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Dept. of Justice Gets Tough With Sentencing Commission – Update for August 10, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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HANG ‘EM HIGH HUDSON

The United States Sentencing Commission, a 7-member judicial agency charged with writing and amending the federal sentencing guidelines faced a manpower crisis earlier this year, as only two voting members remained. The Senate increased that number to the minimum needed for a quorum by approving two Obama holdover nominations in March.

Nevertheless, the shortage of a voting quorum for three months left the Commission unable to assemble a slate of sentencing guidelines amendments for 2017. To get the Commission back to fighting trim will require three more commissioners be appointed by President Trump and approved by the Senate.

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Attorney General Jefferson Beauregard Sessions III

Enter everyone’s favorite compassionate conservative, Attorney General Jefferson Beauregard Sessions III. Sessions yesterday urged the White House to nominate federal judge and ex-prosecutor Henry E. Hudson to the Commission. Judge Hudson, who as a prosecutor was nicknamed “Hang ’Um High” Henry Hudson and said he lived to put people in jail, earned fame as a prosecutor for railroading a developmentally disabled man into prison for a rape he didn’t commit. Hudson’s successor exonerated the man when inconsistencies in the case led detectives to pursue other leads, ultimately linking a serial killer to the murder. Faced with the evidence that he had convicted the wrong guy, Hudson wrote in his memoirs, “I certainly wish him the best, and regret what happened. However, I offer no apologies.”

HudsonA170811At the same time, Sessions is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders. In public comments filed with the Sentencing Commission on July 31, the Dept. of Justice asked it to preserve mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.

hudsonB170811DOJ also encouraged the Commission to abandon the categorical approach (Mathis v. United States) for determining which state crimes are crimes of violence supporting much higher sentencing ranges for “career offenders.” The Department complains that the “categorical approach,” which requires courts to “focus solely on whether the elements of the crime of conviction sufficiently match the elements of a generic version of the crime,” focuses on the abstract elements of the statute “and largely ignores the conduct that the defendant actually committed. This approach has resulted in some repeat violent offenders… receiving a sentencing range that is lower than their conduct and criminal history warrant. The categorical approach also consumes an inordinate amount of time for trial court judges, appellate court judges, probation officers, prosecutors, and defense attorneys.”

hangem170811DOJ argues that “the time has come to abandon the categorical approach in those cases involving the enumerated felonies clause. The Department would be pleased to work with the Commission to develop a workable and fair approach that focuses less on formalism and more on the defendant’s conduct.”

Of course it would. And Judge Henry “Hang ‘Em High” Hudson is just the kind of commissioner with whom DOJ would like to work.

Dept. of Justice, Response to Request for Public Comment, Proposed Priorities for Amendment Cycle, 82 FR 28381(filed July 31 2017)

Wall Street Journal, Sessions Promotes Tough-On-Crime Judge for Sentencing Panel (Aug. 10, 2017)

– Thomas L. Root

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Sentencing Commission Releases Sobering Mandatory Minimum Report – Update for July 12, 2017

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READ ‘EM AND WEEP

mandatory170612Everyone appreciates on a visceral level how badly Congressional meddling in sentencing – in the form of statutorily-imposed mandatory minimum sentences – has loaded the BOP with inmates serving harsh sentences and skewed any attempt by the United States Sentencing Commission to impose a rational system. Thanks to a USSC report issued yesterday, everyone’s understanding of mandatory minimum sentence havoc can be intellectual as well.

The USSC study, An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017 Overview), examines the application of mandatory minimum sentences and the impact of those penalties on the federal prison population.”

The 89-page report is a bonanza of data on mandatory minimums. Perhaps most significant to us is the fact that over half (55.7%) of federal inmates at the end of last fiscal year were serving time for offenses carrying mandatory minimum sentences. Recall that one of our criticisms of Prisology’s sentencing table reform was that so many inmates – perhaps 150,000 – would be eligible for a sentence reduction were the table made retroactive that the courts would be overwhelmed. This likely flood of sentence reduction motions would probably cause the Commission to refuse retroactivity.

