A question about the Justice Safety Valve Act of 2013

In an earlier post regarding the Justice Safety Valve Act of 2013, I suggested that it might be a good idea to make the standard of review on appeal from sentences under the statutory minimum less deferential so as to insure that we trial judges don’t go too nuts.  Does anybody know whether there is any discussion about the standard of review on appeal under the Justice Safety Valve Act of 2013?  If someone has an answer, I would be most interested in knowing the details.  While I am all for lessening the impact of statutory minimums in some cases, I am also very, very concerned that our zeal to do the right thing may have the unintended consequence of injecting even more unwarranted sentencing disparity into the calculus.


Making the The Justice Safety Valve Act of 2013 palatable to cynics and skeptics

Cynics and skeptics of the The Justice Safety Valve Act of 2013 worry that without firm statutory minimums some federal district judges will go wild.  Their concerns are not without foundation.

What if the Act were left entirely as it is proposed but the appellate standard of review was lowered and set by statute.  That is, anytime a district judge sentenced below the statutory minimum under the Act, the standard of review on appeal would be de novo for both facts and law.

Just a thought.


The Judicial Conference and mandatory minimums

Today, the chair of the Judicial Conference Criminal Law Committee wrote in support of Congress’s efforts “to review and ameliorate the deleterious and unwanted consequences spawned by mandatory minimum sentencing provisions.

The press release from the Administrative Office and the letter from Judge Robert Holmes Bell was prompted by a Senate Judiciary Committee hearing on reevaluating the effectiveness of federal mandatory minimum sentences. The Judicial Conference has a long-standing policy of opposing mandatory minimum sentences.

In his letter, Bell also expressed “strong support” for legislation such as the “Justice Safety Valve Act of 2013” that would “help avoid the fiscal and social costs associated with mandatory minimums.”

Aside from my disagreement with the assertion that “cost containment” policies for the judiciary ought to inform the length of supervised release terms, and while not agreeing entirely with all the other reasoning in Judge Bell’s letter, I am strong supporter of doing away with statutory mandatory minimums except in rare circumstances. In short, statutory mandatory minimums impede the drafting of thoughtful sentencing guidelines by the expert body created by Congress to write those guidelines–the Sentencing Commission.

Regarding “cost” and “supervised release” issues, Judge Bell briefly discusses those issues at pages 3-4 of his letter. Note that the judge believes that reducing supervised release terms will save the judiciary money, but he also argues that the risk of reducing prison terms can be ameliorated by supervised release conducted under auspices of the judiciary.  If that is true, one should surely doubt that there will ever be any true cost savings for the judiciary by fiddling around with statutory minimums. By the way, I entirely agree that reducing costs to the Bureau of Prisons (a creature of the Executive branch) by releasing more people earlier from prison is likely to result in a net cost savings to the government as a whole because it is truism that it costs more to house a prisoner than it costs to supervise that same offender in the free world.  That said, on the cost issue, the judiciary cannot preserve the proverbial cake while eating it too. But, my disagreement on this “cost” issue is a quibble in the greater scheme of things. Except for rare cases, mandatory minimums should be abolished.


Cost containment, sentencing and perverse incentives

Yesterday, the Judicial Conference of the United States issued a press release about cost containment as our national government lurches toward yet another October 1 shut-down date. Among other things, that press release contained the following little nugget:

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. According to the U.S. Sentencing Commission, the average term of supervised release of an offender subject to a mandatory minimum sentence is 52 months, compared to 35 months for an offender who was not subject to a mandatory minimum. The cost of supervising an offender for one month is approximately $279.

I find this statement utterly remarkable. Let’s be clear on what the statement really means. It means that judges should explicitly consider preserving the federal judiciary’s budget by reducing the time that offenders spend on supervision after they get out of prison.

If a sentencing judge is supposed to consider what’s best for the federal judiciary’s bottom-line when sentencing people, haven’t we created a truly twisted and perverse incentive for judges to look out for their own institutional best interests rather than looking out for the best interests of the offender and the well-being of the public?


