Archive for the ‘Federal Sentencing–Mandatory Minimums (not ACCA)’ Category
Monday, October 22nd, 2012
From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences. More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm. First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide. Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.
The Court’s trajectory seems to threaten Harmelin. Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.
While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first. (more…)
Posted in Drug Sentencing, Eighth Amendment--Applied to Sentencing, Federal Sentencing, Federal Sentencing--Mandatory Minimums (not ACCA), Seventh Circuit | No Comments »
Monday, July 30th, 2012
Last month, in Dorsey v. United States (No. 11-5683), the Supreme Court resolved an important circuit split on the interpretation of the Fair Sentencing Act of 2010. The FSA softened the controversial mandatory minimum sentences for crack cocaine offenses that have been in place since 1986. There’s no question that crack offenders who committed their crimes after the statute’s effective date, August 3, 2010, benefit from the new regime. However, the lower courts have divided over the handling of crimes committed before the effective date, but sentenced after it. Although this may sound like a minor dispute, given the volume of crack offenses prosecuted in federal court and the eleven-month median time between indictment and sentencing in these cases, there may be hundreds or thousands of defendants who are affected by its resolution.
Such timing questions are often resolved by reference to the federal “saving statute” of 1871 (1 U.S.C. §109), which indicates that the law in place at the time of an offense should normally govern the penalty. However, this is only a default principle; earlier Supreme Court decisions indicate that Congress can make reduced penalties applicable to all defendants if Congress demonstrates such an intent either expressly or by necessary implication. Since the FSA did not expressly address the question one way or another, Dorsey turned on the finding of implied congressional intent. By a narrow 5-4 margin, the Court decided that Congress had indeed intended to make the FSA applicable to all defendants sentenced after the statute took effect. (more…)
Posted in Federal Sentencing, Federal Sentencing--Mandatory Minimums (not ACCA), Statutory Interpretation, U.S. Supreme Court | No Comments »
Monday, November 28th, 2011
Congress scaled back penalties for crack cocaine in the 2010 Fair Sentencing Act, but did not indicate how the law was to be applied to defendants who committed their crimes before the Act’s effective date. The circuits have split on this question, and the Supreme Court has now granted certiorari in a pair of Seventh Circuit cases in order to resolve the split: United States v. Fischer, 635 F.3d 336, and United States v. Hill, 417 Fed. App’x 560. I blogged about Fischer at the time it was decided, here. I’m hoping for a reversal of the Seventh Circuit’s approach, which needlessly denies many defendants the benefits of the FSA’s much fairer, but still plenty tough, crack sentencing regime.
Posted in Drug Sentencing, Federal Sentencing, Federal Sentencing--Mandatory Minimums (not ACCA), Seventh Circuit, U.S. Supreme Court | No Comments »
Friday, November 11th, 2011
What more is there to be said about mandatory minimums? Everyone already knows they are bad sentencing policy. Pursuant to congressional directive, however, the U.S. Sentencing Commission last week issued a comprehensive new report on federal mandatory minimums. I doubt it’s a game-changer, but the report does include a wealth of interesting new data.
First, though, there are the Commission’s recommendations. Here are the (eminently sound) overarching recommendations:
A strong and effective sentencing guidelines system best serves the purposes of the Sentencing Reform Act. . . . If Congress decides to exercise its power to direct sentencing policy by enacting mandatory minimum penalties, the Commission believes that such penalties should (1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment, and (3) be applied consistently. Sentencing data and interviews with prosecutors and defense attorneys indicate that mandatory minimum penalties that are considered excessively severe tend to be applied inconsistently. (xxx)
(more…)
Posted in Empirical Research, Federal Sentencing, Federal Sentencing--Armed Career Criminal Act, Federal Sentencing--Mandatory Minimums (not ACCA) | No Comments »
Monday, September 26th, 2011
The New York Times has a new article on mandatory minimums and plea bargaining. The article notes the near-disappearance of the American criminal trial over the past generation:
Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.
Although there are doubtlessly multiple causes for this trend, the article focuses particularly on the role of mandatory minimums, which have given prosecutors an ever-increasing amount of leverage in plea negotiations. Even an innocent defendant must think long and hard about going to trial when a plea would mean a sentence of only a couple of years of prison but a trial conviction might result in a mandatory minimum of ten years or more. The system has effectively made a lie of the constitutional promise of a right to a jury trial.
When I cover this subject in Criminal Procedure, students inevitably wonder how to reconcile the practice of threatening defendants with mandatory minimum charges if they go to trial with the prosecutorial vindictiveness doctrine of Blackledge v. Perry. The answer? The Supreme Court carved out an exception to Blackledge and gave its stamp of approval to coerced guilty pleas in Bordenkircher v. Hayes. A few years ago, I argued in this article that it was time for the Court to revisit Bordenkircher, especially in light of the Court’s revitalization of the jury-trial right in Apprendi v. New Jersey. Sadly, the Court has not yet given any indication that it has noticed my argument.
Hat tip to Tony Cotton.
Posted in Federal Sentencing--Mandatory Minimums (not ACCA), Mandatory Minimums (State), Plea Bargaining | No Comments »
Monday, September 12th, 2011
I posted a few months ago on Erik Luna and Paul Cassell’s insightful article on mandatory minimums in the Cardozo Law Review. Cardozo’s on-line journal, de novo, has just published my more extended response to Luna and Cassell: “Mandatory Minimums: Don’t Give Up on the Court,” 2011 Cardozo L. Rev. de novo 67. Here is a taste from the introduction:
Erik Luna and Paul Cassell have given us an extraordinarily thorough and persuasive treatment of an important topic. I have little doubt that the world would be a better place if Congress heeded their advice and adopted the reforms they propose for federal mandatory minimum sentencing laws.2 Will Congress actually do so? Drawing on an eclectic mix of insights from behavioral science, political science, and legal theory, Luna and Cassell present a case for guarded optimism. On the other hand, in his insightful response to Luna and Cassell, Ronald Wright identifies various institutional features of congressional decisionmaking that seem likely to blunt the gathering momentum for mandatory minimum reform. Whether or not Wright is ultimately too pessimistic regarding Congress, his argument should cause us to consider whether other branches of government might realistically be expected to fill the void created by legislative inertia and timidity.
