Sentencing guidelines

  • July 16, 2013

    by Jeremy Leaming

    Following the acquittal of George Zimmerman a slew of groups and individuals called for calm, for a jury had spoken -- a jury bound to adhere to laws that protect the aggressor, one who took the life a young black man in Sanford, Fla.

    Well fine, but we don’t have to or shouldn’t stay silent about Florida laws that provide too much protection, in the name of self-defense, to the aggressor and too often the racist. And Florida is not alone. More than 20 states have self-defense laws that give knee-jerk racial-profilers like George Zimmerman the ability to kill and get by with it. As The New York Times editorial board put it, Stand Your Ground laws combined with weak concealed carry-laws, work "essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.” Noting the ridiculousness of Florida’s self-defense laws, The Times’ editorial concluded, “If only Florida could give him [Trayvon Martin] back his life as easily as it is giving back George Zimmerman’s gun.”

    Charles Blow, Andrew Cohen, Brittney Cooper, Ekow N. Yankah, The New York Times editorial board and many others have already gone where the attorneys in this case said they would not – race did play in this whole affair and the laws that ultimately allowed Zimmerman to target a young, unarmed black man, confront him and then kill him. These laws and others are part of an entrenched social disapproval of minorities. Zimmerman apologists cry that the matter had nothing whatsoever to do with race -- it was about a so-called neighborhood watchman defending himself.

    In a piece for the Atlantic, Andrew Cohen writes, “What the verdict says, to the astonishment of tens of millions of us, is that you can go looking for trouble in Florida, with a gun and a great deal of racial bias, and you find that trouble, and you can act upon that trouble in a way that leaves a young man dead, and none of it guarantees that you will be convicted of a crime.”

    Florida’s Stand Your Ground law, which provides significant legal protection to persons who kill others outside their homes claiming self-defense, may not have been specifically relied upon by the lawyers of Zimmerman who shot and killed Trayvon Martin, the unarmed teenager in Florida. It did play a role in the instructions given to the jury and affected the mindset of police. As The New York Times reporter Lizette Alvarez, pointed out it helped Zimmerman, along with other outside influences typically not available to the vast majority of criminal defendants. That law, as University of Miami law school professor Tamara Lave said, did keep Zimmerman from being arrested and charged with a crime for some time.

  • January 28, 2013

    by Jeremy Leaming

    Nearly a week after providing a staunchly liberal vision for a second term –– leading law professors, attorneys and other advocates are providing via an ACS project ideas and proposals for the administration’s second term. (Regarding the tone and vision of the president’s second Inaugural Address, some apparently believe the president was merely defending New Deal programs and policy the Clinton administration had supposedly advanced.)

    The ACS project, “Toward a More Perfect Union: A Progressive Blueprint for the Second Term,” was recently launched with three Issue Briefs:

    Former U.S. Pardon Attorney Margaret Colgate Love looks at why the presidential pardon power “has lost its vigor, its integrity, and its sense of purpose,” and argues why it should be reinvigorated, as well as offering examples, many from the states, for reforming the process.

    Brookings Visiting Fellow Russell Wheeler examines the Obama administration’s record of filling federal judgeships during his first term and puts forth ideas for fixing a judicial nominations process that has become increasingly rancorous and ineffective. In a Brookings’ Up Frontblog post, Wheeler, a leading expert on the federal bench, explains, in part, why the process needs reforming. “First, judicial vacancies, which declined in Clinton’s and Bush’s first terms, increased during Obama’s. Empty judgeships hamper the federal courts’ ability to do their jobs – to sort out contractual disputes and other matters that, left unresolved, contribute to economic uncertainty, as well dispose of criminal complaints and adjudicate claims of discrimination and civil liberties violations.”

    University of Michigan Law School Professor David M. Uhlmann urges the Obama administration to exert great presidential leadership on climate change. Uhlmann, director of the law school’s Environmental Law and Policy Program, noted the small steps the Obama administration took during its first term. But, citing the work of climate scientists, Uhlmann warns that if our country fails “to limit greenhouse gas emissions, searing heat, widespread drought, destructive storms, and massive flooding will become commonplace.” Moreover, Uhlmann argues that climate change will be a “legacy issue” for the president – “either because he helped chart a course toward a sustainable future or because America failed to act while it was still possible to prevent catastrophic climate change. Uhlmann’s Issue Brief goes on to provide ways for the president to act, even without the help of Congress, to put the nation on a path toward sustainable resources.

