Could ‘Ideologue’ Otis Inject Politics Into Sentencing Panel?

Bill Otis, “the arch-nemesis of criminal justice reform,” is one of four people nominated by the Trump administration for vacancies on the nonpartisan U.S. Sentencing Commission. The New Republic says Otis’ nomination could upset the balance of a body tasked with using data, not politics, to set sentencing policies.

Bill Otis

Bill Otis. Courtesy Federalist Society

In an article headlined “The Man Who Hates Criminal Justice Reform,” The New Republic profiles Bill Otis, a former federal prosecutor and special counsel to President George H.W. Bush who has been nominated by President Trump to the U.S. Sentencing Commission. Otis is a sharp critic of the criminal justice reform movement in America.

Last year, the Georgetown adjunct law professor told NPR that mandatory-minimum sentences were a “big success,” citing the drop-off in crime since the 1980s.

He was even more blunt in the Crime and Consequences blog:

“Q: Where do the ideas behind sentencing reform lead?” he asked last February. “A: To the morgue.”

And don’t get him started on racial disparities in imprisonment. “They are NOT caused by racism,” he wrote in a 2013 blog post.

“They are caused by making choices. Of course the question is then asked: Well, why do blacks make, proportionately speaking, more criminal choices than whites? Isn’t that because of the damaging effects of white people’s racial bigotry? And the answer, which we must not hesitate to give, is ‘no.’”

Kevin Ring, the president of Families Against Mandatory Minimums, calls Otis an ideologue and “the arch-nemesis of criminal justice reform.”

The seven-member sentencing commission was created by Congress in 1984 precisely so it could avoid politicized battles when crafting federal sentencing guidelines. Otis’s nomination could upset that balance. Its main function is to draft and revise federal sentencing guidelines, which aim to impose a degree of uniformity on federal criminal sentences nationwide.

It has been able to reduce thousands of sentences for non-violent federal prisoners. The commission also functions as a clearinghouse of sorts for criminal justice data and statistical reports.

See also Otis’ Op Ed in The Crime Report, “Memo to Lynch: Reach Out to your opponents.


Trump Denies Clemency to 180 Applicants

The president takes his first actions on the Justice Department clemency caseload since he was inaugurated. He has granted three pardons to political allies.

President Trump has denied clemency for 180 people who had applied for pardons and commutations through formal Justice Department channels even as he has short-circuited that process to pardon political allies, USA Today reports. The denials were the first actions on the Justice Department’s clemency caseload since Trump was inaugurated last year. Among those denied clemency was Anthony Calabrese, a 57-year-old reputed mob hit man from Chicago convicted of three robberies and sentenced to 62 years in prison. He requested compassionate release after being diagnosed with terminal cancer.

One White House official said the denials were “routine.” The official said the cases did not meet the president’s “high standards” for clemency. The last three presidents — Bill Clinton, George W. Bush and Barack Obama — all denied hundreds of applications in their first two years before granting their very first pardons and commutations. Three days before Trump rejected a batch of pardon applications, he granted one to someone who hadn’t applied for one: Scooter Libby, the former Bush administration aide convicted of lying to the FBI in a probe into the leak of classified information. Trump’s other pardons — for former Arizona Sheriff Joe Arpaio and former Navy submariner Kristian Saucier — came in highly politicized cases that also circumvented the formal process for granting pardons. That process includes an FBI background check and recommendations from prosecutors.


Sentencing Panel Acts on Synthetic Drugs, Fentanyl

The U.S. Sentencing Commission issued proposed guidelines for federal judges for sentencing in cases involving synthetic drugs and fentanyl. The panel said the fentanyl proposal amounts to a 50 percent increase in recommended sentences.

The United States Sentencing Commission has issued proposed guidelines for judges for sentencing in synthetic drug cases. The proposal reflects “a collaborative, detailed, and data-driven approach to federal sentencing policy,” the panel said. The commission said its proposal resulted from a multi-year study of synthetic drugs, which have not been included in federal sentencing guidelines, prompting courts to hold “expensive and resource-intensive hearings.”

The panel expressed the hope that its actions would “simplify and promote uniformity” in sentencing drug offenders. The commission also adopted a new guideline definition of the term “fentanyl analogue.” The panel said that the change “raises the guideline penalties for fentanyl analogues to a level more consistent with the current statutory penalty structure.” Commissioners voted for a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance, which it said equates to an approximate 50 percent increase in the recommended sentence.


‘Affluenza Teen’ Freed From Jail in Texas

Ethan Couch, the young man whose original sentence of 10 years probation for driving drunk and causing a crash that killed four people, must now submit to electronic monitoring and a 9 p.m. curfew.

