Snipes’ Prosecutors Are Sore Losers

According to Ocala.com, federal prosecutors have decided to appeal a federal district judge’s decision to allow actor Wesley Snipes to remain free on bail while he appeals his sentence on three misdemeanor counts of failing to file a federal income tax return. Snipes was sentenced to 12 months incarceration for each count, with the sentences to run consecutively, meaning Snipes would likely serve close to the full 3 years (there is no parole in the federal system). The prosecutors are clearly not content with the draconian sentence – consecutive terms, under the circumstances, is somewhat unusual, and very likely unconstitutional – that, in my view, reflects the sentencing judge’s having taken into account alleged conduct for which Snipes was not actually convicted, the prosecution will now ask an appellate court to overrule that same sentencing judge’s decision to allow Snipes to remain free while the appellate process plays out. Snipes does not represent a danger to the community, and the risk that he will flee the United States appears to be minimal at most. These prosecutors are, at best, sore losers. I suppose they ran out of important things to do, like hounding escort service owners into suicide, or pursuing professional athletes for lying about steroid use. Nitwits.

Shorter Crack Sentences Take Effect

The U.S. Sentencing Commission’s guideline revisions shrinking the penalty gap between crack and cocaine powder took effect last week. (Amendments to the federal sentencing guidelines take effect automatically six months after they’re approved by the commission unless they’re overriden by Congress, which in this case took no action.) As a result of the changes, The Christian Science Monitor reports, “up to 4 in 5 people found guilty of crack-cocaine offenses will get sentences that are, on average, 16 months shorter than they would have been under the former guidelines.” The commission has not decided yet whether to make the changes retroactive. If it does, says the Monitor, “more than 19,500 people now serving time for crack offenses could see their sentences reduced by an average of 27 months.”

Families Against Mandatory Minimums makes the case for retroactivity here (PDF). Although the commission can reduce the sentencing disparity between crack and cocaine powder, only Congress has the power to change the five- and 10-year mandatory minimums that kick in for crack at one-hundredth the quantity they do for cocaine powder. My May column on why the disparity makes no sense is here.

Source: Reason.com

3rd Circuit Finds Probation For Tax Evasion Is “Unreasonable”

The federal Third Circuit Court of Appeals has found that a sentence of house arrest and probation imposed on a convicted tax evader was “unreasonable” and that the defendant ought ot have been sentenced to a term of imprisonment. The ABA Journal reports on the ruling here. The Third Circuit’s opinion in the case, United States v. Tomco, raises the specter of dramatically expanded appellate review of criminal sentences, and appears to be a departure from the court’s approach to criminal sentencing generally in the post-Booker era. Judge D. Brooks Smith, a Bush appointee to the bench, filed a strong dissent, taking the panel majority to task for conducting essentially a de novo review of the sentence, rather than merely assuring that the sentence was logical and that the trial court had “meaningfully considered” the appropriate sentencing factors. Judge Smith, in his dissent, argued that the trial judge had exhaustively and throughly explained the reasons for his sentence, and that the sentence was thus entitled to proper deference on appellate review. With a split panel decision in a case that represents a departure from circuit jurisprudence on the issue, I would expect to see an en banc hearing and, whoever prevails at that stage, a cert. petition to the Supreme Court, which might very well be granted as the Court continued to deal with the fallout from its indecisive Booker decision.

Sentencing Commission Announces Reduction in Crack Cocaine Sentences

In an annual report sent to Congress Monday, the US Sentencing Commission announced it had amended federal sentencing guidelines to lower the sentences imposed on people convicted of federal crack cocaine offenses. Unless Congress takes affirmative action to block the move, it will go into effect on November 1. The report also urged Congress to address the 100:1 sentencing disparity between crack and powder cocaine sentences.

Under the controversial crack laws, people convicted of distribution offenses involving five grams of the drug face five-year mandatory minimum prison sentences, while it takes 500 grams of powder cocaine to trigger the same penalty. Similarly, someone convicted of distributing more than 50 grams of crack faces a 10-year mandatory minimum sentence, while it would take five kilograms of powder cocaine to get the 10 years.

But while the congressionally mandated sentencing disparity between crack and powder cocaine is extreme, federal sentencing guidelines make it even worse for the low-level offenders caught under the federal crack laws. The guidelines currently call for a sentencing range of 63 to 78 months for five grams and 121 to 151 months for 50 grams. In both cases, the bottom of the guideline range falls above the mandatory minimum sentence set by Congress.

In an April 27 meeting, the Sentencing Commission voted to reduce the guideline ranges to 51 to 63 months and 97 to 121 months, respectively. Under this scheme, what is currently the low end of the guideline range will become the top end. According to the commission, 78% of federal crack defendants will benefit from the change, with sentence reductions averaging 16 months. With some 5,000 people being convicted under the federal crack laws each year, the move will have an impact.

That is, unless Congress moves to block it. On four previous occasions, the Sentencing Commission has recommended changes to lessen the gap between powder and crack cocaine offenses, but Congress blocked each of those initiatives. It also punished the commission for its temerity in suggesting that the crack-powder disparity be eliminated in 1995 by allowing the commission to dwindle to one member.

“The Commission has long recognized that the current guidelines scheme is unjust, and an amendment is long overdue,” said Carmen Hernandez, president-elect of the National Association of Criminal Defense Attorneys (NACDL) in a speech responding to the sentencing changes. “Nowhere is this more apparent than in the fact that 83% of inmates serving time in the federal system for crack cocaine are minorities, and their sentences are more than 50% longer than inmates serving time for cocaine powder, even though crack defendants tend to be low-level street dealers. In fact, the average sentence for possession of crack cocaine is far longer than the average sentences for violent crimes such as robbery and sexual abuse,” she noted.

