same recommendation. And yet New Jerseyans still remain behind bars for unnecessarily long drug sentences.  This outdated policy is hurting our residents, and it’s disproportionately affecting our young men of color.  We can wait no longer. It’s time to act.”

New Jersey Together, a coalition of criminal justice reform advocates, said in a statement that “ending mandatory minimum sentences for non-violent drug crimes prospectively and for those currently incarcerated will be a huge step in the right direction.” “Now, the work should begin with the governor and the Legislature to make this permanent and to end mandatory minimum sentencing as a whole,” the group said.

Amol Sinha, executive director of the ACLU-NJ, said in a statement that even though Grewal’s directive takes “significant steps to mitigate the harms of some of the most problematic mandatory minimums,” his group is “disappointed” because “our state falls short by failing to enact legislation that can promote justice for thousands of New Jerseyans.” Sinha urged the Legislature to concur with Murphy’s veto....

Grewal’s directive allows prosecutors to seek periods of parole ineligibility “when warranted to protect public safety based on the specific facts of the case.”  Advocates have long sought to repeal mandatory minimum sentences, especially those that came about as part of the “War on Drugs.”  For instance, New Jersey imposes harsh mandatory sentences for those caught selling drugs within 1,000 feet of a school, a crime far more likely to harshly punish dealers in denser urban areas and who are more likely to be Black and Hispanic.  At the time of a 2016 report by The Sentencing Project, New Jersey incarcerated white people at a rate of 94 per 100,000 compared to 1,140 for Black and 206 for Hispanic people.

A bill that mirrored the recommendations of the New Jersey Criminal Sentencing & Disposition Commission was nearing the final stages of the the legislative process when Sacco (D-Hudson) quietly requested an amendment to eliminate the mandatory minimum sentences for official misconduct.  Sacco later acknowledged to POLITICO that he requested the amendment. Walter Somick, the son of Sacco‘s longtime girlfriend, is facing several corruption-related charges, including official misconduct, over an alleged no-show job at the Department of Public Worker in North Bergen, where Sacco is mayor and runs a powerful political machine....

“I am cognizant of the fact that Attorney General‘s directives could be changed in a future administration by the stroke of a pen, and thus recognize that there is still a need to permanently codify these changes in statute,” Murphy said. “I remain hopeful that the Legislature will concur with my proposed revisions, which reflect the Commission’s evidence-based recommendations and its desire that these recommendations apply prospectively and retroactively.”

Because I generally view all mandatory minimum sentencing provisions for nonviolent offenses to be problematic, I am a bit disappointed by the veto of the legislative reform here.  But because I generally favor retroactive reforms to enable excessive prior prison terms to be addressed, the retroactive relief made possible by the NJ AG is a comforting related development.  The basics of the AG action is discussed in this official press statement and the full 11-page directive can be accessed at this link.

Prior related posts:

April 20, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, April 12, 2021

DEPC-hosted symposium, "Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues," now available online

Fentanyl-Analogues-Conference_for-social_v3As detailed in this press release, a coalition of over drug policy, civil rights, criminal justice and public health organizations are urging Congress and the Biden Administration to allow temporary class-wide emergency scheduling of fentanyl-related substances to expire in May 2021.  This letter to members of Congress on this topic highlights why this issue is, in many ways, a sentencing story because "class-wide scheduling of fentanyl analogues ... expands the application of existing severe mandatory minimum sentencing laws enacted by Congress in the 1980s to a newly scheduled class of fentanyl-related compounds":

For example, just a trace amount of a fentanyl analogue in a mixture with a combined weight of 10 grams — 10 paper clips — can translate into a five-year mandatory minimum, with no evidence needed that the seller even knew it contained fentanyl.  In addition, current laws impose a statutory maximum sentence of 20 years for just a trace amount of a fentanyl analogue in a mixture with a combined weight of less than 10 grams."

The advocacy letter also notes the practical realities of existing laws and concludes with a pitch for the Biden Administration to make good of avowed opposition to mandatory minimum sentencing schemes:

Between 2015 and 2019, prosecutions for federal fentanyl offenses increased by nearly 4,000%, and fentanyl-analogue prosecutions increased a stunning 5,000%.  There are significant racial disparities in these prosecutions, with people of color comprising almost 75% of those sentenced in fentanyl cases in 2019.  This holds true for fentanyl analogues, for which 68% of those sentenced were people of color.  In addition, more than half of all federal fentanyl-analogue prosecutions in 2019 involved a street-level seller or other minor role; only 10.3% of these cases involved the most serious functions."...

The expiration of class-wide scheduling is an opportunity for the Biden administration and Congress to make good on a commitment to end mandatory minimums and embrace a public health approach.  The class-wide scheduling discussion allows Congress and this administration the opportunity to choose a new path on drug policy.  The Biden administration has expressed support for ending mandatory minimums. Allowing this policy to expire aligns with Biden’s stated support of ending mandatory minimums and treating drugs as a public health issue

Last month, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law had the honor last month of hosting a multi-panel virtual symposium, titled "Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues," which explored these issues at great length with a great set of speakers.  Here was how the event was set up:

In recent years, the illicit drug market around the world has seen a major rise in the production and use of synthetic drugs, including the rapid development of analogues of conventional drugs such as marijuana, amphetamine, and opiates.  Since 2015, fentanyl, a synthetic opioid, and its analogues have increasingly emerged in the illegal drug market in the U.S., most often added to heroin or sold in counterfeit opioid prescription pills.  In 2018, 30,000 overdose deaths in the U.S. involved synthetic opioids.

The purpose of this symposium is to educate advocates, congressional staff, administration officials, and scholars about the possibility that class-wide scheduling of fentanyl analogues will yield unintended consequences, and to highlight evidence-based alternatives that can help reduce overdose deaths. Participants will learn about the relationship between class-wide scheduling and public health policy approaches to dealing with fentanyl analogues and overdose.  Participants will be presented with an intersectional discussion of the issue that examines class-wide scheduling and its impact on the criminal legal system, racial inequities, scientific research, medicine, and evidence-based drug policy.

I am pleased to now be able to report that a transcript and captioned recordings of each panel are available now. 

UPDATE: The GAO has now released this new report on this topic under the title "Synthetic Opioids: Considerations for the Class-Wide Scheduling of Fentanyl-Related Substances."

In addition, as detailed at this webpage, The US House of Representatives' Subcommittee on Health of the Committee on Energy and Commerce will hold a legislative hearing on Wednesday, April 14, 2021, at 10:30 a.m. via Cisco WebEx entitled, "An Epidemic within a Pandemic: Understanding Substance Use and Misuse in America."  The written testimony of the scheduled witnesses suggests that class-wide scheduling of fentanyl analogues will be a major topic of the hearing.

ANOTHER UPDATE: The Intercept has this clear and effective article on these topics under the headline "Biden Looks To Extend Trump’s Bolstered Mandatory Minimum Drug Sentencing."  Here are its opening paragraphs:

THE BIDEN ADMINISTRATION is expected to announce support this week for the temporary extension of a Trump-era policy expanding mandatory minimum sentencing to cover a range of fentanyl-related substances.  More than 100 civil rights, public health, and criminal justice advocacy groups sent a letter last week urging Congress and President Joe Biden to oppose any extension of the Trump policy.

The administration can’t extend the policy without congressional action, which it is expected to support during a Wednesday hearing on substance use before the House Energy and Commerce Committee, according to two groups on the letter and several Democratic aides.  The aides note that the administration will likely request additional time to explore the policy’s ramifications and has not yet decided whether it will adopt a full extension.

April 12, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Sunday, April 04, 2021

Seemingly encouraging, but quite complicated, analysis of racial disparities in federal drug sentencing

The past week's Washington Post included this notable op-ed by Charles Lane under the headline "Here’s some hope for supporters of criminal justice reform." A focal point of the op-ed was this newly published paper by sociologist Michael Light titled "The Declining Significance of Race in Criminal Sentencing: Evidence from US Federal Courts."  Here is how the op-ed discusses some key findings with a positive spin:

How many more months in prison do federal courts give Black drug offenders as opposed to comparable White offenders?

The correct answer, through fiscal 2018, is: zero.  The racial disparity in federal drug-crime sentencing, adjusted for severity of the offense and offender characteristics such as criminal history, shrank from 47 months in 2009 to nothing in 2018, according to a new research paper by sociologist Michael Light of the University of Wisconsin.  For federal crimes of all types, there is still a Black-White discrepancy, but it, too, has shrunk, from 34 months in 2009 to less than six months in 2018....

What went right?  Basically, decision-makers unwound policies that had provided much higher maximum penalties for trafficking crack cocaine than the powdered variant and, crucially, had encouraged federal prosecutors to seek those maximum penalties.  Supreme Court rulings, in 2007 and 2009, gave federal judges latitude to impose more-lenient sentences for crack dealing. The 2010 Fair Sentencing Act reduced the crack vs. powder punishment disparity, from a maximum of 100 times as much prison time to 18.

And starting that same year, the Obama administration Justice Department actively sought to diminish the disparity. As part of this effort, Attorney General Eric H. Holder Jr. instructed federal prosecutors in 2013 not to seek the maximum penalty for drug trafficking by low-level, nonviolent defendants.

The upshot was that the average federal drug sentence for Black offenders fell 23 months, while that for White offenders rose 23 months, possibly due to the growing prevalence of opioids and methamphetamine in White communities.  For all federal crimes, sentences for White offenders rose from 47 months to 61, while those for Black offenders fell from 81 to 67.

The United States has now restored the racial parity in federal sentencing that — perhaps surprisingly — existed before the war on crack’s start in the late 1980s.  As of the mid-1980s, Black and White offenders had received roughly 26 months in prison.

Though I am disinclined to be too much of a skunk at a sentencing equity party, I do not believe the Light study really should be the cause of too much celebration in our era of modern mass incarceration.  For starters, the Light study documents that greater racial parity was achieved as much by increases in the length of federal drug sentences given to white offenders as decreases in these sentences to black offenders.  More critically, in 2018, the feds prosecute a whole lot more drug defendants and the average federal sentence for both White and Black drug offenders is still a whole lot longer (nearly 300% longer) than in an earlier era.  I find it hard to be too celebratory about they fact that we now somewhat more equally send a whole lot more people to federal prison for a whole lot longer for drug offenses.

Moreover, the Light analysis highlights that it is largely changes in the composition of cases being sentenced in federal court that account for why average drug sentences are now more in parity among whites and blacks.  The longest federal drug sentences are handed out in crack cases (disproportionately Black defendants) and meth cases (disproportionately White defendants), so as crack prosecutions declined and meth prosecutions increased over the last decades (see basic USSC data here), it is not that suprising that average federal drug sentences for black offenders went down and those for white offenders went up. 

I do not want to underplay the importance of the harsh federal system now being directed more equally toward whites and blacks, but I do want to be sure to highlight one more key finding from the Light stidy: "In 2018, black offenders received an additional 1.3 mos. of incarceration relative to their white peers.  In drug cases, they received an additional 5 mos.  These results are not explained by measures of offense severity, criminal history, or key characteristics of the crime and trial."  In other words, while Light finds that average federal drug sentences have come into parity across all cases, looking at individual drug cases reveals black offenders are still sentenced to nearly a half-year longer than comparable white offenders.  

That all said, it is fascinating to see the data that Light spotlights and effectively unpacks (I highly recommend his paper), and I am grateful Lane spotlights what still might reasonably be viewed as a hopeful story.  I especially hope folks will keep an eye on these data as we now work our way through the COVID era and its unpredicatable impact on case composition and processing.

