This week:
Sentence by Survey
Crime By the Numbers
Post Hoc
OMG! Cellphones are Top Contraband in BOP
Chance for Sentencing Reform Slipping Away
SENTENCE BY SURVEY
Last fall, a jury convicted a man – call him John Doe – of distributing child pornography. He was facing up to 20 years, which is what the government asked for. The presentence report calculated his sentencing range – he had no criminal history – at 21 to 27 years.
U.S. District Judge James Gwin polled the jury, however, asking what an appropriate sentence should be. Their suggestions averaged 14 months. Impressed with this, the judge gave Doe 60 months, the mandatory minimum for the offense.
The government appealed. Last week, a 6th Circuit panel unanimously upheld the sentence.
The government argued that the jury poll was an “impermissible factor” for the district judge to consider in crafting a sentence. The 6th Circuit disagreed, noting that the law “provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence… District courts also have the authority to reject the Guidelines sentencing ranges based on articulated policy disagreements in a range of contexts. Indeed, we have suggested the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements.”
The Court suggested that jury polls can help determine an appropriate sentence. While juries lack “the tools necessary for the sentencing decision, they can provide insight into the community’s view of the gravity of an offense.” Here, the 6th said, “the jury did not determine or impose defendant’s sentence. Rather, the district judge – who does possess the necessary tools for the sentencing decision – was at all times interposed between the jurors’ views of an appropriate sentence and the sentencing guidelines’ § 3553(a) factors. Considering the jury’s sentencing recommendation as part of the sentencing calculus did not conflict with the district judge’s duty or ability to properly weigh the § 3553(a) factors and independently craft an appropriate sentence.”
United States v. Collins, Case No. 15-3236 (6th Cir. June 29, 2016)
CRIME BY THE NUMBERS
The U.S. Sentencing Commission released its annual survey of federal sentencing for 2015 last week. The report is exhaustive in its analysis of the demographics of federal sentencing in the country. Its highlights included:
• 4,800 fewer sentences were handed down than in 2014, a 6.4% reduction;
• Drug cases remained the most popular offense (31.8% of all cases), with immigration cases the next most common (29.3%). Meth offenses were the most common and the most severely punished drug crime;
• 87.3% of defendants received prison sentences;
• Almost 75% of sentences were for less than five years;
• The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993.
U.S. Sentencing Commission, Overview Of Federal Criminal Cases, FY 2015 (June 27, 2016)
POST HOC
Post hoc ergo propter hoc, a Latin phrase meaning “after this, therefore because of this,” is a logical fallacy arguing that because event Y followed event X, event Y must have been caused by event X.
A variant of the fallacy has been popping up since Johnson v. United States came down, confusing petitioners and courts alike. When Lonzo Stanley asked for leave to file a second 2255 because of Johnson, the 7th Circuit used his application as a teaching moment.
A blizzard of filings, the Court said, “depends on a belief that Johnson reopens all questions about the proper classification of prior convictions under the Guidelines and the Armed Career Criminal Act. But the sole holding of Johnson is that the residual clause is invalid. Johnson does not affect the first portion of clause (ii) (‘burglary, arson, or extortion, [or] use of explosives’) and does not have anything to do with the proper classification of drug offenses or the operation of § 924(e)(2)(B)(i), known as the ‘elements clause,’ which classifies as a violent felony any crime punishable by a year or more in prison that ‘has as an element the use, attempted use, or threatened use of physical force against the person of another’. The Guidelines contain the same language.”
Lonzo’s “career offender” sentence depended on prior convictions for drug trafficking, aggravated battery of a peace officer, and illegal possession of a firearm. The 7th Circuit noted that Johnson did not alter how drug trafficking convictions counted against a defendant and that aggravated battery remained a violent crime under the ‘elements clause’.
Lonzo thought he had a Johnson play, however, because one prior was a conviction for illegal possession of a firearm, which clearly should not count as a violent offense. But he was wrong. The Court explained that illegal gun possession was not a violent crime, but not because of Johnson. Rather, the offense never qualified as a violent felony. The Sentencing Commission had concluded that a felon’s possession of a gun that could be possessed lawfully by a non-felon is not a crime of violence for the purpose of the career offender guideline, and thus, Lonzo’s district court should not have counted this conviction at his 2004 sentencing. “Because the classification of this conviction is unaffected by Johnson,” the Court said, “§ 2255(f)(3) does not grant Stanley a fresh window to file a collateral attack. Indeed, because Stanley could have appealed his sentence based on the application note, he could not have filed a collateral attack even within the year originally allowed by § 2255(f).”
Lonzo had no offense made nonviolent by Johnson, so he could not file a second § 2255.
