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Sentencing Justice Update July 16, 2012

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Update from FAMM:

Last month was full of surprises and we couldn’t be happier! The first surprise came on June 21 when the U.S. Supreme Court agreed with us that people who committed crack cocaine offenses before August 3, 2010, but were sentenced after that date, should be sentenced to the lower crack penalties passed in the Fair Sentencing Act of 2010. The decision was music to our ears because, frankly, we weren’t sure the Court would side with us.

This is a victory for everyone who has continued to fight this issue since 1987. Congratulations to every attorney and public defender who never gave up. This decision is based on a lot of hard work in various District and Appellate courts to push for this change, as well as tireless advocacy by organizations across the country. To read the Court’s opinion in the case, Dorsey v. United States, click here.

The second big surprise from the Supreme Court arrived on June 25 when they decided that mandatory life without parole sentences for juveniles are unconstitutional! The Court said the sentences violated the Constitution’s 8th Amendment prohibition against cruel and unusual punishment. Their reasoning was that children are different than adults in important respects and judges couldn’t consider the juvenile’s “chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” as well as the offender’s “family and home environment” and “the circumstances of the offense, including the extent of his participation in the conduct.” In other words, the mandatory life sentence was found to be unconstitutional because it didn’t allow a judge to sentence each person as an individual! That’s what we’ve been saying at FAMM for two decades! You can read the Court’s opinion in Miller v. Alabama here.

The last great surprise of the month came on June 26 when a Florida State judge threw out the 20-year mandatory prison sentence given to Ronald Thompson for firing two warning shots into the ground to protect his elderly friend. The judge ordered a new trial for Thompson and his immediate release from prison. This is an incredible case that highlights everything that is wrong with mandatory minimum sentences in general, and Florida’s mandatory 10-20-life sentences for gun violations, in particular. We’ve spent the last few months shining a spotlight on this law and how it is snaring people who have harmed no one yet are serving 20-year prison sentences.

You’ve got to read Ronald Thompson’s story to understand why we’re so passionate about changing this law. For Thompson, who has served three years and is 65-years-old, nearly blind, and in failing health, the chance for a new trial could be lifesaving — literally. And if the district attorney has a shred of compassion, she will not retry him. Stay tuned to see how that turns out! Until then, read the recent news reports about Thompson’s case, which frequently quote FAMM’s Florida project director, Greg Newburn, who is leaving no stone unturned in Florida as he fights to change this law!

Whether July will have as many happy surprises is yet to be seen, but who knows? The occasion of Independence Day (July 4th) is a great time for President Obama to grant “independence” to some deserving prisoners by commuting their sentences…



Sentencing Commission Priorities July 6, 2012

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Update from Julie Stewart, FAMM President:

Earlier this week, I asked you to write and tell the U.S. Sentencing Commission to make fixing the drug guidelines a priority. It sounds like many people are writing, and I’m eager to see how many letters we generate. We know, however, that a lot of our members are interested in other guideline reforms besides drugs. So, if you want to tell the Commission what you think about their non-drug proposed priorities, we urge you to do so.

First, to recap: The Commission recently announced its proposed priorities for the coming year and asked for feedback from the public. Proposed priorities are issues the Commission is thinking about working on in the upcoming years. The Commission doesn’t decide which priorities it is actually going to work on until it hears from the public. That’s where you come in. FAMM plans to submit formal comments to tell the Commission which proposed priorities it should choose to work on. If you care about any of these proposed priorities, or think that the Commission should add one, this is your chance to make sure your voice is heard.

Just because the Commission chooses to work on a particular priority, however, does not mean that the guidelines will change or that people in prison will get shorter sentences. When the Commission chooses to work on a priority, it usually takes a while — sometimes years — before the Commission makes changes, if any, to the guidelines. Even then, very few guideline changes reduce sentences, and very, very few of those are made retroactive. And remember, the Commission cannot change mandatory minimum sentences — only Congress can do that, by passing new laws.

Having said all that … below are some of the areas and activities the Sentencing Commission proposes to pursue this year. If you feel strongly about one or more, you should write and ask the Commission to make them a priority and work on them. Your letters can increase the odds that the Commission will work on the priorities you care about.