April 4, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Friday, March 26, 2021

Senators Durbin and Lee re-introduce "Smarter Sentencing Act" to reduce federal drug mandatory minimums

As detailed in this new press release, it looks like some notable US Senators are trying yet again to reform federal mandatory minimums.  Here are the basics from the release:

Sen. Mike Lee (R-Utah) cosponsored the “Smarter Sentencing Act,” bipartisan legislation designed to bring judicial discretion and flexibility to non-violent drug charge sentencing. The bill is sponsored by Sen. Dick Durbin (D- Ill.) and cosponsored by 11 of their colleagues.

Since 1980, the number of inmates in federal prison has increased by 653%.  About 50% of those federal inmates are serving sentences for drug-related offenses, increasing the taxpayer burden by more than 2,000%.  In short, federal incarceration has become one of our nation’s biggest expenditures, dwarfing the amount spent on law enforcement.

Our burgeoning prison population traces much of its growth to the increasing number and length of certain federal mandatory sentences.  More than 60% of federal district court judges agree that existing mandatory minimums for all offenses are too high.  In the words of the members of the bipartisan U.S. Sentencing Commission, “the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently . . . .”

“Our current federal sentencing laws are out of date and often counterproductive,” said Sen. Lee. “The Smarter Sentencing Act is a commonsense solution that will greatly reduce the financial and, more importantly, the human cost imposed on society by the broken status quo.  The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses, while enabling nonviolent offenders to return more quickly to their families and communities.”

“Mandatory minimum penalties have played a large role in the explosion of the U.S. prison population, often leading to sentences that are unfair, fiscally irresponsible, and a threat to public safety,” Sen. Durbin said.  “The First Step Act was a critical move in the right direction, but there is much more work to be done to reform our criminal justice system. I will keep fighting to get this commonsense, bipartisan legislation through the Senate with my colleague, Senator Lee.”

Lee and Durbin first introduced the Smarter Sentencing Act in 2013.  Several important reforms from the Smarter Sentencing Act were included in the landmark First Step Act, which was enacted into law in 2018.  The central remaining sentencing reform in the Durbin-Lee legislation would reduce mandatory minimum penalties for certain nonviolent drug offenses.  The Congressional Budget Office has estimated that implementation of this provision would save taxpayers approximately $3 billion over ten years.

The full list of cosponsors includes: Sens. Patrick Leahy (D-Vt.), Roger Wicker (R-Miss.), Sheldon Whitehouse (D-R.I.), Ron Wyden (D-Ore.), Richard Blumenthal (D-Ct.), Tammy Baldwin (D-Wis.), Cory Booker (D-N.J.), Elizabeth Warren (D-Mass.), Bernie Sanders (I-Vt.), Angus King (I-Maine), and Tim Kaine (D-Va.).

I am not particularly optimistic that the SSA will make it through Congress this time around, but I should note that prior iterations of this bill got votes in Senate Judiciary Committee from the likes of Ted Cruz and Rand Paul. Moreover, the current chair of the Senate Judiciary Committee is Senator Durbin and the current President campaigned on a platform that included an express promise to "work for the passage of legislation to repeal mandatory minimums at the federal level."  Given that commitment, Prez Biden should be a vocal supporter of this bill or should oppose it only because it does not got far enough because it merely seeks to "reduce mandatory minimum penalties for certain nonviolent drug offenses," rather than entirely eliminate them.

March 26, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (4)

Wednesday, March 17, 2021

Spotlighting ugly reasons and realities surrounding federal gun sentences

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

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

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

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

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

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

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

Wednesday, March 03, 2021

US Sentencing Commission issues big new report on "Federal Armed Career Criminals: Prevalence, Patterns, and Pathways"

The US Sentencing Commission has just released this big report providing "information on offenders sentenced under the Armed Career Criminal Act, including an overview of the Act and its implementation in the federal sentencing guidelines. The report also presents data on offender and offense characteristics, criminal histories, and recidivism of armed career criminals."  Here are the "Key Findings" appearing in the first part of the report:

Key Findings
• Armed career criminals consistently comprise a small portion of the federal criminal caseload, representing less than one percent of the federal criminal caseload.  During the ten-year study period, the number of armed career criminals decreased by almost half, from 590 in fiscal year 2010 to 312 in fiscal year 2019.
• Armed career criminals receive substantial sentences.  Offenders who were subject to the ACCA’s 15-year mandatory minimum penalty at sentencing received an average sentence of 206 months in fiscal year 2019.  Offenders who were relieved of the mandatory minimum for providing substantial assistance to the government received significantly shorter sentences, an average of 116 months in fiscal year 2019.
• Armed career criminals have extensive criminal histories. Even prior to application of the armed career criminal guideline, 90.4 percent of armed career criminals qualified for the three most serious Criminal History Categories under the guidelines, and almost half (49.4%) qualified for Criminal History Category VI, the most serious category under the guidelines. 
• The overwhelming majority of armed career criminals had prior convictions for violent offenses. In fiscal year 2019, 83.7 percent of armed career criminals had prior convictions for violent offenses, including 57.7 percent who had three or more such convictions.  Despite the predominance of violence in their criminal history, the most common prior conviction for armed career criminals was for public order offenses, with 85.3 percent having at least one such prior conviction.
• More than half (59.0%) of armed career criminals released into the community between 2009 and 2011 were rearrested within an eight-year follow-up period. When armed career criminals recidivated, their median time to rearrest was 16 months and the most serious common new offense was assault (28.2%).
• Recidivism rates of armed career criminals varied depending on whether they had prior convictions for violent offenses and the number of such prior convictions.
      ◦ Nearly two-thirds (62.5%) of armed career criminals with prior violent convictions and no prior drug trafficking convictions, and more than half (55.0%) of armed career criminals with both prior violent and drug trafficking convictions were rearrested within the eight-year follow-up period.  In comparison, only 36.4 percent of armed career criminals with prior drug trafficking convictions and no prior violent convictions were rearrested during the study period, but there were only 12 such offenders.
     ◦ Furthermore, 61.7 percent of armed career criminals with three or more prior violent convictions were rearrested during the eight-year follow-up period compared to 48.9 percent of armed career criminals with one or two prior violent convictions

March 3, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Tuesday, March 02, 2021

En banc Second Circuit needs 120 pages and five opinions to sort out whether NY first-degree manslaughter qualifies as a federal "violent crime"

Great scottI generally do not closely follow lower federal court rulings about what state convictions qualify as predicates for sentencing enhancement under the Armed Career Criminal Act ("ACCA") or the career offender sentencing guidelines. I have a hard time just keeping up with the many Supreme Court ACCA cases, and I have previously suggested in this post a few years ago that modern ACCA jurisprudence must reside as some level of hell in Dante's Inferno because this caselaw is so dang inscrutable. 

But a helpful reader alerted me to a new en banc Second Circuit decision today in US v. Scott, No. 18-163-cr (2d Cir. Mar. 2, 2021) (available here), which seems like a useful reminder of how nuts this jurisprudence can be.  Here is how the majority opinion in Scott gets started:

Defendant-appellee Gerald Scott is a violent criminal, who has repeatedly threatened, and on two occasions taken, human life.  The killings were undoubtedly brutal: Scott shot one of his victims in the head at point-blank range; he stabbed the other to death. For these killings, Scott stands twice convicted in New York State of first-degree manslaughter under N.Y. Penal Law § 125.20(1), a homicide crime second only to murder in its severity.   At issue on this appeal is whether Scott’s manslaughter convictions are for violent crimes. An affirmative answer might appear obvious to a man on the street aware of Scott’s conduct.  But the laws relevant here — the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e)(2)(B), and the Career Offender Sentencing Guideline, see U.S.S.G. § 4B1.2(a) — do not identify violent crimes by looking to what a defendant actually did. Rather, they look to the minimum he might have done and still been convicted.  This inquiry focuses on a crime’s elements, asking whether they categorically require a defendant’s use of physical force, specifically violent physical force.  See Curtis Johnson v. United States, 559 U.S. 133, 140, 144 (2010) (defining physical force required by ACCA).  Applying that standard here, we conclude that first-degree manslaughter is a categorically violent crime because its elements — (1) the causation of death (2) by a person intent on causing at least serious physical injury — necessarily involve the use of violent force.

The occasion for our ruling is the United States’ appeal from an amended judgment of conviction entered on January 12, 2018, in the United States District Court for the Southern District of New York (Laura Taylor Swain, Judge), which resentenced Scott to time served (then totaling approximately 11 years, 3 months) for attempted Hobbs Act robbery and related firearms crimes. Resentencing followed the district court’s grant of Scott’s 28 U.S.C. § 2255 motion to vacate his original 22-year sentence.  See United States v. Scott, No. 06 CR 988- LTS, 2017 WL 2414796, at *3 (S.D.N.Y. June 2, 2017).  The district court concluded that it had mistakenly relied on ACCA and the Career Offender Guideline in imposing Scott’s initial sentence.  It reasoned that Scott’s two prior convictions for first-degree manslaughter did not qualify as predicate violent crimes because “first degree manslaughter can be committed in New York State by omission and thus without using force.”  Id. at *2 (emphasis added).  A divided panel of this court agreed, with the majority analogizing omission to “complete inaction,” and concluding therefrom that the crime could be committed without the use of force.  See United States v. Scott, 954 F.3d 74, 78 (2d Cir. 2020) (holding first-degree manslaughter “not a predicate crime of violence because it can be committed by complete inaction and therefore without the use of force”).

After rehearing the case en banc, we reject this reasoning, which, carried to its logical — or illogical — conclusion, would preclude courts from recognizing even intentional murder as a categorically violent crime because, presumably, it is just as possible for a defendant to cause a person’s death by omission when the defendant’s specific intent is to kill, see N.Y. Penal Law § 125.25(1) (second-degree murder), as when his specific intent is to cause serious physical injury, see id. § 125.20(1) (first-degree manslaughter).  We decline to take the law down a path leading so far from the violent reality of these two most serious, intentionally injurious homicide crimes.

Disconcertedly, the majority needed 50 more pages to explain why first-degree manslaughter in New York qualifies as a federal "violent crime," and then concurring and dissenting opinions needed 70 more pages to debate a formalistic legal matter that is an awful artifice of poorly conceived and constructed federal sentencing law.  With the rocky jurisprudence of this case and the horrors of so many others, I would love to time warp back to the drafting of ACCA and urge a whole new approach to federal sentencing.  

March 2, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Will NJ Gov veto a bill to repeal mandatory minimums for certain non-violent crimes because it repeals too many?

The question in the title of this post is prompted by this local story reporting on notable legislative developments our of New Jersey, headlined "Bill to end mandatory minimum sentences for certain crimes in N.J. now goes to Murphy’s desk."  Here are highlights of a story with so many interesting elements (with links from the original and my emphasis added):

A landmark criminal justice bill that would end mandatory minimum sentences for certain crimes in New Jersey, including non-violent drug offenses, is now heading to Gov. Phil Murphy’s desk after being passed by the state Assembly on Monday.

The bill (S2586/A4369) is the major reform recommended by the state’s Criminal Sentencing and Disposition Commission, which Murphy convened in 2018 due to the state having the worst disparity in the country for rates of incarceration between Black and white offenders.  The commission found that ending mandatory minimums for certain crimes would help to eliminate the disparity in the state’s criminal justice system, an initiative Murphy has championed as governor.

It is unclear if Murphy, a Democrat, will sign the bill into law.  “We’ll have further comment when we are ready to take action on the bill,” a spokesman for the governor said Monday afternoon.

As the bill was moving through the legislature, state Sen. Nicholas Sacco, D-Hudson, added an amendment to the bill to make the legislation also apply to official misconduct charges, which is sometimes used to prosecute politicians, police officers and other public workers.  The son of Sacco’s girlfriend is facing an official misconduct offense for allegedly submitting false timesheets in North Bergen, where Sacco is the mayor. 

