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Attorney General Jeff Sessions & the uncertain legal status of the U.S. Sentencing Guidelines

Attorney General Jeff Sessions & the uncertain legal status of the U.S. Sentencing Guidelines

Since becoming attorney general, Jeff Sessions has announced plans to ramp up civil forfeiture laws, revive prosecutions for crimes involving small amounts of marijuana, and charge defendants with crimes that carry more severe penalties. He has also come out with outlandish policies on immigration-related crimes and consent decrees with local police departments, and reversed the Department of Justice’s position in the ongoing Texas voter-discrimination litigation.

Sessions’ positions are not only unjustifiably punitive; some of them also undermine the premises of a recently decided Supreme Court case.

In their March ruling in Beckles v. United Statesthe justices held that the U.S. Sentencing Guidelines, legislative rules that identify sentencing ranges for defendants based on their conduct and criminal history, are not subject to the vagueness doctrine, the constitutional prohibition against vague penal laws, which are problematic because they fail to provide adequate notice that certain behaviors are proscribed. Prior to 2005, a statute required federal judges to sentence defendants within the range specified by the guidelines. In United States v. Booker, the Supreme Court held that viewing the guidelines as mandatory violated the Sixth Amendment’s guarantee to a trial by jury. Booker invalidated the statutory provision that required judges to sentence defendants within the range specified in the guidelines and rendered them “advisory.” Accordingly, federal judges are no longer required by statute to sentence a defendant within the range provided for in the guidelines. But the guidelines still play a significant role in federal sentencing for a variety of reasons, and the vast majority of federal sentences continue to fall within the ranges they specify. Federal judges must begin sentencing by calculating a range based on the guidelines and must adequately explain their decision to deviate from it.

In holding that the guidelines are not subject to the vagueness doctrine, Beckles repeatedly emphasized that the guidelines are advisory and “merely guide the exercise of a court’s discretion.” The court concluded that a defendant could be sentenced under a guideline that uses the same exact language that the court had previously held was unconstitutionally void for vagueness when it appeared in a criminal statute. In Johnson v. United States, the Court had held that the Armed Career Criminal Act’s residual clause, which increases the sentences of defendants who were convicted of crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another,” was unconstitutionally void for vagueness. The guideline at issue in Beckles (the “career offender” guideline) used the exact same words: It provided sentencing ranges for defendants who were convicted of crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.”

In part because the guidelines are advisory, federal prosecutors are not required to request sentences within the ranges they outline. In fact, federal prosecutors routinely request courts not to impose sentences that fall within the range recommended by the “career offender” Guideline. Representatives of the federal defenders office assembled data and testified before the U.S. Sentencing Commission that the government recommends a sentencing range that is lower than the range provided for by the guidelines in almost half of the cases where the “career offender” guideline applied. Prosecutors opt not to ask for sentences within the range provided for by the career offender guideline because the guideline is so draconian. The guideline doubles the sentence of drug offenders, and in Mr. Beckles’ case, his sentencing range jumped from 15 years to more than 30 years because of the career offender guideline.

After the Beckles ruling, Sessions issued a memorandum to prosecutors about how to charge and recommend sentences for federal defendants. The memorandum urges prosecutors to charge based on the “most serious, readily provable” offense. It also says that “recommending a sentence within the advisory guideline range will be appropriate.” Judge William Pryor on the 11th Circuit U.S. Court of Appeals (who President Trump considered nominating to the Supreme Court) defended the policy in the memo, stating that “it at least reduces the potential for disparities.” (Judge Pryor also sits on the U.S. Sentencing Commission and wrote the sole court of appeals opinion that held the guidelines were not amenable to vagueness challenges.)

It’s true that, since Booker, courts have not been required to sentence defendants within the ranges specified in the guidelines. But federal courts continue to rely on the guidelines when imposing sentences. And the guidelines will take on additional force if prosecutors uniformly recommend their application, as Attorney General Sessions has asked them to do.

