Tag Archives: sentencing reform

Sessions Channels His Inner Ashcroft – Update for May 15, 2017

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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SESSIONS GETS TOUGH ON DRUG CRIMES
Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

Attorney General Jeffrey Sessions last week walked back Eric Holder’s 2014 DOJ order to go easy on drug offenders, telling federal prosecutors to “charge and pursue the most serious, readily provable offense” in drug cases, even when that would trigger mandatory minimum sentencing. The new policy cancels the Obama administration’s attempts to pull back on harsh sentencing strategies, which had produced a huge growth in prison populations, restoring the take-it-to-the-limit policies from a 2003 memo written by George W. Bush AG John Ashcroft.

The shift highlights the primary role US Attorneys and their minions play in setting federal sentences. The Atlantic said, “Prosecutorial discretion, like gravity, is the unseen force that binds the American criminal-justice system together. Federal prosecutors have a broad array of legal mechanisms at their disposal with which they can ratchet a defendant’s punishment higher or lower, depending on which charges they file and end with plead deals, making the AUSA the most influential actor in the federal system.”

lawandorder161219Sessions’ memo drew universal Democrat condemnation, and caught immediate heat from conservatives, too. Sen. Rand Paul (R-Kentucky) said mandatory minimum sentences “have unfairly and disproportionately incarcerated too many minorities for too long.” Sen. Mike Lee (R-Utah), one of the conservative leaders in advocating changes to the criminal justice system, lamented, “To be tough on crime we have to be smart on crime. That is why criminal justice reform is a conservative issue.”

The Sessions memo, not wholly unexpected, nevertheless comes at a time when bipartisan support has been quietly building in the Senate for an overhaul of federal sentencing. Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Minority Whip Dick Durbin (D-Illinois) have proposed pushing a modified version of last year’s Sentencing Reform and Corrections Act.

“This policy shift flies in the face of the growing bipartisan consensus that we need to reduce—not increase—the length of prison sentences for nonviolent drug offenders,” Durbin said in a statement Friday.

justicereform161128An organization supported by conservative businessmen Charles and David Koch is also criticizing the Sessions memo. “We favor a different approach which requires changing some of the existing federal laws,” Freedom Partners Chairman Mark Holden said in a statement Friday afternoon. “Fortunately, there are already federal reform bills from last year that have broad bipartisan support that will address this issue. These reforms are consistent with those enacted by many states the past 10 years.”.

Yesterday, conservative blog Hot Air railed against the Sessions memo, arguing that federal law is so bloated that “some people don’t even know they’ve committed a crime because of how many rules and regulations there are on the books. Justice reform in states like Texas and Georgia have shown crime rates and expenses go down when reforms are enacted. The people leading the charge for justice reform aren’t cop haters, but want there to be alternatives to keep those who aren’t hardened criminals from becoming them. Sessions is wrong and should reconsider his horrible memo which won’t help anyone, except maybe prison builders and his own department’s budget. Congress can stop this by enacting sentencing reform, but only if they’re willing to act.”

His hands may end up as tied as were his predecessor's.
His hands may end up as tied as were his predecessor’s.

The Republican response, even more than that from across the aisle, suggests that the Trump administration may soon learn what the Obama Administration realized to its chagrin. It may be able to make a number of changes on the Executive side, such as rolling back federal sentencing reform, increasing federal prosecutions for drug and immigration-related offenses, and expanding federal private prisons. But Trump can no more end criminal justice reform than Obama was able to end mass incarceration from the White House.

Los Angeles Times, Sessions restores tough drug war policies that trigger mandatory minimum sentences (May 12, 2017)

– Thomas L. Root

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

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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