Ethan Couch, the highly publicized and often criticized young man whose original sentence of 10 years probation for driving drunk and causing a crash that killed four people, is a free man. Escorted by his attorney, Couch, 20, was released from jail Monday morning as dozens of media outlets — both local and national media — greeted him, the Fort Worth Star-Telegram reports.  Known as the ‘affluenza teen,” Crouch served 720 days in jail for breaking the terms of his probation. Under terms of his release, Couch will be confined to his home and have to submit to electronic monitoring. He will have to wear a GPS tracker and will be subject to a curfew that doesn’t allow him to leave home until 8 a.m. daily, returning by 9 p.m.

Couch must use an alcohol monitor and wear a substance abuse test patch. Couch will be responsible for paying for the monitoring and he must obtain a new patch every 10 days. He cannot operate any motor vehicle without a camera-equipped ignition interlock device. It’s not clear where “home” will be. His mother, Tonya Couch, was arrested last week after failing a drug test. Couch was labeled the “affluenza” teen after an off-the-cuff comment by a psychologist during Couch’s original trial in 2013. The psychologist had described Couch, at the time a juvenile, as a spoiled teen who grew up in a rich and dysfunctional family, as a victim of “affluenza.” The description stuck after he was sentenced by Judge Jean Boyd to 10 years probation and intensive therapy. Couch was 16 when he was speeding in his Ford F-350 pickup truck and came upon people trying to assist a stranded motorist. He was drunk, with a blood alcohol level of 0.24, and crashed into the group, setting off a series of crashes that killed four people and injured 12.


DOJ Backs Proposal to Lengthen Fentanyl Sentences

The U.S. Sentencing Commission held its first hearing Wednesday on a proposal that recommends that first-time offenders who sell a half-ounce of fentanyl be sentenced to up to five years in prison, more than double the current top. The synthetic opioid was responsible for 20,000 overdose deaths in 2016. Critics say the plan to raise sentences based on the drug’s weight will incentivize selling it in its most dangerous forms.

The U.S. Sentencing Commission will weigh a new plan to lengthen prison terms for people caught selling fentanyl, a synthetic opioid responsible for 20,000 overdose deaths in 2016, BuzzFeed News reports. The drug has united drug users, public health workers, and law enforcement officials alike in fear over the drug’s potency. It is often mixed with fillers or other drugs, such as heroin or black-market pills, in doses too small to gauge reliably and killing users. The commission held its first hearing Wednesday on a new proposal that recommends, among other changes, that first-time offenders who sell a half-ounce of fentanyl be sentenced to up to five years in prison, more than double the current top recommended term.

The Justice Department supports the proposal and contends this crackdown is necessary because small amounts of fentanyl could put thousands of lethal doses on the street. Ratcheting up penalties invokes troubling echos of the 1980s’ rush to imprison drug dealers for years or decades, with negligible impact on drug abuse, contend criminal defense lawyers and activists who are protesting the plan. Critics worry that the plan to hike sentences based on the drug’s weight will incentivize selling the drug in its most dangerous forms. Top-level distributors would have a reason to sell fentanyl in its highest concentrations, in order to decrease their risk of longer prison terms. Meanwhile, the critics argue, street level-dealers who sell the drug heavily laden with fillers could face longer prison terms, despite selling less of the active compounds. Lindsay LaSalle, a staff attorney for the Drug Policy Alliance, which advocates treating drugs as a health matter, argues that the recommendations will have “perverse public health impacts.” The  commission’s recommendations do not bind courts, but they offer guidelines for federal judges.


Gun Mandatory Minimum Terms Decrease, Panel Says

The U.S. Sentencing Commission says that mandatory minimum terms in gun cases have dropped in the last six years, but firearms offenders are still a large part of the federal prison population, nearly 15 percent as of 2016.

In a new report on federal mandatory minimum sentences, the U.S. Sentencing Commission reports that mandatory minimum penalties in gun cases continue to result in long sentences, although they have decreased in the last six years. In fiscal year 2016, offenders convicted under a section of federal law imposing mandatory minimum terms got an average of 12 years, 13 months less than in fiscal 2010. In fiscal year 2016, offenders convicted of crimes that carry 15-year mandatory minimum penalties under the Armed Career Criminal Act received an average sentence of more than 15 years, nine months less than in fiscal year 2010.

