United States v. YoungUnited States v. Young
SENTENCING OPINION AND STATEMENT OF REASONS PURSUANT TO
TABLE OF CONTENTS
I. INTRODUCTION — DEFENDANT DOUGLAS YOUNG......................883
II. THE OVERVIEW...................................... LO CO 00
A. How The
B. A Brief History Of Recidivist Enhancements And
C. Lack Of A National DOJ
D. The Wheel of Misfortune............................
III. ANALYSIS OF THE COMMISSION’S
A. Overview Of The Underlying Data On
B. Northern District Of Iowa—
C. The Eighth Circuit—
D. Intra-circuit—
E. Intra-state And National—
F. Summary ..........................................................902
IV. THE ROLE OF THE JUDICIARY IN ATTEMPTING TO CORRECT THE PROBLEM......................................................903
V. THE DOJ, THE AUDACITY OF HYPOCRISY, AND THE OPPORTUNITY FOR ATONEMENT...................................905
VI. CONCLUSION..........................................................908
VII. APPENDICES..........................................................909
A. Appendix A.........................................................909
B. Appendix B.........................................................914
C. Appendix C.........................................................917
D. Appendix D.........................................................922
E. Appendix E.........................................................926
F. Appendix F.........................................................930
This case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice (DOJ) of
Recent statistics obtained from the U.S. Sentencing Commission (Commission)— the only known data that exists on the eligibility and applications of the DOJ’s
I. INTRODUCTION — DEFENDANT DOUGLAS YOUNG
Defendant Douglas Young, whose situation brings the issue of the
Both pre-
Nevertheless, in a somewhat bizarre “0. Henry” ending, the AUSA did make a substantial assistance motion, but also made a Motion For Upward Departure For Under-Representation Of Criminal History (docket no. 88), because Mr. Young’s Criminal History Category is I, despite his previous conviction for a felony drug-trafficking offense in 1996. I say “bizarre,” because a strong argument can be made that Mr. Young is in the class of 74 % of defendants nationally who are eligible for a
Addressing the individual 3553(a) factors, I find that the 1:1 ratio issue is the only mitigating factor, which is why I am not varying any lower than the revised 1:1 ratio range of 37 to 46 months. Mr. Young asserted that the following aspects of his history and characteristics warranted a lower sentence:
• He was born in Chicago and had an unstable childhood;
• His mother was a drug addict, who was eventually murdered in 2008;
• His father was often absent from the family home as he traveled in the United States Army;
• At one point in his childhood, the State of Illinois Department of Children and Family Services conducted a home study and found that his mother was neglectful of him and his sister. Although no removal proceedings were conducted, he and his sister eventually moved in with their maternal grandmother;
• He has a history of marijuana use and completed a drug treatment program while on supervised release; and
• He was compliant while on pretrial release and, while he should not get kudos for doing what he is supposed to be doing, his being compliant on pretrial release indicates that he is amenable to supervision.
Defendant’s Brief In Support Of Motion For Downward Variance (docket no. 87-1), 3-4. I have balanced against these mitigating factors the following aggravating factors:
• The length of the charged drug conspiracy and the frequency of purchases for distribution;
• The lack of any reportable Social Security Administration (SSA) income for years 2008 through 2012 and very minimal reportable income for years 2003 to 2007;
• His claims of self-employment income from cutting hair of $500 per month from 2010 to the present, with no record of SSA earnings for those years; and
• His child-support obligation of $200 per month, but in arrears by over $10,000
Balancing all relevant factors, Mr. Young’s August 12, 2013, Motion For Downward Variance (docket no. 87) is granted only to the extent that I have applied a 1:1 ratio. Ultimately, after evaluating the U.S.S.G. § 5K1.1 factors, I did reduce Mr. Young’s sentence, based solely on application of a 1:1 ratio and Mr. Young’s substantial assistance, to 24 months of incarceration followed by 4 years of supervised release on each count, to run concurrently, with certain other conditions as stated on the record.
II. THE OVERVIEW
A. How The § 851 Enhancement Works
I turn now to the § 851 enhancement issue in this and other cases. Pursuant to the penalty provisions set forth in
In my experience, many § 851 enhancements involve only relatively minor state drug offenses classified as some variation of a misdemeanor under state law. Many predicate prior offenses are also decades old, where the defendant never served so much as one day in jail, and often paid only a small fine.
The highest penalties in federal drug eases are for convictions under
B. A Brief History Of Recidivist Enhancements And
The modern history of experimentation with enhancements for prior drug convictions can be traced back to the 1964 amendments to the Narcotic Drug Import and Export Act of 1958.
The House Committee, in reporting on the House bill, explained the reasons for revising the penalty structure:
The foregoing sentencing procedures give maximum flexibility to judges, permitting them to tailor the period of imprisonment, as well as the fine, to the circumstances involved in the individual case.
