Alleyne Case: You've Gotta Prove It to Give a Mandatory Minimum

Today the U.S. Supreme Court issued an opinion in Alleyne v. United States that requires the government to prove its case by proof beyond a reasonable doubt to give someone a mandatory minimum sentence.

Wait a minute, you say, didn't the government already have to do that?  Not necessarily, and the facts of the Alleyne case explain why.

Alleyne was convicted of violating 18 U.S.C. section 924(c), which carries mandatory minimum sentences for possessing (5 years), brandishing (7 years), or discharging (10 years) a gun in the course of a crime of violence.  Alleyne's codefendant took a gun on a robbery and brandished it, and Alleyne was held accountable for that conduct.  But Alleyne was only convicted by a jury -- by proof beyond a reasonable doubt -- of possession of the gun (5-year mandatory minimum).  At sentencing, though, the judge found that Alleyne should be sentenced for brandishing the gun (7-year mandatory minimum).  But the judge didn't find this fact by proof beyond a reasonable doubt.  He found it by a lower standard of proof, a "preponderance of the evidence."

The Supreme Court decided today that the Sixth Amendment of the Constitution requires that facts that can lead to stiffer sentences -- including longer mandatory minimums -- must be proven by proof beyond a reasonable doubt.  Since that didn't happen in Alleyne's case, he was sent back to be resentenced to the lower, 5-year mandatory minimum.

The Alleyne rule applies to all mandatory minimum sentences, not just gun cases -- so whenever the government tries to get a longer mandatory minimum, it's got to prove the facts that trigger that sentence, and it's got to prove them by proof beyond a reasonable doubt.  That's going to make it harder to give mandatory minimum sentences, and that's good news!

Alleyne is unlikely to help people who have cases like his and are already in federal prison, because there are other legal cases, rules, and statutes that make it hard to do so.  If you have questions about whether Alleyne could help your loved one, ask a public defender or attorney.

U.S. News and World Report has this good story about the case and a quote from FAMM's vice president and general counsel, Mary Price, who spearheaded our submission of a "friend of the court" brief in the case:

In particular, the 5-4 ruling will make it harder to impose minimum sentences on drug offenders, because they are among the most frequent to receive those sentences. Justice Clarence Thomas wrote the majority opinion. He was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

"Mandatory minimums for drug offenders will lessen, but it's difficult to say to what extent," says Marc Mauer, executive director of the Sentencing Project, which opposes mandatory minimum sentences. "It's also likely that this will have beneficial effects in reducing racial disparity, because so many mandatory minimums are imposed for drug offenses, and because African-Americans in particular are on the receiving end of those penalties."

Mary Price, vice president and general counsel of the advocacy group Families Against Mandatory Minimums, likewise praised the ruling. "There are drug mandatory minimums that before today could be imposed without constitutional protection of a jury finding - [the ruling] ends that practice," she says. 

Some Parenting Advice from Sesame Street for Father's Day

Over 2.7 million kids in the U.S. have a parent in prison.  

This Father's Day weekend, you or a loved one might be one of them or know one of them.

Sesame Street, that beloved educator of generations of children, is now taking on incarceration, offering this helpful series of videos for kids and parents alike.

The Street also offers some helpful tips for talking to children about having a parent in prison, and even tips for incarcerated parents.  If you've got some tips that Sesame Street missed, leave them in a comment here on the blog.  They might just help someone else.

And a big, big Happy Father's Day to all our FAMM supporters who are dads, incarcerated or otherwise. Families are why we started this work 22 years ago, and families are still why we come into the office every day.

Unintended Consequences

Exciting Stuff at the U.S. Sentencing Commission

Lots of U.S. Sentencing Commission news to share this Friday.

For those who are new to federal sentencing, the U.S. Sentencing Commission (USSC) is the government body that writes and updates the U.S. Sentencing Guidelines, which are used at sentencing in each of the 80,000 criminal cases going through federal courts each year.  So, in other words, the USSC and the guidelines are very, very important.