PS Thanks to Elaine Mittleman for her thoughts on the subject of costs. To be clear, however, Elaine has no responsibility for the thrust of this post.

Perhaps it is chemo fog, but I’m getting soft on crime

I always have been, and remain, a strong supporter of the Sentencing Commission and the Guidelines. See, e.g., Prepared Testimony of Richard G. Kopf, United States District Judge, District of Nebraska for the United States Sentencing Commission, Washington, D.C. (presented on Tuesday, February 15, 2005) (asserting that district judge’s should be required to provide a “plainly superior, principled reason why the advisory Guidelines should not be given decisive weight” when sentencing particular individuals).  Given that background, I write today about statutory minimum sentences and the evolving controversy about whether they should be retained.

Reducing federal prison populations is all the rage. Some want to do it for monetary reasons, but others want to do it because they believe there are “non-violent” drug dealers sentenced to terms of federal imprisonment that are far too long and those long sentences fall disproportionately on black and Hispanic people. Whatever the motivation, Congress is considering slashing or doing away with mandatory minimum sentences.

This week thoughtful and highly regarded former prosecutors, including two men who served with distinction as Attorney General, sent the Senate majority and minority leaders a letter opposing reduction of mandatory minimum sentences for drug dealers.  One of the signatories, former Attorney General Mukasey served 18 years as federal district judge sentencing people. These folks are brilliant, tough, and experienced and they are motivated by an intense desire to protect the public from the drug predators that currently prowl about in numbers that would stagger the uninformed.

The letter reads as follows:

May 12, 2014

The Honorable Harry Reid
Majority Leader

The Honorable Mitch McConnell
Minority Leader

United States Senate
Washington, DC 20510

Re: Federal Criminal Sentencing Reform

Dear Majority Leader Reid and Minority Leader McConnell:

As former government officials who served in the war on drugs, we care deeply about our nation’s system of justice. During our tenure, we labored to see that justice was well served, the guilty punished and the innocent protected. We recognize the ongoing need to continue to improve how the nation deals with crime.

Significant components of our statutory framework for sentencing lie at the heart of our nation’s success in confronting crime. Collectively, these sentencing measures have helped substantially to reduce crime throughout our nation over the past thirty years. A series of laws, beginning with the Sentencing Reform Act of 1984, have dramatically lessened the financial and human toll of crime on Americans. Critical to these laws has been the role of mandatory minimum sentencing and the exercise by Congress of its Constitutional prerogative to establish the minimum of years of detention served by a federal offender. While federal judges are properly entrusted with great discretion, strong mandatory minimums are needed to insure both that there is a degree of consistency from judge to judge, and that differing judicial ideologies and temperaments do not produce excessively lenient sentences. In addition, and of central importance, prosecutors use strong mandatory minimums, along with safety-valves built into the current system, to induce cooperation from so-called “smaller fish,” to build cases against kingpins and leaders of criminal organizations.

Because the Senate is now considering revisiting the subject of mandatory minimum penalties for federal drug trafficking offenses, we take this opportunity to express our personal concerns over pending legislative proposals. We are concerned specifically by proposals thatwould slash current mandatory minimum penalties over federal drug trafficking offenses — by asmuch as fifty percent. We are deeply concerned about the impact of sentencing reductions ofthis magnitude on public safety. We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines and PCP. We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. In addition, we fear that lowering the minimums will make it harder for prosecutors to build cases against the leaders of narcotics organizations and gangs — leaders who often direct violent and socially destructive organizations that harm people throughout the United States.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking – not drug possession offenses – and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a mandatory minimum sentence. Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved. Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player,and cooperates with federal authorities. This “safety valve,” as it’s known, has been in the law foralmost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperationand, thus, breaking down drug conspiracies, large criminal organizations andviolent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety. We have made great gains in reducing crime. Our current sentencing framework has kept us safe and should be preserved.

