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.


Key Conservative Tells Congress: Pass Sentencing Reform

Mark Holden, General Counsel of Koch Industries, says the newest version of the long-delayed prison reform and sentencing overhaul bill, passed by the Senate Judiciary Committee Thursday, will further President Trump’s campaign pledge of helping America’s “forgotten men and women”—including those behind bars.

One of the nation’s leading conservatives called on federal lawmakers Thursday to pass the newest version of the Sentencing Reform and Corrections Act, and he urged President Donald Trump to sign it.

Mark Holden

Mark Holden. Photo by John Ramsey/TCR

Mark Holden, Senior Vice President and General Counsel of Koch Industries, said the proposed measure, which would reduce mandatory-minimum sentences for some nonviolent federal drug offenders and support incentives for prisoners to earn early release, was a “good bill.”

“Congress needs to do its job in changing (the Act) and get the president to sign it,” he told journalists and criminal justice professionals at John Jay College in New York.

The new version of the Act, whose most prominent opponent in Congress was Attorney General Jeff Sessions when he was an Alabama Senator, was passed 16-5 by the Senate Judiciary Committee Thursday.

Holden conceded that the bill probably “wasn’t going anywhere” because of the administration’s opposition, but at the same time he said the White House was “fully on board” with efforts to improve the chances of individuals leaving prison to reintegrate with the community and become responsible citizens.

Holden, who met with Sessions and President Donald Trump, along with representatives of conservative-leaning groups last month, said he was confident the White House support would lead to backing for innovative and bipartisan approaches to justice reform even if legislative attempts continued to be stalled.

He argued that prison reform remained an important political prerogative for the White House—and for President Trump personally.

“Keep in mind that this is a president who ran on the notion that he would provide a voice for the voiceless and the forgotten men and women in our society,” Holden said.  “If that’s the case, this is the place to be, because that’s who’s in our prisons these days—the voiceless, the forgotten people.”

Holden provided no further details about White House plans, but he said the president’s son-in-law Jared Kushner was a strong supporter of reforms, noting among other reasons his own family’s involvement with the justice system. Kushner’s father Charles, a real estate developer, was convicted in 2005 of illegal campaign contributions, tax evasion and witness tampering, and served time in federal prison.

Few people truly understood prison’s impact on individuals unless they had “proximity” with someone who had been behind bars, and Jared Kushner “had proximity,” Holden said.

Holden, who also serves as chairman of Freedom Partners Chamber of Commerce, is one of the leading conservative voices pushing for an overhaul of the justice system. Although Koch Industries, headed by multi-billionaire Charles Koch, has been a bitter target of liberals and reformers for its financing of libertarian causes, it has also been a major backer of the bipartisan “smart on crime” movement.

He noted that his group had been “very open and honest” in its disagreements with the some of the new administration’s justice policies, such as Sessions’ reversal of his predecessor’s softening of some drug sentencing laws, the failure to move ahead on the federal sentencing overhaul bill, and its opposition to marijuana legalization.

“We disagree that they should be doing what they’re doing with marijuana,” he said. “But in Sessions’ defense, it is on the books, it’s a felony to smoke marijuana. So we need to change that law and Congress needs to get off their butts and do something and the president needs to sign that.”

Holden used his remarks to promote the Safe Streets and Second Chances program,  a Koch-backed initiative aimed at eventually ensuring that all individuals entering prison in the U.S. immediately receive a program of  counseling, education and rehabilitative care geared towards preparing them for productive lives after release.

He said it was a moral, constitutional and fiscal imperative for all Americans, regardless of their ideological affiliations, to end the “two-tiered system (where) the rich and guilty are treated better than the poor and innocent, and people plead guilty to things they didn’t do because of the power of prosecutors and a lack of full time lawyers to defend them.”

“We don’t let anyone get back on their feet in a real way,” Holden added.  “People with criminal records continue to pay the debt for the rest of their lives due the pernicious collateral consequences of a criminal record that exist in this country.”

The Safe Streets, Second Chances initiative, in collaboration with the Texas Public Policy Foundation, Florida State University, and others, is already operating pilot projects in prisons in several states and hoped to develop data that would persuade more states to buy into the program, Holden said.

TCR News Intern John Ramsey contributed to this report. Readers’ comments are welcome.