The severity of existing penalties, involving in many instances minimum mandatory sentences, have led in many instances to reluctance on the part of prosecutors to prosecute some violations, where the penalties seem to be out of line with the seriousness of the offense. In addition, severe penalties, which do not take into account individual circumstances, and treat casual violators as severely as they treat hardened criminals, tend to make convictions somewhat more difficult to obtain. The committee feels, therefore, that making the penalty structure in the law more flexible can actually serve to have a more deterrent effect than existing penalties, through eliminating some of the difficulties prosecutors and courts have had in the past arising out of minimum mandatory sentences.
H. Rep. No. 91-1444, 91st Cong., 2d Sess., 1970 U.S.Code Cong. & Admin. News, pp. 4566, 4576.
In United States v. Noland,
C. Lack Of A National DOJ
Until earlier this week, the DOJ did not appear to have a national policy
In eight of the Nation’s ninety-four federal districts,
At long last, on August 12, 2013, Attorney General Holder issued his 2013 Memo establishing a national policy on charging mandatory minimum sentences and recidivist enhancements in drug cases. In pertinent part, the Holder 2013 Memo addressed § 851 enhancements, as follows:
Recidivist Enhancements: Proseсutors should decline to file an information pursuant to21 U.S.C. § 851 unless the defendant is involved in conduct that makes the case appropriate for severe sanctions. When determining whether an enhancement is appropriate, prosecutors should consider the following factors:
• Whether the defendant was an organizer, leader, manager or supervisor of others within a criminal organization;
• Whether the defendant was involved in the use or threat of violence in connection with the offense;
• The nature of the defendant’s criminal history, including any pri- or history of violent conduct or recent prior convictions for serious offenses;
• Whether the defendant has significant ties to large-scale drug trafficking organizations, gangs, or cartels;
• Whether the filing would create a gross sentencing disparity with equally or more culpable co-defendants; and
• Other case-specific aggravating or mitigating factors.guidance provided by my May 19, 2010 memorandum, and the policy outlined in this memorandum.
D. The Wheel of Misfortune
The lack of any national or local policy, at least until August 12, 2013, rendered application of
The purpose of the Sentencing Reform Act of 1984(SRA) was to
[P]rovide certainty and-fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records ... while maintaining sufficient flexibility to permit individualized sentences, where appropriate; and to “reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process.”28 U.S.C. § 991(b)(1) , Congress further specified four “purposes” of sentencing that the Commission must pursue in carrying out its mandate: “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; “to afford adequate deterrence to criminal conduct”; “to protect the public from further crimes of the defendant”; and “to provide the defendant with needed ... correctional treatment.”18 U.S.C. § 3553(a)(2) .
Mistretta v. United States,
If’ humans continue to be involved in federal sentencing, there will always be some disparity. There was before the passage of the SRA, and there has been in each phase of the unfolding saga of federal Guideline sentencing.
Wholly apart from these critical considerations of arbitrary application and lack of transparency by the DOJ, the serious and pervasive structural deficiencies in
I am optimistic that fair application of the Holder 2013 Memo will rectify this problem going forward.
III. ANALYSIS OF THE COMMISSION’S
A Overview Of The Underlying Data On
The grim state of affairs for
B. Northern District Of Iowa—
The N.D. of Iowa ranks fourth in the nation in its use of
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Of the ninety-three reporting districts, sixty have an application rate of 25% or less.
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Only seven districts applied the enhancement in over two-thirds of eligible cases. Id. Nationally, eight districts (Arizona, W.D. of Arkansas, Colorado, Louisiana, N.D. of Mississippi, S.D. of Ohio, E.D. of Oklahoma, and the Virgin Islands) never enhanced a single eligible defendant.
C. The Eighth Circuit —
The average application rate of
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Prosecutors in the N.D. of Iowa applied this enhancement at a higher rate than all other districts in the Eighth Circuit except the S.D. of Iowa. Iowa’s two federal district applied the
Although the N.D. and S.D. of Iowa differ in application by only five percentage points, the difference that geography can make in sentencing becomes apparent when the N.D. of Iowa is compared to the three federal districts, other than the S.D. of Iowa, that border the N.D. of Iowa. Apps. C, D. Nebraska is only one mile south of the federal courthouse in Sioux City, Iowa, where I preside, yet defendants are 2,532% more likely to face a
D. Intra-circuit —
In each circuit, I took the district with the highest
The Eleventh Circuit’s districts have an average enhancement application rate of 38%, while the adjacent Fifth Circuit averages only 17%. Id. The Eleventh Circuit has the largest intra-circuit disparity of 85%; curiously, two adjacent districts provide this extreme range. Prosecutors in the N.D. of Florida opted to at least double the sentences of 60 of 69 eligible offenders over the sample period, yielding an 87% application rate. Just across the border in the M.D. of Georgia, in contrast, there were 52 eligible offenders, but prosecutors deemed only 1 warranted such a severe enhancement, resulting in just a 2% application rate. This means that offenders charged in the N.D. of Florida are 4,529% more likely to receive at least double the time that a similarly-situated defendant just to the north, in the M.D. of Georgia, would receive.