Sincerely yours,

William P. Barr
Former United States Attorney General

Michael B. Mukasey
Former United States Attorney General

Samuel K. Skinner
Former White House Chief of Staff and Former United States Attorney, Northern District of Illinois

William Bennett
Former Director of the White House Office of National Drug Control Policy

John P. Walters
Former Director of the White House Office of National Drug Control Policy

Mark Filip
Former United States Deputy Attorney General

Paul J. McNulty
Former United States Deputy Attorney General and Former United States Attorney, Eastern District of Virginia

George J. Terwilliger III
Former United States Deputy Attorney General and Former United States Attorney, District of Vermont

Larry D. Thompson
Former United States Deputy Attorney General and Former United States Attorney, Northern District of Georgia

Peter Bensinger
Former Administrator, Drug Enforcement Administration

Jack Lawn
Former Administrator, Drug Enforcement Administration

Karen Tandy
Former Administrator, Drug Enforcement Administration

Greg Brower
Former United States Attorney, District of Nevada

A. Bates Butler III
Former United States Attorney, District of Arizona

Richard Cullen
Former United States Attorney, Eastern District, Virginia

James R. “Russ” Dedrick, Former United States Attorney, Eastern District, Tennessee and Eastern District, North Carolina

Troy A. Eid
Former United States Attorney, District of Colorado

Gregory J. Fouratt
Former United States Attorney, District of New Mexico

John W. Gill, Jr.
Former United States Attorney, Eastern District, Tennessee

John F. Hoehner
Former United States Attorney, Northern District, Indiana

Tim Johnson
Former United States Attorney, Southern District, Texas

Gregory G. Lockhart
Former United States Attorney, Southern District, Ohio

Alice H. Martin
Former United States Attorney, Northern District, Alabama

James A. McDevitt
Former United States Attorney, Eastern District of Washington

Patrick Molloy
Former United States Attorney, Eastern District, Kentucky

A. John Pappalardo
Former United States Attorney, Massachusetts

Wayne A. Rich. Jr
Former United States Attorney, Southern District, West Virginia

Kenneth W. Sukhia
Former United States Attorney, Northern District of Florida

Ronald Woods
Former United States Attorney, Southern District, Texas

Reprinted from Crime and Consequences.

I agree with much of what is contained in the letter.  In particular, and despite weak liberal reasoning to the contrary, harsh federal drug sentences have undoubtedly reduced federal crime rates for drug offenses to record lows. Mandatory minimum sentenced undoubtedly help prosecutors squeeze lesser drug dealers so that the prosecutors can get at bigger fish. To say that the federal prisons are largely comprised of “non-violent” drug dealers defies the reality of the terribly vicious and violent drug business. Twenty two years of imposing federal sentences for drug offenses, including imposing mandatory life terms on blacks and Hispanics, convince me that mandatory minimum statutory sentences are perhaps the most powerful of all the tools a federal drug prosecutor possesses.

But I have come to the conclusion after these twenty two years that mandatory minimum sentences for drug offenders should be totally eliminated or at least scaled back such that they play no part in most federal drug cases. Here, in summary fashion, is why I have come to that conclusion:

  1. If Congress intends to maintain the Sentencing Commission and the ideals behind the Sentencing Reform Act of 1984, which is my paramount desire and concern, then mandatory minimum sentences must go.  It makes no sense to give the Commission the power to build a rational and empirically driven sentencing scheme and then instruct the Commission that no matter how rational and data-driven that scheme might be the design must be arbitrarily altered by fixed numbers.  If we are to have a panel of thoughtful sentencing experts backed up social scientists of high repute (the Commission) Congress must set the Commission free.
  2. We must decide who sentences.  Statutory minimum sentences essentially bifurcate the act of sentencing between the Executive branch and the Judicial branch.  The prosecutor picks a sentence of a certain number of years (the statutory minimum) and anything more is left to the judge. This dichotomy is both theoretically confusing and it also practically produces sentencing disparity by allowing prosecutors to pick and choose when “they will sentence” and when they will allow the sentencing judge to fully perform the act of sentencing.
  3. If the coercive power of a statutory minimum to obtain cooperation is necessary, the Commission could implement a rationalized but far more consistent equivalent by rewarding offenders who cooperate with the government.  For example, think of the role reduction Guidelines as model. Through a similar Guidelines approach, a cooperating individual might receive anywhere from a one point reduction and up to a four point (or greater) reduction for cooperation if sought by the government and approved by the judge. The Commission has always been sensitive to the interests of the Department of Justice and there is no reason to think that future Commissions, unconstrained by statutory minimums, would ignore the legitimate needs of DOJ.
  4. The authors of the letter add that they fear the Commission is moving to otherwise reduce drug sentences and imply that elimination of mandatory minimums is an example of a Commission gone rogue. No one who has followed the Commission over the years would classify it as soft on crime. While prosecutors may think the Commission is going too far reducing base offense levels for drugs, the cure for that is a debate with the Commission and not the blunderbusses of statutory minimums.