This piece is cross-posted at Take CareI was co-counsel on an amicus brief in Beckles. The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

Oregon prosecutors to judges: You’re Fired

Oregon prosecutors to judges: You’re Fired

District attorneys in Oregon have a new tactic to deal with judges that hand down rulings against their offices: they’re effectively getting rid of them. County circuit judges in both Lane and Multnomah counties have been disqualified from hearing criminal cases this year following accusations from district attorneys that the judges failed to be “fair and impartial.”

Accusing a judge of bias isn’t something that should be done casually. The ability to rule fairly and impartially is the chief job of a judge, and charges that they aren’t capable of doing so can have serious consequences. But Oregon’s process is quite simple for seeking to disqualify a judge from a case. In Multnomah County, prosecutors filed an affidavit challenging Judge Judith Matarazzo and announcing they would no longer bring new criminal cases before her. Under Oregon law, little to no evidence is required to back up claims that a judge can’t be fair and impartial.

Prosecutors’ complaints amount largely to dissatisfaction with rulings in which Matarazzo decided not to adopt their sentencing recommendations, and a problem with what the office believes to be leniency in DUI cases. The office also accuses her of starting, and in some instances completing, hearings and settlement conferences in the absence of a prosecutor on more than one occasion. Matarazzo told The Oregonian/OregonLive that although she is deeply disturbed by the accusations, “There’s not much I can do.”

In Lane County, Oregon, similar accusations were brought by prosecutors against Judge Josephine Mooney in March. Because of the complaints informally charged by District Attorney Patty Perlow, Mooney is no longer hearing any criminal, juvenile delinquency, or civil cases involving the Lane County District Attorney’s Office. In Mooney’s case, a formal affidavit was never filed — instead, she agreed to stop presiding over these cases after Perlow’s office filed memos complaining about her conduct to another judge, according to documents obtained by The Register-Guard.

This practice isn’t isolated to Oregon. Between 2014 and 2015, the beleaguered office of Orange County District Attorney Tony Rackauckas successfully prevented county Superior Court Judge Thomas Goethals from hearing 55 of 58 murder cases assigned to him. Rackauckas’ office repeatedly accused Goethals of bias that made him unfit to preside over the cases in question, and successfully disqualified him under the state’s Code of Civil Procedure.

Orange County Superior Court Judge Richard M. King ruled the repeat disqualifications were inappropriate. The court found that the efforts by Rackauckas’ office were “based on Judge Goethals calling out the prosecution on misconduct,” and they “ha[d] the appearance of attempting to intimidate, punish, and/or silence Judge Goethals, and to send a warning to the other local judges that similar rulings will produce a similar fate.” California’s 4th Circuit Court of Appeal, despite finding the prosecutors’ actions to be “abusive,” ultimately allowed them to stand under existing California law. Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law School, argued the case on the Superior Court’s behalf. He told In Justice Today that the disqualification practice “violates [the] separation of powers.” In dissent, Associate Justice David A. Thompson agreed, arguing that the ease with which prosecutors were able to disqualify Judge Goethel amounted to an unconstitutional interference of one branch of government (the judiciary) by another (the executive).

As Chemerinsky’s petition to the court points out, the disqualification claims were not brought against Goethals out of the blue. The DA office’s attacks on the judge began at the same time that Goethals began calling out the office for misconduct and exposing the office’s illegal use of jailhouse informants. In the spring of 2015, Goethals deemed the entirety of Rackauckas’ office unfit to work on the murder trial of Scott Dekraai. The “blanket papering” of Goethals by the DA’s office was an unabashed move of retaliation.

Though the appellate court did allow the disqualifications to stand, the ruling was sharply critical. “As courts work to keep doors open and to provide timely and meaningful access to justice to the public, the extraordinary abuse of [judicial disqualification] is a barrier to justice and its cost to a court should be reconsidered,” wrote Justice Kathleen O’Leary in the opinion.

Thanks to Josie Duffy Rice.

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Bail bond industry fights back against reform

Bail bond industry fights back against reform

On July 17th, a judge in Chicago ruled that courts there could no longer hold people in jail on bail simply because they could not afford it. This is the latest in a series of judicial and legislative actions designed to reform the cash bail system that has come under increasing scrutiny in the wake of abusive court practices uncovered in Ferguson, MO and following the death of Kalief Browder in New York City.

