Mark Patrick Lane 2014-11-28 08:45:04
The transformation of federal sentencing For more than a generation, mandatory minimum prison sentences and the United States Sentencing Commission guidelines1 have dominated the landscape of federal criminal sentencing, leading to an 800 percent rise in the number of federal inmates since 1980. More people are being sentenced to federal prison for longer periods of time. This is partly a result of the war on drugs, which increased statutory and guideline punishments for federal drug trafficking crimes. The federal sentencing system, and the guidelines in particular, have been the subject of significant criticism centered on the impact that lengthy federal sentences have on budgets, recidivism, and individual and community unfairness, which concerns issues like how the amount of drugs or the prosecutor’s manner of charging an offense can affect a potential sentence, as well as the disparate statutory and guideline punishment for crack cocaine. Whether in response to this criticism, changing attitudes toward drugs, historically low crime rates, or evolving concepts of morality, equity, or culture, federal sentencing is undergoing a number of changes. Initially, the transformation began with the U.S. Supreme Court, but it is now motivated by legislative action and executive policy changes. FEDERAL COURT DECISIONS The first, and arguably the most, significant change to the modern federal sentencing structure was rooted in the U.S. Constitution rather than policy. In 2005, the U.S. Supreme Court, in United States v. Booker,2 held that the mandatory application of the guidelines was unconstitutional. Following Booker, the sentencing guidelines are only advisory to the sentencing court. While the district court still must properly calculate the guideline sentencing range,3 the judge has the discretion to examine other factors. In fact, the district court is required to “impose a sentence sufficient but not greater than necessary to comply with the purposes” of the law.4 The elimination of mandatory guideline rigidity and the expansion of judicial discretion have created an opportunity for creative and determined defense counsel to again “make a difference” in federal sentencing. Although the Supreme Court has determined that the guidelines are only advisory, they continue to play an important role in federal sentencing—which is particularly evident within the 5th Circuit. In fiscal year 2013, the 5th Circuit sentenced 11,990 defendants, or 67.1 percent, within the guideline range as determined by the district judge. Another 375 defendants, or 2.1 percent, were sentenced above the guideline range and the remaining defendants were sentenced below the range based upon either the prosecutor’s motion for a lower sentence (2,659 or 14.9 percent) or judicial discretion (2,833 or 15.9 percent).5 Other circuits are far less likely to impose a guideline sentence. For example, on average, a guideline sentence was assessed 51.2 percent of the time nationwide, with 2nd Circuit and 9th Circuit judges applying a guideline sentence in only 35 percent of the cases. LEGISLATIVE ACTION Within five years of the Booker decision, federal policymakers began to make additional changes. In 2010, Congress passed the Fair Sentencing Act, which reduced the punishment disparity between offenses for crack and powder cocaine from 100:1 to 18:1. A similar bipartisan effort has been seeking passage of the Smarter Sentencing Act of 2014,6 which would cut mandatory minimum sentences for a number of federal drug crimes. While it would not eliminate mandatory minimum sentences, it would reduce them from 20-, 10-, and 5-year minimums to 10-, 5-, and 2-year minimums, respectively. The Smarter Sentencing Act would also expand the number of drug offenders with little or no criminal history who are eligible for “safety valve” relief to avoid the imposition of statutory mandatory minimum sentences. They may also qualify for a further reduction of their base offense level under the guidelines, which in turn reduces the sentencing range. While federal policymakers have begun to re-examine the drug war, states have been leading the way. In 2013, 35 states passed at least 85 bills to change some aspect of how their criminal justice systems address punishment and sentencing.7 These efforts have included lowering penalties, shortening mandatory minimums or curbing their applicability, removing automatic sentence enhancements, and establishing or extending the jurisdiction of drug courts and other alternatives.8 Texas has instituted several reforms designed to reduce both prison population and recidivism that have expanded treatment and diversion programs, including a marked increase in the number of specialized drug courts. The U.S. Department of Justice has even cited the Lone Star State’s “pioneering approaches” as a positive example for change.9 U.S. SENTENCING COMMISSION AMENDMENTS Meanwhile, the Sentencing Commission