Murphy has been publicly steadfast in that he does not support a bill that included ending mandatory sentences for official misconduct. “Let me say unequivocally, official misconduct was not on the list. I just want to say as clearly as I can, I do not support official misconduct being roped into this legislation,” the governor said in September.

But advocates continued to press lawmakers to move forward with the bill with or without the official misconduct charge included in it due to the number of people impacted, and the few number of people charged with official misconduct in recent years.

“Pass it for the thousands of people who will see earlier parole,” NJ Together, a non-partisan coalition of faith groups, wrote in a letter to lawmakers last week. “Pass it for the tens of thousands who will benefit in the future because they will not be subject to these unfair sentencing practices. Pass it for their families and for a more just criminal justice system here in New Jersey.”...

“This legislation, if signed by Gov. Murphy, will serve as a national model for criminal justice reform,” said Assemblyman Nick Chiaravalloti, D-Hudson. “This is an important social justice issue.”

The bill retroactively applies to inmates serving certain mandatory minimum sentences, including non-violent drug offenses, making more than 2,000 inmates immediately eligible for parole, if signed into law.  More than 80% of inmates serving mandatory minimum sentences for drug offenses are either Black or Hispanic, Joseph Krakora, the state’s top public defender, previously said.

Assemblyman John DiMaio, R-Warren, said he recognized the “social injustice issues that would be addressed by this bill,” but added, “I just do not understand where the social justice issue comes in” when removing official misconduct from the list of mandatory minimum sentences.  “Those sections that deal with the public trust, elected officials and public officials should not be in this bill,” he said before Monday’s vote.

However, NJ Together also found that official misconduct charges overwhelming are handed down to Black New Jerseyans.  It found that Black people in New Jersey are three and a half times as likely to spend time in state prison for official misconduct than others, according to an analysis of 36,000 prison records....

A spokesman for Murphy did not immediately respond when asked when the governor may make a decision.

I am instinctually against all (prison-time) manadtory minimums, which fundamentally shift sentencing powers from judges to prosecutors and make sentencing more opaque and often less consistent.  Mandatory minimums seem especially pernicious when applied to non-violent offenses where there can be a broad array of offense conduct and offender circumstances that a judge ought be able to consider in open court (and be subject to appeal).  Against that backdrop, from the get-go I think it is problematic (and telling) that reform-minded officials are so quick to oppose the repeal of the official misconduct NJ mandatory minimums (which seem pretty severe, though do include some waiver opportunities).

Even more important, and kudos for this reporting, racial disparity would seem to be a real concern in the application of this particular mandatory minimum in New Jersey, just as there tends to be disparity in the application of so many other mandatory minimums in so many jurisdictions.  If a primary goal of this whole bill is to reduce racially disparate sentencing laws, then repealing the misconduct minimums seems very much in service to a main goal of this bill.

FInally, and perhaps most important in service to criminal justice reform generally, any vision of the best reforms cannot and should not be the enemy of good reforms.  Today, tomorrow and every day until misguided sentencing laws are reformed and made retroactive, real people and their families are subject to real excessive prison time (and taxpayers are paying the economic and other  costs of excessive and unfair sentences).  If Gov Murphy were to veto this bill, he would be denying immediate relief and hope for more than 2,000 folks now serving problematic sentences in order to .... just preserve prosecutorial sentencing powers that they seem to be using unevenly and that should be in the hands of judges.

Prior related post:

March 2, 2021 in Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Saturday, February 13, 2021

Notable reviews of extreme sentences in Pennsylvania

The tail end of this week brought a number of notable stories about notably extreme sentences (and a few releases therefrom) in Pennsylvania.  I will use headlines and links to cover a lot of ground involving a number of intersecting and overlapping stories:

"Report raises questions with second-degree murder sentencing in Pennsylvania"

"Pa.’s second-degree murder charge is outdated, unfair, Fetterman says"

"‘They don’t deserve to die in prison’: Gov. Wolf grants clemency to 13 lifers"

"The nation’s oldest juvenile lifer, Joe Ligon, left a Pa. prison after 68 years"

The first pair of stories relate to this notable new report by the Philadelphia Lawyers for Social Equity titled "Life Without Parole for Second-Degree Murder in Pennsylvania: An Objective Assessment of Sentencing."

February 13, 2021 in Clemency and Pardons, Data on sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 09, 2021

New California Committee on the Revision of the Penal Code issues report urging sweeping sentencing reforms

As reported in this local article, headlined "California Commission Recommends Ending Mandatory Minimum Sentences," a notable new government body in the Golden State is recommending an array of notable new sentencing reforms.  Here are the basics:

A newly formed state commission is recommending that California end mandatory minimum sentences for nonviolent crimes and allow judges to reconsider all criminal sentences after someone has spent 15 years in prison.

Those are two of the 10 recommendations laid out in an 89-page report by the Committee on Revision of the Penal Code, which is charged with examining California’s criminal sentencing laws and recommending changes.

Among their findings: That the state’s legal system has racial inequality at its core and that many laws are outdated, unsupported by data and don’t make the public more safe. "We really tried to do a complete survey of punishments in California from driving infractions, all the way to life in prison," said commission Chair Mike Romano, who runs the Three Strikes Clinic at Stanford Law School.

"What we found is that California has an unbelievably bloated criminal legal system and that there are a tremendous number of people who are serving punishments that are unnecessary in terms of enhancing public safety, in fact quite the opposite," he said.

The group heard from a wide range of experts, including every major law enforcement group in the state, current and former prosecutors and judges and state officials. The commission learned that California is spending $83,000 a year to lock up each prisoner, for a total of $16 billion. Yet the report also details evidence that California is enjoying the lowest crime rates since statewide tracking began in 1969, even as the state has enacted laws that reduce the number of people incarcerated.

“Aspects of California’s criminal legal system are undeniably broken," the report states. “The current system has racial inequity at its core," the commission wrote, adding that inequality may be worse than imagined as "people of color are disproportionately punished under state laws.”

The group is made up of legal experts and two state lawmakers. There are 10 recommendations in its inaugural report — all focusing on changes that could be made by the Legislature, without going to voters.

The full report is available at this link, and here is its executive summary:

When the Legislature and Governor Gavin Newsom established the Committee on Revision of the Penal Code, California launched its first concerted effort in decades to thoroughly examine its criminal laws. The Legislature gave the Committee special data-gathering powers, directing it to study all aspects of criminal law and procedure and to make recommendations to “simplify and rationalize” the state’s Penal Code. This is the Committee’s first report, and it details 10 reforms recommended unanimously by Committee members. Our recommendations span California’s entire criminal legal system, ranging from traffic court to parole consideration for people serving life sentences. If enacted, these reforms would impact almost every person involved in California’s criminal system and, we believe, measurably improve safety and justice throughout the state.

Our recommendations follow a year of studying California’s criminal punishments. We were guided by testimony from 56 expert witnesses, extensive public comment, staff research, and over 50 hours of public hearings and Committee deliberation. We believe the recommendations represent broad consensus among a wide array of stakeholders, including law enforcement, crime victims, civil rights leaders, and people directly impacted by the legal system. The report contains extensive support for each recommendation, including empirical research, experiences from other jurisdictions, and available data on California’s current approach to these issues.

The recommendations are: 

  1.  Eliminate incarceration and reduce fines and fees for certain traffic offenses.
  2.  Require that short prison sentences be served in county jails. 
  3.  End mandatory minimum sentences for nonviolent offenses.
  4.  Establish that low-value thefts without serious injury or use of a weapon are misdemeanors.
  5.  Provide guidance for judges considering sentence enhancements.
  6.  Limit gang enhancements to the most dangerous offenses.
  7.  Retroactively apply sentence enhancements previously repealed by the Legislature.
  8.  Equalize custody credits for people who committed the same offenses, regardless of where or when they are incarcerated.
  9.  Clarify parole suitability standards to focus on risk of future violent or serious offenses.
  10.  Establish judicial process for “second look” resentencing.

February 9, 2021 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, January 31, 2021

Prison Policy Initiative sets out long list of "Winnable criminal justice reforms" for state systems

Prison Policy Initiative has produced this effective ten-page document titled "Winnable criminal justice reforms: A Prison Policy Initiative briefing on promising state reform issues for 2021."  I count well over two dozen notable suggested reforms on the list, each of which comes with helpful links and additional information.  Check out the whole document, and here are two of the many sentencing items to whet appetites:

Make it easier to change excessive prison sentences

Problem: Nationally, one of every six people in state prisons have been incarcerated for a decade or more. While many states have taken laudable steps to reduce the number of people serving time for low-level offenses, little has been done to bring relief to people needlessly serving decades in prison.

Solutions: State legislative strategies include: enacting presumptive parole, second-look sentencing, and other common-sense reforms, such as expanding “good time” credit policies. All of these changes should be made retroactive, and include people convicted of both violent and nonviolent offenses.

Example bill: The Second Look Act of 2019 https://www.congress.gov/bill/116th-congress/senate-bill/2146, which proposed to allow people to petition a federal court for a sentence reduction afer serving at least 10 years.

More information: See our reports Eight Keys to Mercy: How to shorten excessive prison sentences https://www.prisonpolicy.org/reports/longsentences.html and Reforms Without Results: Why states should stop excluding violent offenses from criminal justice reforms https://www.prisonpolicy.org/reports/violence.html.

Repeal or reform mandatory minimum sentences and automatic “sentencing enhancements”

Problem: Mandatory minimum sentences and similar automatic sentencing structures like “sentencing enhancements” have fueled the country’s skyrocketing incarceration rates, harming individuals and undermining our communities and national well-being, all without significant increases to public safety.

Solutions: The best course is to repeal these laws so that judges can craft sentences to fit the unique circumstances of each crime and individual, but where that option is not  possible, states should adopt sentencing “safety valve” laws, which give judges the ability to deviate from the mandatory minimum under specified circumstances.

Model and example bills: Several examples of state and federal statutes are included in Families Against Mandatory Minimums’ (FAMM) Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money https://famm.org/wp-content/uploads/State-Safety-Valve-Report-Turning-Off-the-Spigot.pdf; see also American Legislative Exchange Council’s (ALEC) Justice Safety Valve Act https://www.alec.org/model-policy/justicesafety-valve-act/

More information: See FAMM’s Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money and our Geographic Sentencing Enhancement Zones page https://www.prisonpolicy.org/zones.html.

January 31, 2021 in Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Sunday, January 24, 2021

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

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

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

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

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

Download McDonel opinion

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

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

Download Nafkha Grant

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

Sunday, January 03, 2021

Interesting account of folks in Washigton state having second thoughts about three-strikes sentences

This lengthy new local article, headlined "New laws lead some Washington prosecutors to rethink three-strike life sentences," is an interesting review of efforts to review extreme sentences in the Evergreen State. Here are some excerpts from the piece:

Following the law enforcement killing of George Floyd, policing has grabbed the lion’s share of attention when it comes to reforming criminal justice. Yet, statistics reveal stark racial disparities in who goes to prison, and for how long.

In Washington, there is probably no greater example than the three-strikes law approved by voters in 1993 — the nation’s first and an embodiment of the tough-on-crime era, designed to ensure “persistent offenders” would never be free to commit more crimes.  Judges are required to hand down life sentences to repeat offenders of a wide array of crimes, from murder and rape to robbery and assault, and every year, more men and women are sentenced under the law.

While a majority of three-strikes prisoners are white, ... Black people, representing about 4% of the state’s population, account for 38% of 289 current three-strikes prisoners sentenced in Washington (including eight transferred to other states), according to the most comprehensive data released to date by the Department of Corrections (DOC), provided to The Seattle Times in December.  An additional six of 16 people who died in prison while serving three-strikes sentences were Black....

