Authority to impose a sentence below a statutory minimum.
Section 3553 of title 18, United States Code, is amended by adding at the end the following:
"(g) Authority To impose a sentence below a statutory minimum To prevent an unjust sentence.--
"(1) GENERAL RULE.--Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).
"(2) COURT TO GIVE PARTIES NOTICE.--Before imposing a sentence under paragraph (1), the court shall give the parties reasonable notice of the court's intent to do so and an opportunity to respond.
I think the idea of having a vote, to increase accountability and transparency, is not without merit. Indeed, I think what we need here is much more transparency."(3) STATEMENT IN WRITING OF FACTORS.--The court shall state, in the written statement of reasons, the factors under subsection (a) that require imposition of a sentence below the statutory minimum.
"(4) APPEAL RIGHTS NOT LIMITED.--This subsection does not limit any right to appeal that would otherwise exist in its absence.".
GENERAL RULE.--Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a). The statutory minimum sentences the court may go below include but are not limited to sentences for for terrorist murder, multiple murder, child murder, child rape, dismemberment, kidnapping, use of a weapon of mass destruction resulting in death, armed carjacking, using a firearm in the commission of a violent felony, using a minor under the age of 12 in the production of pornography, and trafficking in methamphetamine, heroin, Ecstasy and LSD, including trafficking to minors.
1. Wouldn't it be appropriate, Bill, to spell out all the MMs that this would authorize a judge to sentence below? Helpfully, FAMM has this 16-page pdf with a list: http://famm.org/wp-content/uploads/2013/08/Chart-All-Fed-MMs-NW.pdf. Perhaps that list can/should just be an addendum to the bill.
Notably included on this list are a wide array of notable federal offenses such as:
A. Possession with intent to distribute 100+ marijuana plants (I know lots of folks violating this provision every day in dozens of states while complying with state law should see this is on the federal MM list)
B. Distributing any amount of marijuana to anyone 20-years old or younger (I know lots of kids in high-school and college who should know this is covered)
C. Possess ammunition of a firearm anytime after three non-violent state drug convictions
D. Downloading pictures of naked teenagers
E. Second offense of illegal food stamp activity
F. Forgery of notary seal
G. Bribery of meat inspectors
H. False entries by banking officer
I. Deposit of refuse or obstruction of navigable waterway...
I could go on and on, but I trust you get the point. Moreover, I do not at all like that you have in your proposed version changed the notice and explanation requirements of the JSVA.
2. I also wonder if you might also want to add language THAT I HAVE ADDED IN ALL CAPS HERE: "Notwithstanding any provision of law other than this subsection, the court may impose a sentence below a statutory minimum OR A SENTENCE ABOVE A STATUTORY MAXIMUM if the court finds that it is necessary to do so in order to avoid violating the requirements of subsection (a).
Among other benefits, such an addition would reduce the need for prosecutors and judges to rely on stacked charges to get to a just sentence in lots of white-collar cases like Madoff.
Thoughts?
3. Do I rightly read this post as an indication that you agree in the value of having votes on bills in the works and that you will be regularly urging your friends in Senator Grassley's office to be urging the Senator to bringing the SSA and the JSVA and the CARERS Act up for a vote ASAP?
"I do not at all like that you have in your proposed version changed the notice and explanation requirements of the JSVA."
1. I do not post here to satisfy what you like, or anyone else likes.
2. Not that it makes a difference, since, if you'd read what I wrote rather than get mad, you'd have a different outlook. What I wrote is: "My proposed amendment would add language to Section (g)(1)."
I did not and do not propose ANY CHANGE TO OR DELETION OF the notice and explanation parts of the JSVA.
3. You wanted me to use my supposed influence to get the JSVA a vote. I will not do so for the present version, because it's a pig-in-a-poke to the layman, who would not know the actual reach of the bill.
I will happily do so for the amended version I suggested, because it adds a considerable degree of the transparency you say you want.
Will you join me in publicly urging that my more transparent version be brought up for a vote?
That's the offer. Yea or nay?
I will support attaching the complete list of federal MMs. Will you?
Sorry I misunderstood you revision. Do you like mine?
You said you wanted my help in getting a vote on the JSVA. The reason you said you wanted that vote was to promote accountability and transparency.
