I now have a publication date for my new book: January 17. The excessively long, but nicely descriptive, title is Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway. More information (including how to order a copy) is available through the University of Wisconsin Press. I’ll be doing a release event at Boswell Books in Milwaukee on January 17 at 7:00 p.m.
The Missouri Law Review has now published the final version of my article, “Not Just Kid Stuff? Extending Graham and Miller to Adults.” Here is the abstract:
The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.
The citation is 78 Mo. L. Rev. 1087 (2013).
Author’s Note: With this, I begin a series of posts that will review the Supreme Court’s criminal cases from the now-concluding term.
The Court’s docket this term included two interesting causation cases that came to somewhat different conclusions. The cases were Burrage v. United States, 134 S. Ct. 881, which dealt with criminal responsibility for a drug-related death, and Paroline v. United States, 134 S. Ct. 1710, which dealt with restitution for a child pornography victim. In both cases, the Court had to grapple with tensions between traditional, narrow understandings of causal responsibility in the law and a natural human desire to hold bad actors accountable for tragic harms with which they seem to have some connection, even if that connection is a tenuous or uncertain one.
Burrage nicely illustrates the tension. Continue reading “SCOTUS End-of-Term Roundup: Causation Cases”
In August, Attorney General Eric Holder delivered a widely noted address to the American Bar Association that seemed to promise significant changes in federal prosecutorial policies. I wrote these reactions for the Federal Sentencing Reporter.
Following decades in which the U.S. Department of Justice has consistently advocated for a rigid and harsh legalism in criminal justice policy—in which DOJ, in the name of abstract principles of national uniformity, has willfully disregarded the devastating impact of its charging, plea-bargaining, and sentencing practices on real-life human beings—Attorney General Holder’s ABA address seems a breath of fresh air. He calls for a more flexible federal criminal justice system, in which prosecutorial charging priorities are more specifically tailored to meet local needs, in which sentencing is more individualized to the offender and prosecutors sometimes forego mandatory minimum sentences, and in which individual U.S. Attorney Offices experiment with new diversion programs as an alternative to conventional case-processing. Holder believes—correctly, I think—that a more flexible and pragmatic system can achieve better public-safety results at a lesser cost than a system in which preserving the integrity of the federal sentencing guidelines is the overriding value.
Through Holder’s address, DOJ offers its most prominent and unequivocal endorsement yet of an emerging new criminal justice paradigm. Continue reading “Thoughts on the Holder Address: Two Cheers for the New Paradigm”
The U.S. Sentencing Commission wisely made its 2011 reductions to the crack sentencing guidelines retroactive, but this decision left district judges with discretion to deny sentence-reduction requests based on, among other things, a defendant’s post-sentencing misconduct.
Larry Purnell has learned the scope of this discretion the hard way. Purnell pled guilty to crack and firearms offenses in 2007. In his plea colloquy, Purnell admitted to the gun allegations under oath. Based on various concessions from the government in return for his guilty plea, Purnell’s guidelines range for the crack offense was 78-97 months, and he received a sentence at the bottom of this range. Despite the relative lenience of this treatment, Purnell later mounted collateral attacks on the gun conviction, claiming that his alleged weapon was really only a BB gun — in contradiction to his own statements at the plea colloquy.
These collateral attacks failed, but Purnell was given a fresh opportunity for a sentence reduction thanks to the Commission’s retroactive changes to the crack guidelines. Continue reading “District Court May Deny Crack Sentence Reduction Based on False Statements, Seventh Circuit Holds”
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. Continue reading “Seventh Circuit Affirms Life Sentence Notwithstanding Supreme Court’s Recent Eighth Amendment Decisions”
In a new report entitled “The State of Sentencing 2011: Developments in Policy and Practice,” Nicole Porter of The Sentencing Project summarizes the most recent set of criminal-justice reforms adopted across the United States. Continuing a recurring theme in recent years, many of these reforms are intended to reduce incarceration numbers and corrections budgets. Here are some highlights:
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.
Wholesalers often sell drugs in relatively pure form, with the knowledge that retailers will dilute the drugs before reselling them on the street. Indeed, some powerful drugs, like the painkiller fentanyl, must be substantially diluted before they can be safely consumed. For that reason, wholesalers may end up selling much smaller quantities than retailers, at least as measured simply by weight. This presents a dilemma for sentencing, especially in the federal system, where weight drives sentences: should a wholesaler’s sentence be determined by the weight he sold, or by the weight of the diluted form of his product sold on the street?
The question has particular importance in fentanyl cases, as illustrated by the Seventh Circuit’s recent decision in United States v. Alvarado-Tizoc (No. 10-1613). In sentencing the wholesaler-defendants, the district court chose to attribute to them the full retail quantities, which were 11 to 16 times greater than the wholesale quantities.
This was improper, the Seventh Circuit held.
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.