E. Intra-state And National —
Five states (Arkansas, Louisiana, Mississippi, Ohio, and Oklahoma) have one district that never enhanced sentences using
Aside from the five states with a district with no
Nationally, the districts at the extremes of the application rate show incredible disparity. While it may be unfair to compare Guam’s 100% application rate to the 0% application rate in the Virgin Islands, because neither district has many eligible defendants,
F. Summary
While the Commission’s 2011 Report, itself, observed “a lack of uniformity in the application of the enhanced mandatory
IV. THE ROLE OF THE JUDICIARY IN ATTEMPTING TO CORRECT THE PROBLEM
Congress has delegated
And yet, we judges have a right — a duty even — to express criticism of legislative judgments that require us to uphold results we think are wrong. We may alert Congress to mistakes or gаps in its legislation. We may tell the legislature that we think a judgment it has made is mistaken, even absurd, and urge Congress to reconsider its judgment. We may even go further and suggest that a judgment made by the legislature is headed towards unconstitutionality. To do these things is not to “call the law into disrepute,” but rather to work with coordinate branches of government to prevent disreputable laws from enduring.
United States v. Ingram,
The DOJ could easily do these things, if it wanted, to become less arbitrary, more transparеnt, or both, to demonstrate its compliance with the new national policy for
The SRA requires the Criminal Division of the DOJ to submit to the Commission, at least annually, a report commenting on the operation of the sentencing guidelines, suggesting changes to the guidelines that appear to be warranted, and otherwise assessing the Commission’s work.
The Report is replete with references to the DOJ’s deep concern for sentencing disparity, at least when created by others, and for greater justice for all:
• “Together, we must reform federal sentencing policy in the months ahead so that federal criminal justice ... can contribute to greater justice for all.” Id. at 1.
• “It was thought that certainty in sentencing ... also increased] fairness in sentencing by reducing unwarranted sentencing disparities.” Id. at 2.
• “[TJhere is much more that can and must be done to ensure Equal Justice Under Law for all.” Id. at 3.
• ‘While we are concerned about increased sentencing disparities.... ” Id. at 8.
• “And we further believe that much can be learned from the states, including how to ... reduce unwarranted sentencing disparities, and better allocate sentencing decisions among the stаkeholders in the criminal justice system.” Id. at 9.
• “Given new and emerging crime challenges ... and the growing disparities of the post-Booker sentencing system, we think it is time for reform.” Id. at 9-10.
In contrast to these stated concerns about sentencing disparities, the statistical information presented in this opinion, drawn directly from the Commission’s data, conclusively establishes that, at least prior to the statement of a national policy in the Holder 2013 Memo, there was a breathtaking disparity in the DOJ’s own application of § 851 enhancements. This dramatic sentencing disparity created, implemented, and ignored by the DOJ, did as much or more to create unwarranted and arbitrary sentencing disparities as any other source I am aware of. It has added thousands of years of arbitrarily inflicted incarceration on drug defendants, most of whom are non-violent drug addicts, based on the absence of a DOJ national policy informed by reasonable factors. The DOJ either had the data about application of § 851 enhancements and not only ignored it, but hid it from the public, or never bothered to gather such data, which was grossly negligent. Either way, allowing this disparity to persist for so long was a terrible abuse of the public trust.
There is much that the DOJ could do to atone for its creation of such arbitrary disparities. First, while the DOJ criticizes others for creating unwarranted sentencing disparity, it ought to give serious consideration to ending or at least narrowing its self-generated § 851 disparity — and it has taken a dramatic first step to do so with the Holder 2013 Memo. Second, now that the DOJ has a national policy for § 851 enhancements, in the interest of
One hopeful sign that the DOJ is willing to address the problem openly came from the August 12, 2013, remarks of Attorney General Eric Holder to the American Bar Association. In those remarks, Attorney General Holder observed, inter alia, that the DOJ, attorneys, and judges must “fundamentally rethink! ] the notion of mandatory minimum sentences for drug-related crimes,” although there was no specific mention of § 851 enhancements in that address, even though such enhancements have had such a dramatic effect on mаndatory minimum sentences.
Much will ton, however, on how the rather vague guiding factors in the Holder 2013 Memo are interpreted and applied by the DOJ generally and by individual United States Attorneys and whether additional guidance from the DOJ is provided. For example, the factor requiring consideration of “[t]he nature of the defendant’s criminal history, including any prior history of violent conduct or recent prior convictions for serious offenses” is quite broad.
