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DOJ Announces Broadened Clemency Criteria for Drug Offenders

On Monday, the Justice Department announced it would soon be implementing new and broader criteria for drug offenders seeking clemency.

Today, the Justice Department announced the new criteria. It is a welcome sea change:

The Justice Department is encouraging nonviolent federal inmates who have behaved in prison, have no significant criminal history and have already served more than 10 years behind bars to apply for clemency, officials announced Wednesday.

The new criteria:

  • They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
  • They have served at least 10 years of their prison sentence;
  • They do not have a significant criminal history;
  • They have demonstrated good conduct in prison; and
  • They have no history of violence prior to or during their current term of imprisonment.

Thank you Obama Administration. This is what change looks like. [More...]

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Amended Weakened Version of Sentencing Reform Bill Passes Judiciary Comm.

The media is full of praise for the Senate Judiciary Committee which yesterday passed a sentencing reform bill addressing mandatory minimum sentencing laws on drug offenses.

Not so fast. Here is S.1410, the Smarter Sentencing Act of 2013, as originally introduced by Senators Durbin, Leahy, and Whitehouse.

The version that passed the Judiciary Committee is a watered down, amended version of Durbin's bill. Durbin introduced a "Manager's Amendment" weakening the safety valve reform provision. Then the Committee approved amendments by Republican Charles Grassley that turned the bill into an enhanced crime bill, upping sentences and introducing more mandatory minimums for some non-drug crimes.

On mandatory minimums, the bill is an improvement, but far less than what is needed and certainly not historic. It reduces the mandatory minimum terms for drug offenses from 20, 10 and 5 years to 10, 5 and 2 years, respectively, and allows the 2010 crack cocaine sentencing reductions to apply retroactively to some classes of inmates, in the discretion of the judge. [More...]

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Federal Judiciary to Seek Mandatory Minimum Sentence Reform

The Federal Judicial Conference issued a press release today supporting the Justice Safety Valve Act of 2013 which would give federal judges discretion not to impose a mandatory minimum sentence.

Acting on the recommendation of its Criminal Law Committee, the Conference agreed to seek legislation, such as the Justice Safety Valve Act of 2013 (S. 619), which is designed to restore judges’ sentencing discretion and avoid the costs associated with mandatory minimum sentences.

The judges are also seeking legislation that would early termination of supervision for inmates who have been granted compassionate release.

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Eric Holder: Changes in Mandatory Minimum Charging

Attorney General Eric Holder will announce a sea change in policy at the Justice Department this morning in his speech to the American Bar Association in San Francisco. I hope he gets a standing ovation.

“I have mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences,”

Since we have had a do-nothing Congress on mandatory minimums since they were enacted in Anti-Drug Abuse Act of 1986 under President Reagan --27 years -- Holder is going to effect change through prosecutorial discretion. Why?

[Mandatory minimum sentences] "breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They have had a disabling effect on communities. And they are ultimately counterproductive."

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Bill Introduced to Provide Some Mandatory Minimum Sentencing Relief

I think the biggest problem in our criminal justice system for the past 25 years has been rigid mandatory minimum sentencing laws.

Today, Sen. Patrick Leahy and Rand Paul introduced the bi-partisan Justice Safety Valve Act of 2013. According to Sen. Leahy:

The bipartisan Justice Safety Valve Act of 2013 expands the so-called “safety valve” that allows judges to impose a sentence below the mandatory minimum in qualifying drug cases to all federal crimes. By giving judges this greater flexibility, they will not be forced to administer needlessly long sentences for certain offenders, which is a significant factor in the ever-increasing Federal prison population and the spiraling costs that steer more and more of the justice budget toward keeping people in prison, rather than investing in programs that keep our communities safe.

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NY Federal Judge Blasts Mandatory Minimums in Drug Cases

Via Law Prof Doug Berman at Sentencing Law and Policy: Judge Jack Weinstein has written another scathing indictment of our drug sentencing laws and policy in a multi-defendant crack cocaine case.

The case is United States v. Bannister, No. 10-CR-0053 (E.D.N.Y. Mar. 24, 2011), and the 125 page opinion is available here. Some quotes below:[ More...]

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DOJ Weighs in On Mandatory Minimum Sentences

The U.S. Sentencing Commission held a hearing yesterday on mandatory minimum sentences. Here is the prepared testimony outlining the position of the Department of Justice which has implemented a task force to study the laws.

Bottom line: DOJ is willing to make some adjustments, mostly minor:

Our study has led us to the conclusion that in an era of advisory guidelines, mandatory minimum sentencing statutes remain important to promote the goals of sentencing and public safety. At the same time, we recognize that some reforms of existing mandatory minimum sentencing statutes are needed and that consideration of some new modest mandatory minimum sentencing statutes is appropriate.

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Hearing on Mandatory Minimums Today

Via the Constitution Project:

The House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security has scheduled a hearing today to examine mandatory minimum sentencing. The Subcommittee will consider three different proposed pieces of legislation that seek to provide judges with more discretion to avoid unjust outcomes when handing down sentences.

The hearing began at 10:30 a.m. ET. You can watch a webcast here. The bills under consideration:

  • H.R. 2934, the "Common Sense in Sentencing Act of 2009";
  • H.R. 834, the "Ramos and Compean Justice Act of 2009"; and
  • H.R. 1466, the "Major Drug Trafficking Prosecution Act of 2009"

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Congressional Black Caucus and Harvard to Hold Mandatory Minimum Program

The Congressional Black Caucus is teaming with Harvard Law School to put on this program in Washington next week. The speakers are terrific.

