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12/7/2017

The Unintended Consequences of Mandatory Minimums

This blog post will re-examine the Sentencing Reform and Corrections Act (SRCA) and focus on mandatory minimums. For the purposes of this blog post, “mandatory minimums” refers to “when a person convicted of a crime must be imprisoned for a minimum term, as opposed to leaving the length of punishment up to judges.”[1] “Mandatory minimum sentencing forces judges to deliver fixed sentences to individuals convicted of a crime, regardless of culpability or other mitigating factors.”[2]

Although originally intended for violent offenders, mandatory minimums now impact non-violent offenders as well.[3] Mandatory minimums are often excessive and unjust, but this is not new.  In 1994, Congress created a “safety valve” for those offenders “who most warrant proportionally lower sentences” and “are least culpable”.[4] The safety valve allows federal judges to go below an otherwise applicable mandatory minimum sentence in low-level drug cases (“essentially non-violent, first time offenders.”)[5] If signed into law, the SRCA will go beyond the 1994 safety valve and reduce penalties for those who are non-violent repeat offenders. Further, under SRCA, federal judges will also gain discretion in the cases of low-level offenders below the 10-year mandatory minimum, and in sentencing those individuals who possess a firearm illegally, provided that the firearm was not brandished or discharged in relation to a crime of violence or drug trafficking.[6]

Earlier this year, Attorney General Jeff Sessions, released a memorandum on sentencing guidelines that is inconsistent with the goals of the 1994 safety valve and the proposed SRCA. These sentencing guidelines instruct federal prosecutors to “charge and pursue the most serious readily provable offense”—claiming that this method “affirms…responsibility to enforce the law, is moral and just, and produces consistency.”[7] In the memorandum, Sessions goes on to say, “the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences”[8]

Despite the influence of the Sessions memo, some of the federal judges (who enforce these mandatory minimums) are speaking out about the grave injustice mandatory minimums are creating. In an interview with Rachel Martin of NPR, Federal Judge Mark Bennett addressed the “consistency claim” suggested by Sessions’ memo by saying “mandatory minimums support unwarranted uniformity by treating everyone alike even though their situations are dramatically different.”[9] In the same interview, Bennett said “mandatory minimums are so incredibly harsh and they’re triggered by such low levels of drugs that they snare at the non-violent, low-level addicts…”[10] According to Judge Bennett, about 80% of the cases involving mandatory minimums are unfair.[11]

One case where Judge Bennett felt the mandatory minimum was too harsh involved 28-year-old Mark Paul Weller. In 2015, Judge Bennett issued a ten-year sentence in response to Mr. Weller’s guilty plea to two counts of distributing methamphetamine (“meth”) in his home town.[12] While Weller did have a brief criminal history, he had made significant efforts to improve his life.[13] Unfortunately, with an unexpected, emotional life event, he turned to drugs and alcohol.[14] This downward spiral led Weller to eventually sell meth.[15] Over the course of eight months, Weller had sold 2.5 kilograms of meth across state lines.[16] Weller had traded meth for his sister’s rent, a used car, gas money, and even an unregistered SKS rifle.[17] The unregistered rifle was still in the car when he was pulled over with 223 grams of meth.[18]

“Weller was charged with conspiracy to possess with intent to distribute and to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and distributing 50 grams or more of a methamphetamine mixture which contained 5 grams or more of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).”[19]

Because of Weller’s guilty plea to these charges, his mandatory minimum established by Congress was 10 years. Sadly, his entire sentence involved only the calculation of the following factors: victim impact, criminal history, cost of imprisonment, and the guideline sentence. The answers to this calculation were as follows:  no identifiable victim, minimal criminal history, $2,440.97 per month of imprisonment, and a suggested sentence of 151-188 months.

After sentencing Weller to 120 months, Bennett considered the result of this punishment: “one more nonviolent offender packed into an overcrowded prison; another $300,000 in government money spent.” “I would have given him a year in rehab if I could…How does 10 years make anything better? What good are we doing?” Judge Bennett noted, there were many mitigating factors in Mr. Weller’s case, like neglect and abuse by his mother, addiction, and remorse. Yet, even after consideration of those mitigating factors, he was forced to give Mr. Weller the 10-year sentence. Judge Bennett had absolutely no power to shorten or change the sentence type, i.e.: rehab instead of prison.[20], [21]

If passed, SRCA would scale back police and prosecutor power by restoring the use of judicial discretion.