Finally, when I showed the AUSA in this case some of the evidence of disparities in the application of § 851 enhanсements in this district compared to neighboring districts — presented above — during Young’s sentencing hearing, the AUSA admitted that he had not seen such information. He also stated that he had only known, from contact with individual AUSAs in neighboring districts that, for example, the D. of Nebraska rarely imposed § 851 enhancements unless a defendant actually went to trial. He stated that he was “a little bit shocked that [neighboring districts] don’t hardly ever apply [§ 851 enhancements] based on what they — what I’ve heard in talking to them. But again, I didn’t pull the statistics. They are new to me.” Sentencing Hearing, Real Time Transcript. On the other hand, he was only “surprised” at the extent of the disparities. Specifically, he said, “I don’t know if shock’s the right word because— but yes, it surprises me to see that kind of difference in how they are applying [§ 851] and how we are applying it.” Id. He also stated that he could not comment on the reasons for such disparities without reviewing more information about the disparities and the policies in the various districts, but he did admit that the existence of such disparities “certainly raises some questions.” Id.
The comments of this AUSA, who is a very experienced prosecutor in this district and one whom I believe operates in absolute good faith, demonstrate that the DOJ never provided the information about the disparities in § 851 enhancements to prosecutors in the field nor provided any direction to them on how to apply such enhancements, which might have helped remedy the disparities. I do not blame this AUSA for either the disparities or his lack of knowledge about them; rather, it is clear that there has been a failurе at the higher levels of the DOJ to make even its own prosecutors aware of the problem or to address it. The DOJ has had the pertinent information since the Commission’s 2011 Report, but apparently did nothing with it until just this week, when it disseminated the Holder 2013 Memo. This secrecy and inaction is extremely disappointing and raises serious concerns about how the DOJ and prosecutors in individual districts will handle § 851 enhancements going forward, even with the Holder 2013 Memo in place.
Again, I am optimistic that fair application of the Holder 2013 Memo will rectify this problem going forward. Of course, if all § 851 enhancement decisions are still made in secret, no reasons for such decisions in particular cases are ever announced, tracked, or published by the DOJ, and no nationwide statistics are kept and made public by the DOJ or the Commission on circumstances in which § 851 enhancements are imposed, we will never know if the Holder 2013 Memo has effectively eliminated intra-state, intra-Circuit, or other regional or national disparities in the application of § 851. Instead, we will still have only anecdotal experiences with the application — or lack of application — of § 851 enhancements. In the absence of such efforts at tracking, analyzing, and disseminating information about § 851 enhancements, I have little faith that the Holder 2013 Memo will actually remedy the gross disparities apparent in past applications of such enhancements.
The massive disparity in eligibility and application of § 851 notices prior to the promulgation of a national policy in the Holder 2013 Mеmo is deeply disturbing, as is the incredible cloak of secrecy in which these decisions were made. Unfortunately, judges have done very little, if anything, to call this to the attention of the DOJ. That failing is due, in large part, to the lack of dissemination to judges of statistics about this problem. Enhancements for recidivism have been part of the statutory sentencing arsenal for drug crimes at least since the 1964 amendments to the Narcotic Drug Import and Export Act of 1958, and the Federal Sentencing Guidelines and the Commission have been in place since 1987, yet until the Commission’s study and 2011 Report, there was simply no way to determine what disparities application of § 851 was creating — and the data from the Commission’s 2011 Report, using sample groups from three fiscal years (2006, 2008, and 2009), is now aging. The lack of information about the problem is why I have undertaken to obtain and analyze the only known data on the subject.
Admittedly, the DOJ has a very full plate. The Office of Inspector General of the DOJ recently submitted a statutorily-required list of top management and performance challenges facing the DOJ dated November 7, 2012
In testimony before the U.S. Senate Committee on the Judiciary Subcommittee on Crime and Drugs, then Assistant Attorney General Lanny A. Breuer of the Criminal Division of the DOJ testified:
Ensuring fairness in the criminal justice system is also critically important. Public trust and confidence are essential elements of an effective criminal justice system — our laws and their enforcement must not only be fair, but they must also be perceived as fair. The perception of unfairness undermines governmental authority in the criminal justice process. It leads victims and witnesses of crime to think twice before cooperating with law enforcement, tempts jurors to ignore the law and facts when judging a criminal case, and draws the public intoquestioning the motives of governmental officials. 46
The Holder 2013 Memo holds out hope that the DOJ will follow its own Congressional testimony by trying to eliminate the hidden yet massive injustice created by prior application of § 851 enhancements. The dramatic failure of the DOJ, prior to the Holder 2013 Memo, to publicly acknowledge and take steps to reduce thе national disparity in the application of § 851 enhancements diminished judicial and public trust and confidence in both the DOJ and the federal criminal justice system. It not only created a perception of injustice, it actually perpetuated a gross injustice and “dr[ew] the public into questioning the motives of governmental officials.” Id. Let us hope that the new national policy on § 851 enhancements will undo some of that damage.
