Posts Tagged ‘sentencing reform’

Time to Lose the Guidelines?

Wednesday, June 29th, 2011

Bill Otis, a former AUSA and now an adjunct at Georgetown Law, had a piece earlier this month in the Federalist Society’s magazine Engage titled “The Slow, Sad Swoon of the Sentencing Suggestions.”  His article opens with the sentence “The Guidelines are a lost cause.”  We were in total agreement so far.  But by the next sentence, he’d lost us.

It’s a good article, don’t get us wrong, and well worth reading.  But Prof. Otis’ main point is that the Guidelines stopped being useful after Booker made them optional.  He’d prefer to completely do away with them, but only to replace them with more stringent rules that remove most of the discretion judges now have in sentencing.  We cannot agree.

The Guidelines were enacted back in 1987 largely in response to a perception that sentencing was too unpredictable.  For any given crime, Judge A might give three years in prison while Judge B might give only one.  Or Defendant X might get prison while Defendant Y only got probation.  The Guidelines corrected that by removing much of the discretion judges had.  For a given offense, and a given criminal history, there was a range of permissible definite sentences that could be imposed.  Some discretion was allowed for slight downward or upward departures to different ranges.  Less discretion was allowed for variances, sentences that rejected the Guidelines as inappropriate.  Needless to say, judges hated this loss of discretion from day one.  The Guidelines were not mere guidelines, but strict rules.  It stayed that way until the 2005 Booker decision restored them to the general rule-of-thumb they were meant to be.

Now, the Guidelines are still important at sentencing.  Everyone uses them, everyone applies them.  Now, however, once the appropriate Guideline range has been calculated, there is more room for advocacy to seek a different sentence, and judges are able to consider different sentences on a case-by-case basis.

Some, like Otis, decry this as a return to the unpredictable bad old days, where one’s sentence varied based on the “luck of the draw” of which judge one happened to have.  Others praise it as a movement towards greater individual justice.

The division here is deep, a seemingly irreconcilable difference of core principles of what criminal justice is supposed to do.

On the one hand, you have those who want predictability, uniformity and consistency.  If stealing $50,000 is worth five years (or whatever), then it’s worth five years.  What’s important is the crime, not the criminal.  If society knows that a given crime gets you a given sentence, then the law has a more deterrent effect.  The penalty works to prevent more of the same crime, and society benefits.  Taking into account such variables as the thief’s personal circumstances or the judge’s gut feeling that this wasn’t such a big deal — or conversely variables such as the relative harm suffered by the particular victim or the judge’s gut feeling that this was worse than usual — makes for an unpredictable world where nobody knows what a given crime is worth.  Without predictability, the law loses its deterrent effect.  Society suffers.  The purposes of punishment that are most important to this group are retribution — a given crime is worth a given penalty — and general deterrence.

On the other hand, you have those who want individualized sentencing.  Make the punishment fit the criminal, not the crime.  Justice is not what happens on average, it is what happens to this individual standing right here right now.  And even general deterrence is achieved not by specific sentences, but by the general awareness that some punishment is going to happen.  The uncertainty of what that penalty might be doesn’t lessen the deterrent effect of this awareness.  And the retributive aspect of punishment must be proportional to be just.  A one-year sentence might be devastating to the life of a middle-class college grad whose career will be ended, whose reputation in his relevant community will be destroyed, and who will suffer the consequences deeply for the rest of his life.  That same one-year sentence might be a walk in the park (or as one of our clients once put it, “a nice vacation”) with little or none of the devastation suffered by the other.  Justice demands that individual differences be taken into account.  And that demands that judges be given the discretion to do so.

These two positions — general justice vs. individual justice — are usually irreconcilable because they use the same words to mean different things.  They can’t even begin a discussion because they’re arguing from core principles that don’t correspond.

But beyond that, those who value general consistency over individual appropriateness miss the entire point of our criminal justice system.  The whole point is to ensure (more…)

Prison: A Problem, Not a Paradox. Is It Solvable?

Tuesday, June 14th, 2011

Too many people are in jail.  The rate of incarceration is just going up and up.  Is it doing any good?

If you look at the two graphs above, you’ll see that the prison population in the United States has soared, while the amount of violent crime has plummeted.  The prison population of 1.5 million is about triple what it was in 1980.  Meanwhile, according to the DOJ’s figures, violent crime is about a third of what it was in 1980.  It’s an uncanny correspondence, that incarceration has tripled while violence has thirded (yes, that’s a real word).

Some people look at this and say there’s an inherent absurdity, an inherent injustice, that even though crime is down jailings are up.  Others say it’s obvious that, if you jail the people who commit crimes, they’re not going to be walking around to commit as many crimes.  One sees a paradox, the other sees causation.  (These are not straw men, by the way.  These positions have been taken on the pages of the New York Times and the Wall Street Journal, among others.)