Katie Parr is a law clerk at Cause of Action Institute.

 

[1] U.S. Legal, https://definitions.uslegal.com/m/mandatory-minimum-sentencing/

[2] See Id.

[3] See 4, Erik Luna, Reforming Criminal Justice, Punishment, Incarceration and Release, Mandatory Minimums, 2017, at 126.

[4] Id. at 122.

[5] Id.

[6] Sentencing Reform and Corrections Act of 2017, S.1917, 115th Cong. (1st Sess. 2017)

[7]  Memorandum from Jefferson B. Sessions, Att’y Gem., U.S. Dep’t of Justice, to All Federal Prosecutors, Department Charging and Sentencing Policy 1 (May 10, 2017).

[8] Id.

[9] A Federal Judge Says Mandatory Minimums Don’t Fit The Crime, Rachel Martin, NPR (June 1, 2017), https://www.npr.org/2017/06/01/531004316/a-federal-judge-says-mandatory-minimum-sentences-often-dont-fit-the-crime

[10] Id.

[11] Mallory Simon, Sara Sidner, The judge who says he’s part of the gravest injustice in America, CNN, updated: (June 3, 2017).

[12] Against His Better Judgment, Eli Saslow, The Washington Post (June 6, 2017) http://www.washingtonpost.com/sf/national/2015/06/06/against-his-better-judgment/?utm_term=.0adf2f2f412d

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Weller v. United States of America, No. CR-14-4059-1-MWB, 2015 U.S. Dist.

[20] See Luna supra, note 12 at 2.

[21] In addition to unfair sentencing, mandatory minimums may also help to maintain job security for prison guards. Some prison guard unions have sponsored and lobbied for harsher sentencing laws. supra note 3 at 131, at 1.

 

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12/6/2017

SCOTUS Oral Arguments Rundown: Marinello v. United States

Today the Supreme Court heard argument in Marinello v. United States No. 16-1144.  As we’ve noted before here and at the Federalist Society blog this case considers what level of knowledge a tax payer has to have to be subject to the omnibus felony penalties of 26 U.S.C. § 7212(a) .  Petitioner (Marinello) was represented by Matthew S. Hellman, Esq. and the government by Robert Parker.  From my perch, the Court showed enormous skepticism towards the Government’s position that virtually any act or omission, no matter how slight, could subject one to felony conviction, even though the particular tax code penalties for those actions are misdemeanors.  Justice Sottomayor, an active questioner in this case, seemed open to the view that the Government’s case was overcriminalizing acts that Congress had set out lesser penalties for but she seemed equally hesitant to adopt Petitioner’s solution-there can be no “corrupt” obstruction without knowledge by the Defendant that there is an IRS investigation.  She and Justice Gorsuch teamed up to offer Petitioner another way out, that there must be some affirmative interaction with the IRS.  Mr. Hellman appeared to resist this at first but, upon reflection, and most clearly in rebuttal, stated such a ruling would be acceptable (while continuing to press Petitioner’s view).

The Justices, including Justice Kagan, seemed troubled by the Petitioner’s proposed “fix” of the Government’s overreach on the statute because they could not square it with the text of Section 7212(a).  Even so, Justice Kagan, unprompted, called the statute “ungodly borad.”  Justices Breyer, Alito and Roberts, pressed the Government on the danger of common behaviors, such as using cash, that could become felonies under the Government’s construction.  Justice Breyer was concerned that paying a gardener or snow shoveler in cash could be felonious.  Justice Alito posited that a lower price for services if cash was paid is “known” to be for the purposes of not reporting income, and Justice Kagan agreed.  (This universal interpretation among the Justices is belied by what a small business owner once told me “Cash don’t bounce.”).  Justice Gorsuch took issue with the IRS position that it is a “brooding omnipresence” always collecting taxes and so a taxpayer should know throwing out receipts or keeping sloppy records will, as Justice Alito noted “impede” the IRS in administering the tax code.