“NACDL urges Congress to respect the Commission’s decision, which was made after consideration of the testimony and evidence that it has reviewed at Congress’ direction for more than a decade and allow these amendments to go into effect,” the group said in a press release. “We also recommend to Congress that it carefully consider the reports and evidence the Commission has compiled.”

Families Against Mandatory Minimums (FAMM), a group whose name is self-explanatory, greeted the amendment by noting that is “has been a long time coming.” FAMM noted that the commission considered the sentencing change as “a modest step toward alleviating some of the disparity in sentencing of crack defendants but it is not a solution to the problem because Congress needs to address the mandatory minimum sentencing statutes, over which the Commission has no control.” The group will urge Congress to take action to further reform crack mandatory minimums, it said.

“This is a pretend reform; it isn’t enough,” said Nora Callahan, executive director of the November Coalition, a drug reform group concentrating on freeing drug war prisoners. “This is dramatically less than what the commission asked for in 1994, and it is just heartbreaking that we haven’t come any further than this. They think they can throw us a bone and we’ll calm down for another 10 years, but we’re not going to calm down,” she told Drug War Chronicle.

The Sentencing Commission has been cowed by Congress and should be revamped, Callahan said. “We need a brand new, independent commission that can’t be intimidated,” she argued. “When this commission recommended dramatic reform a few years ago, Congress not only didn’t do it, but it spanked them hard and ended up politicizing the commission, and the commission learned its lesson: Just ask for a little bit and tell Congress ‘you fix it,’” she said.

A new commission should be modeled on police oversight boards and state sentencing commissions, Callahan suggested. It should include former prisoners and family members, too. “These people need to be on the commission, as do the people who are dealing with all the offenders coming back into the community,” she said.

While Congress has for the past two decades given little heed to concerns about the crack-powder sentencing disparity and its disproportionate impact on minority communities, there could be some movement this year, said Bill Piper, head of government relations for the Drug Policy Alliance.

“Rep. Rangel introduced a bill months ago that would eliminate the disparity,” he told the Chronicle. “And Sen. Sessions has told the press he will introduce some sort of reform bill at some point. I suspect that now that the full report has come out, there will probably be some hearings. Rep. Conyers has suggested that might happen, but no hearing dates have been set yet,” he explained.

“My sense is that the stars are starting to align themselves in a very good way,” Piper prophesied. “There is interest in this in both the House and Senate judiciary committees, including among some Republicans. Now, the Sentencing Commission report is in. It is just a matter of when the process will start and finish,” he said. “Still, I don’t think anyone believes we will see it actually pass this year, and if it did, Bush would veto it.”

While it appears unlikely Congress will act to redress the inequities of the federal crack laws this year, it seems equally unlikely to move affirmatively to block the Sentencing Commission’s minor sentencing reform. Now, after two decades that have seen thousands of young black and brown people sent up the river for years for picayune crack offenses, it looks like the tide is beginning to turn.

Source for post: NACDL.org

Supreme Court OK’s Longer Sentences for “Career Armed Criminals”

Bolstering the troubling trend toward more, and longer, mandatory minimum sentences, the Supreme Court today upheld the federal Armed Career Criminal Act, which allows prosecutors to seek longer mandatory sentences if a defendant has 3 or more prior convictions for crimes that are either violent felonies or serious drug offenses. In James v. United States, the Court upheld application of the law where one of the defendants prior convictions was for attempted burglary. As a consequence, James sentence was increased from not more than 6 years to a mandatory minimum of 15 years.

Sentencing is Out of Whack

Stuart Taylor, who always has an interesting viewpoint on legal matters, has written an excellent essay for the National Journal in which he discusses the completely out of whack sentencing system. Taylor focuses on the recent trend of lengthy prison terms for white collar offenders. In my view, Taylor hots the nail squarely on the head. I challenge anyone to offer a rational explanation as to how sending defendants such as Bernie Ebbers and Jeff Skilling to prison for 25 years is compatible with justice, especially in a world where many sent to prison for homicide and similar serious, violent offenses, serve far less time.

Why Mandatory Minimum Sentences are EVIL

ESPN the Magazine, not normally known for its coverage of things legal brings us this outrageous story of a high school honor student and sports star now doing 10 years on a conviction for “aggravated child molestation.” Seems the young man was stupid enough to receive oral sex at a party from a girl, who everyone agrees initiated the encounter, who was just 2 years younger thna he was, but still a year under the age of consent. Under Georgia law, if the boy and girl had had intercourse, he’d have been charged with a misdemeanor. For some odd, stupid reason, the act of oral sex qualified him for the child mloestation charge (evidently the state legislature re-wrote the law, but refused to apply it retroactively). For some reason of politics or pure spite, the prosecutors chose to charge and prosecute an offense that they knew did not fit the facts. So much for justice. Let Genarlow Wilson pay the price for some pathetic prosecutor’s political ambitions.

What’s Up With the Supreme Court and Sentencing Guidelines?

Emily Bazelon, with whom I usually disagree, and usually vehemently, has this very interesting article posted on Slate in which she discusses the Supreme Court’s recent Cunningham decision, in which the Court struck down California’s criminal sentencing guidelines. Emily discusses the somewhat peculiar alliances at work in the case (Scalia and Thomas, joined by Chief Justice Roberts, voting to strike the guidelines down, while Justice Alito a former federal prosecutor and Justice Kennedy voting with the liberal block to uphold the guidelines), the Court’s recent sentencing jurisprudence, such as it is, and what might be ahead in this area of the law.