There really isn’t any paradox, of course.  It’s not like more people are being imprisoned than there are crimes being committed.  Last we heard, everyone in prison was convicted of something.

What’s going on here is that more and more convictions are resulting in incarceration.  Crime may be down, but the proportion of crimes you’re likely to go to jail for is way up.

Nonviolent crimes, in particular, are far more likely to get you a jail sentence these days.  Since about the start of the Clinton administration, the number of different kinds of nonviolent offenses has skyrocketed.  And drug crimes have been a growing proportion since the Reagan years.

Several factors are involved in this dramatic increase in prison for nonviolent offenses.  One is a dramatic increase in regulatory violations that have been criminalized.  Regulatory agencies have started using criminal law as a tool — a tool that is wrong for the job, and one they are ill-equipped to use.  Voluminous regulations are created to micromanage how people can live their lives and operate their businesses.  Fines, denial of permits, and other civil penalties are the normal and appropriate method for enforcing compliance with all the regulations.  But over the past generation, regulators have become emboldened to impose criminal penalties for violations of their rules.

These regulations are rarely drafted by anyone who has the slightest clue of what criminal law is, why it exists, and how it works.  So they tend to leave out little things like mens rea.  Everything’s a strict-liability crime with them. In the regulatory world, simple mistakes are indistinguishable from deliberate transgressions.  When the penalty is denial of a permit, that’s not a problem.  But when the penalty is prison, it’s a big problem.  And everything’s a federal offense, which almost always means a felony.  Instead of, you know, regulating conduct, the regulators use the criminal law to keep the unruly masses in line.  And more people face prison as a result.

Another factor is the elected politicians’ desire to look “tough on crime.”  Which results in a steady ratcheting-up of sentencing for existing crimes, as we’ve discussed before.

It also results in the creation of new crimes, harsher statutes to deal with the public outcry of the moment, like crack or hate crimes or insider trading or what have you.  These new offenses are rarely necessary, as existing laws tend to already punish the conduct.  But the new ones often carry greater minimum sentences, and that’s the whole point.  So more people are facing prison, and for longer stretches of time, than before.


The situation is getting out of hand.  It’s gotten to the point where small corrections aren’t going to cut it.  Drastic measures would be needed.  And drastic measures being, you know, drastic and all, they’re not likely to be undertaken any time soon.

But let’s say we’ve got a genie who’s offered to grant us three wishes here.  What would they be?

Wish one would be (more…)

Stop the Presses — Holder Does Something Right

Wednesday, June 1st, 2011


We rag on Attorney General Eric Holder from time to time on this blog.  For good reason — he’s been something of an idiot on profiling, miranda, terrorism, etc..  But today he did something praiseworthy, and we’d be out of line if we didn’t say so.

Last August, Obama signed the Fair Sentencing Act.  Although it does have some significant drawbacks, such as actually increasing sentencing for some defendants, the main intent was to try to reduce the insane disparity in federal sentencing for crack cocaine and powder cocaine.

The problem was, this reduction in the sentencing guidelines was not retroactive.  It only applied to future cases.  People already in prison for crack — even though everyone now agrees their sentences are too long — would have to suck it up and stick it out.

But today, AG Holder testified before the US Sentencing Commission, and told them the new lower sentences should be applied retroactively.  “As years of experience and study have shown, there is simply no just or logical reason why their punishments should be dramatically more severe than those of other cocaine offenders,” he said.

Yes.  He is, for once, right.

Of course, even when he’s right he can’t help being wrong.  Holder wouldn’t let the lower sentences be retroactive if the inmate happened to have a gun at the time of the crime.  Or if the inmate had a “significant” criminal history.  Apparently, crack really is something that should be sentenced more harshly if you’ve gotten caught possessing or selling it before.  There’s no internal logic here, no principle that supports this.  If crack crimes are not more serious than equivalent powder crimes, then what justifies enhancing crack but not powder sentences if these other factors exist?  Holder’s being disingenuous, trying to appease both the reformers and the “try to look tough on crime” legislators, instead of actually being true to his principles.  If he has any.

Still, although he’d be more correct to seek retroactive application across the board, he’s at least doing something right in seeking some retroactivity at all.  So here’s some polite golf applause for Eric Holder.

Rethinking Recidivism

Friday, April 29th, 2011


It’s rare that we agree with a NY Times editorial.  Yesterday, we came close.  In a blurb titled “Recidivism’s High Cost and a Way to Cut It,” the editors said one solution to the high cost of imprisoning repeat offenders would be to adopt what Oregon’s doing, in letting its parole officers use programs and other alternatives to jail for lesser violations.

Ooh, so close.