The Report’s number suggests that even if the table were amended and made to apply retroactively, only about 83,000 inmates would be eligible for a sentence reduction under 18 USC 3582(c)(2). That number is still high, but much more manageable than our original estimate. While we still have substantial doubts that the Prisology proposal will go anywhere, we acknowledge that the sheer volume of eligible inmates is less than half of what we anticipated, tipping the probability scale more in Prisology’s favor.

keynes170712Other interesting facts gleaned from the Report:

•   The average sentence length for inmates serving mandatory minimum sentences convicted was 110 months, nearly four times the 28-month average sentence for inmates without a mandatory minimum.

•   Over one-third (38.7%) of inmates convicted of a mandatory minimum offense received relief from the mandatory minimum at sentencing, a decrease from 46.7% six years before.

mandatorywhere170712•   Fewer that 10% of defendants in Vermont, West Virginia, New Mexico and Arizona were convicted of mandatory minimum offenses. But in middle Illinois, southern Indiana, western Kentucky, eastern Tennessee, and northern and middle Florida, between 40% and 50% of defendants were hit with mandatory minimums.

• While drug and gun mandatory minimum sentence convictions have stayed level or dropped since 2002, child porn and sexual offense mandatory minimums have skyrocketed from fewer than 5% of all defendants charged with those offenses to 60%.

mandatorywhenJudge William H. Pryor, Jr., Acting Chair of the Commission, said in a press release that “when Congress created the Commission, Congress empowered it to serve ‘as a clearinghouse and information center’ about federal sentencing and to assist Congress, the federal courts, and federal departments in the development of sound sentencing policies… The Commission has published this report to fulfill that Congressional mandate.”

In a 2011 report, the Commission urged Congress to moderate drug, firearm and sex/porn mandatory minimums. Since that time, Congress has proposed adding several new mandatory minimums, but thus far has ameliorated nothing.

U.S. Sentencing Commission, An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (July 11, 2017)

– Thomas L. Root

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Two Outta Three Ain’t Bad – Update for May 11, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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2014 GUIDELINE CHANGE CUT 30,000 DRUG SENTENCES

Back in the good old days, when the Executive Branch pretended to care about rational federal sentencing policies (and we’re not saying that the prior inhabitant of the White House really did, other than to the extent he could use sentence reform to burnish his legacy) the U.S. Sentencing Commission adopted an amendment to the federal sentencing guidelines that reduced by two the offense levels assigned to drug quantities. The 2014 change reduced defendant’s sentencing ranges accordingly.

USSC170511Unlike most changes in the Guidelines, the Sentencing Commission made the 2-level reduction retroactive to people already sentenced. Retroactivity under the Guidelines is not an automatic thing: a defendant must petition his or her sentencing court under 18 USC 3582(c)(2) for a sentence reduction pursuant to the retroactive Guideline. If eligible, an inmate still must convince the court that a reduction of his or her sentence ought to be awarded. Sentencing courts have wide discretion as to what to do with a sentence reduction motion, and district court decisions are nearly bulletproof.

The Sentencing Commission released a report Tuesday on the fallout from the 2014 2-level reduction. Slightly more than 46,000 people applied for the reduction, of whom a few more than 30,000 receive sentence cuts, for a 66% grant rate. Like Meatloaf said, “Two outta three ain’t bad.”

funwithnumbers170511Actually the odds for defendants were even better than that: 24% of the people who applied were not even eligible for the reduction, for reasons ranging from not having been sentenced under the drug guidelines to being locked in place by statutory mandatory minimum sentence. Only 8% of the 46,000 were denied on the merits (although due to sloppy district court records, the number could have been as high as 13%).

sentence170511The average sentence was cut from 144 to 119 months, a 17% reduction. Of those receiving sentence reductions, 32% were convicted for methamphetamines, 28% for powder cocaine, 20% for crack, 9% for pot and 7% for heroin. The racial and ethnic distribution was 30% white, 33% black, and 41% Hispanic. Curiously enough, the defendant’s criminal history seemed to have no effect on likelihood of receiving a sentence cut, with novices and pros alike getting cuts at about the same rate.