Woman Sterilized At Judge’s Urging Before Sentencing

At the suggestion of an Oklahoma federal judge, an admitted drug user involved in a counterfeit check ring underwent a medical procedure preventing her from having more children. Summer Thyme Creel, 34, had the elective procedure after Judge Stephen Friot said he could consider it at her sentencing, which is set for Thursday,

At the suggestion of an Oklahoma federal judge, an admitted drug user involved in a counterfeit check ring underwent a medical procedure preventing her from having more children, The Oklahoman reports. Summer Thyme Creel, 34, had the elective procedure in November after Judge Stephen Friot said he could consider it at her sentencing if she chose to do so. Her sentencing is now set for Thursday. In making his unusual suggestion, he said Creel had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant with some of them. “She voluntarily wanted to do it,” said her court-appointed defense attorney, Brett Behenna.

A prosecutor is urging the judge not to consider the procedure as a factor at sentencing. “Creel not only has a fundamental constitutional right to procreate … but she admits that she had an interest in an elective sterilization procedure even before the court’s order,” said Assistant U.S. Attorney Jessica Perry. “Furthermore, Creel’s decision to have (or not have) additional children is sufficiently removed from the type of criminal activity involved in this case that such a factor is irrelevant to determining a sentence.” Creel has a lengthy criminal record involving theft and counterfeit check crimes. She pleaded guilty a year ago for using a $202.22 counterfeit check at a Walmart in 2014.


Man in High Court Case Still Waits for Parole Hearing

Thursday is the two-year anniversary of the Supreme Court ruling in favor of Henry Montgomery, 71. The decision enabled about 2,000 inmates to argue for their release after receiving mandatory life-without-parole sentences as juveniles. Montgomery still awaits a parole hearing next month in Louisiana.

A Supreme Court ruling gave Henry Montgomery his first chance at freedom after nearly a half-century behind bars. Two years later, the 71-year-old Louisiana man is still waiting for a parole hearing that could set him free, the Associated Press reports. Thursday is the two-year anniversary of the high court’s ruling in Montgomery’s favor. The decision enabled about 2,000 inmates to argue for their release after receiving mandatory life-without-parole sentences as juveniles. Louisiana’s parole board was scheduled to hear Montgomery’s case on Dec. 14 but postponed the hearing until Feb. 19. Montgomery was 17 when he killed a sheriff’s deputy in 1963.

The Supreme Court ruled in 2012 that mandatory life-without-parole sentences for juveniles are unconstitutional “cruel and unusual” punishment. The justices made their decision retroactive in Montgomery’s case. The decision led to a wave of new sentences and the release of inmates from Michigan to Pennsylvania, Arkansas and beyond. Other former teen offenders are still waiting for a chance at resentencing in states that have been slow to act. In Michigan, prosecutors are seeking new no-parole sentences for nearly two-thirds of 363 juvenile lifers. Justice Anthony Kennedy said prisoners like Montgomery “must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” A state judge who resentenced Montgomery to life with the possibility of parole said he’s a “model prisoner” who appears to be rehabilitated.


Life Without Parole Replaces Death Penalty in Houston

There were no new death sentences in Houston’s Harris County last year, but there have been 266 life without parole terms issued in 12 years, nearly 25 percent of Texas’ total.

Once known as the “capital of capital punishment,” Houston’s Harris County is now issuing more life without parole sentences than any other county in Texas, the Houston Chronicle reports. In 12 years since then-Gov. Rick Perry signed a life without parole (LWOP) bill into law, Harris County has handed down 266 of those sentences – nearly 25 percent of the state’s total. “It’s concerning, but this is like economics or engine performance, there’s no free lunch,” said defense attorney Patrick McCann. “We have far fewer death cases than we used to. That’s a tremendous win. But now we have a lot of LWOP sentences.”

The county’s reliance on the lengthiest sentence available in capital murder cases comes as Texas has shifted away from capital punishment. For the first time in more than 30 years, 2017 saw no new death sentences and no executions of Harris County killers. Andy Kahan, the city of Houston’s victim advocate, described life without parole as a “saving grace” for victims’ families. “Like it or not, there’s some really evil people out there that commit some horrible atrocities that deserve to be locked up for life,” he said. “In a utopian world it’d be great if we didn’t have to have it but that’s not reality.” Without more data to compare the percent of slayings seeking death or LWOP in Harris County before and after the introduction of the law, it’s difficult to evaluate whether the sentencing option has had any measurable impact on local death penalty charging practices.