Reasonable Minds Can Differ

But they will usually find more to agree on.

Case in point: this short interview with the junior U.S. senator from Utah.

He’s considered one of the more conservative members of Congress, but he’s also part of a bipartisan group that’s pushing to reform our criminal justice system.

As a former federal prosecutor, he’s asked how he feels about the justice system and what’s changed for him over time.

He points to one case in particular that, presumably, he didn’t charge. The defendant was a man with two young children. He sold very small amounts of marijuana to an informant three times. He also owned a gun at the time, though he didn’t use it or brandish it during any of the sales. Based on those facts and the way he was charged, the man received a mandatory sentence of 55 years.

Even the sentencing judge openly criticized the sentence, but he wrote that his hands were tied under the law. He also said that it was a problem only Congress could fix.

The senator remembered those words when he got to Congress, and now he’s trying to do something about it.

Why is he doing this when he’s supposed to be a conservative Republican? That’s exactly why he’s doing it, he says.

The New DOJ Policy on Charging Decisions

Two weeks ago, the new U.S. Attorney General announced a new policy for charging and sentencing in criminal cases. Although the policy targets drug cases in particular, it applies to all federal prosecutions.

You can break it down into three parts.

First, prosecutors should file the “most serious, readily-provable” charges in each case. The most serious charges are those that carry the stiffest sentence, including any mandatory-minimum sentence. To deviate from this policy, prosecutors must get approval from a supervisor, document their reasons for it, and be able to point to “unusual facts.”

Second, in most cases, prosecutors should seek a standard sentence under federal sentencing guidelines. If they want to deviate from the guideline sentence, they must get supervisory approval and document their reasons in the file.

Third, prosecutors should discard inconsistent policies of the prior administration. Under prior policy, prosecutors still charged the most serious offense that was consistent with a defendant’s conduct and likely to yield a solid conviction. But they were also encouraged to evaluate cases individually to decide which charges to file, and they were told to seek sentences that were fair and proportional under all the circumstances.

In particular, prosecutors now must ignore two prior policies that tried to reduce harsh sentences in low-level, nonviolent drug cases. Under one policy, they were not to charge a specific drug quantity if it triggered a mandatory-minimum sentence, and they were to avoid charging prior drug convictions that doubled the minimum sentence or put someone in prison for life. We wrote about this before here. Under the other policy, they could not threaten to charge such priors just to force you to plead guilty. I guess that’s fair game now.

The new policy has sparked criticism across the spectrum. Lawmakers from both parties have railed against it. One former U.S. Attorney decried its “stunning lack of faith” in line prosecutors. A coalition of state and local prosecutors has published an open letter against it. And the National Association of Criminal Defense Lawyers had this reaction:

“This Attorney General has taken away the discretion of professional prosecutors to determine what sentence serves justice in any given case. Instead, prosecutors are now required in every case mindlessly to seek the maximum possible penalty…. This policy will lock up non-violent offenders with little or no criminal history, waste untold millions of dollars, devastate families and whole communities, and yet not make us any safer.”

A Penny For Your Thoughts, Judge

Thank God we live in a country whose leaders speak like this. What if they didn’t, or couldn’t?

In this case, maybe it’s because the speaker, Alex Kozinski, a prominent federal judge, was an immigrant born behind the Iron Curtain, the son of two Holocaust survivors who came here when he was twelve. Maybe we value the rule of law more viscerally when we’ve seen firsthand—when we know and understand—what government is capable of.

In any event, Judge Kozinski sat down recently for an interview on criminal law and justice, and it’s riveting. Courtesy of the Washington Post, the interview is split into five short video clips on the topics below. I’ve excerpted some of his comments here, but each clip is only one or two minutes long, and they’re worth watching and listening to.

On police militarization and surveillance. “I somehow got on a law-enforcement mailing list. I don’t know whether they send this to all judges, but I do get these catalogues that show all the equipment that they make available for the police. And my word, those things really look like they belong in the military…. It’s important to fight crime, it’s important to fight terrorism, and we certainly rely on police to do many things that, God knows, most of us would not want to do. So I think we should be very grateful to the police for being willing to put themselves out there in harm’s way on our behalf, but I think there is such a thing as too much. There is such a thing as being too zealous and entrenching on people’s freedoms. We do not want to live in a militarized society.”