United States v. Stanley, Case No. No. 15-3728 (7th Cir. June 27, 2016)
OMG! CELLPHONES ARE TOP CONTRABAND IN BOP
A DOJ Inspector General report found that cellphones were the favored item of contraband found in BOP facilities, with 8,700 of them found from 2012-2014. The report, issued last week, criticized the BOP for failing to have a policy in place to search its own staff for contraband.
A search policy BOP implemented in 2013 was discontinued two years later after a union complaint to the Federal Labor Relations Authority. Even that policy was flawed, according to the DOJ report. “The policy provided that all staff and their belongings could be searched randomly or based on reasonable did not prescribe any required frequency for conducting random pat searches, resulting in what we found to be infrequent staff pat searches of varying duration. It also allowed staff to possess and use within institutions items, such as tobacco, that are prohibited for inmates. Additionally, despite the BOP concurring in 2003 with the OIG’s recommendation that it restrict the size and content of personal property that staff may bring into institutions, the 2013 policy contained no such restrictions. The policy further permitted staff to return to their vehicles to store contraband that had been identified during front lobby screening procedures, unless doing so would jeopardize the safety, security, or good order of the institution, or public safety. Finally, the policy did not ensure that only trained and supervised staff was assigned to front lobby positions, and we found that at some institutions entry-level Information Receptionists were assigned to these positions.”
The DOJ report also faulted the BOP for lacking a comprehensive contraband tracking capability, deficiencies in security camera coverage, and lack of staff training on using cellphone tracking technology.
DOJ Office of Inspector General, Review of the Federal Bureau of Prisons’ Contraband Interdiction Efforts (June 30, 2016)
CHANCE FOR SENTENCING REFORM SLIPPING AWAY
We’ve been pessimistic for months about the chances for passage of the Sentencing Reform and Corrections Act of 2015, now before the Senate as S.2123 and in the House as H.R. 3713. There’s a reason for that.
The political website Real Clear Politics reported last Thursday that the “push for criminal justice reform, the legislation seen as having the best chance of passing Congress this session, has stalled as key senators hold slim hopes of passing anything before the end of year.” Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who played a key role in negotiating the legislation, was quoted as saying said the bill is stalled for now. “I don’t see how it gets done before” July 15, Grassley said, referencing the day the senators depart from Washington and won’t return until after Labor Day. “It’s a real big disappointment to me because we’ve worked so hard to do what the leadership wanted to get out more Republican sponsors.”
Sen. Dick Durbin (D-Illinois), the second-ranking Senate Democrat and an author of the bill, said Republicans had offered him “little to no hope” that the legislation would move forward. Durbin directly blamed Mitch McConnell (R-Kentucky), for the lack of movement, saying that the Majority Leader had “five Republican senators vocally, publicly opposing it, and he didn’t want to take them on.” But a spokesman for McConnell responded, “Discussions continue within our Conference on the issue.”
Senators have said recently they hoped the House would pass legislation to kick-start Senate action. Sen. John Cornyn (R-Texas), the Republican whip and a lead sponsor, said he’d hoped the House would move more quickly and provide momentum in the Senate, but “apparently we ran out of time.”
Time will be in short supply the rest of the year. After its summer recess, Congress will be in session for five weeks in September and October. Then lawmakers leave again until after the election, when they will only have a few weeks to wrap up end-of-the-year matters.
Grassley expressed some optimism, saying there was a “good chance” the legislation could pass in the fall, either in the five weeks after Labor Day or in the lame-duck session after the election in November. But that decision is up to McConnell. “There’s one person that decides what the agenda of the United States Senate is,” Grassley said, adding that he thought McConnell would “give fair consideration to it.”
“There’s no good reason why they haven’t moved forward,” Presidential advisor Valerie Jarrett complained last week, “other than politics.” Ohio State law professor Doug Berman agrees with the sentiment, but not on the culprit. He argued in his sentencing blog last Friday that “the main individual who should be blamed here is President Barack Obama, although lots of other blame can and should be spread around to all the folks who failed to fully appreciate that a series of small “smart on crime” bills would have been far superior and far more likely to become law than the mega-reform bill that was too complicated with too many controversial parts to make passage ever likely.”
Both Cornyn and Durbin say they can still get something passed under the next administration regardless of which party rules the Senate. But an opinion piece at Reason.com last week warned that the developing “massive populist fracture could affect the House vote. We’re hearing a revival of tough on crime tactics from the right (which Donald Trump thoroughly supports). And we’re seeing on the left a desire to punish those “evil” corporations that’s so strong they’re willing to abandon due process to make it happen. This is an election that is heavily revolving around punishing one’s perceived ‘enemies’.” Criminal justice reform pushes may face some significant challenges in the future.”
It’s getting very unlikely that the bill will pass this session. The Senate only has 51 more work days planned (that’s a total of 11 work weeks out of the remaining 26 weeks in the year). The House only has 42 days left. A new Congress starts in January, meaning that any bill still pending at the end of the year will disappear, and the process must start over in 2017.
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