Ever since three strikes was enacted, people have argued about whether those it targets deserve their fate.  And yet, it has been surprisingly hard to track what crimes they committed.  The state stopped reporting the records of three strikes prisoners after 2008 and only recently resumed.

But a Seattle Times analysis of DOC data for the 289 current three-strikes prisoners shows more than half, 155 people, received a life sentence after assault, burglary, robbery or drug-related convictions triggered the third and final strike. Some previously committed more severe crimes.  About half of current three-strikes prisoners have murder, manslaughter or sex crimes on their record.

January 3, 2021 in Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Saturday, December 19, 2020

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

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

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

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

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

Sunday, November 08, 2020

"What Biden’s Win Means for the Future of Criminal Justice"

The title of this post is the headline of this extended new piece from The Marshall Project, which begins this way:

During his presidential campaign, Joe Biden promised to end private prisons, cash bail, mandatory-minimum sentencing and the death penalty.  Candidate Biden also said the U.S. could reduce its prison population by more than half.  While he didn’t put forward as progressive or as detailed a platform as many of his competitors for the Democratic nomination (including his running mate Kamala Harris), Biden has nevertheless, quietly, been elected on the most progressive criminal justice platform of any major party candidate in generations.  So what can he actually do?

Biden will face the same constraints as all incoming presidents after a campaign of big promises.  Government moves slowly, time and political capital are limited, and his administration will likely need to prioritize the pandemic and the related economic fallout in the early days.  But if he’s serious about tackling criminal justice, here’s what experts say to expect from the Biden administration on key issues.

I recommend checking out the full lengthy discussion, and here are snippets from a few of its sentencing pieces:

The Death Penalty

Biden can’t unilaterally end the death penalty, but he can speed up its demise and use symbolism to signal a new era.  Ultimately, the death penalty is symbolic. It has never been used to punish more than a tiny fraction of the most serious murders, but it makes very long prison sentences appear lenient by comparison.

On the campaign trail, Biden said he’d work to end the federal government’s use of the death penalty.  His record is mixed.... Although only Congress can fully abolish the federal death penalty, the president can do a great deal to speed its yearslong decline across the country.  Trump’s attorney general, William Barr, oversaw the most federal executions of any presidential administration since Eisenhower.  A new attorney general could stop them immediately, and return to the Obama-era practice of seeking no executions. A new attorney general could tell U.S. attorneys to only seek new death sentences for rare crimes like terrorism and mass shootings, which would still apply to defendants like Charleston church shooter Dylann Roof and Boston Marathon bomber Dzhokar Tsarnaev.... — Maurice Chammah

Mandatory Minimums

Biden has said he wants to eliminate mandatory minimum sentences, a legacy of the tough-on-crime ’80s.  To make this happen at the federal level, he’d need to appoint a range of officials who share this view, and get buy-in from Congress....

Biden’s criminal justice platform pledges to eliminate federal mandatory minimums.  Biden hasn’t specified which ones, but advocates say if he does tackle them, he will likely focus on drug crimes.  There are more than 60,000 people currently serving mandatory minimum sentences in federal prison, according to the U.S. Sentencing Commission. 10,000 entered the system last year alone.  A broad clemency effort or a law change, if it were retroactive, could reduce the federal prison population by a quarter almost overnight.

Repealing mandatory minimums — or passing a “safety valve” law that doesn’t repeal them but gives judges the discretion to sidestep them — would require an act of Congress. Part of the problem, say scholars who study the issue, are the Attorney General and the Department of Justice, whose opinions carry a lot of weight with Congress.  So the first step a President Biden could take to signal his commitment to repealing mandatory minimums is to appoint officials who share his view, says Rachel Barkow, a law professor at NYU and a former member of the U.S. Sentencing Commission, which helps draft federal sentencing guidelines.  An Attorney General who is skeptical of mandatory minimums could also instruct federal prosecutors to use them judiciously, as Eric Holder did in 2013.... — Beth Schwartzapfel

Clemency

Biden has lots of power to revamp and supercharge the clemency process — but he hasn’t given much indication that he intends to use it. Clemency, which includes reversing criminal convictions (pardons) and shortening sentences (commutations), is the president’s most direct means to reduce incarceration. Biden made no bold promises on these topics during the campaign. He has promised to “broadly use his clemency power for certain non-violent and drug crimes,” as Obama did at the end of his administration....

Biden could ask Harris to take the lead on clemency since she laid out a more detailed plan than his own during the Democratic primary. Harris said she would remove clemency decisions from the Department of Justice and open a federal sentence review unit, where a team of lawyers would be exclusively tasked with reviewing old sentences and considering reductions.... — Jamiles Lartey

Private Prisons

Biden can move the 14,000 federal prisoners currently held in private facilities without too much struggle. After that it gets harder.  Biden and Harris both pledged to end the federal government’s use of private prisons during the 2020 campaign, a position that is extremely popular among Democrats partywide.  Experts say the incoming administration is likely to build on guidance issued under the Obama administration in 2016, rescinded by Trump, that encourages the director of the Bureau of Prisons to stop renewing contracts with private facilities when they expire, in an effort to ultimately phase out their use.... — Jamiles Lartey

Reducing The Prison Population

Biden can’t implement new programs or rewrite outdated sentencing laws at the state level.  But he can use federal funding to send a message.  Crime prevention is a central feature of Biden’s criminal justice plan.  He has pledged to set aside $20 billion in federal funding to states that adopt evidence-based crime prevention programs and that opt for diversion programs over incarceration....

Under Biden’s plan, states would have access to federal funding if they agreed to implement programs designed to keep people out of prison.  The funding comes with some stipulations: States must eliminate mandatory minimums and they must create earned credit programs for people currently serving time.  It’s unclear what kinds of programs states could or should adopt in order to get the funding.  Biden has emphasized the need for states to invest in programs that address several underlying drivers of crime such as illiteracy and limited early education.  Congress would have to enact Biden’s plan.  — Nicole Lewis

Though indirectly mentioned in the Mandatory Minimum section, I am a bit disappointed that appointments to the US Sentencing Commission is not mentioned. The USSC, with the right appointees, could provide to be a particularly important and consequential agency at a moment in which implementation of the FIRST STEP Act is really still just getting started and during which other legislative reforms are being widely discussed.

November 8, 2020 in Criminal justice in the Biden Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Tuesday, November 03, 2020

Listening to today's SCOTUS oral argument in two big sentencing cases

The year 2020 has been remarkable for so many reasons, and this morning it means for me a focus on the Supreme Court rather than on voting on this historic 2020 Election Day.  This is because I already voted early (about two weeks ago, in fact), and COVID realities mean that oral arguments are now available in real time.  And because SCOTUS this morning just happens to be hearing its two biggest sentencing cases on the docket, I plan to listen in live.  Here are the basics thanks to SCOTUSblog with links to where all can listen:

Jones v. Mississippi, 18-1259 

Issue: Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

 LISTEN to Jones HERE

 

Borden v. United States, 19-5410

Issue: Whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.

LISTEN to Borden HERE

November 3, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, October 22, 2020

Some notable (and mostly heartening) criminal justice discussion in final Prez debate of 2020

Few months ago in this post I wished that we could somehow arrange for one of the then-planned Prez debates to be entirely about criminal justice issues.  Of course, that did not happen (and only two of the three planned debates even happened).  Still, during the final Prez debate of this election cycle, criminal justice issues received more discussion than in any other Prez debate in recent memory, and I am tempted to call the discussion heartening for a variety of reasons.

For starters, Prez Trump bragged repeatedly about his role in achieving "criminal justice reform and prison reform," and he also criticized former VP Biden for his past role in enacting federal criminal justice legislation in the 1980s and 1990s that "put tens of thousands of mostly Black young men in prison."  It was not that long ago that candidates were regularly competing to claim they were tougher than their opponents, but tonight Prez Trump assailed Biden for his tough-on-crime past while claiming credit for most progressive federal criminal justice reform in a generation (the FIRST STEP Act).

Meanwhile, VP Biden stated that the drug offense part of federal criminal legislation in the 1980s and 1990s was "a mistake," and he bragged that during the Obama administration "38 thousand prisoners [were] released from federal prison [and] over 1000 people given clemency."  And even more notable was Biden's plain statement that "there should be no minimum mandatories in the law."  Again, it was not that long ago that politicians were eager to brag about enacting mandatory minimums and about putting more people in prison.  Now the talking points focus on releasing prisoners and the pledge it to repeal mandatory minimums.

For these reasons and others, I remain mildly optimistic that we will see some measure of progress on some kind of follow up to the FIRST STEP Act or some other form of criminal justice reform in the coming years no matter who prevails in the coming election.  But I think the scope and contents of reform will surely look a look different, and the pace and implementation of any reform will surely transpire a lot differently, depending on who is in the White House and who is in charge in Congress.  Interesting times.

October 22, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

Wednesday, September 09, 2020

New report details racial disparities in every stage of the Massachusetts criminal justice system

Via email I received word of this notable new report released today by the Harvard Law School Criminal Justice Policy Program (CJPP) titled simply "Racial Disparities in the Massachusetts Criminal System."  Here is a brief account of the 100+-page report and its findings from the text of the email that I received:

People of color are drastically overrepresented in Massachusetts state prisons.  According to the Massachusetts Sentencing Commission’s analysis of 2014 data, the Commonwealth significantly outpaced national race and ethnicity disparity rates in incarceration, imprisoning Black people at a rate 7.9 times that of White people and Latinx people at 4.9 times that of White people.

In an attempt to better understand the sources of these disparities, Chief Justice Ralph D. Gants of the Supreme Judicial Court of Massachusetts asked Harvard Law School to research racial disparities in the Massachusetts criminal system.

CJPP collected administrative data from several criminal justice agencies, analyzing over 500,000 cases. In our report, we detail the results of our analysis of every stage of the criminal process. Our findings include:

  • Black and Latinx people are overrepresented in the criminal system.  Although Black people make up only 6.5% of the state’s population, African Americans are the subjects of 17.1% of criminal court cases. Similarly, Latinx people constitute only 8.7% of the Massachusetts population but 18.3% of the cases.  By contrast, White people, who make up roughly 74% of the Massachusetts population, account for only 58.7% of cases in the criminal system.
  • Black and Latinx people sentenced to incarceration in Massachusetts receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer and Latinx people receiving sentences that are an average of 148 days longer.
  • Racial and ethnic differences in the type and severity of initial charge account for over 70 percent of the disparities in sentence length, overshadowing all other factors, including defendants’ criminal history and demographics, court jurisdiction, and neighborhood characteristics.
  • Among the subset of cases where the person was sentenced to incarceration in a state prison (i.e. cases involving charges that carry the longest potential sentences and where the racial disparity is largest), Black and Latinx people are convicted of charges roughly equal in seriousness to their White counterparts despite facing more serious initial charges and longer sentences.
  • Black and Latinx people charged with drug offenses and weapons offenses are more likely to be incarcerated and receive longer incarceration sentences than White people charged with similar offenses. This difference persists after controlling for charge severity and other factors.

September 9, 2020 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Tuesday, July 07, 2020

New BREATHE Act proposes, among lots and lots of reforms, eliminating federal mandatory minimums and life sentences

As reported in this new AP piece, headlined "Movement for Black Lives seeks sweeping legislative changes," a big new federal criminal justice reform bill includes some big new ideas for sentencing reform. Here are some of the details:

Proposed federal legislation that would radically transform the nation’s criminal justice system through such changes as eliminating agencies like the Drug Enforcement Administration and the use of surveillance technology is set to be unveiled Tuesday by the Movement for Black Lives.

