Sentencing guidelines

  • August 13, 2013
    Guest Post

    by Stephen Wermiel, Professor of Practice, American University Washington College of Law

    Attorney General Eric Holder touched off a new chapter in his Justice Department tenure yesterday by unveiling a set of far-reaching and important criminal justice reforms that supporters of the Obama administration have long awaited. Holder’s speech captured the attention and fired up the spirit of an otherwise somewhat lethargic American Bar Association annual meeting in San Francisco. Holder expressed what is likely the strongest, clearest vision yet from the Obama administration and one that his admirers have hoped would be part of his legacy: “Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.”

    Of important note is that a number of the things Holder discussed can and apparently will be done within the Executive Branch and do not require consideration or approval by a Congress incapacitated by partisan gridlock. Specifically, Holder has instructed federal prosecutors to change the way they bring drug charges against individuals who commit low-level offenses and who have no ties to gangs, drug cartels or organized crime. Federal law mandates the use of mandatory minimum prison sentences for some drug crimes, and changing the law would require Congress to act. Holder noted that there is bipartisan support in the Senate to reform mandatory minimums for drug offenses. But Holder can act on his own and now has done so to urge federal prosecutors to exercise discretion by charging different crimes that do not trigger mandatory minimums and that, as Holder said, will better reflect the severity of the misconduct without draconian excessive criminal sentences.  This is an important recognition of the major shortcomings of the decades-old war on drugs that has consumed billions of dollars in law enforcement budgets and tens of thousands of lives ruined by prison terms that were out of proportion to the crime or the nature of the individual. Holder also said U.S. attorneys will be urged to make greater use of drug diversion programs as alternatives to incarceration.

    Another very important recognition by Holder followed on the heels of President Obama’s remarks on the Trayvon Martin case last month. Holder told the ABA “that young black and Latino men are disproportionately likely to become involved in our criminal justice system – as victims as well as perpetrators.” He added, “We also must confront the reality that – once they’re in that system – people of color often face harsher punishments than their peers.”  The racial injustice of the criminal justice system is a subject that needs urgent attention from Holder and other leaders.

  • August 13, 2013
    Guest Post

    by Alex Kreit, Associate Professor of Law, Thomas Jefferson School of Law, San Diego. Kreit is author of the casebook, Controlled Substances: Crime, Regulation, and Policy and the ACS Issue Brief, “Toward a Public Health Approach to Drug Policy.”

    Attorney General Eric Holder announced a new charging policy that has the potential to eliminate mandatory minimum sentences in many drug cases. Holder’s Aug. 12 announcement marks the most significant policy change in what has been, until now, a largely rhetorical shift away from the failed war on drugs

    The new prosecutorial guidelines are aimed at one of the most disgraceful and frequently criticized features of drug war-era mandatory minimum sentencing: tying punishments to drug type and quantity in low-level cases.  The practice began with a hastily drafted law passed by Congress in 1984, at the height of drug war fervor.  The measure sought to increase and standardize punishments in federal drug cases through mandatory minimum penalties.  Legislators claimed that the law would create a two-tiered penalty structure, subjecting so-called “serious” drug traffickers to five-year minimum sentences and “major” traffickers to ten-year prison terms.  (These mandatory penalties can increase to 20-years or even life for defendants with prior felony drug convictions.)

    The problem is that while Congress referred to “serious” and “major” traffickers in debating the mandatory minimum provisions, the five- and ten-year penalties are “triggered not by role but by drug type and quantity instead.”   And, it turns out; drug type and quantity are a poor measure of a drug offender’s culpability. 

    Take drug couriers for example.  Drug couriers are considered expendable by drug organizations.  Most are addicts or otherwise down-on-their luck.  In San Diego, where I live, drug organization recruiters seek out homeless people for this job just a few blocks from the heart of downtown.  They might be paid $1,500 to transport hundreds of thousands of dollars’ worth of drugs across the border. 

  • 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.”