As a result of these long sentences, firearms offenders contributed significantly to the size of the Federal Bureau of Prisons’ population, constituting 24,905 (14.9 percent) of the 166,771 offenders in federal prison as of September 30, 2016. Offenders convicted of multiple counts received what the commission called exceptionally long sentences as a result of the requirement that the sentence for each count be served consecutively. The average sentence for offenders convicted of multiple counts exceeded 27 years of imprisonment, nearly two-and-a-half times the average sentence for offenders convicted of a single count. While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum term has been stable, the number of offenders convicted of such offenses has decreased significantly since fiscal year 2010. In all, firearms offenses accounted for 16.8 percent of all offenses carrying a mandatory minimum penalty in fiscal year 2016. Such penalties continue to impact black offenders more than any other racial group. In fiscal 2016, blacks accounted for 52.6 percent of offenders convicted under the section requiring mandatory terms, followed by Hispanic offenders (29.5 percent), whites (15.7 percent) and other races (2.2 percent).


Could Sentencing ‘Discounts’ Replace Plea Bargaining?

A forthcoming study argues that putting sentencing authority in the hands of impartial judges will curb prosecutors’ “unfettered” power to force poor defendants to plead guilty or face trial. The study authors propose a more transparent system, similar to Australia’s, which automatically reduces a sentence by fixed percentages if the accused elects to go to trial.

A fairer trial system requires both transparency and a shift of power away from prosecutors “into the hands of (impartial) sentencing judges,” argue the authors of a forthcoming article in Missouri Law Review.

It isn’t an exaggeration to say the right to a fair trial in the U.S. is close to a myth, when the fate of more than 90 percent of criminal cases is determined by unrecorded conversations that take place in a courthouse hallway, according to the article, entitled  Plea Bargaining: From Patent Unfairness to Transparent Justice.

The authors propose replacing the current U.S. system with a model similar to one used in Australia, where judges have a high degree of authority over sentencing, and where the high court has ruled that prosecutors cannot even make a submission regarding an appropriate sentence.

The plea bargaining in U.S. courtrooms between prosecutors and defense attorneys, which Justice Anthony Kennedy called “horse trading,”  isn’t really a “negotiation” at all  due to the imbalance of power on the side of prosecutors, wrote the authors–making a defendant’s decision to plead guilty a rational choice, said the authors.

“The realities of the prison and the bail system, and the nearly unfettered power reposed in prosecutors often applies considerable persuasive force to those defendants who do not have the resources to get out of jail on bail or take their cases to trial,” the article said.

In US courts, the judge is absent from the plea negotiations.  Unlike trials, there are no records of the bargaining process, which happens outside the courtroom—in brief conversations between court appearances, sometimes by email, and sometimes over the phone.

Though judges can later reject a defendant’s guilty plea, “in reality, nearly all plea agreements are accepted by the courts,” wrote the authors– because the courts know very little about the case, and are under “considerable time pressures.”

The paper was written by Mirko Bagaric, Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School; Julie N. Clark, of Melbourne Law School; and William Rininger, of the  University of Akron School of Law.

They propose establishing a sentencing discount of up to 30 percent to all offenders who plead guilty. Where the prosecution’s case is weak, and a defendant is “tenably innocent,” they should receive a discount of up 75 percent. This will reduce both incarceration levels and discrimination in sentencing, they argue.

The paper acknowledges the constitutional limitations of this scheme, namely  the potential interference with a defendant’s right not to plead guilty, and right to a fair trial.

“Paradoxically, the effect of our proposal is that defendants with the strongest defense will be most strongly encouraged to plead guilty,” the authors wrote.

But it’s clear that the current plea process results in many innocent people pleading guilty, the authors argue, and “while our proposal will have the same effect, it has a demonstrable advantage over the current system.”

They added: “The transparency of the reform means that defendants will know precisely the maximum discount that is available to them if they relinquish their right to trial. This means that they can make fully-informed, autonomous decisions regarding their criminal justice outcomes and have a basis for confidence that their prospect of acquittal, if they had elected to exercise their right to trial, will be reflected in a significantly lower sentence.

“This is in contrast to the current situation, where the discount accorded to defendants in the plea bargaining process is, to some extent, driven by the opaqueness and fickleness of the respective negotiation skills of the prosecutor and defense lawyers.”

This summary was prepared by TCR Deputy Editor Victoria Mckenzie. Readers’ comments are welcome.


Some Federal Drug Sentences Rose Slightly Last Year

The U.S. Sentencing Commission says in its annual report that more than 44 percent of drug offenders were convicted of crimes carrying a mandatory minimum sentence. Drug cases are the largest single category of federal crimes.