Dubbed the BREATHE Act, the legislation is the culmination of a project led by the policy table of the Movement for Black Lives, a coalition of more than 150 organizations.  It comes at an unprecedented moment of national reckoning around police brutality and systemic racism that has spurred global protests and cries for change after several high-profile killings of Black Americans, including George Floyd....

The legislation was first shared with The Associated Press, and is scheduled to be revealed in a Tuesday press conference that is slated to include an appearance by singer John Legend.  The proposed changes are sweeping and likely to receive robust pushback from lawmakers who perceive the legislation as too radical.

University of Michigan professor and criminal justice expert Heather Ann Thompson acknowledged the uphill battle, but noted that that the legislation is being introduced at a highly opportune time.  “I think those programs that they’re suggesting eliminating only look radical if we really ignore the fact that there has been tremendous pressure to meaningfully reform this criminal justice system,” said Thompson, author of “Blood in the Water.”...

No members of Congress have yet said they plan to introduce the bill, but it has won early support among some of the more progressive lawmakers, including Ayanna Pressley and Rashida Tlaib, who also are due to participate in the news conference.

The bill is broken into four sections, the first of which specifically would divest federal resources from incarceration and policing.  It is largely aimed at federal reforms because Congress can more easily regulate federal institutions and policy, as opposed to state institutions or private prison facilities.  The other sections lay out a detailed plan to achieve an equitable future, calling for sweeping changes that would eliminate federal programs and agencies “used to finance and expand” the U.S. criminal-legal system.

The elimination would target agencies such as the Immigration and Customs Enforcement, which has come under fire in recent years for its aggressive deportation efforts, and lesser-known programs such as Department of Defense 1033, which allows local law enforcement agencies to obtain excess military equipment.  The act, which also seeks to reduce the Department of Defense budget, would institute changes to the policing, pretrial detention, sentencing and prosecution practices...

It would establish the Neighborhood Demilitarization Program, which would collect and destroy all equipment like military-grade armored vehicles and weapons in the hands of local, state, and federal law enforcement agencies by 2022.  Federal law enforcement also would be unable to use facial-recognition technology, which many communities across the nation already have banned, along with drones and forms of electronic surveillance such as ankle-monitoring.

The bill would end life sentences, abolish all mandatory minimum sentencing laws and create a “time bound plan” to close all federal prisons and immigration detention centers....

The bill would direct Congress to establish a Community Public Safety Office that would conduct research on non-punitive, public safety-focused interventions that would be funded through new grants, and programs like a “Free Them All” Matching Grant Program offering a 50% federal match for projected savings when states and communities close detention facilities, local jails, and state or youth prisons.

According to the document, it also would bring about numerous changes for parents and children, such as removing police, school resource officers and other armed security and metal detectors from schools.

I suspect that there is little chance that this entire piece of legislation advances in Congress anytime soon, but there may well be a chance that some pieces of this big bill could get incorporated into other proposals. Even if just a statement of aspirations, this new bill is noteworthy and could prove to be quite significant.

July 7, 2020 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Friday, July 03, 2020

Effective review of the 1994 Crime Bill's complicated legacy

USA Today has this effective new piece about the impact and import of the 1994 Crime Bill under the headline "Fact check: 1994 crime bill did not bring mass incarceration of Black Americans."  I recommend the whole thing, and here are excerpts:

The 1994 crime bill, signed by President Bill Clinton, was a grab-bag of crime-fighting measures, ranging from three-strike provisions mandating a life sentence for repeat offenders and funding for states to hire 100,000 additional police officers, to a Violence Against Women Act.

As chairman of the Judiciary Committee, then-Sen. Joe Biden drafted the bill, known formally as the Violent Crime Control and Law Enforcement Act of 1994, which was billed by Democrats as a major crackdown on crime....

Lauren-Brooke Eisen, director of the Justice Program at the Brennan Center for Justice, a nonpartisan law and policy think tank, says one of the most significant and long-lasting impacts of the legislation was the enticement to states to build or expand correctional facilities through the Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants Program....

Marc Mauer, executive director of The Sentencing Project, a campaign to end life imprisonment, told USA TODAY that the 1994 crime bill certainly encouraged the use of expanded incarceration by providing funding to the states for prison construction.  But he added that "mass incarceration was already well under way prior to the adoption of that legislation."...

Regarding mass incarceration of Black Americans, the issue plays out against the reality of longstanding racial disparities in imprisonment rates....  A report on "Racial Disparity in U.S. Imprisonment across States and Over Time," published in the Journal of Quantitative Criminology in 2019, found that a large increase in Black imprisonment is traceable in many states to the crack epidemic in the mid-1980s.

This disparity, the report says, began to ease starting in the 1990s.  "Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment," the report said....

Our research finds that while the crime bill did increase the prison population in states, it did not bring about a mass incarceration relative to earlier years.  Rather, it coincided with a slowdown in the annual grown of the state and federal prison population. Nor did it bring about mass incarceration of Black people, compared to before the bill was passed.

This USA Today piece references and links to some effective research on this topic, although it does not mention the papers recently published by the Council of Criminal Justice on this topic (one of which I authored).  These CCJ papers provide a similar accounting of the impact of the 1994 Crime Bill:

July 3, 2020 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

Thursday, July 02, 2020

"How Mandatory Minimums Are Weaponized"

The title of this post is the headline of this effective new opinion piece in the New York Times authored by Sandeep Dhaliwal. I recommend the piece in full and here are excerpts:

In the early morning hours of May 30, Colinford Mattis and Urooj Rahman were arrested in Brooklyn after a night of citywide protests in response to the killing of George Floyd.  They are charged with throwing a Molotov cocktail through the broken window of an unoccupied police car.  No one was hurt.  Both have plead not guilty, but if they are convicted of the array of federal charges leveled against them, there will be no judging involved when they are sentenced: They will face mandatory sentences of 45 years in prison.

Their story is just one example of how many senseless mandatory minimum penalties — blind to the facts of a case and the stories of the individual defendants — remain enshrined in law and must be changed....

At a time when progress is being made to address policing, the prosecution of Mr. Mattis and Ms. Rahman is a sobering reminder of other, deeply ingrained injustices in our systems of punishment. Even after modest improvements made by the 2018 First Step Act, the penalties for criminal activity are too often draconian, and prosecutors are too often keen to invoke them not because the defendants deserve the severity but to coerce them to plead guilty.  Reforms to eliminate mandatory minimums and rein in prosecutorial overreaching are vital to comprehensively reforming our overly punitive criminal justice systems, whose excessive harshness disproportionately affects communities of color....

Mandatory minimums grew popular in the 1970s and 1980s, as Congress and many states began adopting them for a slew of crimes — the biggest category being drug crimes.  Proponents said they were designed to deter the most serious types of criminal conduct.  But the penalties were inflexibly harsh, and it quickly became clear that many low-level offenders were being swept up and facing grossly excessive sentences.

The laws also suffered from another flaw: They were racist. The most infamous example is that it once took 100 times the amount of powder cocaine as crack cocaine to trigger the same mandatory minimum prison terms.  Other lesser-known examples abound.  People of color are disproportionately affected by mandatory minimums for the simple reason that they are disproportionately arrested and charged with crimes generally....

[T]he 45-year mandatory minimum penalty that Mr. Mattis and Ms. Rahman face is part of an all too familiar pattern of prosecution.  The goal is to coerce people to plead guilty to charges carrying harsh sentences in exchange for the dismissal of charges that mandate unconscionable ones.

The message that prosecutors send to them and to so many other defendants is clear: If you consider exercising your fundamental right to trial, we will seek penalties that are so excessive that you will think twice, because we have the power to take sentencing authority away from the judiciary.

When this regime of mandatory minimums began more than 30 years ago, 20 percent of federal criminal cases were resolved by trial.  Today, fewer than 3 percent are, and more than 97 percent of cases are resolved by pleas.

No rational observer would conclude that Mr. Mattis and Ms. Rahman should spend a majority of their lives behind bars for an alleged act that caused harm to no one.  To put the threat of a 45-year mandatory sentence into some perspective, according to data compiled by the U.S. Sentencing Commission, the median sentence for murder in the Second Circuit from 2015 through 2019 was 16 years.  The extreme 45-year sentences they face are a reminder that real people and families and communities are at the receiving end of these devastating penalties.

As lawmakers in Congress propose sweeping changes to policing spurred by society’s broad awakening to systemic racism, they must also make changes to eliminate federal mandatory minimums, rein in overcharging and help restore the right to trial.

July 2, 2020 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, June 09, 2020

"Prosecutors and Their Legislatures, Legislatures and Their Prosecutors"

The title of this post is the title of this book chapter authored by Russell Gold recently posted to SSRN. Here is its abstract:

This chapter explores the often-pathological relationship between prosecutors and legislatures and considers fiscal pressure as an important antidote to the pathology.  Institutional incentives between prosecutors and legislatures align in a way quite different than the classic separation-of-powers story.  Rather, legislatures are well served to empower prosecutors as much as possible by making criminal law broad and deep.  And with respect to substantive criminal law, prosecutors have been enormously empowered.  Prosecutors are not merely passive recipients of such power but indeed actively lobby for it — often quite successfully. 

But fiscal pressures can provide a cross-cutting pressure for legislatures, particularly at the state level where many governments must balance their budgets.  Thus, sentencing law sometimes finds legislatures refusing prosecutors’ requests for ever longer or mandatory minimum sentences because longer sentences are expensive; this is especially true where sentencing commissions provide legislatures with meaningful data on costs of particular proposals. 

Criminal procedure has recently found progressive prosecutors leading the way toward defendant-friendly reforms such as using unaffordable cash bail less frequently and providing defendants with more discovery than is required by law.  In these spaces, county prosecutors have provided laboratories of experimentation that led the way toward broader statewide reforms.

June 9, 2020 in Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Sunday, June 07, 2020

An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration

According to this recent Hill article, headlined "Pelosi: Democrats to unveil sweeping criminal justice proposal Monday," a federal criminal justice bill is in the works that may go beyond police reforms.  Here are the basics:

Democrats on Monday will introduce wide-ranging legislation designed to combat racial inequities in the criminal justice system, Speaker Nancy Pelosi (D-Calif.) announced Thursday.  The much awaited package, currently being crafted by members of the Congressional Black Caucus (CBC), will feature provisions designed to eliminate racial profiling, rein in the excessive use of police force and repeal the so-called qualified immunity doctrine for law enforcers, which protects individual officers from lawsuits over actions they perform while on duty.

"We will not relent until that is secured — that justice is secured," Pelosi told reporters in the Capitol.  Yet the package will go far beyond that, Pelosi suggested.... Aside from the criminal justice elements of the Democrats' legislation, Pelosi said the package would also include provisions designed to raise the status of African Americans outside of the criminal justice system as well. "It is about other injustices, too. It's about health disparities, it's about environmental injustice, it's about economic injustice, it's about educational injustice," Pelosi said. 

This Politico piece suggests the developing bill is primarily focused on police reforms.  But if Congress has an interest, as I think it should, in broader criminal justice reforms to advance greater equity and justice, I have many suggestions.  Let's get started with some basic federal sentencing reforms:

1. Equalize crack and powder cocaine sentencing (finally!) Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 (a full quarter century ago!) sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a bew 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

As the USSC said in 1995 and as DOJ recognized in 2009, crack cocaine and powder cocaine are functionally the same drug save for the fact that Blacks are far more likely to be prosecuted federally for the former.  The crack/powder cocaine sentencing disparity has long been the most tangible and consequential example of structural sentencing racism, and the Minnesota Supreme Court decades ago found a lesser disparity to be unconstitutional under its state constitution.  This ugly stain still impacting thousands of Black federal defendants needs to be wiped out once and for all.