On redemption and rehabilitation. “So … we have made it much easier to keep track of people and to have the past revealed, and in some cases that’s justifiable for the protection of society. But I think we have gone too far. I think there’s such a thing as privacy. There’s such a thing as forgiveness. There’s such a thing as giving people truly a clean break to remake their lives. And our system tends to pull them back, tends to pull them down. And basically says you’ll never get away, you will never have a normal life again. And I think that’s too bad. I don’t think that’s a society we want to live in. I think … we have traditionally believed in the concept that people can reform toward good. They’re not inevitably evil, and they’re not forever evil. And that concept seems to be dwindling, and I’m sorry to see it go.”

On guilty pleas and false confessions. “Well there are many reasons somebody may plead guilty, even though there may be doubts, or even though they may be innocent. One of the principal reasons is that, often, there are very serious charges laid on by the government and going to trial is so risky that taking a guilty plea on something that is much less seems the only rational choice. Because if you go to trial and lose, you’ll never see the light of day. There are also many cases where people are interrogated by the police for a very long time, and they wind up giving confessions—confessions that turn out not to be true…. DNA proves it, witnesses prove it, somebody else was out there. But the police managed to extract a confession. Well, once you confess to the police, any lawyer will tell you it’s very hard to persuade the jury that you are not guilty. So people may take a guilty plea in that kind of situation just because they think they have no hope of being acquitted, and the guilty plea at least gives them some measure of hope that they will someday see the light of day.”

On overcriminalization. “As the law gets more complex and as more things are criminalized and as more statutes are added, the line between what is criminal and what is not criminal becomes very blurry. Oftentimes you don’t know that something is criminal or you don’t imagine that something is criminal until you get charged with a crime…. Now I don’t think we ought to be charging things that are not clearly crimes. Criminal prosecutions ought not to be an invention. People ought to be charged for crimes for things that are clearly criminal. Not things that a prosecutor can imagine might be a crime.”

On punishment and mandatory-minimum sentences. “One of the things I suggest is that … the jury be consulted. And that right now, in most places in the United States, except in the case of capital cases, the juries have no idea when they convict as to what the likely or the possible sentence would be. I think that’s sort of a mistake. I think we ought to let juries know whether they are weighing the facts and deciding whether someone is going to go to prison two or three years or whether he is going to go to prison likely for the next twenty or thirty years. In life, we don’t make decisions in the abstract. We always know the consequences, we weigh the consequences of the decision. It seems to me the jury ought to be informed, the jury ought to have a say in what the sentence should be.”

The Mercy Project

Life is fragile. We sometimes forget that, but we remember quickly when we lose something or someone important to us. We often forget it because, in the developed world, we tend to live longer and better than people ever have. We forget that, even in our own country, not everyone lives (and has lived) as we do.

Last Friday, President Obama granted mercy to 95 people who may have died in prison otherwise. The President granted them executive clemency and commuted their sentences so that they may be able to go home in the next year or two. Most had been sentenced to life in prison or to extremely long, nearly-life sentences for nonviolent drug offenses. Many had already served twenty years or more in prison.

Each of these people met six criteria that the Justice Department has outlined for consideration of clemency petitions:

  1. They are serving a federal prison sentence that would likely be substantially lower if they were convicted of the same offense today.
  2. They are nonviolent, low-level defendants without significant ties to gangs, cartels, or other large-scale criminal organizations.
  3. They have served at least ten years of their sentence already.
  4. They have no significant criminal history.
  5. They have demonstrated good conduct in prison.
  6. They have no history of violence before or since their imprisonment.

For people who meet these criteria, six leading civic organizations have partnered to help them petition for clemency. The six are the American Bar Association, the American Civil Liberties Union, Families Against Mandatory Minimums, the National Association of Criminal Defense Lawyers, and the Offices of Federal Public Defenders.

Their collaboration, the Clemency Project, has produced an impressive, volunteer effort by the country’s legal profession to review case files and to prepare clemency petitions for those who deserve it. Of the 95 petitions that the President granted last week, the Clemency Project was responsible for 27 of them.