The USSC is composed of 7 voting commissioners who must be appointed by the President with the Senate's approval.  They serve six-year terms, and at least 3 of the commissioners must be federal judges.  For awhile now, there have been three empty seats on the USSC.  Yesterday, though, the U.S. Senate confirmed three new commissioners to fill those seats.  They are:

• Rachel E. Barkow of New York
• Judge Charles R. Breyer of California
• Judge William H. Pryor, Jr. of Alabama

You can read about their backgrounds in this press release from the USSC.  FAMM welcomes these new commissioners and looks forward to working with them on all the important guideline issues coming up this year.

And this year's guideline issues are important, indeed!  Each year, the USSC sets forth a list of priorities -- tasks it wants to tackle in the upcoming year -- and asks the public for feedback.  This year's list of priorities is out now, and public feedback is due to the USSC by July 15, 2013.  This year, there are 13 priorities the USSC is considering taking on.  You can comment on them by writing a letter to the USSC -- all the how-to is here.  Your letter doesn't have to sound like it was written by a Supreme Court Justice.  It's important that the USSC hears how your or a loved one's sentencing has impacted you.  Tell your story and offer your thoughts on each of the priorities that matter to you.

For example, many FAMM supporters will be thrilled to hear that the USSC is considering changing the drug safety valve so that more people can qualify for sentences below the mandatory minimum term -- that's Amendment #1.  Or, you might be excited to hear that the USSC is considering a "drugs minus 2" amendment that would lower the guideline sentences for all drug types -- that's Amendment #2.  Write to the USSC and express your support.

And if you've got even more questions about the USSC and the guidelines, come to FAMM's Facebook page today at 12:00 noon EST, for a Friday Facebook Forum in which FAMM will answer your questions about interacting with the USSC.

The Incoherence of 10-20-Life

Defenders of mandatory minimums - there aren't many - argue that the crimes to which mandatory minimums apply are so inherently bad that no underlying facts could possibly justify a sentence below the statutorily defined floor.

To those dwindling few defenders, for sentencing purposes, the crime itself, and not any facts about how or why the crime was committed, etc., is the only relevant fact. Do the crime, get the time, facts be damned.

As I've been pointing out here lately, Florida's "10-20-Life" law, which requires a mandatory minimum sentence for certain felonies committed with a gun, has yielded significant unintended consequences, most notably chilling the fundamental right of self-defense and leaving Floridians vulnerable to criminals. It's also, of course, been used to punish law-abiding citizens who have chosen to defend themselves, an outcome never intended by the law's sponsors.

But beyond being a dumb law that hasn't worked, 10-20-Life is also conceptually incoherent. The law requires a mandatory minimum sentence, but only if a gun is used in the commission of a felony. In other words, in 10-20-Life cases no underlying fact about the crime is relevant to sentencing, but the law will apply only in cases where a certain fact holds.

It's incoherent because the law has (at least) two contradictory premises. The first is that the underlying facts of a crime should have no impact on sentencing. The second is that an underlying fact of the crime should have a total and complete impact on sentencing. These two premises are mutually exclusive; both cannot be true simultaneously.

Here, the second premise undermines the first. If it's true that the underlying facts of a case should have no impact on sentencing, then it's logically impossible that an underlying fact should have total and complete impact on sentencing. Of course, a defender of the law might argue that the presence of a gun in the commission of a crime is a fact of such astounding importance that it trumps all other facts. It alone should be considered because it alone is fundamentally different from all other facts. (As a resident of Gainesville, I'm immediately reminded that serial killer Danny Rolling did not self-identify as a "maniac with a gun," but I digress.)

That argument, if true, would at least make the law coherent (it wouldn't justify the law). But to make that argument work you have to supply some kind of independent reason for why the presence of a gun in the commission of a crime should be considered in sentencing, but no other facts should. In other words, you have to offer some extrinsic reason why that fact is fundamentally different from all the other potentially relevant facts.

For instance, to salvage the coherence of the law, a defender must articulate why the presence of a gun is relevant, but a defendant's self-defense claim is not. Or why the presence of a gun is relevant, but how it was used (e.g., in a drunken fight, or in an armed robbery of a convenience store by a career criminal) is not.

Either the facts of a case should matter in sentencing, or they shouldn't. 10-20-Life tries to have it both ways, and the result is incoherent, cocktail napkin public policy, full of chest thumping bravado but devoid of thought.