2. Repeal federal mandatory minimumsEven before its important work highlighting racial biases in the application of federal cocaine penalties, the USSC began noting the racial inequities in the application of federal mandatory minimum statutes.  In its 1991 report, the USSC noted early data showing "disparate application of mandatory minimum sentences [which] appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum."  In its 2011 report, the USSC again documented with copious data the various ways that the effects of severe mandatory minimum sentencing provisions "fall on Black offenders to a greater degree than on offenders in other racial groups."

One need not rely on USSC data to see clear evidence of racial disparities in the application of federal mandatory minimum.  M. Marit Rehavi and Sonja B. Starr found that federal prosecutors are almost twice as likely to file charges carrying mandatory minimum sentences against Black defendants.  Similarly, Crystal Yang found that "Black offenders are far more likely to be charged with mandatory minimums than similar white offenders, and after Booker, black defendants are significantly more likely to face mandatory minimums that exceed their Guidelines minimum compared to white defendants."

Critically, mandatory minimums have all sorts of flaws, both in theory and in practice, that justify their repeal on a number of bases beyond advancing greater racial equity.  But, as is too often the case throughout criminal justice systems, a bad law for everyone often gets applied in a way that is especially inequitable and unjust for people of color.  All federal mandatory minimums ought to be repealed.

3. Create a federal expungement statute. Having a criminal record severely limits access to employment, education, housing, civic engagement, and public assistance.  As highlighted by a recent US Commission on Civil Rights report on collateral consequences, "People of color are more likely to be arrested, convicted, and sentenced more harshly than are white people, which amplifies the impact of collateral consequences on this population."

An encouraging recent study by Sonja B. Starr and J.J. Prescott involving expungements in Michigan over the course of decades found that expungement recipients had extremely low subsequent crime rates and saw a sharp upturn in wages and employment levels.  Sounds like a win-win, and ever more states are each year expanding and enhancing mechanisms for record relief.  But there is currently no general federal expungement or record sealing statute, and federal courts have no inherent authority to expunge records.  Congress should again follow the wise lead of the states by creating a robust expungement statute ASAP.

Critically, these three suggestions are really just low-hanging fruit for criminal justice reforms in the sentencing space that would obviously and easily advance greater equity and justice for all.  There are plenty of other important structural changes I would also like to see in the name of racial justice ranging from eliminating all felon disenfranchisement to decriminalizing or legalizing marijuana and lots more in between.  Indeed, any kind of wise criminal justice reform is likely to serve as a kind of racial justice reform given the consistently biased operation of our justice systems.  But for now, I will be content to advocate for these three reforms and encourage others to use the comments to indicate what they consider the most urgent forms of reform in this arena.

June 7, 2020 in Collateral consequences, Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Wednesday, May 27, 2020

Council on Criminal Justice releases big new reform report titled "Next Steps: An Agenda for Federal Action on Safety and Justice"

I noted in this post this last summer the notable new group working toward criminal justice reform called the Council on Criminal Justice (CCJ).  I flagged here the CCJ's great set of papers and resources taking a close look at the 1994 Crime Bill (which I had a chance to contribute to as noted here); I also flagged here from December a big CCJ report on "Trends in Correctional Control by Race and Sex."  Today, I am excited to see and report on the CCJ's latest (and arguably most important) work, this big new report titled "Next Steps: An Agenda for Federal Action on Safety and Justice."  This press release provides a useful summary of the report and its major recommendations:

Well before COVID-19 surfaced, the Council on Criminal Justice (CCJ) established an independent task force to chart a course for federal action on criminal justice reform.  The pandemic has underscored the urgency of that effort, and today the Task Force on Federal Priorities released a report detailing 15 achievable, evidence-based proposals for change.  If fully implemented, key recommendations would:

  • Eliminate mandatory minimum sentences for federal drug crimes, reducing the prison population
  • Establish a “second look” provision allowing people serving longer sentences -– many of them elderly and infirm –- to ask courts for a sentence reduction
  • Help formerly incarcerated people succeed by sealing certain criminal records from public view
  • Create independent oversight of the federal prison system to improve conditions for incarcerated people and staff, strengthen reentry planning and other services, and hold employees accountable for misconduct
  • Resolve the federal-state conflict over recreational and medical cannabis by providing federal waivers to states that have legalized it
  • Dedicate millions of grant dollars to reducing victimization and trauma in cities most affected by violence...

The 14-member Task Force was established in June of 2019 to build on federal reforms adopted under the FIRST STEP Act, which passed with strong bipartisan support at the end of 2018.  While crime and incarceration rates have dropped, there is broad agreement across the political spectrum that more must be done to make communities safe and guarantee justice — not just by states and localities, where most criminal justice happens, but also by the federal government, which runs the country’s largest correctional system and helps set the tone of the national conversation.

Through their vigorous deliberations, Task Force members zeroed in on reforms that not only target critical needs, but also are politically viable and hold the potential to make the greatest improvements in safety and the administration of justice. Reflecting the commitment of Task Force members to bipartisan, data-driven solutions, all 15 proposals are accompanied by a policy rationale, detailed implementation steps, and a summary of the research and evidence that support them.

Task Force members represent a broad cross-section of stakeholders: former federal prosecutors and defenders; a former mayor and a veteran police leader; experts in prisoner reentry, substance use, and victim rights; and advocates and formerly incarcerated people. Task Forces are strictly independent of CCJ and solely responsible for the content of their reports.  Members are asked to join a consensus signifying that they endorse the general policy thrust and judgments reached by the group, though not necessarily every finding and recommendation.

Regular readers will not be surprised to hear that I am a big fan of a lot of these recommendations, and I actually like this full list of all 15 recommendations even more than those summarized in the press release. In a few subsequent posts, I hope to give particular attention and scrutiny to the various key sentencing recommendations.  For now I will be content to say, good work CCJ!

May 27, 2020 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Offense Characteristics, Recommended reading, Who Sentences | Permalink | Comments (2)

Wednesday, May 13, 2020

Members of Congress submit amicus brief urging Ninth Circuit to rule FIRST STEP Act provisions lowering mandatory minimums apply at a resentencing

In this post way back in 2018 just a few days after the FIRST STEP Act became law, I took note of the notable provisions in the Act which expressly addressed just which types of offenders should get the benefit of the Act's new statutory sentencing provisions if their cases were already in the criminal justice pipeline.  In that post, I complimented Congress for addressing these issues, but I also noted that some matters left unclear such as whether "a defendant already sentenced earlier in 2018 [who has] his sentence reversed on some other ground and now he faces resentencing [could] get the benefit of any new provisions of the FIRST STEP Act upon resentencing."

Via this new press release, I now see that this resentencing question is before the Ninth Circuit and that a notable group of Senators are seeking to ensure the defendant gets the benefit of the FIRST STEP Act at his resentencing.  Here is the text of the press release:

U.S. Senators Dick Durbin (D-IL), Chuck Grassley (R-IA), and Cory Booker (D-NJ), lead authors and sponsors of the First Step Act — landmark criminal justice reform legislation — today submitted a bipartisan Amicus Brief to the Ninth Circuit Court of Appeals in United States of America v Alan L. Mapuatuli, a case related to the reduction of the second strike and third strike drug mandatory minimums.

The bipartisan Brief argues that Congress intended the First Step Act (FSA) to apply at post-FSA sentencing hearings, including when a defendant is before a court for sentencing after his or her initial sentence was vacated on appeal.  Congress intended to cover these cases by stating that the FSA applies “if a sentence for the offense has not been imposed” as of the FSA’s date of enactment.  However, the Justice Department is litigating the contrary position in United States of America v Alan L. Mapuatuli.

The Members wrote: “… the interpretation advanced by the Executive Branch and adopted by the district court in this case is contrary to Congress’s language and intent.  Reduced to its simplest form, that interpretation assumes that Congress intended to give legal effect to sentences that otherwise are void.  That assumption finds no support in the statutory text, contradicts the fundamental considerations that motivated Congress to enact the First Step Act, and produces inequitable outcomes that undermine the fairness and legitimacy of our criminal justice system.  That unquestionably is not what Congress intended.  For these reasons, amici respectfully submit that the district court’s judgment should be vacated and the case remanded for resentencing in conformity with the First Step Act.”

The full 20-page amicus brief in this matter is available at this link, and I applaud the Senators and their lawyers for urging the Ninth Circuit to ensure that the FIRST STEP Act is given the broad reach that it seems Congress intended and that its text reasonably supports.

May 13, 2020 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 28, 2020

A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns

In recent posts here and here, I highlighted some of the COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) available via Westlaw.  (And, as I keep mentioning, I think these Westlaw listings do not represent all sentence reductions being granted these days).  Though a new week is just getting started (with Westlaw only showing rulings through April 27), I have spotted lots of new grants of sentence reductions since my last posting.  It is heartening to see these rulings from coast-to-coast and lots of places in-between:

United States v. Robinson, No. 18-cr-00597-RS-1, 2020 WL 1982872 (ND Cal. Apr. 27, 2020)

United States v. Gorai, No. 2:18-CR-220 JCM (CWH), 2020 WL 1975372 (D Nev. Apr. 24, 2020)

United States v. Coles, No. 00-cr-20051, 2020 WL 1976296 (CD Ill. Apr. 24, 2020)

United States v. Thorson, No. 5:16-CR-00017-TBR, 2020 WL 1978385 (WD Ky. Apr. 24, 2020)

United States v. Williams, No. 3:17-cr-121-(VAB)-1, 2020 WL 1974372 (D Conn. Apr. 24, 2020)

United States v. Park, No. 16-cr-473 (RA), 2020 WL 1970603 (SDNY Apr. 24, 2020)

United States v. Walls, No. 92-80236, 2020 WL 1952979 (ED Mich. Apr. 23, 2020)

United States v. Jackson, No. 4:14-CR-00576, 2020 WL 1955402 (SD Tex. Apr. 23, 2020)

United States v. Curtis, No. 03-533 (BAH), 2020 WL 1935543 (DDC Apr. 22, 2020)

United States v. Bess, No. 16-cr-156, 2020 WL 1940809 (WDNY Apr. 22, 2020)

United States v. Sanchez, No. 18-cr-00140-VLB-11, 2020 WL 1933815 (D Conn. Apr. 22, 2020)

In addition to this encouraging dozen of sentence reductions grants using § 3582(c)(1)(A) accelerated by COVID concerns, last week also brought a remarkable ruling that focused on pre-COVID concerns.  In United States v. Haynes, No. 93 CR 1043 (RJD), 2020 WL 1941478 (EDNY Apr. 22, 2020), the court granted relief to a fellow who, back in the early 1990s, got 40 years of extra mandatory prison time based on stacked gun charges brought by prosecutors after he turned down a plea deal calling for around an eight-year term.  As the court now explained: "Haynes has served almost 27 of the 46½ years to which he was sentenced.  To put that in context, he has served more than three times the length of the high end of the sentence he would have received had he pled guilty."  With that background and after some extended discussion of relevant precedent, the court added:

The Court readily concludes, on the facts as detailed above — including the brutal impact of Haynes’s original sentence, its drastic severity as compared to codefendant Rivers’s ten-year term, its harshness as compared to the sentences imposed on similar and even more severe criminal conduct today, and the extent to which that brutal sentence was a penalty for Haynes’s exercise of his constitutional right to trial — that the FSA’s elimination of the § 924(c) sentencing weaponry that prosecutors employed to require that sentence is an extraordinary and compelling circumstance warranting relief under § 3582(c).  For an individual like Haynes, with three pre-amended § 924(c) counts in a single indictment, the change spells the difference between thirty years in or out of prison.