But they need more help, so if you’re a lawyer, please consider taking on just one case for the public good and the cause of justice. If you’re a criminal defense lawyer, that’s even better, but lawyers from any practice area are welcome, and the Project will guide and support you so that you don’t have to worry about what you don’t know.

You may even help someone come home for Christmas who thought they never would again.

Child-Pornography Possession in State and Federal Court

Among the common offenses for which people must register as sex offenders is possession of child pornography.

Under California law, possession of child pornography is a felony, though it may be punished by imprisonment either in the county jail for up to one year or in state prison for 16 months, two years, or three years. Pen. Code § 311.11(a). If you possess more than 600 images and at least ten of them depict a prepubescent minor or one under the age of twelve, then you’re facing a possible top term of five years instead of three. Id. § 311.11(c)(1). The same rule applies if you possess any images that portray sadomasochistic activity. Id. § 311.11(c)(2). To count the number of images, each still photo or depiction counts as one image, and each motion picture or video counts as fifty. Id. § 311.11(f). If you have prior convictions for child pornography or any other offense that requires sex-offense registration, then you’re looking at state prison for two, four, or six years. Id. § 311.11(b).

A lot can turn, however, on how a prosecutor charges the case, and several related, alternative offenses may be charged as felonies or misdemeanors. See generally id. §§ 311-312.7 (cataloging the criminal obscenity laws).

Under federal law, possession of child pornography is a felony punishable by imprisonment for up to ten years in all cases or twenty years if any image depicts a prepubescent minor or one under the age of twelve. 18 U.S.C. § 2252A(a)(5), (b)(2). If you have prior convictions for child pornography or another offense that requires sex-offense registration, then you’re looking at a maximum sentence of twenty years and a mandatory minimum of ten. Id.

Alternatively, if the prosecutor charges you with receiving child pornography rather than possessing it, you face a mandatory-minimum sentence of five years and a maximum sentence of twenty. See id. § 2252A(a)(2), (b)(1). Tack on a prior conviction and you’re looking at a minimum of fifteen years and a maximum of forty. Id. If you’re not clear on the distinction between receiving and possessing or why the former triggers a mandatory-minimum sentence while the latter doesn’t, you’re not alone. No one understands it, but it helps prosecutors obtain guilty pleas by offering to dismiss the receipt charge if you plead guilty to the possession or by threatening to add the receipt charge if you don’t.

In federal court, your actual sentence will depend on how the court applies the federal sentencing guidelines. See generally U.S.S.G. § 2G2.2 (setting forth the guideline for child-pornography possession). As in state court, there are enhancements based on the number of images, the age of the minors, and any sadomasochistic imagery (among others). In federal court, each still photograph or depiction counts as one image, and each motion picture or video counts as 75 images. Generally, in better-case scenarios, you’re looking at a guideline range of around two years. In worse-case scenarios, even for simple possession, you could well be facing eight to ten years in prison or more.

Many well-meaning people believe these punishments are excessive, and among the most criticized is a federal provision that adds two aggravating points to your guideline calculation if you used a computer to commit the offense. Id. § 2G2.2(b)(6). In reality, everyone receives this enhancement because, nowadays, child pornography (and all pornography) is possessed virtually exclusively through the use of computers. Simply, it makes no sense to consider them as an aggravating factor at sentencing.

For these reasons, in federal court, child-pornography possession generates more below-guideline sentences than any other category. In fact, in a 2010 survey of federal judges by the U.S. Sentencing Commission, over 70% of respondents—representing nearly 70% of all active, sentencing judges—believed the guidelines for possession and the mandatory minimum for receipt were too high.  Just two percent thought they were too low.

Why Are We Punishing This Man?

Here’s a set of facts for you.

It appears that an Iowan jury has convicted a 48-year-old man of felony drug charges for growing marijuana that he uses to treat his terminal cancer.

It appears the jury was not permitted to hear one word about why the man was growing the marijuana because there was no medical-marijuana law in Iowa, so his medical condition was legally irrelevant. (Morally, of course, it was.)

It appears the man has two prior drug convictions—one in 2000 for growing psychedelic mushrooms, and one in 2011 for the same pot growing (for the same reason) he was convicted of last week—so he may be labeled a “habitual offender” and receive a three-year, mandatory-minimum sentence. He calls it a death sentence. In 2011, he pleaded guilty to avoid jail time; this time, he took his case to trial.