Defendants were better off in Chicago than they were in sunny California. The 7th Circuit gave the largest sentence cuts, 33 months off on the average (20% of the original sentence). The 9th Circuit was the stingiest, giving an average cut of 20 months (16% of the sentence).

U.S. Sentencing Commission, 2014 Drug Guidelines Amendment Retroactivity Data Report (May 10, 2017)

– Thomas L. Root

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The Year Without a Summer – Update for May 3, 2017

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SENTENCING COMMISSION TO SKIP 2017 AMENDMENTS

nosummer170503Just a shade more than 200 years ago, a combination of solar, geologic and atmospheric factors resulted in the summer months of 1816 bringing snow to New England in June, lake ice to Pennsylvania in July and August, and frozen corn in September fields. Historians call it “The Year Without a Summer.”

We’re experiencing a regulatory version of that phenomenon this year. Last December, some hopes ran high for the United States Sentencing Commission’s 2017 agenda, with some ambitious proposals in the pipeline for the 2017 amendment cycle. We were not quite so sanguine, but even we foresaw some changes on several sentencing fronts.

And then, the bottom fell out.

noGL170503The terms of Chief Judge Patti B. Saris, Judge Charles R. Breyer and Dabney L. Friedrich, all expired. Because the Commission has to have at least four voting for a quorum, the commissioners who were left – Circuit Judge William H. Pryor, Jr. and Commissioner Rachel E. Barkow – could not conduct any business.

The nominations of Judges Breyer and Reeves were stalled last Congress. In January, outgoing President Obama renominated them. The Senate finally approved two new members on March 21st.

But according to Judge Pryor, that was too little, too late:

By statute, the Commission is required to submit any amendments to the guidelines to Congress by May 1st for a 180-day congressional review period. Because we did not have a voting quorum for almost three months, there simply is not enough time for us to schedule a public hearing on the proposed amendments, digest the public comment, deliberate, and hold a public vote by the statutory deadline. Therefore, this year we will not promulgate any amendments to the guidelines.

In its 29-year history, the Commission has missed issuing amendments in only twice, in 1996 and 1999.

As for the draft amendments considered last December, Judge Pryor optimistically says that the Commission’s “data analysis, legal research, and public comment on these proposed amendments should provide us a sound basis for considering guideline amendments as early as possible during the next amendment cycle.”

– Thomas L. Root

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A Couple of Sentencing Tidbits from Washington – Update for April 21, 2017

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SENTENCE REFORM – WAITING FOR THE DONALD

We’ve been hearing since last year that leadership in the House and Senate intend to resurrect the Sentence Reform and Corrections Act of 2015 in some form this year. But – like the weather – everyone seems to talk about it, but no one is doing anything about it.

Thus far this legislative year, as we’ve noted, there has been a dearth of criminal justice reform legislation introduced in Congress. A report released yesterday by the Brennan Center for Justice at New York University may hint at why.

Waiting170421On the subject of sentence reform, the Report notes that in January 2017, Sen. Charles Grassley (R-Iowa), chair of the Senate Justice Committee, and House Speaker Paul Ryan (R-Wisconsin) committed to reintroduce some version of the failed SRCA. However, the Report says, both Ryan and Grassley “are rumored to be waiting for the administration to announce its position before moving forward.”

Rumors flew in March, when President Trump’s son-in-law and advisor Jared Kushner met with Grassley and Sen. Dick Durbin (D-Illinois) – the top-ranking Democrat on the Committee, to discuss sentencing and reentry legislation. Kushner, whose father did federal time for white-collar offenses, has more reason than most to favor federal sentencing reform, and reports say that he does.