The Commission listed nine tentative priorities. Here are the ones we think you might be especially interested in, and some ideas for what to tell the Commission:

Commission Priority 1: Work with Congress and others to follow the recommendations the Commission made about statutory mandatory minimums. Last year, the Commission wrote a report on mandatory minimum laws and proposed a number of positive changes, such as broadening the safety valve, making gun mandatory minimums less severe, and reducing the severity of non-contact child pornography offenses. On the other hand, it also suggested that Congress consider legislation to make it more difficult for judges to disagree with the guidelines, which are now completely advisory.
Possible comment: I strongly oppose mandatory minimum sentencing laws and therefore support proposals to repeal and reform those laws. In its 2011 report on mandatory minimums, the Commission recommended amendments to the federal safety valve so that judges would have discretion to give more offenders appropriate sentences. If mandatory minimums cannot be repealed outright, the safety valve should be expanded.
Commission Priority 2: In the wake of United States v. Booker, continue to study sentences and issue a report possibly recommending that Congress pass laws governing the guidelines.
Possible comment: I do not think Congress or the Commission can foresee the unique circumstances of every case. Therefore, I think courts should have the discretion to depart from the sentencing guidelines, if it is appropriate after reviewing the facts and circumstances of an individual’s case. I urge the Commission to oppose legislation that would eliminate or limit this discretion by making the guidelines mandatory or by making it easier for appeals courts to second-guess sentencing judges’ decisions.
Commission Priority 3: The Commission plans to conclude its review of child pornography offenses and issue a report and possibly recommendations to Congress. Sentences for these offenses have skyrocketed over the past 15 years, driven mostly by Congress and not by empirical evidence. In recent years, many judges have shortened sentences in these cases, when possible.
Possible comment: I support the Commission’s comprehensive study of the guidelines in this area. Sentences for child pornography-related offenses have skyrocketed over the past 15 years. These increases were driven mostly by Congress and not by empirical evidence. Over the past several years, judges have begun departing from the guidelines at an increasing rate, because they know that not all offenders are equally culpable and therefore do not deserve the harsh, one-size-fits-all sentences that usually apply.
Commission Priority 4: The Commission plans to continue its review of the sentences for economic crimes, especially sentences that come from application of the fraud guideline. The Commission may consider amending the guidelines in this area. Currently, calculations using the fraud guideline give too much weight to a single factor – the amount of loss – that doesn’t reflect an offender’s actual culpability. That guideline also has overlapping, redundant enhancements that can drive sentences very high.
Possible comment: I support the Commission’s review of the fraud guideline. Currently, calculations using the fraud guideline give too much weight to a single factor – the amount of loss – that doesn’t reflect an offender’s actual culpability. I am also concerned that the current fraud guideline contains overlapping sentencing enhancements that drive up sentences for even ordinary fraud offenses.
There are more proposals, including studies of the definition of “crime of violence” and new recidivism work. You can find the complete list here.

If you want to comment on any proposed priority, or if you want to suggest additional priorities, write a letter to the Commission. Here are some tips:
When you submit your comments on the proposed priorities, be sure to refer to the priority number so that the commissioners record your views properly.
Tell the Commission why you care; share your personal experiences to the extent you feel comfortable. Your (or your family’s) stories are more powerful than anything else the Commission will hear.
Be direct but respectful. Commission staff read all the letters they receive.
The salutation can read: “Dear Judge Saris,” because Judge Patti Saris chairs the Sentencing Commission.
Address your letter as follows:

United States Sentencing Commission
Attn: Public Affairs – Priorities Comment
One Columbus Ave, NE
Suite 2-500, South Lobby
Washington, DC 20002-8002

You can also email your letter to pubaffairs@ussc.gov.

Please remember that your comments must be received by the Commission on or before July 23.

Thank you so much for your help. It is so important for us get our message to the people with the power to make a difference.


FAMM Victory at the U.S. Supreme Court June 21, 2012

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Here’s an update from Julie Stewart, FAMM President

Great news! Today, the U.S. Supreme Court decided to end the 100:1 disparity in crack cocaine sentencing once and for all! In Dorsey v. United States (No. 11-5683) the Court ruled that everyone sentenced for crack cocaine offenses after the passage of the Fair Sentencing Act of 2010 (FSA) gets the benefit of the new lower sentences the law created.

You may remember that crack cocaine defendants used to be sentenced under a 100:1 ratio between crack and powder cocaine. Congress changed the ratio to 18:1 when it passed the Fair Sentencing Act and on August 3, 2010, the FSA was signed into law.

Immediately, there was confusion about whether people who had committed a crack offense before that date but had not yet been sentenced were eligible to be sentenced under the lower ratio. This became known as the “pipeline” problem.