Ferguson was just one of many cities that has been found to use cash bail to pressure defendants into agreeing to plea deals rather than taking their cases to court. Defendants often spent several days in jail on cases where incarceration for an actual conviction was highly unlikely. According to an investigation by The Atlantic, almost two-thirds of people in local jails are awaiting trial, and a full 90% of them are there because they cannot afford bail.

In the case of Kalief Browder, the results turned out to be fatal. Browder was held for three years based on an unsupported accusation that he stole a backpack. He spent two of those years in solitary confinement as a juvenile. After years of trying to pressure him into a plea deal, the Bronx DA’s office admitted that they had no case. Shortly after his release he killed himself, having never recovered from the traumas of his abuse in jail.

Across the country advocates are pushing for reforms to the bail system through legislative changes, judicial rulings, and local DA races. Their ability to change the conversation on bail is epitomized in a statement released to officials across the country by former Attorney General Eric Holder stating that, “Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”

In January a new law took effect in New Jersey eliminating their cash bail system. Defendants are instead subjected to intensive community supervision. Washington, DC eliminated its cash bail system in the early 90’s. Currently, over 91 percent of defendants show up for trial, creating massive savings in jail costs.

These reforms, however, have not gone unchallenged by the commercial bail bond industry which makes millions every year loaning money to people to cover their bail. These bonds usually cost defendants 10 percent of the bail amount — whether or not they show up in court. This means that poor people either languish in jail in conditions that make them more likely to accept unfavorable or even false plea deals, or pay significant fees to bail bond companies.

Nationally, the bail bond industry has been mobilizing. At the local level, bail bond companies have been pouring cash into legislative and DA races to try to block or at least temper reforms that would reduce their role.

In Maryland, lawmakers and judges have been pushing for the elimination of cash bail. According to Common Cause MD, the bail bond industry responded by pouring $87,000 into the pockets of state legislators and the governor. They were successful in blocking a total ban but were unable to stop a major reduction of cash bail. According to the Washington Post, between 2011 and 2014, bail bond groups gave $168,000 to local politicians in Maryland and $115,000 to those in California. State politicians in have received $78,000 at the state level. The former DA of Dallas County alone received $70,000.

In New Mexico, the bail bond industry spent tens of thousands to change an anti-cash bail constitutional amendment into a version that preserves its central role.

Cash bail has been a central feature in the current District Attorney race on Brooklyn. All of the major candidates have expressed concerns about the existing system. Over half of the people in jail while awaiting trial in New York City are there because they can’t afford their bail.

Candidate Marc Fliedner has called for eliminating cash bail in any case where the DA’s office is unlikely to seek jail time for the underlying offense. Another candidate, Anne Swern, has said that she would eliminate cash bail for all but a handful of misdemeanor cases. The current DA, Eric Gonzalez, has been more moderate in his position stating that he wants to reduce reliance on cash bail for most misdemeanors, but allow DAs to request it if they have specific public safety concerns.

Gonzalez is also the only candidate taking money from the bail bond industry. According to recent campaign finance filings, he has received at least $7,750 directly from two major bail bond companies, Empire Bail Bonds and IC bail bonds. Empire also hosted a major fundraising event, the results of which are not known. Gonzalez’s opponent, Marc Fliedner, was quoted as saying “investment [by bail bond companies] in Gonzalez’s campaign makes his protestations that he wants to change the system ring entirely false.” Candidates Vincent Gentile and Anne Swern also expressed concerns about the seeming contradictions of accepting this money.

Bail reform is a central element of any program to reduce incarceration rates, especially in local jails. It also represents a basic social justice issue as the burdens of the current system rest overwhelmingly on the poor. If politicians are serious about these reforms they need to reject campaign contributions from the bail industry.

Alex S. Vitale is Professor of Sociology and Coordinator of the Policing and Social Justice Project at Brooklyn College. He is the author of the forthcoming “The End of Policing” and “City of Disorder: How the Quality of Life Campaign Transformed New York Politics.” The views and opinions expressed in this article are Professor Vitale’s and do not necessarily reflect the views of the Fair Punishment Project.

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