The Brennan Report says, “Trump’s personal positions on such bills are unknown. It remains to be seen whether any advice from Kushner and backing by conservative reform advocates will influence the President. Some conservatives support expanding reentry services, and modest sentencing reductions for low-level offenders. The Trump Administration could take a similar stance, backing modest prison reform in Congress while continuing to pursue aggressive new prosecution strategies.”

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

Elsewhere in the Report, the Brennan Center predicts that “recommendations for more punitive immigration, drug, and policing actions” will flow from the Administration over the next few months. It notes that a crime task force established by Attorney General Jeffrey Sessions is scheduled to deliver its first report by July 27. The Center foresees the task force calling for “a rescission of Obama-era memos on prosecutorial discretion, which helped decrease the federal prison population, and diverted low-level drug offenders away from incarceration.”

Brennan Center for Criminal Justice, Criminal Justice in President Trump’s First 100 Days (April 20, 2017)

– Thomas L. Root

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COMPASSIONATE KISSES

We watched with some glee a year ago when the U.S. Sentencing Commission horse-shedded the BOP over that agency’s chary use of compassionate release. It was fun while it lasted, but it didn’t last very long.

compas160418“Compassionate release,” a provision enshrined in 18 USC § 3582(c)(1), was enacted by Congress in the Sentencing Reform Act of 1984. Besides replacing the prior sentencing regime with the Guidelines, the Act strictly limited the ability of federal courts to revisit sentences once they became final (that is, the time for appellate review expired). Parole was eliminated, with sentences to be served fully (with an allowance of about 14% for good conduct in prison).

One safety valve crafted into the Act by Congress was to give courts the ability to modify or terminate sentences if prisoners were able to show “extraordinary and compelling” reasons justifying early release. Congress tasked the Sentencing Commission with the job of identifying the criteria to be used in determining whether a reason was “extraordinary and compelling.” The statute delegated BOP with the task of identifying prisoners who met these criteria. The idea was that the BOP would identify who qualified, and then petition the district court for grant of compassionate release. The district judge would make the final determination.

The entire process was considered by Congress to be an act of grace. Inmates have no right to petition the court directly under 18 USC 3582(c)(1). They may not seek judicial review of a BOP refusal to recommend release. They may not appeal a district court’s denial of compassionate release. This means the power to free a prisoner is placed in the hands of the jailer whose job it is to keep him locked up, who incidentally is represented by the prosecutor – the US Attorney – whose job it is to lock up federal criminal offenders.

So how does the system work? We’ll let the numbers speak. In 2015, out of about 205,000 federal inmates, the BOP found extraordinary and compelling circumstances justifying compassionate release only 62 times. That works out to 0.03% (or about 3 prisoners out of every 10,000). Those odds stink. It’s hard to believe that so few prisoners qualify for compassionate release.

table170421The BOP’s stinginess has drawn fire from the Sentencing Commission. At the April 2016 hearing we noted above, commissioners complained that the BOP had adopted its own definition of “extraordinary and compelling.” The criteria the Commission adopted directed the BOP to confine itself to determining if a prisoner meets the criteria the Sentencing Commission adopted, and – if so – bringing a motion for reduction in sentence to the district court.

BOP’s management of compassionate release is no different than a district judge deciding that she would adopt her own definition of “career offender,” no matter what the Sentencing Commission might say in Chapter 4B of the Guidelines.

compassion160124In an article published this week by Learn Liberty, Mary Price – general counsel to Families Against Mandatory Minimums – cited cases where even the most slam-dunk compassionate release cases took over a year for the BOP to process. She noted that the BOP was hurting itself as well as the affected inmates: compassionate release of elderly and infirm inmates makes economic as well as social sense, and saves the BOP from caring for the most expensive and least dangerous of its inmates.

Ms. Price wrote that

if the BOP is unable or unwilling to treat the compassionate release program as Congress intended, Congress should take steps to ensure that prisoners denied or neglected by the BOP nonetheless get their day in court. Congress can do so by giving prisoners the right to appeal a BOP denial to court or to seek a decision from the BOP in cases… in which delays stretch out over months or even years. Such a right to an appeal will restore to the courts the authority that the BOP has usurped: to determine whether a prisoner meets compassionate release criteria and if so, whether he deserves to be released.

