Archive for the ‘Federal Sentencing’ Category
Ted Kennedy and Federal Sentencing
Like most folks, I was saddened to learn that Ted Kennedy has passed away. He has, of course, left a tremendous legacy in this country that will be recounted by many in the coming days and weeks.
One of his lesser known contributions to our nation was as one of the original forces behind the legislation that created the Federal Sentencing Guidelines. Though, of course, he didn’t see how they would come to be used, his original impulse was good and progressive.
Senator Kennedy (and others, to be sure) was rightly unhappy with the unwarranted disparities between defendants of different races and economic statuses in federal court. Well-off white defendants received more lenient treatment, in general, than poor minority defendants. The Sentencing Reform Act was supposed to ameliorate that disparity.
Sadly, it worked for the most part, but by jacking up the sentences of well-off whites and tweaking which disparities count as “unwarranted” (see, e.g., the crack/powder guidelines), as well as reducing the kinds of facts about individual defendants that judges can consider.
Still, you have to give Senator Kennedy credit for being willing to get involved in the structure of the criminal justice system, and to try to work to change things for the better.
Is Eric Holder Providing Change We Can Believe In?
I’m very excited about our new President. I like his pick for Attorney General a lot. And I really like the signals he’s sending. But I don’t think the great words we’re hearing are resulting in much action to improve the lot of people being charged in federal court.
Lanny Breuer, who runs the Criminal Division of the Department of Justice, came out forcefully in support of eliminating
Just words?
the disparity between the sentences for crack and powder cocaine. Indeed, as Lanny Breuer put it, “[t]he administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.”
Similarly, at the Vera Institute of Justice last month, Attorney General Eric Holder gave a dramatic address laying out his philosophy of criminal justice enforcement. Here are some of my favorite parts (with emphasis added),
[J]ust as everyone should concede that incarceration is part of the answer, everyone should also concede that it is not the whole answer. Simply stated, imprisonment is not a complete strategy for criminal law enforcement.
To begin with, high rates of incarceration have tremendous social costs. And, of course, there also is the matter of simple dollars and cents, and the principle of diminishing marginal returns. Every state in the union is trying to trim budgets. States and localities are laying off teachers and canceling sanitation department shifts, but in almost all cases, spending on prisons continues to increase. Not only is this unsustainable economically, but it is also not proving to be effective at fighting crime. For while prison building and prison spending continue to increase, public safety is not improving. Since 2003, spending on incarceration has continued to rise, but crime rates have flattened. Indeed, crime rates appear to have reached a plateau, and no longer respond to increases in incarceration.
I agree with all of this. There is, though, a sleight of hand here – the Attorney General focuses on prison construction and spending. Of course, someone has to fill all those prisons. Many of those people work for him. But, he’s right about the larger point that simply filling prisons is not a viable, humane, or just law enforcement strategy.
And check out what the Attorney General is saying about drug crimes,
One specific area where I think we can do a much better job by looking beyond incarceration is in the way we deal with non-violent drug offenses. We know that people convicted of drug possession or the sales of small amounts of drugs comprise a significant portion of the prison population. Indeed, in my thirty years in law enforcement, I have seen far too many young people lose their claim to a future by committing non-violent drug crimes.
I couldn’t agree more with these statements. Holder has the right attitude on where law enforcement should go, and what criminal justice policy should be.
But does any of it matter? Is it changing the behavior of line attorneys? Are defendants in federal criminal court being treated any different because Eric Holder is the Attorney General? I think the answer is no.
An unusual chambers conference
This seems to be the week when I blog about players in the criminal justice system not comporting with the highest standards of their professions. On Tuesday I blogged about a criminal defense lawyer gone bad. Yesterday, I blogged about Judge Pollak slapping down a prosecutor who was so out of line the Judge had to order a new trial.
This post deals with a judge being criticized by a Court of Appeals. The Seventh Circuit granted a mandamus petition filed by an United States Attorney’s Office against a federal District Court judge in Milwaukee, Wisconsin.