So, there is my story and I’m sticking to it. If I am getting soft on crime, then so be it.


A peek behind the curtain: The governance of an Article III district court

One of the purposes of this blog is to describe in realistic terms what really goes on in the federal trial courts.  In that regard, how each of the federal trial courts govern themselves is frequently unknown to the public, and has received little academic interest. Moreover, and you would only know this from the inside, the governance of a federal trial court can be messy, nasty and very controversial.  In this post, I want to briefly describe how our court governs itself.

Unlike virtually any other federal trial court with which I am familiar, the District of Nebraska uses a wide open and democratic form of government. Anyone may read our governance order on our external web site (here).

The important elements of our governance structure can be described as follows:

  • Although the statutes, in very brief and minimalistic terms, provide that the chief judge and the active judges have the power to govern the court, these judges have committed to an open and inclusive structure.  While there is a “safety valve” to insure that in rare cases those judges could override our open structure, that has never happened.
  • We meet four times a year as a group.  That group is called the Nebraska Judicial Council.  Every matter of significance goes through the Nebraska Judicial Council.
  • Every judge–active Article III judge, senior Article III judge, magistrate judge, and bankruptcy judge, can put an item on the agenda.
  • Every judge has one vote.  The majority governs.
  • The agency heads and their deputies–the clerk of the district court, the clerk of the bankruptcy court, the chief probation officer, and the chief pretrial services officer–actively participate in the meeting, although they do not vote.
  • The United States Attorney, and her deputy, the Federal Public Defender, and his deputy, the Chair of the Federal Practice Committee (representing lawyers who practice in our court), the Criminal Justice Act panel representative (representing private lawyers who take criminal appointments), and the United States Marshal and his deputy, actively participate in the meeting, although they do not vote.
  • Real debate goes on in these meeting, and they are often blunt and heated.  Only personnel matters or especially sensitive core judicial matters are debated in executive session where only the judges are present. Executive sessions are a rare exception and not the rule.
  • Detailed minutes of the meeting of the Nebraska Judicial Council are made available to the participants and every employee of the court.
  • When the Nebraska Judicial Council is not in session, the active district judges serve as an executive committee to decide matters that cannot await Nebraska Judicial Council approval. Those judges come together monthly by phone.  Of course, for day-to-day administrative decisions, the chief judge acts unilaterally.  However, the default is always to take a significant matter to the Nebraska Judicial Council for resolution by all judges rather than having the active district judges or the chief judge act alone.
  • On matters of budget, the active district judges comprise a budget committee staffed by a person trained in finance and another person with a CPA certificate.  Following each meeting of the Nebraska Judicial Council, the budget committee meets and deals with budgetary issues for the quarter and coming years.  Detailed budget packages are presented, and the minutes of the budget committee meeting together with the budget committee documents are made available to every judge.  An agenda item for the budget is a part of each Nebraska Judicial Council meeting, so each judge can raise any concern he or she may have regarding budgetary matters.

I am very proud of how we govern ourselves. It is a system that is inclusive and non-hierarchical.  It presupposes that a federal district court is a joint enterprise–one in which the more key players have a voice the better the enterprise will function. While I don’t propose that our way is a model for other courts, it is worth considering.



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