Institute for Humane Studies, George Mason University, Mary Price, How the Bureau of Prisons locked down “compassionate release” (Apr. 18, 2017)

– Thomas L. Root

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Lies, Damn Lies and Statistics… Update for March 10, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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ROACH MOTEL

Besides the obvious fact that society abhors sex crimes against children – including the possession of kiddie porn – one of the rationales for handing out Draconian sentences to defendants convicted of such offenses is that they pose such a danger to the public if they’re roaming free.

Everyone knows that’s true. After all, the Supreme Court itself has recognized that an “frightening and high” percentage of untreated child porn offenders “re-offend” – which is sociologist-speak for “commits the same crime again” – after release. The statistic everyone loves to cite is 80%.

roach170310Except it now appears that the statistic is wrong. But like roaches at the Roach Motel, the “alternate fact” has checked into federal jurisprudence, and it shows no sign of checking out.

A New York Times article published last Monday took the State of North Carolina to task for an argument its attorney made during the Supreme Court oral argument the week before in Packingham v. North Carolina. “This court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again,” attorney Robert C. Montgomery told the court during his defense of a state law that bars sex offenders from using social media services.

Attorney Montgomery was literally correct. The Supreme Court observed in a 2003 decision, Smith v. Doe, that the risk that sex offenders will commit new crimes is “frightening and high.” The Times said the holding, in a decision affirming Alaska’s sex offender registration law, has been “exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.”

Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited McKune v. Lile, a decision from the year before, which noted that “[t]he rate of recidivism of untreated offenders has been estimated to be as high as 80 percent.” That decision cited a 1988 Justice Department study entitled A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender, which was a collection of studies by experts in the field. Ironically, most of the recidivism rates cited in the Guide showed slight recidivism rates for sex offenders. One source, however, claimed an 80% re-offense rate, a number that the Guide itself cautioned might be an outlier.

80pct170310That source was a 1988 article published in the popular trade magazine Psychology Today. The Psychology Today piece simply asserted that “most untreated sex offenders released from prison go on to commit more offenses – indeed, as many as 80% do.” This statistic was not supported by any empirical evidence. In a recent Boston College Law Review article, Dr. Melissa Hamilton (who is both a criminologist and a lawyer) writes, “The Psychology Today authors were therapists in a sex offender treatment program with no apparent academic research credentials or statistical training. Evidently, the authors’ “statistic” was simply based on personal observations from their local treatment program.”

Hamilton argues that

In sum, a principal foundation on which the Supreme Court approved the existence of specialized sex offender policies rested upon virtually no scientific grounds showing that sex offenders are actually at high risk of reoffending. Unfortunately, the Supreme Court’s scientifically dubious guidance on the actual risk of recidivism that sex offenders pose has been unquestionably repeated by almost all other lower courts that have upheld the public safety need for targeted sex offender restrictions.

That may soon change. Pending before the Supreme Court is a petition for writ of certiorari in Doe v. Snyder, the 6th Circuit’s maverick decision to reject the “frightening and high” recidivism canard, in holding that Michigan’s civil sex offender law is unconstitutional. Hamilton argues that “Snyder’s engagement with scientific evidence has the potential to change the jurisprudence surrounding sex offender laws.”

reoffend130310With the Doe v. Snyder certiorari issue to be decided in the next few weeks, the argument against the 80% figure gain traction yesterday with a U.S. Sentencing Commission release of The Past Predicts the Future: Criminal History & Recidivism of Federal Offenders. The study, which is third in a USSC series on the topic, reported that persons convicted of child pornography had a recidivism rate of 37.6%, lower than any other category of offense except economic crimes (which, at 35.9%, was almost indistinguishable). Violent crime offenders, by contrast, reoffended at a 64.1% rate, and drug traffickers at a 50.0% rate.

lies170310Benjamin Disraeli (or Mark Twain, no one’s really sure) famously said, “There are three kinds of lies: lies, damned lies, and statistics.” He has a “frightening and high” 80% chance of being right.