has proposed changes to the guidelines. For example, it made a small, but important, amendment that eliminated the practice of some federal prosecutors requiring defendants to waive their right to an appeal in exchange for a one-level decrease in the base offense level for acceptance of responsibility.10 The commission has made more substantial changes to the guidelines in relation to federal drug offenses. In April 2014, with support from the DOJ, the commission voted to reduce by two levels the base offense levels applicable to drug trafficking crimes. The retroactive application of the reduction became effective Nov. 1, 2014, since Congress opted not to override the commission’s decision.11 This is a significant change affecting an estimated 70 percent of federal drug trafficking defendants by reducing sentences by an average of 11 months, or 17 percent.12 Again with DOJ support, the commission voted in July 2014 to make the two-level reduction retroactive to all previously sentenced defendants (with the effective date delayed for one year)—which is estimated to apply to about 46,000 previously sentenced defendants13 and to reduce the average sentence from 133 months to 108 months. An estimated 7,953 defendants will be eligible for immediate release on Nov. 1, 2015. The reduction of the base offense level for drug offenders raises enormous practical challenges for the federal courts and prisons. Initially, the courts must decide whether to apply the reduction immediately to those awaiting sentencing. The alternative is to sentence defendants without the benefit of the two offense-level reduction knowing the defendant may be resentenced once the retroactive reduction becomes effective. The more significant practical challenge is the looming obligation to review and potentially resentence 46,000 federal drug trafficking defendants. The one-year delay will provide time for the courts to consider such motions; prosecutors to raise any principled objections; the U.S. Probation and Pretrial Services System to prepare to effectively supervise a suddenly larger number of offenders and the Federal Bureau of Prisons to prepare usual transitional services; and opportunities to aid in reentry into society. EXECUTIVE BRANCH POLICY CHANGES The single most important advocate for change in federal sentencing has been U.S. Attorney General Eric Holder. Holder launched a Smart on Crime Initiative in 201314 to address federal prosecution priorities and sentencing issues. As he said in a speech to the American Bar Association: Too many Americans go to too many prisons for far too long ... widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable. It imposes a significant economic burden ... and it comes with human and moral costs that are impossible to calculate.15 The DOJ has instituted several changes that center on prosecutorial discretion to charge or not charge an individual with an offense and, if so, what charge is appropriate and what sentence the prosecutor should seek. On Aug. 12, 2013, the department issued to all U.S. attorneys specific instructions related to federal prosecution priorities.16 Initially, prosecutors were reminded that all charged offenses must constitute a federal offense for which sufficient evidence must exist to obtain and sustain a federal conviction. Prosecutors were specifically instructed that all charges must also: (a) serve a substantial federal interest; (b) ensure that the person is not subject to effective prosecution elsewhere; and (c) ensure that there is no adequate non-criminal alternative to prosecution. A “substantial federal interest” is a function of national and local law enforcement priorities. Nationally, the DOJ has four priorities, including national security, violent crime, financial fraud, and protecting vulnerable victims. Notably, drug trafficking is not listed. In addition, the department issued limits on the use of statutory mandatory minimum sentences for certain nonviolent, low-level drug offenders,17 which instructed prosecutors not to include the specific quantity of drugs that trigger mandatory minimum sentences when drafting indictments for drug defendants who meet the following four criteria: 1) their conduct did not involve violence, the possession of a weapon, or sales to minors; 2) who are not leaders of a criminal organization; 3) who have no significant ties to large-scale gangs or cartels; and 4) who have no significant criminal history. Prosecutors were also reminded that an individual assessment of each case is required and that the prosecutor should advocate for a below-guideline sentence when appropriate and should reserve statutory enhancements for those defendants whose conduct warrants severe sanction. The DOJ’s current position represents a dramatic shift from that of the prior administration that required federal prosecutors to “charge and pursue the most serious, readily provable offense.” Additionally, on April 23, 2014, the