    During his second inaugural, the president reminded us that “preserving our individual freedoms ultimately requires collective action” and unlike too many of his predecessors lauded the noble goal of advancing equality. Obama also took a shot at right-wing economic policy that is all about coddling the superwealthy at the expense of everyone else.

    The president also called for collective action on climate change.

  • December 7, 2012

    by Jeremy Leaming

    The Obama administration may be on the verge of irking large swaths of its supporters by employing scarce Justice Department resources to go after users of small amounts of marijuana in Colorado and Washington, where voters, by comfortable margins, voted to legalize limited amounts of possession.

    The New York Times’ Charlie Savage reports that senior officials in the administration “are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.” Savage goes on to describe some of the possibilities the administration could take – sue the states arguing that federal law trumps state action in this area. (The Controlled Substances Act prohibits sale and possession of marijuana.) The Justice Department wouldn’t talk to Savage about administration plans on the matter, but did highlight a statement issued recently by the U.S. Attorney in Seattle, stating that marijuana remained illegal pursuant to the CSA.

    Andrew Sullivan notes that Pete Guither views the Savage piece as a trial balloon “to see what kinds of reactions there are and what political fallout might come from action … or inaction."

    Sullivan obliges, writing that if administration officials decide “to treat the law-abiding citizens of Colorado and Washington as dangerous felons; if they decide to allocate their precious law enforcement powers to persecuting and arresting people for following a state law that they have themselves just passed by clear majorities; if they decide that opposing a near majority of Americans in continuing to prosecute the drug war on marijuana, even when the core of their own supporters want an end to Prohibition, and when that Prohibition makes no sense … then we will give them hell.”

  • July 30, 2012
    Guest Post

    By Mark Ladov and Inimai Chettiar.  Ladov is Counsel in the Justice Program and Chettiar is the Director of the Justice Program at the Brennan Center for Justice at NYU School of Law. The Justice Program focuses on improving our system of justice by ending unnecessary incarceration, securing full legal representation for the poor, and ensuring equal access to the courts while eradicating racial disparities.This piece is crossposted at the Brennan Center blog


    California is again at a crossroads in managing its over-bloated prison population. The decision in a case pending in the Ninth Circuit Court of Appeals could affect whether California becomes a success story in reforming its criminal justice system.

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    The Brennan Center for Justice, the Sentencing Project, the ACLU of Northern California, and other groups have filed a friend-of-the-court brief in Valdivia v. Brown, arguing for the right to counsel in all instances where someone could be sent back to prison for a parole violation. But what’s at stake is far more than just parole procedure: failure to provide right to counsel could directly contribute to a growth inCalifornia’s prison system from increased parole revocations.

    Last year, in Brown v. Plata, the U.S. Supreme Court ordered the state to reduce prison overcrowding to remedy constitutional violations of prisoners’ rights. The state’s legislature and Governor Brown have been busy trying to comply with that decision. To reduce the prison population without affecting public safety, the state enacted a “Realignment Plan” and considered several other measures, including making possession of drugs into a misdemeanor instead of a felony, reducing the state’s use of pre-trial detention, and reforming the state’s harsh “three-strikes-you’re-out” law.

  • June 23, 2012
    Guest Post

    By Nicole Austin-Hillery, the Director and Counsel of the Brennan Center for Justice’s Washington, D.C. office


    This week, the Supreme Court helped move our nation one step closer toward creating a fairer criminal justice system. In its ruling for Dorsey v. United States, the Court confirmed what advocates have long known: Under the Fair Sentencing Act (FSA), signed into law by President Obama in 2010, it is unjust to sentence individuals under the onerous guidelines that existed prior to enactment of the law. To do so, would, in the words of the Court, "create disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent." In effect, these individuals were charged and convicted but not yet sentenced before the new law took effect only by sheer coincidence of timing.

    Such cases are commonly known as "pipeline" cases. The five justice majority ruled plainly that the less draconian sentencing provisions under the FSA apply for individuals sentenced after the new law's enactment but whose offense occurred before. This decision is not, however, simply about the correct application of the FSA. More importantly, it speaks to the work that remains to be done to ensure the complete eradication of a hideous disparity in our criminal justice system, which has disproportionately harmed poor and minority communities.