Mr. Parker for the Government attempted to convince the Justices that the IRS and the Government were circumspect in the use of the omnibus provision.  Justice Kagan pounced.  Attorney General Sessions has famously issued a directive that the Justice Department charge the highest crime, with the most penalties possible in every case.  Mr. Parker’s attempt to lean on prosecutorial discretion was undermined as he had to admit the Justice Department policy to both Justices Kagan and Roberts who were concerned about it and obviously eager to make sure that policy was in the record and admitted by the Government.  Justice Ginsberg, whose late husband, Martin was a tax Professor at Georgetown, worried that any code violation could be charged as being done corruptly and thus subject to the extra three-year penalty and felony conviction.  Justices Gorsuch posited that the statutory language seemed to point to having to “corruptly” impede something other than just make the IRS’s job harder somewhere someday.  Justice Breyer insisted the Government agree with his definition of the mens rea requirement, which Mr. Parker eventually gamely did.

Upon rebuttal Petitioner made clear his position that any cabining of the statute the Court arrived at that recognized Mr. Marinello’s actions did not fall within the statute would be acceptable to Petitioner.  He and Justice Gorsuch agreed that “a win’s a win.”  Having picked up the signal from the Chief and Justice Kagan, Mr. Hellman finished noting that whether not giving everything to your accountant, using cash or keeping meticulous records would be criminalized rested on prosecutorial discretion that was obviated by the Justice Department’s “charge the highest crime” mandate.

At least from oral argument it appears the Government’s overbroad interpretation of the statute and its play for unrestrained prosecutorial power regarding it, is likely to doom its case despite a well-argued defense of that policy.  It also appears that the bright line rule that Marinello sought (and that we also pressed in our amicus) does not have the full support of the Court.  Nonetheless, today in this case it was a good day to be the Petitioner.

To learn more about this case, watch the short SCOTUSbrief video below, via The Federalist Society

John J. Vecchione is president and CEO at Cause of Action Institute, amicus

 

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12/6/2017

CoA Institute Investigates CFPB’s ‘Dumbledore Army’ Using Encrypted Messaging Apps to Thwart Transparency

Washington D.C. – Cause of Action Institute (“CoA Institute”) today filed a Freedom of Information Act (“FOIA”) request after media reports identified a number of career employees at the Consumer Financial Protection Bureau (“CFPB”) who use encrypted messaging apps to communicate about ways to resist changes under newly Trump-appointed acting director Mick Mulvaney. The group reportedly refers to itself as Dumbledore’s Army, a nod to a fictional resistance movement in the Harry Potter novels.

CoA Institute Counsel Eric Bolinder: “A number of CFPB employees are reportedly using encrypted apps on their phones to evade transparency laws and conceal their communications from oversight. Under the Federal Records Act, the CFPB has a legal obligation to preserve all records made by employees working on official government business. Congress and the public have a right to know if federal employees are intentionally evading transparency in order to resist changes under CFPB’s new leadership.”

A December 5, 2017 article by the New York Times reported that CFPB employees are communicating among themselves using encrypted messaging applications:

An atmosphere of intense anxiety has taken hold, several employees said. In some cases, conversations between staff that used to take place by phone or text now happen almost exclusively in person or through encrypted messaging apps.

It is unknown whether these employees discuss work-related issues using their CFPB-issued or personal devices. Under the Federal Records Act, the CFPB has a legal obligation to preserve records evidencing employees working on government business, no matter the medium of their communication.

CoA Institute’s FOIA seeks all records reflecting the number of CFPB devices on which encrypted messaging applications were installed, internal policy guidelines on the use of such apps, as well as the communications themselves and efforts by CFPB to recover and archive these messages. The FOIA also specifically requests all communications that contain the words “Dumbledore,” “Dumbledore’s Army,” “Snape,” “Voldemort,” and “He-who-shall-not-be-named,” among other records.

The full FOIA can be found here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org.

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