Federal drug sentences remained relatively stable across all drug types in fiscal year 2017. The average length of imprisonment increased slightly in cases involving methamphetamines, from 90 months to 91 months, and in marijuana cases, from 28 months to 29 months, says the United States Sentencing Commission in its annual report for 2017. In fiscal year 2017, 44.2 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty. Drug cases still account accounted for the largest single group of federal criminal cases, comprising 30.8 percent of the total. Cases involving immigration, firearms, and fraud were the next most common types.

Among drug cases, offenses involving methamphetamine were most common, accounting for 34.6 percent of cases. The commission, which advises judges on recommended sentencing lengths for crimes, noted that from Jan.3 until March 21 last year, it lacked four voting members, the minimum number required to propose changes to federal sentencing guidelines to Congress. President Trump recently nominated four new members of the panel. Federal appeals court judge William Pryor  of Alabama is the commission’s acting chair. Trump has nominated him to continue on the panel.


Trump’s ‘Bipartisan’ Nominees to Sentencing Commission Tilt Conservative

The president has nominated four people to the U.S. Sentencing Commission, including three well-known conservatives. Families Against Mandatory Minimums opposed one of the nominees–Georgetown law Prof. William Otis, a former prosecutor—for his “outdated views.”

President Donald Trump’s four nominees to the U.S. Sentencing Commission include three well-known conservatives who may be inclined to support tougher sentences in federal criminal cases.

The White House announcement Thursday described it as a “bipartisan group” of nominees, but if all of them are approved by the Senate, the voting majority of the six-member commission (two of whom serve as ex-officio, nonvoting members), could tilt rightward, according to observers.

The commission, an independent judiciary agency, was created by Congress in 1984 “to reduce sentencing disparities and promote transparency and proportionality in sentencing,” according to its website.

The nominees are: federal appellate judge William H. Pryor, Jr. of Alabama, who has been considered by Trump for the Supreme Court; federal appellate judge Luis Felipe Restrepo of Pennsylvania, an Obama appointee to the court; federal district judge Henry E. Hudson of Richmond, Va.; and William G. Otis, a former federal prosecutor who now is an adjunct law professor at Georgetown University.

William J. Otis

William J. Otis

Judge Pryor currently serves as Acting Chair of the commission. If his re-appointment is confirmed, he will serve as chair, the White House said.

Sentencing expert Douglas Berman of Ohio State University noted on his Sentencing Law & Policy blog that Hudson as a prosecutor was known by the nickname “Hang ’Um High,”  and that Otis “prominently shares his (tough-on-crime) sentencing perspectives in many media.”

Reason noted that Otis has called for abolishing the sentencing commision.

Otis has written for The Crime Report about the Justice Department and sentencing.

Berman describes Pryor as an “Alabama pal” of Attorney General Jeff Sessions. Restrepo is a former defense attorney.

The advocacy group Families Against Mandatory Minimums said it had never taken a position on sentencing commission nominees, “but we feel compelled to change that policy in light of today’s announcement. Mr. Otis’s outdated views are well-known and well-documented.

“This is not a person who will be guided by evidence and data. The Senate should reject this nomination.”

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of the Crime Report. Readers’ comments welcomed.


White House Opposes Cutting Federal Mandatory Terms

Siding with Attorney General Jeff Sessions, the White House signals that it does not favor a Senate bill that would reduce mandatory prison terms, but it does back legislation that would improve the inmate reentry system.

The White House will not support legislation to reduce federal mandatory minimum prison sentences, instead throwing its support behind measures aimed at reducing recidivism rates. “The conclusion we reached was that, at this time, it’s appropriate for us to go forward with prison reform,” an unnamed senior administration official told The Hill. The White House position is a setback for Senate Judiciary Committee Chairman Chuck Grassley (R-IA), who has been working to move his criminal justice reform bill through Congress after it stalled last session. The committee advanced the Sentencing Reform and Corrections Act to the floor by a 16-5 vote this month over the objections of Attorney General Jeff Sessions and a few GOP members.

Sessions warned Grassley that the bill “would reduce sentences” for a “highly dangerous cohort of criminals” and that passing it “would be a grave error.” Grassley was furious. The White House official said, “The sentencing reform [bill] still does not have a pathway forward to getting done … what we see now is an environment where the prison reform does have enough support to get done.” The White House may back Rep. Doug Collins’s (R-GA) bipartisan Prison Reform and Redemption Act. It would allow inmates to serve the ends of their sentences in halfway houses or home confinement if they complete evidence-based programs while in prison that have been shown to reduce recidivism rates. Prison programming could include everything from job training to education and drug treatment. Senate Majority Whip John Cornyn (R-TX) and Sen. Sheldon Whitehouse (D-RI) have similar legislation. President Trump is planning to sign a order Wednesday to revamp the Federal Reentry Council and move it from the Justice Department to the White House.