We as judges can and should do more. While we still cannot require AUSAs to state on the record how they have applied the § 851 policy, we can certainly request that they do so. The same is true with asking, on the record, what factors an AUSA considered in deciding to apply or waive the § 851 enhancement. We can also ask if the AUSAs are aware of and have studied the Commission’s data on § 851 enhancements. We can further probe if the DOJ has any plans to make public the impact of the new national policy on reducing the massive and unwarranted sentencing disparities former application of § 851 enhancements had created.
Finally, it is vitally important to remember that defendants subject to the § 851 enhancements are real people and members of our communities, not contestants on a game show. While they may cross their fingers and hope the winds of change that have blown a new, national § 851 policy onto our shores will blow in their favor, the most important factor for the length of their sentences should not be which prosecutor the tic, tic, tic, tic of the Wheel of Misfortune chooses for them.
THEREFORE, uрon consideration of all relevant factors, defendant Douglas Young was sentenced to 24 months of incarceration followed by 4 years of supervised release on each count, to run concurrently, with certain other conditions as stated on the record.
IT IS SO ORDERED.
Appendix A
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Eligible Defendants in Disiriots with 0% Application: 232
Notes
.
.
. United States v. Gully,
. United States v. Williams,
.Pub. L. No. 111-220, 124 Stat. 2372.
. The procеdural requirements include notice by way of information prior to trial or plea filed by the U.S. Attorney "stating in writing the previous convictions to be relied upon.”
. As used in this opinion, the phrase "at least doubles” the sentence or similar phrases refers to the above description of how
. Title
Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. For a second or subsequent offense (as determined under section 7237(c) of the Internal Revenue Code of 1954), the offender shall be imprisoned not less than ten or more than forty years and, in addition, may be fined not more than $20,000.
Title
(c) Conviction of second or subsequent offense.—
(1) Prior offenses counted. — For purposes of subsections (a), (b), and (d) of this section, subsections (c) and (h) of section 2 of the Narcotic Drugs Import and Export Act, as amended (21 U.S.C. sec. 174 ), and the Act of July 11, 1941, as amended (21 U.S.C. sec. 184a), an offender shall be considered a second or subsequent offender, as the case may be, if he previously has been convicted of any offense the penalty for which was provided in subsection (a) or (b) of this section....
. The “Ashcroft Memo,” dated Sept. 22, 2003, does mention briefly a superficial "policy" on
. The role of Pat Sajak, from the classic television game show “Wheel of Fortune,” is played, in this instance, by the DOJ Assistant Attorney General for the Criminal Division, and the wheel is spun not by contestants, but by the more than 4,500 Assistant U.S. Attorneys nationwide.
. Kenneth R. Clark, Magic on TV: Miss Liberty Vanishes Before Your Eyes, Phil Daily News, Apr. 7, 1983, at 45.
. The Commission often refers to four time periods under the Guidelines:
[T]he Koon period (June 13, 1996 through April 30, 2003), the PROTECT Act period (May 1, 2003 through June 24, 2004), the Booker period (January 12, 2005 through December 10, 2007), and the Gall period (December 11, 2007 through September 30, 2011). The Commission selected these periods based on Supreme Court decisions and legislation that influenced federal sentencing in fundamental ways. Specifically, in United States v. Koon, the Supreme Court defined the level of deference due to district courts’ decisions to sentence outside theguideline range and determined that such decisions should be reviewed for abuse of discretion. In passing the PROTECT Act nearly seven years later, Congress restricted district courts' discretion to impose sentences outside the guideline range, and required that courts of appeals review such decisions de novo, or without any deference to the district court's decision. In Booker, the Supreme Court struck down two statutory provisions in the SRA that made the guidelines mandatory, and also defined the standard of review for sentences on appeal. In Gall v. United States, the Court further defined the appellate standard of review.
United States Sentencing Commission, Report on the Continuing Impact of United States v. Booker on Federal Sentencing, Pt. A, pp. 2-3 (Dec. 2012) (2012 Booker Report) (footnotes omitted).
. In a letter from the DOJ to the Commission, the DOJ voices concern for sentencing disparity, at least when created by others: "[T]hey involve the continuing erosion of the guidelines and increasing unwarranted disparities in sentencing within courthouses and across the country.” The DOJ grudgingly recognized that sentencing disparities are driven by more than just judicial decision making, and they have often “written and spoken extensively about [their] concerns with reduced certainty and increased unwarranted disparities in sentencing.” Jonathan J. Wroblewski, Director, Office of Policy and Legislation U.S. Department of Justice, Letter from the DOJ to The Honorable Patti B. Saris, Chair, atp. 8 (July 11, 2013).
In the 2012 Booker Report, the Commission notes,
The Commission’s review of sentencing decisions suggests that judges view similar circumstances and weigh the section 3553(a) factors differently, in particular individual offender characteristics, much as they did during the years leading up to the SRA. In the wake of these changes, the Commission has observed both increasing inconsistencies in sentencing practices ... and widening demographic differences in sentencing.