department announced a broad new executive initiative for expediting clemency applications from federal inmates who: 1. are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; 2. are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; 3. have served at least 10 years of their sentence; 4. do not have a significant criminal history; 5. have demonstrated good conduct in prison; and 6. have no history of violence prior to or during their current term of imprisonment. Although there are approximately 216,000 federal prison inmates, the requirement for having served at least 10 years will limit the initial pool of clemency candidates to an estimated 23,000 offenders. From Oct. 1, 2013, to Sept. 30, 2014, the Office of the Pardon Attorney received 6,561 petitions for clemency,18 compared to an average of 1,851 petitions received annually in the first four fiscal years of the Obama administration. CONCLUSION Punishment in the federal system is undergoing a dramatic period of change that affects both those awaiting sentencing and those already serving sentences. While a federal sentence can still be quite strict, there is an increased opportunity for the defense to seek more leniency. This is true particularly for non-violent defendants with minimal criminal history. Drug trafficking defendants will be serving less time in prison, the number of people in prison will decline, and the budgetary costs of imprisonment will fall. What is not known is the effect, if any, these changes will have on the continued relevance of the guidelines, recidivism, the impact on communities, and the reallocation of federal law enforcement resources. Stay tuned.19 TBJ NOTES 1. Frank O. Bowman III, Dead Law Walking: The Surprising Tenacity of the Federal Sentencing Guidelines, 51 Hous. L. Rev. 1227 (2014). 2. United States v. Booker, 543 U.S. 220 (2005). 3. Gall v. United States, 552 U.S. 38, 51 (2007). 4. Title 18, United States Code _ 3553. 5. United States Sentencing Commission, Statistical Information Packet, Fiscal Year 2013, Fifth Circuit. Page 11; http://www.ussc.gov/sites/default/files/pdf/researchand- publications/federal-sentencing-statistics/state-district-circuit/2013/5c13.pdf. 6. Smarter Sentencing Act of 2014, S. 1410, 113th Congress (2nd Sess. 2014). 7. Vera: Institute of Justice, Recalibrating Justice: A review of 2013 State Sentencing and Corrections Trends, 7/15/2014. 8. Id. 9. United States Department of Justice, Smart on Crime—Reforming the Criminal Justice System for the 21st Century; http://www.justice.gov/ag/smart-on-crime.pdf. 10. U.S.S.G. _ 3E1.1(b), Amendment 775, effective Nov. 1, 2013. United States v. Palacios, ___ F.3d____, 2014 WL 2119096 n.1 (5th Cir. May 21, 2014). 11. U.S.S.C., News Release, April 10, 2014; http://www.ussc.gov/sites/default/filespdf/ news/press-releases-and-news-advisories/press-releases/20140410_Press_Release.pdf. 12. Id. 13. U.S.S.C., Summary of Key Data Regarding Retroactive Application of the 2014 Drug Guidelines Amendment, July 25, 2014, page 2; http://www.ussc.gov/sites/default/files/ pdf/research-and-publications/retroactivity-analyses/drug-guidelines-amendment/ 20140725-Drug-Retro-Analysis.pdf. 14. United States Department of Justice, Smart on Crime—Reforming the Criminal Justice System for the 21st Century; http://www.justice.gov/ag/smart-on-crime.pdf. 15. Attorney General Eric Holder Delivers Remarks at the Annual Meeting of the American Bar Association’s House of Delegates, San Francisco, Aug. 12, 2013; http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html. 16. “Federal Prosecution Priorities,” Memorandum to Heads of Department of Justice Components and United States Attorneys; http://www.justice.gov/ag/smart-oncrime/ ag-memo-substantial-federal-interest.pdf. 17. “Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases,” Memorandum to United States Attorneys and Assistant Attorney General for the Criminal Division; http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/ag-memo-departmentpolicypon- charging-mandatory-minimum-sentences-recidivist-enhancements-in-cer tain-drugcases.pdf. 18. DOJ, Office of the Pardon Attorney, Clemency Statistics; http://www.justice.gov/ pardon/statistics.htm. 19. The author wishes to thank Marjorie A. Meyers, federal public defender for the Southern District of Texas, for the background provided in her outstanding paper on federal sentencing which is distributed annually at the Advanced Criminal Law Course. MARK PATRICK LANE is a U.S. magistrate judge for the Western District of Texas, sitting in the Austin Division. Prior to being appointed to the bench, he worked for 17 years with the U.S. Attorney’s Office for the Western District of Texas, where he served in a variety of positions, including assistant U.S. attorney, chief of the Austin Division, and counselor to the U.S. attorney. He also spent a year on special detail to the U.S. Department of Justice in Washington, D.C.
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