~ Greg Newburn
Florida Project Director

A Tale of Two Warning Shots

In 1989, a man found himself in a riot near Miami. He came across a woman trapped in her car surrounded by men he thought were going to kill her. He took his legally owned .38 revolver and fired it into the air. The men took off, and he was able to extract the woman from her car, presumably saving her life.

Twenty years later, in September 2009, a different man was visiting a friend, an elderly woman, in Keystone Heights. The woman’s grandson, who had been violent toward her in the past, screamed at his grandmother, and threatened her. The man retrieved a pistol from his truck and fired it into the ground, and another moments later as the grandson and his friends left the area.

In both cases, a man fired a warning shot in a situation each thought was necessary to protect a third party he presumed to be in danger. In neither case was anyone injured or killed.

Unfortunately, the similarities end there.

The man in the first case was Don Horn, then an Assistant State Attorney for the 11^th Judicial Circuit. According to Mr. Buddy Jacobs, General Counsel for the Florida Prosecuting Attorneys Association (FPAA), Mr. Horn was given the “Gene Barry Award” by the FPAA in part for his actions during the riot. Mr. Horn is now Chief Assistant State Attorney for the 11^th Judicial Circuit.

The man in the second case is Ronald Thompson, a 14-year veteran of the U.S. Army who earned more than 5,000 hours volunteering on behalf of his fellow veterans at a North Florida VA Hospital. For his actions, however, Thompson was given no award and no promotion. Rather, State Attorney Angela Corey charged Thompson with four counts of aggravated assault. He was convicted on all four counts and given a 20-year mandatory minimum sentence under Florida’s “10-20-Life” law. Mr. Thompson was recently granted a new trial, and though he has already served three years in prison (the sentence offered by Corey's office in a pre-trial plea offer), he is scheduled to be retried this year. Already in poor health, if Mr. Thompson is convicted he will almost certainly die in prison.

As has been pointed out repeatedly here and elsewhere, it is true that, when it comes to cases like Mr. Horn’s and Mr. Thompson’s “reasonable minds will vary” as to whether an act is self-defense or aggravated assault. But the same prosecutors who gave an award to Mr. Horn now argue to judges and juries in cases like Thompson's that a warning shot is itself evidence a defendant was not in fear for his or her life, then use that evidence to obtain convictions in aggravated assault cases. Given that “reasonable minds will vary,” it is almost certainly the case that whether a judge or jury accepts a self-defense claim or not is largely a matter of chance. As a result, cases like Mr. Horn’s and Mr. Thompson’s – i.e., cases that share virtually all of the relevant facts – can yield wildly different outcomes.

Here's how to fix it.

~Greg Newburn
Florida Project Director

The Rock can Come to Your Home Now!

Dwayne "The Rock" Johnson's awesome film Snitch is now out on DVD and Blu-ray.

Click here to purchase on Amazon, and bring The Rock and a nail-biting film about sentencing justice right into your living room.

George Will Likes the Justice Safety Valve Act!

Conservative columnist George Will has an excellent column today supporting an expanded safety valve for federal mandatory minimums!  He endorses S. 619, the Justice Safety Valve Act introduced by Senators Rand Paul (R-KY) and Patrick Leahy (D-VT), Chairman of the U.S. Senate Judiciary Committee.

As Will notes, an expanded safety valve would restore a lot of justice to sentencing, as well as help reduce our ever-growing and super-expensive federal prison population.  The full column is below, because it's just that good.

COLUMN: Seeking sense on sentencing

By George F. Will | Posted: Wednesday, June 5, 2013

Libertarians believe government should have a compelling reason before it restricts an individual's liberty. Today's liberals believe almost any reason will do, because liberty is less important than equality, fraternity, fighting obesity, and many other aspirations. Now, however, one of the most senior and liberal U.S. senators and one of the most junior and libertarian have a proposal that could slow and even repair some of the fraying of society.

Seven-term Democrat Pat Leahy's 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate year. They hope to reduce the cruelty, irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.

Such crimes are multiplying at a rate of more than 500 a decade, even though the Constitution explicitly authorizes Congress to criminalize only a few activities that are national in nature (e.g., counterfeiting, treason, crimes on the high seas). The federal government, having failed at core functions, acts like a sheriff with attention-deficit disorder, haphazardly criminalizing this and that behavior in order to express righteous alarm about various wrongs that excite attention.