New York Times, Did the Supreme Court Base a Ruling on a Myth? (Mar. 6, 2017)

Hamilton, Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder, 58:E.Supp Boston College Law Review, (2017)

U.S. Sentencing Commission, The Past Predicts the Future: Criminal History & Recidivism of Federal Offenders (Mar. 9, 2017)

– Thomas L. Root

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Sentencing Commission Issues Comprehensive Drug Recidivism Study – Update for February 23, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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BUT I REPEAT MYSELF…

A 149-page report issued Tuesday by the U.S. Sentencing Commission offers a fascinating, data-filled glimpse into recidivism by federal drug offenders.

shawshank161117First, our criticism: the data are drawn from 10,000+ federal drug offenders who were either released or placed on probation during 2005. While a study on recidivism necessarily has to watch a cohort of people over a period of years, a lot has happened since 2005 that may change the accuracy of some of the findings.

For example, the study showed that among the 2005 releasees, methamphetamine offenses constituted just under 17% of all offenses. By 2015, about 31% of all drug offenders were methheads. The other concern is that all of the releasees would have been sentenced before United States v. Booker, and thus had mandatory Guidelines sentences. That leaves unanswered the question whether non-mandatory Guidelines sentences have a different influence on drug offender recidivism than did the old regime of mandatory Guidelines sentences.

offenderages170223But our concerns do not materially lessen the benefit that the Report’s wealth of data confers on the sentencing debate. The overall finding is sobering: over an 8-year period, one half of the 2005 group of federal drug trafficking were rearrested for a new crime or a violation of supervised release conditions.

Some other findings:

• Crack cocaine offenders had the highest rate (61%) of recidivism of any drug type, while powder cocaine offenders had the lowest rate (44%);

• The median time from release to the first recidivism event was 25 months;

• Nearly one-fourth (24%) of recidivist drug trafficking offenders had assault as their most serious new charge, followed by drug trafficking and public order offenses at about 15% apiece;

offenderages170223• A drug trafficking offender’s criminal history was closely associated with the likelihood of recidivism, from a recidivism rate of 35% for offenders with no prior criminal history, to 77% for offenders in the highest criminal history. Interestingly, the Guidelines “career offenders” – whom policy dictates are supposed to represent the hardest-core offenders – had a recidivism rate of 63%, lower than three of the six other criminal history ranges;

• A federal drug trafficking offender’s age at time of release was closely associated with likelihood of recidivism. Drug trafficking offenders released prior to age 21 had the highest recidivism rate at 65%, while drug trafficking offenders over 60 years old at the time of release apparently retired, with a recidivism rate of only 16.5%;

• There is little apparent association between the length of imprisonment and recidivism for drug trafficking offenders overall, a finding that supports other studies suggesting that no prison sentence over 5 years has any greater deterrent effect than a 5-year term. However, once criminal history is accounted for, length of imprisonment is associated with lower rates of recidivism (probably because of the older age of the prisoner when released).

• Federal drug trafficking offenders had a substantially lower recidivism rate compared to state drug offenders released around the same time. Over 76% of state drug offenders released from prison were rearrested within five years, compared to 42% of federal drug trafficking offenders released over the same five-year period.

The Report includes chapters breaking down the numbers according to the types of drugs in the offenders’ cases.

rearrestbysent170223There’s plenty of data in the Report for everyone. While only being released two days as of this writing, the Report is already being used by one inmate going back for resentencing and another 60+-year old offender on supervised release who wants the court to end his supervision early.

United States Sentencing Commission, Recidivism Among Federal Drug Trafficking Offenders (February 21, 2017)

– Thomas L. Root

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7th Circuit Sanctifies Judicial “Hunches” as Sentencing Tool – Update for January 10, 2017

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HUH?

pecks170110Ryan Gibbs was just one of those perennial bad boys, with a record as long as your arm and a demonstrated lack of interest in conforming his conduct to the strictures of the law. In front of a district court for possession with Ryan faced a Guidelines-suggested 151-188 month sentencing range. The government asked for 216 months. The most Ryan could have gotten was a 240-month term.