Two problems: One, most of those who return to prison aren’t coming back on a parole violation, they’re going in because they got convicted of a whole new crime.  Yes, far too many parolees get put back in for non-criminal stuff like failing to abide by arbitrary and asshole-ish conditions imposed by dickhead parole officers.  But this doesn’t account for much of the actual recidivism numbers.  So dealing with this isn’t going to make too big a dent in the repeat prison population.

Two, the people making the decision are still going to be the same parole boards, parole officers, and parole magistrates who are acting like assholes and dickheads in the first place.  (These are obscure legal terms of art, perhaps obscure to those who do not practice criminal law.  To any non-lawyers reading this, we believe the common expression would be something akin to “unthinking, tyrannical bullies.”)  The problem people are the ones who are so jaded by dealing with scumbag after scumbag that they are incapable of recognizing a deserving parolee when they see one; or they are so stupid that they are incapable of reasoned discretion and cling to rote practices like a drowning man clutching a lifeline; or they are such villains that they derive satisfaction from fucking people over; or they are so righteous that they believe they are doing the right thing in fucking people over.  Whichever variety you’re dealing with, they either abuse their discretion or fail to use their discretion in the first place.  So giving them more discretion isn’t going to solve anything.


So okay, the NYT oversimplified, missed the real point, and offered a useless suggestion.  Who cares, that’s what they always do.  But this is The Criminal Lawyer, you’re saying to yourself.  What do we suggest?

The biggest problem is really out of the hands of the criminal justice system.  It’s people who (more…)

What Nobody’s Mentioning about the New Crack Sentencing Law

Wednesday, August 4th, 2010


Yesterday, President Obama signed S.1789, the long-awaited sentencing fairness act that reduced the appalling 100-to-1 sentencing disparity between crack cocaine and powder cocaine.  It still doesn’t go all the way to undo the hysteria of the crack epidemic, however.  For powder cocaine there’s a 10-year minimum for selling or possessing with intent to sell 5,000 grams — for crack cocaine the figure was just 50 grams, but that just went up to 280 grams.  There’s a 5-year minimum for selling/possessing with intent 500 grams of powder — for crack that just went up from 5 grams to 28 grams.  So there’s still a roughly 18-to-1 sentencing disparity.  And the 5-year mandatory minimum for mere possession of crack — personal use here — was eliminated entirely (it had applied to possession of 5 grams for first offenders, 3 grams for second offenders, and 1 gram for third offenders).

That’s all good news.  Getting rid of the mandatory minimum for mere possession is the best part, because throwing people in jail for mere possession is stupid, wrong, unjust, and doesn’t solve the problem.  Drug court and treatment diversion programs work very well.  (The new law also requires a federal report one year from now on just how well the federally-funded drug court programs are doing.)  Reducing the sentencing disparity from the appalling (and racist) 100-to-1, to the merely shocking (and still racist) 18-to-1… well, it’s better than nothing.  Powder and crack are equally bad, there is no disparity in their effects, their addictiveness, or anything meaningful.  There shouldn’t be any disparity at all.  But reducing it is a step in the right direction, and the new law is rightly praised for so doing.

But in all the hoopla, the press (and the defense bar) seem to have overlooked the other provisions of the new law — provisions which can dramatically increase some drug sentences.

There are now 2+ level enhancements for drug crimes involving violence or the threat of violence (not unheard of).  There are now 2+ level enhancements if premises were used for the manufacture or distribution (very common).  There will be 2+ level enhancements if the defendant was using his girlfriend to mule the drugs, or an addict to sell the drugs on the street in exchange for a freebie, or any other typical buffering relationship.  There will be 2+ enhancements if they sold to, or involved, someone under 18, someone over 64, or someone who was pregnant (common).  There are 2+ enhancements if the defendant made his living by selling drugs (a majority of cases, no?).

That’s just a partial list of enhancements.  But you can see how a typical drug defendant can now wind up facing significantly more time now than before Obama signed “the Fair Sentencing Act of 2010. ”

We can think of a number of ways to describe the new law.  “Fair Sentencing” is not one of them.

Federal Sentencing: A Long Way to Go

Tuesday, May 25th, 2010


Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.

The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.

Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”

But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.

Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.


“Unnecessary cruelty”

For as long as we’ve been practicing law, everyone has been complaining bitterly about (more…)

2009 New York Drug Sentencing Guide

Wednesday, April 15th, 2009


2009 New York Drug Sentencing Guide

What with all the drug law reforms happening in New York, we thought we’d put together a quick-and-easy guide to what they mean. Click here to view it in PDF form.

We used to do this all the time back when we were prosecuting cases with Special Narcotics. New York laws are so (unnecessarily) byzantine that a single chart really became necessary to figure out what they mean. We were often gratified to see nth-generation photocopies of our drug-law charts on various judges’ benches, and they were certainly popular in the office.

Standard warnings apply, of course: this is only a guide, and is not meant to be a substitute for legal research. And like everything else on this blog, it neither provides legal advice nor implies or creates an attorney-client relationship.