I have now proposed an amendment that subtracts absolutely nothing from the coverage of the JSVA and simply adds more of the transparency you say you want. And never before today, on the many occasions when you have been pushing the JSVA, did you even suggest the desirability of adding the list you came up with this afternoon.
My offer as stated stands. Do you accept it, yea or nay?
If the democracy process is to be thwarted without the addition of your amended language, and if the only way to move the democratic process forward is through this addition, then I would certainly accept the amended language to get the democratic process moving.
To reiterate, if having a list of statutory MMs incorporated into the bill makes it more transparent, I think a full list of federal MMs ought to be added. But you offer was, apparently, not designed to be complete and balanced, but rather to hold up the bill absent the addition of language you favor. I hope this is not how real democracy works, but you would know better about that than me because I never worked inside the beltway. And, in the end, I want votes taken. So I accept.
Do you have the power now to make this happen? I sure hope so. Will you also tweak the language of the SSA and CARERS Act to get them votes, too? And can you add some language to the nomination of Lynch for AG so she can finally get a vote, too?
I don't have the power to MAKE anything happen in Congress. If I did, mandatory guidelines would have been back years ago.
I have the power to make my views known in this public forum. I also have the power to follow through when I say I will do something. See next entry.
If the JSVA passes, you won't need the weaker (although still dreadful) SSA. I don't think I know what the CARERS Act is.
Loretta Lynch will get a vote after the Democrats give up their filibuster of the human trafficking bill. See http://www.washingtonpost.com/opinions/the-senate-needs-an-exit-from-a-vicious-circle/2015/04/15/7ec4e6d8-e2f2-11e4-b510-962fcfabc310_story.html
I would note that Chairman Grassley allowed a Committee vote on Ms. Lynch, although he opposes her. I think Miguel Estrada is still waiting for an up-or-down vote in the Senate, no? Perhaps you could fill us in on SSA co-sponsor Dick Durbin's role in "advancing the democratic process" in that case.
UPDATE: I have now publicly -- and, I think you will see, enthusiastically -- urged the vote you wanted, and then some.
http://www.crimeandconsequences.com/crimblog/2015/04/bring-up-and-vote-down-an-amen.html
I appreciate your additional engagement here, Bill, and I remain annoyed that Miguel Estrada --- not to mention Harriet Miers --- never got a vote in the Senate. More broadly, I hope you realize that I generally dislike how inside-the-Beltway Ds operate even more than I dislike how inside-the-Beltway Rs operate (which is likely why, I should note, I do not get asked to do much work inside the beltway).
I am sure at your Georgetown cocktail parties it is fun to have debates over which political team in Washington plays dirtier. But here in flyover country where good-government Govs like John Kasich is worried more about the people than politics, we mostly would like to just send all the DC insiders out (e.g., I have long supported strict term limits). So I will be happy to join you in throwing dirt on Beltway Ds, but do not think their political misbehavior somehow prompts me to want to accept political misbehavior by others.
Back on topic, the JSVA would NOT at all take care of most aspects of the SSA. I think an expanded safety valve in the SSA is a good idea, and I have long pressed for the FSA to be retroactive. Plus, since the vast majority of judges will still apply the guidelines and mandatory minimums even if the JSVA were to pass, I would also like to see the drug MMs in the SSA passed as well.
The CARERS Act is a new bipartisan federal marijuana reform bill that would make free from federal prohibition state-legalized medical marijuana regimes. I believe it has at least 5 Senators in open support, and polls suggest perhaps as much as 85% of the nation supports its particulars. Please do what you can on this front, as it should be less controversial (and much more impactful to the nation's legal system) than either the JSVA or the SSA.
Thanks.
The Senate might be many things, but democratic is not one of them. We have 40 million people in California and get the same number of votes in the Senate as Iowa. Once you add in filibustering, it creates a scenario where the decisions can end catering to whims of representatives of a very small group of people.
In my opinion this is not the way important decisions should be made as it appears Lynch got her vote in exchange for stopping a filibuster on an unrelated bill. And there always seems to be lots of horse trading when it comes to the appointment of federal judges, and people wonder why judges are not always as competent as we would hope.
The reality is the founders created the Senate because they figured since Great Britain had two houses, they created a more democratic version of the House of Lords. However, the House of Lords is now mostly a ceremonial body, and is really what the Senate should be reduced to.