A mandamus petition is granted only when a judge’s conduct is so bad that his conduct was unlawful. It is a highly unusual petition for a Court of Appeals to grant. And it’s highly unusual for a litigant to file one. Normally, with a motion to recuse, lots of lawyers think the best policy is something like “if you’re going to shoot the king, kill the king.” The last thing you want is to file a motion to recuse, make the judge very angry, and have the judge remain on your case. Obviously, you hope the judge won’t hold it against you, but, well, we’re all human.
It’s all the more unusual to see a mandamus action from an institutional litigant like the United States Attorney’s Office. One can see the relationship between the U.S. Attorney’s Office and the mandamused judge being a little strained.
This case is not just unusual because of the mandamus petition though. It stems from a highly unusual meeting in the Judge’s chambers.
Throwing the book back at the judge
Apparently Judge Urbina on the federal district court in D.C. has developed his own alternative sentencing regime. He ordered criminal defendants to write a book.
Probably not what the court had in mind.
The New York Times, in the opinion piece linked to above, thinks this is a bad idea. They think it isn’t terribly significant punishment and can be dispatched too quickly and with too much insincerity. Perhaps.
A publishing blog questions (without saying as much) whether such a condition of probation can be constitutional. With a headline “Torture reinstituted in Washington Courts” the MobyLives blog suggests that writing a book is the kind of thing a person cannot be ordered to do, comparing the requirement that the defendant write a book to being ordered to hit a home run at Nationals Park (which may not be the best metaphor, hitting a home run at Nationals Park seems to be pretty easy for many visiting teams, particularly in, say, the 8th inning).
A person can only be punished for willfully violating a condition of probation – if the defendant/author can’t write a book, he can’t be punished for not complying with his probation conditions. Perhaps this condition can’t be complied with (though, really, compared to spending time at your local Federal Correctional Institution, surely writing a book isn’t that hard).
Personally, I think it remedies one big problem with our criminal justice system – that the person who is caught up in the system is too often silenced. His lawyer tells him not to talk (for good reason), he often does not testify at his own trial (for good reason), and prosecutors and agents tend to think that anytime he’s talking he’s lying.
At least Judge Urbina wants people to tell their stories.
A cheaper system of criminal justice
California may have to lay off some of its public defenders. It will not be suprising that I think this is a bad thing. Obviously, this is not a great economy. Most of us are hurting. Governments need to cut costs, just like everyone else.
Your rights waste money
As the linked to article makes clear, though, cutting public defender budgets is really not a great way to do it.
Defendants would sit in jail longer, increasing incarceration costs. . . . Cases would be delayed while private attorneys get up to speed, creating bigger clogs in a legal pipeline that barely trickles now.
And, of course, paying private counsel to work on cases instead of paying a public defender’s office is an illusory cost savings.
That said, budgets must be cut; books must be balanced. What’s the best way to implement a cheaper system of criminal justice? Read More…
Change We Can Believe In (in federal sentencing)?
The Fourth Circuit has ruled that a federal district court cannot assume that a sentence within the guidelines is reasonable. The case is United States v. Cordell Smith. Check out the opinion here.
Pay no attention to the ready answer to an intractable problem offered above
It has been far too easy for federal judges to look at the conveniently calculated guidelines range and give a sentence within that range.
As I’ve written about before, the things you have to think about in sentencing a person are complicated and hard to get traction on. How do you balance “respect for the law” with the nature of the offense and an individual defendant’s background in such a way as to arrive at a specific number of months in prison?
It’s very easy for judges to look to the guidelines, which at least provide a mechanism for solving these kinds of problems. And they have the imprimatur of objectivity; an agency solicited input from lots of different sources, did a bunch of complicated (and opaque) empirical work, and generated a big book of rules.
The Supreme Court has said that a guidelines sentence is not presumptively reasonable. The Fourth Circuit last month agreed. Will this make a difference in the way judges sentence in Maryland, the Virginias, and the Carolinas? Will it change the way criminal defense lawyers approach sentencing? Read More…