The district judge, rambling “none too clearly” (as the Court of Appeals lamented), decided that Ryan was incorrigible:

When I look at the 3553(a) factors apart from the “nature and circumstances of the offense,” your “history and characteristics” of you as a defendant does [sic] not indicate that there should be any leniency at all; that they [anteced‐ent unclear] “reflect the seriousness of the offense,” “promote respect for the law,” which your history and characteristics indicate that you have no respect for the law; “provide just punishment.” Nothing — No previous sentence that this Court has imposed or other Courts have deterred you from your criminal conduct.

With this gibberish constituting the sum and substance of the district court’s application of the sentencing factors of 18 USC 3553(a), the judge slapped Ryan with 216 months.

Last week, the 7th Circuit affirmed the sentence. No surprise there – the government wins over 92% of the time in criminal appeals to begin with.

But the Court of Appeals upheld the decision primarily because it sensed it could trust the judge’s (and, to a lesser extent, the prosecutor’s) gut.

hunch170111The Circuit admitted that no one in the case “attempted a sophisticated analysis of the likely consequences… of adding roughly two years to the sentence he would have been given had the judge stopped at the top of the guideline range… both the prosecution and the judge based the 216-month sentence (proposed by the government, imposed by the judge) on a hunch. As the prosecutors as well as the judge are highly experienced, their hunches are likely often to be reliable.”

The Court said that, after all, the government can suggest any sentence within the statutory range and the judge can impose any sentence within the statutory range. Plus, the panel argued, the “briefs and argument of defense counsel in this case bordered on the perfunctory.”

So the judge and the AUSA are “highly experienced” and their hunches are “reliable.” Defense counsel, on the other hand, is a legal klutz filing cookie-cutter motions and soulless briefs. It sounds as though imposition of a sentence after proper consideration of the Guidelines and sentencing factors in Sec. 3553(a) is a privilege reserved only for defendants who have good lawyers or face lousy prosecutors and a neophyte judge.

Judge Richard Posner, the author of the decision and an appellate jurist for whom we have great respect, said that “some consideration, however, should be given to the possibility of basing a prison sentence – at least a very long one (and an 18-year sentence is very long) – on something other than a hunch.” We agree wholeheartedly. But he then proceeded on a flight of impractical fancy by suggested that maybe the sentencing judge should have called the Sentencing Commission, which then would given the AUSA, court and defense counsel guidance on why it set the Guidelines where it did, and might even propose the right out-of-guidelines sentence in this particular case. The parties might find the Sentencing Commission “a valuable resource,” Judge Posner opined.

momscold170110What a capital idea! For that matter, the district courts might just want to call Congress for guidance on why the statutory penalties are as they are, or ring up the President for his view as to whether it should peremptorily commute the sentence, or even ask the defendant’s mother what punishment she found to be the most effective when Ryan was a mere lad. To be sure, the Sentencing Commission could not be so busy that it wouldn’t be willing to give a few minutes of time to arbitrate an individual sentence in Ryan’s case (or in any of the other 80,000 criminal sentences that occur in federal courts annually).

phonefriend170110In the days before the Guidelines, judges sentenced anywhere within the statutory range virtually without oversight or discretion. The Guidelines were to change all of that. In Gibbs, the 7th Circuit has handed down a decision that enshrines a judge’s “hunch” as a standard that trumps all others. What’s nearly as bad, the Court has suggested that maybe district courts should start using the U.S. Sentencing Commission as a “phone-a-friend” in troublesome sentencing cases, a development undoubtedly as unwelcome to the Commission is it would be for people like us who believe that judging is for judges.

United States v. Gibbs, Case No. 16-1747 (7th Cir., Jan. 6, 2017)

– Thomas L. Root

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