FAMM joined a brief to persuade the Court to rule the way they did and we’re thrilled that today’s terrific opinion means that “pipeline prisoners” (people who were sentenced after August 3, 2010 to an old crack sentence) will be entitled to ask the court for relief. We don’t know exactly how that will take place but those details will be forthcoming. In the meantime, celebrate this victory and if you know a “pipeline prisoner,” encourage that person to contact their attorney.

Savor the moment and stay connected to FAMM. Working together, we can make a difference!


FAMM Briefs April 30, 2012

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U.S. Sentencing Commission Considers Child Pornography and Fraud Sentences April 25, 2012

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Medical marijuana, Measure 11 emerge as big issues in Oregon race for Attorney General candidates Dwight Holton and Ellen Rosenblum April 24, 2012

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Federal agents raided four southern Oregon marijuana farms in rapid succession early last fall, searching homes, seizing residents’ guns and hauling off hundreds of pot plants.

The show of force shocked Jackson County residents and infuriated many who believe the farms were operating legally under Oregon’s medical marijuana law.

Six months later, the raids and marijuana in general have emerged as a surprise issue in the tight race for Oregon attorney general. A pro-marijuana legalization group has come out strongly for retired Oregon appellate Judge Ellen Rosenblum because it was her opponent, Dwight Holton, then acting U.S. attorney, who authorized the controversial raids.

“Dwight Holton has called our voter-approved law a ‘train wreck’ and is campaigning on his plan to gut it,” said Robert Wolfe, of Citizens for Sensible Law Enforcement. “Holton is openly disrespectful of Oregon voters, and hostile to medical marijuana patients and providers. He would be a disaster as attorney general.”

Pro-marijuana contributors had given about $2,600 to Rosenblum’s campaign as of Friday. Citizens for Sensible Law Enforcement is also running pro-Rosenblum ads on Portland radio stations and is gearing up a print ad campaign as well, Wolfe said.

Identifying oneself with the pot lobby is a high-risk strategy for a would-be attorney general, in effect Oregon’s top law enforcement official. It’s a dramatic contrast to Holton, who cites among his supporters many of Oregon’s district attorneys and sheriffs.

But Rosenblum has embraced her new supporters comparing Oregon’s medical marijuana law to other pioneering state statutes like the bottle bill and assisted suicide measures. She toured a Tigard marijuana dispensary on Sunday. “It makes a huge difference for me to see the collective and to see the way you are responsibly applying the law,” she said to the applause of a gathered crowd.

Holton says he has no intention of gutting the medical marijuana law, which he feels was passed for “compassionate reasons.” But he has a dimmer view of how it’s playing out. “We know from law enforcement officials that marijuana is ending up on the black market,” he said.

More than 55,000 Oregonians, including patients suffering from cancer, AIDs and chronic pain, participate in the state’s medical marijuana system. The law allows medical marijuana patients to have the drug but doesn’t tell them where to get it.

Into that void, entrepreneurs have opened an estimated 50 to 100 medical marijuana outlets around the state, where patients can get pot directly from growers.

The law has generated tension with federal authorities, who still consider possession, purchase, growing and selling pot a crime. Some agree with Holton that pot grown under the auspices of the state program is finding its way to the street.

Rosenblum says Holton is out of touch with Oregon sensibilities on weed. “I will not support hard-ball tactics against medical marijuana providers and will protect the rights of medical marijuana patients,” Rosenblum said. “Pursuing small-time marijuana users or attempting to dismantle the Oregon Medical Marijuana Act would be a waste of public dollars.”

Holton fires right back at Rosenblum, particularly her statement that she will de-emphasize prosecution of minor marijuana possession cases.

“This is not about medical marijuana, it’s about whether we’re going to have an AG who picks and chooses which laws they’re going to enforce,” Holton said. “She’s made it very clear that she does not think there are resources to enforce marijuana laws. It’s entirely inappropriate. It invites lawbreaking.”

Holton’s camp has jumped on the marijuana issue, saying the policy gulf between the two candidates has become the “defining issue” of the campaign.

Wolfe agrees, saying Holton is “out-of-step” with the 400,000 or more recreational pot users in Oregon as well as his party. “He ought to be running as a Republican,” Wolfe said. On Monday, the secretary of state fined Wolfe $65,000 for violating Oregon’s constitution in gathering signatures for the marijuana legalization initiative.

That Holton would emerge as the “law-and-order” candidate in the race is not surprising given his long background as a federal prosecutor. He’s also strived to position himself to the right of Rosenblum on the issue of Oregon’s Measure 11 mandatory-minimum sentencing law.

Prosecutors generally favor mandatory minimum sentences, saying tough sentencing has helped reduce serious crime. But Measure 11 has led to swelling prison populations and enormous increases in the state’s corrections budget.