Approximately 80,000 persons are sentenced in federal courts each year. There are an estimated 4,500 federal criminal statutes, and tens of thousands of regulations backed by criminal penalties, including incarceration. There can be felony penalties for violating arcane regulations that do not give clear notice of behavior that is prescribed or proscribed. This violates the mens rea requirement — people deserve criminal punishment only if they intentionally engage in conduct that is inherently wrong or that they know to be illegal. No wonder the federal prison population — currently approximately 219,000, about half serving drug sentences — has expanded 51 percent since 2000 and federal prisons are at 138 percent of their supposed capacity.

The Leahy-Paul measure would expand to all federal crimes the discretion federal judges have in many drug cases to impose sentences less than the mandatory minimums. This would, as Leahy says, allow judges to judge. Paul says mandatory minimum sentences, in the context of the proliferation of federal crimes, undermine federalism, the separation of powers and "the bedrock principle that people should be treated as individuals."

Almost everyone who enters the desensitizing world of American prisons is going to return to society, and many will have been socially handicapped by the experience. Until the 1970s, about 100 per 100,000 Americans were in prison. Today 700 per 100,000 are. African-Americans are 13 percent of the nation's population but 37 percent of the prison population, and one in three African-American men may spend time incarcerated. All this takes a staggering toll on shattered families and disordered neighborhoods.

The House Judiciary Committee has created an Over-Criminalization Task Force. The task force should read the short essay "Ham Sandwich Nation: Due Process When Everything Is a Crime" by Glenn Harlan Reynolds, professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with "kitchen sink" indictments — Reynolds believes "the decision to charge a person criminally should itself undergo some degree of due process scrutiny." He also suggests banning plea bargains:

"Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top."

U.S. prosecutors win more than 90 percent of their cases, 97 percent of those without complete trials. British and Canadian prosecutors win significantly less, and for many offenses, the sentences in those nations are less severe.

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

Sixth Circuit Crack Retroactivity Ruling Appealed

Two weeks ago, we gave you the good news that two judges of a three-judge panel of the Sixth Circuit Court of Appeals ruled that the Fair Sentencing Act of 2010 (FSA) is retroactive. People sentenced to the old crack cocaine mandatory minimums before August 3, 2010, in the states the Sixth Circuit covers, could now be eligible for resentencing under the FSA. The case is United States v. Blewett, No. 12-5226 (6th Cir. May 17, 2013). We also cautioned, however, that the Blewett case would most likely be appealed and possibly reversed – meaning that it might not help anyone.

Well, the government filed an appeal on May 31, 2013, asking for what is known as “en banc” review. That means that all the judges of the Sixth Circuit Court of Appeals have been asked to review and reverse Blewett.

We expect that the Sixth Circuit Court of Appeals will decide to review the case. If it does, we expect the Blewett decision to be stayed until the full court hears it. This means that courts will not be allowed to resentence anyone using the Blewett opinion unless and until it is affirmed. We do not know how long the appeal will take.

We also don’t know what the court will do. But Blewett is facing an uphill battle and is likely to be reversed. This is because, as the government pointed out, Blewett conflicts with decisions in every other court that have held that the Fair Sentencing Act is not retroactive.

Members with incarcerated loved ones should be wary of anyone who promises that they can bring your loved one home sooner because of Blewett. FAMM cannot tell you if you might benefit if the Blewett decision stands, and we cannot give you legal help or advice. You and your loved ones should talk to your attorneys if you have questions, or contact the Federal Public Defender in the district where the person was sentenced. The federal defenders are monitoring the situation closely.

Remember, even if the Blewett decision stands, it can only help federal (not state) prisoners who
(1) were convicted in a federal court in Michigan, Kentucky, Ohio, or Tennessee, AND
(2) received a mandatory minimum sentence for a crack cocaine offense, AND
(3) were sentenced before August 3, 2010.

Keep checking our website, www.famm.org, for updates on the Blewett appeal and outcome.

Even if the Court of Appeals reverses Blewett, we think the FSA should be made retroactive, because getting a fair sentence shouldn’t depend on when you went to court. FAMM wants to see the FSA made retroactive, and we’ll be asking Congress to do just that.