It appears that his full-time, caretaker wife was convicted along with him, and his parents, who are in their mid-seventies, have also been charged with running a drug house because they allowed their cancer-stricken son to move in and grow marijuana in their home.

The man’s name is Benton Mackenzie, his wife is Loretta, his parents are Charles and Dorothy, and his sentencing is set for August 28.

And boy, is he suffering. In 2011, he was diagnosed with severe angiosarcoma, a rare and aggressive cancer of the blood vessels that produces large, nasty skin lesions. If you’re not faint of heart, you can see a photo of them here, but beware, it’s graphic.

Just this year, the Iowa legislature passed a narrow medical-marijuana bill that permits the parents of epileptic children to use cannabis oil as a treatment. The same cannabis oil Mr. Mackenzie uses to treat his lesions and obtain relief from his terminal cancer.

But there’s no other law on the books to cover anyone else, so Mr. Mackenzie wasn’t allowed to breathe a word to the jury about medical necessity or any such defense, and now he’s a convicted felon again.

Is that what one looks like?

Why We Defend Child Molesters

Here’s one reason.

Last week, a federal court of appeals reversed the conviction of an 18-year-old boy who had confessed to molesting another 8-year-old boy. That may sound like an open-and-shut case of a predator or monster we should throw the book at, but hold on. The older boy had an IQ of 65, and the court reversed his conviction because it held that his so-called confession was involuntarily obtained. That’s a nice way of saying it was coerced, and in all likelihood, it was a false confession about a crime that never occurred.

You see, the two boys were part of the same extended family, so they were relatives, and their families were feuding something fierce. It may have been like the Hatfields and McCoys but worse because the families lived next door to each other. I don’t think the Hatfields and McCoys did that.

One day, allegedly, the eight-year-old came home and told his family that the older boy had “put his pee-pee in [my] butt” and that “his butt was hurting.” The next day, he was asked about it in a forensic interview, and bless his heart, the boy proceeded to spin a yarn so fantastical that only an eight-year-old could pull it off with a straight face. You have to read it to believe it. Most of his allegations were not corroborated by any physical evidence, and his anal and genital exam revealed no signs of trauma, injuries, or bodily fluids.

A week later, investigators showed up at the older boy’s house to interrogate him. They realized right away that he was intellectually disabled, but they either didn’t know any better as investigators or didn’t care enough about getting things right, because they didn’t let that get in the way of their collar.

They asked him whether he was home on the day in question, and they insisted that he was until he eventually stopped disagreeing with them, even though he wasn’t. They suggested he wouldn’t get in any trouble if the hypothetical encounter was just a one-time thing, saying he could “move on” if it was all “just a misunderstanding,” but only if he were truthful. They conveyed, repeatedly, that he had to tell them something or they would keep coming back until he did.

Basically, they badgered and browbeat him until he told them what they wanted to hear, or until he began agreeing with their version of the facts, and when he did, they wrote out a statement for him and made him sign it, telling him it was just an apology note to the other kid and they wouldn’t tell anyone about it.

Oh, they told on him alright. The boy was charged with aggravated sexual abuse of a minor in violation of 18 U.S.C. § 2241(c), which means he initially faced a thirty-year mandatory-minimum sentence. He was eventually convicted of a lesser offense (on the basis of the confession, no doubt), and sentenced to fifty months in prison and a lifetime of supervised release. On appeal, a panel of two appellate judges voted to uphold the conviction while one dissented. The boy’s lawyers petitioned the full court of appeals to rehear the case, and the wrong was finally righted. Sort of.

Just makes you wonder what took so long.

The Times May Be a-Changin’, and It’s a Good Thing

Last week, the chair of the United States Sentencing Commission delivered an important speech that brought conservatives, liberals, and others together under the banner of sentencing reform.

The speech was entitled, “A Generational Shift for Drug Sentences,” and it was delivered by the Hon. Patti Saris, who is a federal district judge for the District of Massachusetts. Judge Saris currently serves as the chief judge of her district, and she has served as a state or federal judge for the past 30 years.