For instance, what about the Supreme Court—might the Court play a meaningful role in paring back the penal excesses of our federal mandatory minimums? Luna and Cassell dismiss the possibility. They write, “[T]he Supreme Court’s jurisprudence in this area, described by some as an abandonment of the field, makes clear that judicial review will not provide much of a check on excessive punishment. . . . [S]ignificant reform will come, if at all, by Congress.”
They may reach this conclusion too quickly. Their analysis is based entirely on the Supreme Court’s Eighth Amendment jurisprudence. However, they disregard an emerging body of statutory interpretation jurisprudence in which the Court has acted with surprising boldness in narrowing the scope of the Armed Career Criminal Act, one of the most draconian of the federal mandatory minimum statutes. The ACCA cases suggest that the Court may be more willing to regulate mandatory minimums through statutory than through constitutional interpretation. More speculatively, another very recent decision, United States v. O’Brien, may point the way to more robust procedural regulation of mandatory minimums, including a right to have a jury find the facts that trigger a mandatory minimum beyond a reasonable doubt.
Posted in Federal Sentencing, Federal Sentencing--Armed Career Criminal Act, Federal Sentencing--Mandatory Minimums (not ACCA), Statutory Interpretation, U.S. Supreme Court | No Comments »
Tuesday, August 30th, 2011
As I discussed in this post, the Seventh Circuit earlier this year rejected retroactivity for the Fair Sentencing Act of 2010, which softened the mandatory minimum penalties for crack cocaine offenses. In the Seventh Circuit’s view, any crack offenses committed prior to August 3, 2010, when the FSA was signed into law, must still be sentenced under the harsh pre-FSA system. Given the lag time between the commission of an offense and the conviction and sentencing of the offender, district judges in the Seventh Circuit are even now probably still imposing sentences that Congress has declared to be unfair.
The Seventh Circuit’s position followed that of the Department of Justice. However, since the initial retroactivity ruling, DOJ has changed its position and now supports partial retroactivity. Additionally, three other circuits have since rejected the Seventh Circuit’s position. In light of these developments, one of the Seventh Circuit judges proposed that the initial ruling be reconsidered en banc. Last week, however, the court announced that the initial ruling would stand.
(more…)
Posted in Drug Sentencing, Federal Sentencing, Federal Sentencing--Mandatory Minimums (not ACCA), Seventh Circuit | No Comments »
Friday, June 10th, 2011
It has not been a good week for criminal defendants on the statutory interpretation front. Yesterday, in DePierre v. United States (No. 09-1553), the Supreme Court rejected a narrowing interpretation of a mandatory minimum statute for the third time this week. (See my posts here and here for the earlier cases.) DePierre, however, was considerably less contentious (and interesting) than the first two. The Court unanimously agreed that the term “cocaine base” encompasses all cocaine in its chemically basic form, and is thus not limited to crack, for purposes of the five- and ten-year mandatory minimums that apply to trafficking in cocaine base. This seems a relatively straightforward matter of plain-meaning interpretation, although it does contradict the way that the Sentencing Commission defines “cocaine base” for purposes of the guidelines.
Posted in Drug Sentencing, Federal Sentencing--Mandatory Minimums (not ACCA), Statutory Interpretation, U.S. Supreme Court | No Comments »
Friday, May 27th, 2011
I posted earlier this spring on the Seventh Circuit’s decision in United States v. Fisher (No. 10-2352), which held that the Fair Sentencing Act’s higher quantity thresholds for mandatory minimums does not apply to defendants whose conduct occurred before August 3, 2010, but who were sentenced after that date. Recognizing that the holding created arbitrary distinctions, the court renamed the FSA the “Not Quite as Fair as It Could Be Sentencing Act.” In any event, the retroactivity question in Fisher is an important one that has divided district judges. Because Fisher marked the first pronouncement by any circuit court on the question, the case has deservedly attracted much attention.
Now I see that the Seventh Circuit denied rehearing and rehearing en banc earlier this week. Judges Williams and Hamilton dissented. Their opinion presents a good case for giving the FSA’s benefits to all defendants sentenced after August 3. I hope that other circuits will pay close attention to their reasoning as they take up this important question.
Posted in Drug Sentencing, Federal Sentencing, Federal Sentencing--Mandatory Minimums (not ACCA), Seventh Circuit | No Comments »
Sunday, March 13th, 2011
On Friday, the Seventh Circuit clarified how the Fair Sentencing Act of 2010 is to be applied to cases that were pending on the statute’s effective date — it isn’t. The FSA increased the threshold quantities necessary to trigger the five- and ten-year mandatory minimums for crack cocaine offenses. The statute thus partially closes the notorious crack-powder sentencing disparity, with an effective date of August 3, 2010. Shortly thereafter, in United States v. Bell, 624 F.3d 803 (7th Cir. 2010), the Seventh Circuit held that the FSA does not apply retroactively to cases in which an appeal was pending on August 3.
The new wrinkle in United States v. Fisher (No. 10-2352) was presented by a defendant who pled guilty before August 3, but who was sentenced after August 3.
(more…)
Posted in Drug Sentencing, Federal Sentencing, Federal Sentencing--Mandatory Minimums (not ACCA), Seventh Circuit | 3 Comments »