I continue to be pleased to see (some) judges recognizing that 3582(c)(1)(A) motions can and should provide a means to correct (some) past unjust federal sentences.  The COVID crisis and the threat it poses to vulnerable prisoners is surely increasing the willingness of judges to review swiftly those past sentences that may no longer serve any sentencing purpose.  But, the sad reality of prison is that it is often bad, even in normal times, for the health of both inmates and the broader community.  Judge (and prosecutors and lawmakers) ought always be carefully checking and double-checking and triple-checking whether the considerable tax dollars used to keep persons incarcerated are sound public safety investments.

Prior recent related posts since lockdowns:

Some (of many) pre-COVID posts on § 3582(c)(1)(A) after FIRST STEP Act:

April 28, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Mandatory minimum sentencing statutes, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, April 08, 2020

"The Misplaced Trust in the DOJ's Expertise on Criminal Justice Policy"

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

In this Review of Professor Rachel Barkow's new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, I address Professor Barkow’s point about law enforcement resisting criminal justice reforms.  I place particular emphasis on the Department of Justice’s (DOJ) and the National Association of Assistant U.S. Attorneys’ (NAAUSA) opposition to nearly any federal criminal justice reform.  Federal prosecutors often claim that they just enforce the law — no more, no less.  But their actions show the contrary.

Through presidential administrations of both parties, the DOJ and the NAAUSA have affirmatively opposed most federal criminal justice reforms on issues involving sentencing, corrections, and clemency.  Oftentimes they weigh in on issues for which their prosecutors have no expertise.  Even worse, they have thwarted the goals of the very presidents they serve, especially if the president sets out to reform the system in ways that infringe on the DOJ’s prerogatives. 

If their opposition to reform were rooted in public safety or fairness, that would be one thing.  But through their lobbying efforts, they often advocate for policies that make it easier for federal prosecutors to charge and incarcerate people — as if that is the only worthy goal of the federal criminal justice system.  And all too often federal policymakers — whether members of Congress, the White House, or the U.S. Sentencing Commission — have listened.  As a result, there are now nearly 4,450 federal statutes and hundreds of thousands of federal regulations carrying criminal penalties, excessively punitive federal sentences, and a federal prison population that has increased by 618 percent since 1980.

April 8, 2020 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Recommended reading, Who Sentences | Permalink | Comments (0)

Monday, March 23, 2020

Ruling 6-3, SCOTUS holds that Due Process does not compel a state to provide a traditional insanity defense in its criminal laws

The Supreme Court this morning handed down its opinion in the fascinating case of Kahler v. Kansas, No. 18-6135 (S. Ct. March 23, 2020) (available here). Justice Kagan authored the opinion of the Court, which starts this way:

This case is about Kansas’s treatment of a criminal defendant’s insanity claim.   In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental illness after conviction to justify either a reduced term of imprisonment or commitment to a mental health facility.  But Kansas, unlike many States, will not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong.  The issue here is whether the Constitution’s Due Process Clause forces Kansas to do so — otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. We hold that the Clause imposes no such requirement.

Notably, in her opinion for the Court, Justice Kagan at various points stresses the fact that defendants in Kansas still can use mental illness matters as mitigating arguments at sentencing. For example:

In sum, Kansas does not bar, but only channels to sentencing, the mental health evidence that falls outside its intent-based insanity defense.  When combined with Kansas’s allowance of mental health evidence to show a defendant’s inability to form criminal intent, that sentencing regime defeats Kahler’s charge that the State has “abolish[ed] the insanity defense entirely." Brief for Petitioner 39....

If a mentally ill defendant had enough cognitive function to form the intent to kill, Kansas law directs a conviction even if he believed the murder morally justified.  In Kansas’s judgment, that delusion does not make an intentional killer entirely blameless.  See Brief for Respondent 40.  Rather than eliminate, it only lessens the defendant’s moral culpability.  See ibid.  And sentencing is the appropriate place to consider mitigation: The decisionmaker there can make a nuanced evaluation of blame, rather than choose, as a trial jury must, between all and nothing. See ibid.

Justice Breyer authored a dissenting opinion, which Justices Ginsburg and Sotomayor joined, and it gets started this way: 

Like the Court, I believe that the Constitution gives the States broad leeway to define state crimes and criminal procedures, including leeway to provide different definitions and standards related to the defense of insanity.  But here, Kansas has not simply redefined the insanity defense.  Rather, it has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.  Seven hundred years of Anglo-American legal history, together with basic principles long inherent in the nature of the criminal law itself, convince me that Kansas’ law “‘offends . . . principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Leland v. Oregon, 343 U.S. 790, 798 (1952) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

I am disinclined to pass judgement on these opinions before I get a chance to read them closely. But because I have long thought that so-called "excuse" defenses like insanity were more properly considered at the sentencing stage than the guilt stage, I am not inherently troubled by the essential of this ruling.  That said, it is worth noting here that if and when a defendant is subject to a severe mandatory minimum sentencing term (as is often the case for more serious crimes), Justice Kagan's assertion that a "decisionmaker [at sentencing] can make a nuanced evaluation of blame"  will not really be accurate.  And so I am going to be eager to try to (over)read Kahler as a statement that allowing a decisionmaker sentencing discretion is an important Due Process consideration (and this principle also finds expression in the Eighth Amendment in cases like Lockett and Miller).

March 23, 2020 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, March 02, 2020

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

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

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

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

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

New questionnaire explores what criminal justice reforms Democratic candidates would prioritize

A couple of helpful folks have made sure I did not miss this new New York Times piece that helps thicken our understanding of what leading Democratic candidates for Prez consider the most pressing of their criminal justice reform proposals. The full headline of the piece provide an ideal teaser: "Quandary for 2020 Democrats: Which Criminal Justice Changes Get Priority?: The Democratic presidential candidates are united in seeking a major overhaul of the criminal justice system, but a new questionnaire asked them to choose what they would do first." I recommend the piece in full, and here is a taste:

Justice Action Network — a bipartisan coalition of bedfellows as strange as the Center for American Progress, a liberal think tank, and Grover Norquist’s Americans for Tax Reform, a conservative group — ... asked the Democratic candidates to identify, for instance, the first criminal justice legislation they would propose, the first executive action they would take, and their top priority among several bills pending in Congress.

Five of the six remaining candidates — all but Representative Tulsi Gabbard of Hawaii — completed the questionnaire, and the Justice Action Network shared their responses with The New York Times....

The candidates all spoke about criminal justice as a matter of racial justice, and most said that was the primary reason they supported an overhaul. They argued unanimously for aggressive new policies, not small steps....

The candidates focused heavily on changes to sentencing, such as reversing harsh mandatory minimums and expanding diversion programs to keep low-level offenders out of jail. Most indicated that a top priority would be to give states financial incentives to reduce incarceration: a direct repudiation of the 1994 crime bill, which gave incentives to increase incarceration....

Criminal justice has become a rare point of bipartisan consensus in recent years, leading to the passage in 2018 of the First Step Act, which expanded early-release programs, increased job training and changed mandatory minimums for nonviolent drug offenses. And that bill, a breakthrough at the time, has now become a floor.

The First Step Act “is now the marker of what a conservative reform is,” said Inimai M. Chettiar, legislative and policy director at the Justice Action Network. “So you see all of these candidates going way beyond that.”

Because most of the candidates support similarly expansive suites of policies, the survey pushed them to do something few politicians want to do: to grapple with the reality that presidents rarely pass an entire agenda in one fell swoop, and to identify the specific components of their plans that they believe will make the biggest difference.

Mr. Sanders and Ms. Warren said their first executive actions on criminal justice would be to end the federal use of private prisons, while Mr. Biden and Mr. Bloomberg said theirs would be to repeal directives from former Attorney General Jeff Sessions that require federal prosecutors to seek the harshest possible penalties.

Asked for their top priority among several bipartisan bills now in Congress, Mr. Biden and Mr. Bloomberg chose the REAL Act, which would let prisoners receive Pell grants for higher education. Ms. Warren’s priority was the Smarter Sentencing Act, which would reduce mandatory minimums for drug possession, while Ms. Klobuchar chose the For the People Act, which would restore voting rights for former prisoners.

March 2, 2020 in Campaign 2020 and sentencing issues, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Wednesday, February 19, 2020

Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under § 3582(c)(1)(A)

As regular readers know, in lots of prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I consider this provision a big deal because I think, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

I have previously flagged here and here and here  and here some notable examples of judges finding notable reasons sufficient to reduce a sentence.  But I have not blogged lately about any recent § 3582(c)(1)(A) rulings because my Westlaw searches have largely turned up only denials rather than grants of these motions.  Thanks to a helpful reader, though, I learned of a notable recent grant in US v. Maumau,  No. 2:08-cr-00758-TC-11, 2020 WL 806121 (D. Utah Feb. 18, 2020) (also available for download below).  This decision, authored by District Tena Campbell, provides an extended, thoughtful review of recent compassionate release jurisprudence and the changes to § 3582(c)(1)(A) brought by the FIRST STEP Act. 

I recommend review of the Maumau ruling in full for anyone working on or thinking about these isssues.  Here are some excerpts from the opinion that help highlight its importance:

Having reviewed all of the above cases, this court joins the majority of other district courts that have addressed this issue in concluding that it has the discretion to provide Mr. Maumau with relief, even if his situation does not directly fall within the Sentencing Commission’s current policy statement. Under the First Step Act, it is for the court, not the Director of the Bureau of Prisons, to determine whether there is an “extraordinary and compelling reason” to reduce a sentence....

As part of the First Step Act, Congress eliminated the consecutive stacking previously required for violations of § 924(c) [which had led to a 55-year sentence for the defendant for crimes committed at age 20]... When considered together, the court is inclined to find that Mr. Maumau’s age, the length of sentence imposed, and the fact that he would not receive the same sentence if the crime occurred today all represent extraordinary and compelling grounds to reduce his sentence.

The United States points out in its opposition that Mr. Maumau’s request is unlike the vast majority of compassionate release requests because he is not suffering from any medical- or age-related physical limitations.  But the fact that such cases are uncommon does not mean that Mr. Maumau’s request must be denied.  First, the lack of such cases is, at least arguably, part of what spurred Congress to pass the First Step Act.... Finally, and perhaps most importantly here, at least one district court has modified a sentence based solely on the First Step Act’s changes to § 924(c) sentencing.... Like the Urkevich court, this court concludes that the changes in how § 924(c) sentences are calculated is a compelling and extraordinary reason to provide relief on the facts present here.

The United States objects to this conclusion because, it notes, Congress could have made its changes to § 924(c) retroactive but it chose not to do so. See Brown, 2019 WL 4942051 at *5.  While this is a relevant consideration, it ultimately has little bearing on the court’s conclusion. It is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis.  As just noted, that is precisely the approach taken by the Urkevich court.

Based on the above, the court concludes that a combination of factors — Mr. Maumau’s young age at the time of the sentence, the incredible length of the mandatory sentence imposed, and the fact that, if sentenced today, he would not be subject to such a long term of imprisonment — establish an extraordinary and compelling reason to reduce Mr. Maumau’s sentence....

Regarding what type of sentence to impose, Mr. Maumau “urge[s] the Court to ... hav[e] him brought to the district, where he can be interviewed by Probation and perhaps have an opportunity to address the Court.” (Def.’s Reply at 1 (ECF No. 1744).)  The court agrees that this is the best way for the court to determine an appropriate sentence modification.