2012 Booker Report, 113.
. I had personally complained in writing to the highest levels of the DOJ about these concerns and was blown off with a perfunctory, brief letter, many months later, that read like a form letter in response to a consumer complaining that the sauce was too sour in a frozen entrée purchased at the local grocery store. It appeared to me that the DOJ had zero concerns about even examining this serious problem. The Holder 2013 Memo has restored my faith in the DOJ's recognition of and interest in resolving this problem.
. Scholars have criticized the effectiveness of recidivist enhancements like the
Empirical studies cast serious doubt on whether the rationales of sentencing — deterrence, incapacitation, retribution, and rehabilitation — support the magnitude of these federal enhancements. These studies suggest that longer prison terms do not significantly reduce recidivism and may even be counterproductive. Indeed, some studies suggest that alternatives to incarceration, such as drug treatment for repeat drug offenders, can be more effective than long prison terms at reducing recidivism and promoting public safety.... Perhaps most significantly, there is clear evidence that enhancements based on prior drug convictions exacerbate racial disparities in the criminal justice system.
Rethinking Recidivist Enhancements, supra, n. 9, at 1139 (footnotes omitted). I have no position, and take no position, on these questions because these policy considerations about the general wisdom of recidivist enhancements like
. In the parlance of Guideline calculations, both Bob and John would have had a base offense level of 26, based on the 5 grams of pure methamphetamine. They would each have received a 3-point reduction for acceptance of responsibility, have had no other guideline enhancements, and have had a total offense level of 23. Bob’s prior state conviction would have been too old to count toward his criminal history, so Bob would have been a Criminal History I. His advisory Guideline range would have been 46 to 57 months, but his mandatory minimum, doubled from 60 months by a
.
. The Sentencing Commission explains the methodology of the study, as follows:
To better assess the application of these penalties, the Commission conducted a more targeted analysis of the nation-wide application of21 U.S.C. § 851 by conducting a specialized coding and analysis project. Assessing whether an offender qualifies for an enhancement under§ 851 requires analysis of two factors: 1) the instant offense of conviction under title 21, United States Code; and 2) prior qualifying drug convictions. Information about both factors can be determined objectively from the sentencing documents submitted to the Commission. Thus, evaluating whether§ 851 enhancements are uniformly applied lends itself to quantitative analysis.
The Commission used sample groups from three fiscal years (2006, 2008, and 2009) for the analysis. In all, 3,050 cases from fiscal year 2006, 5,434 cases from fiscal year 2008, and 5,451 cases from fiscal year 2009 were included in this analysis.
Using these groups of cases, the Commission examined all the documents submitted for each case to ascertain whether the enhancement could have applied based on the offender’s prior criminal history. To make this determination, the Commission examined each offender’s criminal history for any prior conviction involving the distribution, manufacture, sale, possession with the intent to distribute, intent to manufacture, trafficking or importation or exportation of any controlled substances. The Commission also noted whether any such offenses were specifically identified as a felony and if so, included those cases in the analysis. For any drug offense not specifically identified as a felony, the Commission examined the sentence for the drug conviction to determine whether it exceeded 12 months. If so, the case was included in the analysis. Juvenile drug convictions were excluded from the analysis.
Once the Commission concluded than an offender qualified for the enhancement, the Commission examined the documentation to ascertain whether the court had made any findings of fact relating to the enhancement. The Commission also attempted to determine whether the government had affirmatively agreed not to file the enhancement as part of plea negotiations.
Commission’s 2011 Report at 253-255 (footnotes omitted).
. See App. A for districts ranked by the rate at which
. Notes on the Commission’s data are as follows;
The fiscal year 2006 sample was randomly selected from the Commission's fiscal year 2006 datafile and cоmprises cases that were sentenced after June 6, 2006. The Commission selected offenders in cases where the enhancement was documented as part of the conviction or in cases sentenced under U.S.S.G. §§ 2D1.1 or 2D1.2 and where the offenders previous criminal history included a drug offense.
Mandatory Minimum Penalties in the fiscal year 2008 and 2009 samples were randomly selected from cases with complete guideline application information sentenced in the third and fourth quarters of those fiscal years. From this sample group, the Commission selected cases with the enhancement documented as a states of conviction, or with offenders with previous criminal history and sentenced under U.S.S.G. §§ 2D1.1 or 2D1.2.
Although some federal circuit courts have held that juvenile felony drug convictions qualify for enhancement under section 841(b), the Commission excluded juvenile predicate convictions from the analysis of offenses eligible for enhancement because presentence reports sometimes fail to specify whether a defendant was certified as an adult notwithstanding the fact that he or she was under the age of majority under state law. Moreover, although some federal courts have broadly interpreted section 802(44) to include convictions for offenses “related to” drugs, such as use of a telephone to facilitate drug trafficking, the Commission only included felony convictions for drug distribution manufacture, possession, and similar drug offenses.