The Congressional Black Caucus Community Re-Investment Taskforce and the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School invite you to attend "Rethinking Federal Sentencing Policy" 25th Anniversary of the Sentencing Reform Act

Wednesday, June 24, 2009 at 4:00 p.m. U.S. House of Representatives Committee on Ways and Means
1100 Longworth House Office Building
Washington, D.C.

Agenda and speakers below:

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Two Pending Bills to Eliminate Mandatory Minimums

Update: Here is the letter 75 organizations and law professors sent to the Senate urging the complete elimination of the disparity.

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As I wrote here, this is a bill we need. It now has 23 sponsors in the House. It would end mandatory minimums in all drug cases.

Major Drug Trafficking Prosecution Act of 2009 - Requires the Attorney General's prior written approval for a federal prosecution of an offense under the Controlled Substances Act (CSA) or the Controlled Substances Import and Export Act (CSIEA), or for any conspiracy to commit such an offense, where the offense involves the illegal distribution or possession of a controlled substance in an amount less than that specified as a minimum for an offense under CSA or, in the case of any substance containing cocaine or cocaine base, in an amount less than 500 grams.

Modifies CSA (Controlled Substances Act)and CSIEA to delete specified mandatory minimum terms of imprisonment.

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Deal Reached to End Rockefeller Drug Laws

New York Governor David Paterson announced Thursday a deal has been reached with state legislators to repeal and revise much of the draconian Rockefeller Drug Laws.

The deal would repeal many of the mandatory minimum prison sentences now in place for lower-level drug felons, giving judges the authority to send first-time nonviolent offenders to treatment instead of prison.

The plan would also expand drug treatment programs and widen the reach of drug courts at a cost of at least $50 million.

It's not clear how many of those currently serving sentences will be able to apply for relief. Apparently, the legislators are willing to be more expansive in this regard than is Paterson. [More...]

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Bill Introduced to End Mandatory Minimums in All Drug Cases

Via FAMM, Rep. Maxine Waters has introduced a bill to end mandatory minimum sentencing in all drug cases. The bill has 15 co-sponsors.

H.R. 1466, the Major Drug Trafficking Prosecution Act of 2009, seeks to repeal mandatory minimum sentences for drug offenders and to give courts the ability to determine sentences based on all the facts, not just drug weight. It would also refocus federal resources on major drug traffickers instead of low-level offenders. There is currently no companion bill in the Senate.

The full text of the bill is here. We need a Senator to step up to the plate. Ideas? [More...]

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Eric Holder : Wanted Return of Mandatory Minimums and Tougher Pot Penalties

As U.S. Attorney in Washington, D.C., Eric Holder sought to raise marijuana penalties and restore mandatory minimum penalties for drug crimes. From the Washington Times, December 5, 1996 (via Lexis.com):

Eric Holder yesterday said he will seek to make marijuana distribution in the District a felony and reinstate mandatory-minimum sentences for convicted drug dealers. Mr. Holder,...said the D.C. Council's vote a year ago to repeal mandatory minimums was "misguided," leading to a backlog in the court system. He also warned that the city is on the verge of an explosion in violence associated with the sale and use of marijuana.

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Newly Released Crack Cocaine Defendants: How Are They Faring?

The Washington Post today reports on some crack defendants who were able to leave prison early due to the recent retroactive sentencing guideline reductions. They seem to be coping pretty well, considering the changed world they've returned to after a decade or more behind bars.

More than 7,000 crack cocaine offenders ... have received reduced sentences since March, when the U.S. Sentencing Commission put retroactive sentence guidelines into effect to offset what the commission felt were overly harsh punishments for crack cocaine related crimes, and it is an open question whether they will succeed or return to a life behind bars.

....Nearly 90 percent of those who received the tough sentences for crack cocaine were black men and women. Most users and dealers of powder cocaine are white and Latino.

There were 19,500 federal inmates serving sentences for crack when the reduction went into effect in March. Many aren't eligible for the reduction for a variety of technical reasons. For others, mandatory minimum sentencing laws which trump the guidelines will prevent them from getting a reduced sentence. The Government files objections to scores of requests, arguing either that the reduction doesn't apply to a particular defendant or the court should exercise its discretion and deny the relief.

The recent reduction is but a first baby step towards what's needed to reintroduce fairness into our federal criminal justice system. [More...]

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3,000 Crack Cocaine Sentences Reduced To Date

The U.S. Sentencing Commission says 3,000 crack cocaine sentences have been reduced since the guideline amendment went into effect in March.

There are 19,500 inmates serving time for crack cocaine.

In the 40 or so motions I've seen filed in Colorado (cases in which I had one of many co-defendants) the Government seems to file an objection to every request. It either says the guideline doesn't apply or the court should exercise its discretion and deny the relief.

I've mentioned before that the reductions are small, and only apply to a limited group of defendants. I only have one client out of dozens of crack defendants I've represented who appears to be eligible for relief. Sure enough, the Government is opposing the request.

The Sentencing Commission's report is great news for the 3,000 who have obtained relief so far, but it's a drop in the bucket as to what's needed. Congress needs to change the mandatory minumum sentencing laws. It needs to make the penalties for crack cocaine and powder the same without raising the levels for powder. [More....]

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