Accordingly, the court sets this matter for a hearing at 2:00 p.m. on April 7th.  At that time, Mr. Maumau and the United States will be permitted to present their arguments regarding what would be an appropriate sentence for Mr. Maumau in light of the above factors.  The court further orders Mr. Maumau, in advance of the resentencing hearing, to meet with the Probation Office, and for the Probation Office to prepare a new Presentence Report that addresses Mr. Maumau’s character, his danger to the public, his likelihood of rehabilitation or recidivism, the type of sentence he likely would have received had he been charged and convicted after the First Step Act had been passed, and any other relevant considerations.

Download Maumau.DistrictCourtOpinion.Feb18.2020

Some (of many) prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

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

Monday, February 03, 2020

US Sentencing Commission publishes latest FIRST STEP/FSA resentencing data

The US Sentencing Commission today released the latest in a series of data reports titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through December 31, 2019 and for which court documentation was received, coded, and edited at the Commission by January 29, 2020.

These new data from the USSC show that 2,387 prisoners have been granted sentence reductions, and that the average sentence reduction was 71 months of imprisonment among those cases in which the the resulting term of imprisonment could be determined.  Though this data is not exact and may not be complete, it still seems sound to state that this part of the FIRST STEP Act, by shortening nearly 2400 sentences by nearly 6 years, has now resulted in over 14,000 prison years saved(!).

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation.  But these latest data show yet again how this small piece has had huge impact that can be measure in lots of years of lots of lives.  And, of course, people of color have been distinctly impacted: the USSC data document that over 91% of persons receiving FSA sentence reductions were Black and more than another 4% were Latinx.

February 3, 2020 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (0)

Saturday, February 01, 2020

Some GOP Senators, fully aware of the mandatory minimum sentence, embrace a form of jury nullification to justify acquittal of Prez Trump

A few month ago in this point, I noted an interesting Second Circuit ruling that precluded a district judge from allowing defense attorneys to argue to jurors that they had nullifcation authority — that is the  power to return a not-guilty verdict in the face of clear guilt because of concerns about the undue sentencing consequences of a guilty verdict.  This ruling came to mind as I read this extended statement from Senator Marco Rubio, which includes these passages:

Voting to find the President guilty would not just be a condemnation of his action. If I vote guilty, I will be voting to remove a President from office for the first time in the 243-year history of our Republic....

That is why six weeks ago I announced that, for me, the question would not just be whether the President’s actions were wrong, but ultimately whether what he did was removable.

The two are not the same.  Just because actions meet a standard of impeachment does not mean it is in the best interest of the country to remove a President from office....

Determining which outcome is in the best interests requires a political judgment — one that takes into account both the severity of the wrongdoing alleged but also the impact removal would have on the nation.

I disagree with the House Managers’ argument that, if we find the allegations they have made are true, failing to remove the President leaves us with no remedy to constrain this or future Presidents.  Congress and the courts have multiple ways by which to constrain the power of the executive.  And ultimately, voters themselves can hold the President accountable in an election, including the one just nine months from now....

I will not vote to remove the President because doing so would inflict extraordinary and potentially irreparable damage to our already divided nation.

This statement by a Senate juror seems to be arguing that, even if President Trump is factually guilty, the mandatory minimum punishment in an impeachment trial of removal is not in the best interest of the country.  Similarly, Senator Lamar Alexander's statement about why he was voting against witnesses seemed to call President Trump's actions inappropriate while suggesting the sanction of removal was not justified for this kind of inappropriate behavior.

I do not mean in any way to fault these Senators' approach to serving as jurors, but rather just seek to highlight in this context the thinking of two fully informed jurors with a concern for proportionate punishment and the broader public interest.  Put another way for sentencing fans, we should be ever mindful of how mandatory minimum sentencing schemes (even one in the US Constitution) will necessarily impact the work of all decision-makers in the administration of justice.  Also, if jury nullification makes sense in the trial of a President, why not for everyone else?

February 1, 2020 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, January 22, 2020

Council on Criminal Justice releases new papers on "Federal Sentencing Provisions of the 1994 Crime Bill"

Sentencing_Report_LinkI noted in this post this past summer the notable new group working toward criminal justice reform called the Council on Criminal Justice.  In September, I flagged in this post that the Council on Criminal Justice had gotten started on a great new set of  papers and resources taking a close look at the 1994 Crime Bill.  The first two paper in the series, Overview and Reflections by Richard Rosenfeld and Impacts on Prison Populations by William Sabol and Thaddeus Johnson, both provided terrific perspectives and details on the import and impact of the 1994 Crime Bill.

I am now very pleased to report that the third paper in this series has been published under the title "Tough and Smart: Federal Sentencing Provisions of the 1994 Crime Bill."  If you click through to the full paper, you can see that one of the reasons I am pleased to see it published is because I am its author.  I was very honored to get a chance to work with the CCJ team on this project, and all the folks involved with CCJ were quite effectively invested in helping me work through the various complicated federal sentencing stories that emerged from the 1994 Crime Bill.

I recommend that interested persons read this piece in full, as there are lots of intricacies to this story that I was only able to partially capture in what is meant to be a short read.  The start and end of the piece provides a hint of its essential points:

When President Bill Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 (the Crime Bill), he called it the “toughest and smartest crime bill in our history.” Enhancing penalties across a wide range of offenses, the Crime Bill included many provisions that not only justified the “tough” label, but also fueled “get-tough” rhetoric and behavior by federal, state, and local officials nationwide.  This well-known legacy, however, obscures what may be one of the most consequential sentencing provisions in this massive law — a “smart” sentencing section that has allowed tens of thousands of people convicted of drug crimes to avoid certain severe mandatory minimum terms enacted by Congress in the 1980s....

Reflecting the “tough-on-crime” attitudes of the times, some federal lawmakers criticized the Crime Bill as not tough enough despite its many punitive elements. Just weeks after passage of the landmark legislation, Republican lawmakers introduced the Contract with America, which included a promise to adopt a Taking Back Our Streets Act within the first 100 days of what signers hoped would be a Republican-held Congress.  This pursuit of even harsher penalties and even more federal funding for prison construction than what was authorized in the Crime Bill was not surprising; in fact, such calls reflected much of the political and policy thinking of the time — on both sides of the aisle.  In this era, talking tough was widely seen not only as essential to success at the ballot box, but also as the sound policy response to all crime concerns.

While the spirit and text of the Crime Bill focused on a tougher approach to crime and punishment, its sentencing provisions with among the greatest tangible impact were those that enabled people convicted of lower-level drug offenses to receive less severe sentences, and laid the foundation for future crack cocaine sentencing reforms.  Despite that often overlooked reality, the Crime Bill fostered and reinforced tough-on-crime attitudes in Washington and among state and local criminal justice officials that contributed to historic growth in national prison populations.

January 22, 2020 in Data on sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (0)

Sunday, January 05, 2020

Notable reform perspectives via Brennan Center

Over at the Brennan Center for Justice are these two notable new criminal justice reform pieces:

January 5, 2020 in Mandatory minimum sentencing statutes, Recommended reading | Permalink | Comments (0)

Thursday, December 19, 2019

Split Second Circuit panel grants feds request for mandamus to preclude a jury nullification instruction in child porn case involving 15-year mandatory minimum

A helpful reader made sure I did not miss this How Appealing post flagging the fascinating split Second Circuit panel ruling yesterday in US v. Manzano, No. 18-3430 (2d Cir. Dec. 18, 2019) (available here).  The start of the majority opinion sets forth the basics:

Respondent Yehudi Manzano stands charged with production of child pornography, an offense punishable by a mandatory minimum term of fifteen years’ imprisonment, and transportation of child pornography, which is punishable by a mandatory minimum term of five years’ imprisonment.  Shortly before trial, he filed motions requesting permission to argue for jury nullification — in essence, that the jury should render a verdict not in accordance with the law — and to present evidence regarding the sentencing consequences of a conviction in this case.  On the eve of trial, the district court (Underhill, Chief Judge) granted Manzano’s request to argue jury nullification, but reserved decision on the admissibility of evidence regarding the sentencing consequences of a conviction.

The government now seeks a writ of mandamus directing the district court to (1) preclude defense counsel from arguing jury nullification, and (2) exclude any evidence of sentencing consequences at trial.  Applying settled law in this circuit, we hold that the government has a clear and indisputable right to a writ directing the district court to deny defense counsel’s motion for leave to argue jury nullification, and that the other conditions for mandamus relief are satisfied.  We further hold that, at this time, the government does not possess a clear and indisputable right to a writ directing the district court to exclude any evidence of sentencing consequences.

Here is the start of Judge Barrington Parker's partial dissent:

We are fortunate that the prosecutors in this Circuit nearly always bring a high degree of professionalism, good judgment, and common sense to bear in the exercise of their responsibilities.  This case presents the unusual circumstance where a conscientious jurist is confronted with a charging decision that, in his considered judgment, reflects an abuse of prosecutorial power.  Charging decisions are, of course, by and large the exclusive province of prosecutors. 

There is a straightforward solution that could avoid the problems raised by the petition and discussed in this dissent.  The petition should be held in abeyance and the case remanded to the District Court, at which time the prosecutors could revisit their charging decision. If they chose not to do so, they could provide information as to why they believed their decision was appropriate. If this approach did not resolve the problem, this Court could then revisit the petition.

Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted.  But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back.  I believe that most conscientious jurists would have done the same.  I have no difficulty concluding that Judge Underhill was right to do so.  “[F]ederal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts.”  United States v. Johnson, 221 F.3d 83, 96 (2d Cir. 2000) (quoting Daye v. Attorney Gen., 712 F.2d 1566, 1571 (2d Cir. 1983)).  They should use these powers “to see that the waters of justice are not polluted” and “to protect the integrity of the federal courts.” United States v. Payner, 447 U.S. 727, 744 (1980); accord United States v. HSBC Bank USA, N.A., 863 F.3d 125, 135 (2d Cir. 2017).  Their supervisory powers are not restricted to the protection of explicit constitutional rights.  McNabb v. United States, 318 U.S. 332, 341 (1943).  The powers exist “in order to maintain respect for law” and to “promote confidence in the administration of justice.”  Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J., dissenting); accord Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974); United States v. Getto, 729 F.3d 221, 229 (2d Cir. 2013).  The supervisory powers should be sparingly exercised.  HSBC, 863 F.3d at 136.  Judges are not, of course, free to disregard the limitations of the law they are charged with enforcing under the guise of exercising supervisory powers or at other times.  Payner, 447 U.S. at 737.  But since Payner, we have recognized that within their supervisory powers, courts should “not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standards of fairness.” Johnson, 221 F.3d at 96 (quoting United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999)). This requirement applies with particular force in contexts such as charging and sentencing, especially those involving mandatory minimum sentences, where the Government plays an “often decisive role.” Id.

Whether Judge Underhill went too far is debatable.  But because this case does not come close to meeting the exacting standards for mandamus, I respectfully dissent from the majority’s grant of a writ directing the District Court to allow no arguments for jury nullification.  I concur to the extent that the majority denies a writ directing the District Court to exclude at trial evidence of sentencing consequences.

This local article about the ruling reports that the defendant's lawyer is going to seek en banc review. I am not optimistic the full Second Circuit will take up this matter or resolve it different, but I would like to see these issues get a lot more attention particularly in light of recent Sixth Amendment jurisprudence.  Notably, in the recent Haymond case, Justice Gorsuch spoke broadly about the Framers' vision of the jury right and explained: "Just as the right to vote sought to preserve the people's authority over their government's executive and legislative functions, the right to a jury trial sought to preserve the people's authority over its judicial functions." But how can the people have authority over the judicial function if they are not fully informed of their rights and authority as jurors and not made aware of the possible consequences of their decisions?

December 19, 2019 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)