An important limitation on the Commission’s coding project concerning enhancements for prior convictions for felony drug offenses under § 841(b) should be noted. Under21 U.S.C. § 802(44) , a "felony drug offense” includes simple possession of a controlled substance that is punishable in excess of one year in prison even if such an offense is not labeled as a “felony” offense under other relevant state law. Such predicate convictions for simple possession thus can include cases in which an offender was sentenced to a year or less in prison or sentenced to probation. In reviewing the criminal history sections of presentence reports in order to determine whether an offender was eligible for enhancement under § 851 based on a prior conviction for simple possession of a controlled substance, the Commission often could not ascertain whether prior conditions receiving sentences of one year or less (including probationary sentences) were “punishable” in excess of one year in prison under state law. For that reason, the Commission only included convictions for simple possession that received prison sentences for more than one year in order to ensure that such convictions were in fact felonies. This approach likely was under-inclusive insofar as it did not include certain prior convictions that were eligible for enhancement under § 851.
Commission’s 2011 Report at 254 nn. 696-699. Data was unavailable for the district of the Northern Mariana Islands.
. App. E (national median of application rate is 12.63%).
. N.D. of Iowa’s 79.25% application rate divided by the national average application rate of 26.17%.App. E.
. App. E. (84 eligible defendants in Arizona, 18 in W.D. of Arkansas, 26 in Colorado, 15 in Louisiana, 17 in N.D. of Mississippi, 62 in S.D. of Ohio, 6 in E.D. of Oklahoma, and 4 in the Virgin Islands were not charged with § 851 enhancements in the Commission’s sample analysis).
. App. D. (N.D. of Iowa had a 79.25% application rate divided by the national average application rate of 26.17% and the Eighth Circuit average application rate of 28.27%).
. The six districts are Minnesota, E.D. and W.D. of Arkansas, Nebraska, South Dakota, and the W.D. of Missouri.
. Virtually all of my drug cases are conspiracy cases and most have several overt acts, if not the locus of the conspiracy, in South Sioux City, Nebraska. Because the Tri-State Drug Task Force, made up of law enforcement personnel from Nebraska, South Dakota, and Iowa is located in Sioux City, Iowa, the agents prefer filing the cases here to avoid the 200 mile round-trip to the federal courthouse in Omaha, Nebraska.
. This statistic was calculated by averaging the ranges of each of the eleven districts, excluding Guam as an outlier, where the § 851 enhancement was applied in all three eligible cases over the sampled period for the Commission’s “851 datafile.” App. D.
. Id. (Eighth Circuit average application is 28.27%) and App. E (national average application is 26.17%).
. Id. (N.D. of Florida application rate is 86.96% divided by the M.D. of Georgia's application rate of 1.92%).
. Id. (M.D. of Georgia has a 1.92% application rate and the N.D. of Georgia has a 47.50% application rate, 24.7 times as high.)
. Id. at Figure ID.
. App. D. (E.D. of Tennessee’s 72.62% application rate divided by the W.D. of Tennessee’s 1.82%).
. Id. (W.D. of Texas’s 38.02% application rate divided by the N.D. of Texas's 1.47%).
. Id. (N.D. of Georgia’s 47.50% аpplication rate divided by M.D. of Georgia's 1.92%).
. Id. (E.D. of Pennsylvania’s 57.14% application rate divided by M.D. of Pennsylvania’s 2.53%).
. Guam and the Virgin Islands are the only two districts with ten or fewer total (eligible and ineligible drug defendants), and only three and four eligible defendants respectively. Given this small sample size, the comparison may be unfair.
. App. A (Guam at 100%, N.D. of Florida at 86.96%, S.D. of Iowa at 83.56%, N.D. of Iowa at 79.25%, C.D. of Illinois at 78.95%, N.D. of Alabama at 75.00%, E.D. of Tennessee at 72.62%, E.D. of Kentucky at 63.86%, S.D. of Illinois at 61.82%, N.D. of New York at 59.46%).
. Id. (S.D. of California at 1.53%, N.D. of Texas at 1.47%, Arizona at 0%, W.D. of Arkansas at 0%, Colorado at 0%, M.D. of Louisiana at 0%, N.D. of Mississippi at 0%, S.D. of Ohio at 0%, E.D. of Oklahoma at 0%, and the Virgin Islands at 0%).
. Commission's 2011 Report at 253.
. The DOJ recently observed that in the last 20 years "the U.S. prison population exploded and overall criminal justice spending with it. For most of the country’s history, imprisonment rates were stable at less than 150 persons per 100,000 in population. In the last several decades, though, the rate has more than quadrupled to over 700 per 100,000. Many have documented the impact that such imprisonment rates have had on individuals and communities, including the erosion of trust and confidence in criminal justice among many citizens, particularly in disadvantaged communities and communities of color.” Jonathan J. Wroblewski, Director, Office of Policy and Legislation, Letter from the Department of Justice to The Honorable Patti B. Saris, Chair, United States Sentencing Commission, at 2-3 (July 11, 2013). Professor Sarah French Russell, in the context of a scholarly article on recidivist sentencing enhancements has observed:
Eliminating federal enhancements based on prior drug convictions, or at least decreasing the magnitude of these enhancements, would also go a long way towards reducing the federal prison population. During the past twenty-five years, the federal prison population has grown by more than 500%. Indeed, although the growth of the prison population has slowed in some states and even declined in a few, the federal prison population continues to expand rapidly. The majority of federal prisonersare serving sentences for drug offenses. The large size of the federal prison population is due in substantial part to the impact that prior drug convictions have on federal sentences.