Last week, the Multnomah County Prosecuting Attorneys Association endorsed Holton, in part, it said because Rosenblum had sent mixed signals about her support of Measure 11.

Click here to read the rest of the article


Georgia Gets into Sentencing Reform Act April 20, 2012

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Judge grants Measure 11 convict a rare early release

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A blustery Sunday afternoon last November found Circuit Judge William Cramer Jr. catching up on files in the closed Harney County Courthouse.

Cramer came to a one-page document, extraordinary for what it would do. The order, awaiting only Cramer’s approval, would conditionally release a convict years shy of finishing his mandated sentence.

Cramer signed it.

With that, he freed Charles L. Clifford and landed in a renewed debate over Measure 11, Oregon’s tough crime initiative. The law, passed by voters in 1994, is under new scrutiny as the state prepares to reconsider who should punish criminals: judges or voters.

Cramer presided over the 2009 trial that convicted Clifford, now 36, of badly injuring a man in a late-night brawl. The judge sent Clifford to prison for the mandatory 70 months — nearly six years — but not before declaring that the sentence was too harsh. The order gave Cramer a chance to release Clifford after he had served the time the judge had in mind at the outset.

Such releases are exceedingly rare. Attorneys involved in Clifford’s case could think of only a couple of others in recent years, even with more than 6,000 Oregon inmates serving sentences under Measure 11. Clifford’s release is tied to an appeal of his conviction — and he’ll return to prison if he loses.

Yet as Gov. John Kitzhaber prepares to assign a new panel to take up sentencing reform, Cramer and the state’s other 172 circuit judges could get more discretion in future cases.

Kitzhaber is seeking an overhaul of the criminal justice system, including sentencing, to rein in galloping costs. The state spends an average of $30,000 a year to house, feed and care for an inmate — part of a corrections system that burns through $1 billion in every two-year budget and is projected to cost $600 million more over the next decade if nothing is done.

Last year, a commission appointed by Kitzhaber recommended giving judges more power over sentences as part of the answer.

But tinkering with Measure 11 is tricky. Voters overwhelmingly approved it. And prosecutors, a potent political power, say the measure has contributed to a drop in crime across Oregon. They argue that sentences have been reasonable and that only the worst felons face the measure’s brute force.

Defense attorneys vehemently disagree. They say too many defendants are getting prison terms harsher than necessary to protect the public and reform felons.

For Cramer, who rejected big city legal work to return to his roots in eastern Oregon, the issue is what is just.



FAMM Testifies at “Booker Fix” Hearing at U.S. Sentencing Commission April 15, 2012

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Attorney General race raises questions about Measure 11 April 12, 2012

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When Oregonians turn in their ballots this May they will elect a new top law enforcement official – the state attorney general.

As we approach the election, a debate is raging at the highest levels over the candidate’s stances on Measure 11, which imposes mandatory sentences for certain crimes.

One camp thinks the voter-approved law costs too much, while the other side thinks keeping violent criminals locked for long periods of time is the best way to keep our communities safe.

Candidate Ellen Rosenblum has found herself at the center of the debate as people question her position on the issue.

Amateur video shows Rosenblum speaking last month to the Multnomah County Prosecuting Attorney’s Association. She was asked whether she would support attempts to undo Measure 11.

“I’m not leaning at all towards severely weakening Measure 11,” she said.

Rosenblum is a long-time judge who served on the state appeals court. She talked about how Measure 11 took power away from judges to use discretion in sentencing violent criminals.

“You never heard me saying this was a terrible thing, we’ve had all our discretion taken away from us. That’s just not how I ever felt about it,” she said in the video.

But two days later, Rosenblum addressed Democrats in Washington County. There is an audio recording of that speech.

“I liked it a lot better pre-Measure 11 and the reason was it gave judges discretion to look at who a person was,” she said on the recording.

“I sometimes wondered why I was even sentencing the defendant in a case because the sentence was already kind of a done deal and it took the discretion away from judges,” she added.

We asked Rosenblum for an interview, but she only agreed to send us a prepared statement:

“As a trial court judge, I have imposed Measure 11 sentences, and I have a history of affirming Measure 11 convictions as an appellate court judge. As Attorney General, I will protect Oregonians by holding criminals accountable and making sure violent and sexual offenders are where they belong – behind bars.

“I want to clarify that my position on Measure 11 has not changed. It is critical that we take a tough stance on crime, but I am open to examining new ways of doing so that ensure that our scarce government resources are being used wisely.