With that background, it’s safe to say that she has sentenced a lot of defendants in general and a lot of drug defendants in particular. Plus, for the past four years, Judge Saris has chaired the Sentencing Commission, which is the federal agency that studies federal crime and sentencing issues, advises Congress and the executive branch about them, and develops the federal sentencing guidelines that drive most federal sentences.

Her speech did two things. First, it pressed the case for Congress to revise our mandatory-minimum drug penalties in three ways:

  1. By reducing mandatory-minimum drug sentences in general;
  2. By expanding the “safety-valve” provision that permits federal judges to sentence below the mandatory minimum in cases of non-violent, low-level drug offenders; and
  3. By making the Fair Sentencing Act of 2010 retroactive. (The Fair Sentencing Act, you might recall, was the law that reduced the disparity in treatment of crack and powder cocaine, among other things.)

As Judge Saris indicated in her speech, the Senate Judiciary Committee passed legislation last month that took up each of those recommendations with bipartisan support.

The second thing her speech discussed was an amendment to the sentencing guidelines that the Commission proposed in January of this year. The proposed amendment would reduce the drug guidelines by two levels, which would have the modest but humane effect of reducing the average federal drug sentence from 62 months (or 5+ years) to 51 months (or 4+ years).

The moral benefits and cost savings of these reforms are significant. Our federal prisons are roughly 38% over capacity, and drug offenders represent one-third of all federal sentences. Of those, twenty-three percent consist of low-level mules and couriers who are charged with mandatory-minimum penalties about half the time. Overall, the largest group of drug defendants subject to these severe mandatory-minimum sentences are street-level dealers, not the kingpins and organizers we imagine.

Here’s the text of the speech itself, and for those of you in the Washington, D.C. area on April 10, the Sentencing Commission is holding a public meeting to vote on the proposed amendment.


Has the Holder Memorandum Begun to Affect Mandatory-Minimum Sentences?

Back in August, Attorney General Eric Holder issued a memorandum to line prosecutors throughout the Department of Justice directing them to tamp down their use of mandatory-minimum sentences.

In particular, the memorandum instructs prosecutors to do two things. First, they are not to charge a quantity of drugs that will trigger a mandatory-minimum sentence in the first place. This follows the Supreme Court’s recent decision in Alleyne v. United States, which held that any fact that imposes or raises a mandatory-minimum sentence is considered an “element” of the offense that must be charged in the indictment and proven to a jury beyond a reasonable doubt. See 133 S. Ct. 2151 (2013). Second, prosecutors are to refrain from charging a defendant’s prior felony drug convictions in ways that can double the mandatory minimum (from 5 to 10 years, for example). See 21 U.S.C. 851.

To qualify cases for such treatment, prosecutors are to consider the following factors, among others:

  1. Whether the defendant’s conduct involved violence, the credible threat of violence, the possession of a weapon, any death or serious bodily injury, or the trafficking of drugs to or with minors;
  2. Whether the defendant was an organizer, leader, manager, or supervisor within a criminal organization;
  3. Whether the defendant had significant ties to large-scale trafficking organizations, gangs, or cartels; and
  4. Whether the defendant had significant criminal history.

Finally, prosecutors are advised to consider whether a given case serves a substantial federal interest, and if not, whether it should be prosecuted federally at all.

The new policy applies not just to new cases but to pending cases that await sentencing. Ultimately, it may affect hundreds of defendants nationwide. According to the report, the preliminary returns are mixed. Some prosecutors are following the memorandum; others are not. But already, there are reports of prosecutors who are taking steps to resolve cases in ways that meet the letter and spirit of the Attorney General’s memorandum. Stay tuned.

Attorney General Delivers Important Policy Speech at the ABA’s Annual Meeting

“Too many Americans go to too many prisons for far too long, and for no truly good law-enforcement reason.”

That is from a speech Eric Holder gave on Monday to the American Bar Association. In it, the U.S. Attorney General outlined a series of steps to improve our justice system and make us smarter (rather than merely tougher) on crime. He addressed the inequities of mandatory-minimum sentences, called for greater funding for public defenders, and questioned the war on drugs. Sure, the speech was no silver bullet, but as this press release notes, it was a welcome vision.

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