Rethinking Recidivist Enhancements, supra, n. 9, at 1232 (footnotes omitted).
On August 1st of this year, in a joint press release announcing the introduction of their bipartisan Smarter Sentencing Act, Senators Durbin and Lee stated:
With federal prison populations skyrocketing and nearly half of the nation’s federal inmates serving sentences for drug offenses, Assistant Majority Leader Dick Durbin (D-IL), Senator Mike Lee (R-UT) have introduced the Smarter Sentencing Act, to modernize our drug sentencing polices by giving federal judges more discretion in sentencing those convicted of non-violent offenses. Making these incremental and targeted changes could save taxpayers billions in the first years of enactment.
"Mandatory minimum sentences for nonviolent drug offenses have played a huge role in the explosion of the U.S. prison population,” Durbin said. "Once seen as a strong deterrent, these mandatory sentences have too often been unfair, fiscally irresponsible and a threat to public safety. Given tight budgets аnd overcrowded prison cells, judges should be given the authority to conduct an individualized review in sentencing certain drug offenders and not be bound to outdated laws that have proven not to work and cost taxpayers billions."
"Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said. "By targeting particularly egregious mandatory mínimums and returning discretion to federal judges in an incremental manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing polices.”
The United States has seen a 500 percent increase in the number of inmates in federal custody over the last 30 years, in large part due to the increasing number and length of certain federal mandatory sentences. Mandatory sentences, particularly drug sentences, can force a judge to impose a one-size-fits-all sentence without taking into account the details of an individual case. Many of these sentences have disproportionately affected minority populations and helped foster deep distrust of the criminal justice system.
This large increase in prison populations has also put a strain on our prison infrastructure and federal budgets. The Bureau of Prisons is nearly 40 percent over capacity and this severe overcrowding puts inmates and guards at risk. There is more than 50 percent overcrowding at high-security facilities. This focus on incarceration is also diverting increasingly limited funds from law enforcement and crime prevention to housing inmates. It currently costs nearly $30,000 to house just one federal inmate for a year. There are currently more than 219,000 inmates in federal custody, nearly half of them serving sentences for drug offenses.
Durbin and Lee Introduce Smarter Sentencing Act, Website Of Dick Durbin, Us Senator For Illinois, Assistant Majority Leader (August 1, 2013), http://www.durbin.senate.gov/public/ index.cfm/pressreleases?ID=be68ad86-a0a4— 486-853f-f8ef7b99e736.
.It would also allow the Commission and the DOJ to analyze whether current claims that the DOJ’s § 851 application has or continues to discriminate against racial minorities are true. See, e.g., Rethinking Recidivist Enhancements, supra, at n. 9, at 1169. "[T]he § 851 enhancement furthers racial disparities.” Lynn Adelman, What the Sentencing Commission Ought to be Doing: Reducing Mass Incarceration, 18 Mich. J. Race & L. 295 (2013). Although the Commission's 2011 Report did little to highlight the disparities that have been my focus, it did observe that “[b]lack offenders qualified for the [§ 851] enhancement at higher rates than any other racial group.” Commission's 2011 Report, 256; see also id. at 257, 261.
. Attorney General Holder, Remarles At American Bar Association As Prepared For Delivery, ABA (August 12, 2013), available at http ://livewire.talkingpointsmemo. com/entry/ read-ag-eric-holders-remarks-at american-bar (last visited Aug. 13, 2013).
. See, supra, p. 15 (quoting the “Recidivist Enhancements” section of the Holder 2013 Memo).
. I commend the Commission for its willingness to respond fully and promptly to my various requests for data.
. Michael E. Horowitz, Inspector General, Top Management and Performance Challenges in the Department of Justice-2012, at 1 (Nov. 7, 2012) available at http://www.justice.gov/ oig/challenges/2012.htm (last viewed Aug. 13, 2013).
. Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity, before the U.S. Sen. Comm, on the Judiciary, Sub-comm. on Crime and Drugs, 111th Cong. 101 p. 1 (Apr. 29, 2009) (Statement of Lanny A. Breuer, Assistant Att’y Gen., Crim. Div., U.S. Dep’t of Justice).
Excluding the W.D. of Arkansas's 0% application rate and the S.D. of Iowa. The N.D. of Iowa applies the enhancement at 95% the rate of the S. D. of Iowa
N. Mariana Islands unrcported
N. Mariana Islands Unreported