The United States Sentencing Commission has recently approved an amendment to the Federal Sentencing Guidelines, “Drugs Minus Two,” which would reduce the sentencing guideline levels applicable to most federal drug trafficking offenses. Specifically, the amendment works to lower the base offense levels in the Drug Quantity Table prescribed under §2D1.1(c)(1) of the Federal Sentencing Guidelines Manual, which may ultimately result in a lower guideline sentencing range for many defendants sentenced under federal trafficking penalties.
The Sentencing Commission has voted to apply the amendment retroactively after determining that “setting the base offense levels above mandatory minimum penalties is no longer necessary and that a reduction would be an appropriate step toward alleviating the overcapacity of the federal prisons.” The Commission’s proposal was consistent with its obligation to formulate guidelines to “minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons. 28 U.S.C. § 994(g).
According to the Commission, there are an “estimated 46,000 offenders that may benefit from retroactive application of Amendment 782 subject to the limitation in §1B1.10 (e), and the average sentence reduction would be approximately 18 percent.”
The Chair of the Sentencing Commission, Judge Patti B. Saris, stated that “the amendment received unanimous support from Commissioners because it is a measured approach. It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”
The amendment will likely go into retroactive effect beginning November 1, 2015, unless Congress disapproves of the amendment. Congress has until November 1, 2014 to make its decision. If upheld, federal prisoners may begin to petition the courts pursuant to 18 U.S.C. § 3582 (C) (2) seeking a sentencing modification based upon the new guideline ranges.
An inspiring editorial, Refusing to Defend Unjust Laws: Prosecutorial Discretion or Prosecutorial Nullification?, by Professor Bennett L. Gershman of Pace Law School has shed light on the national importance of Attorney General Eric Holder’s recent attempt to address state laws that may be unjust or unconstitutional. In past weeks, Holder has led the charge to denounce such laws by directing state attorneys general that it is within their discretion to refuse to defend such laws.
Professor Gershman, who is a nationally recognized authority in the field of constitutional law and well renowned expert on prosecutorial misconduct, highlights this development in both national politics and law, explaining that Holder’s directive is both an important and well principled exercise of a prosecutor’s discretion. He points out that Holder’s position may play a pivotal role in the nation’s ability to address the defining civil rights challenges of our time, including state laws that ban gay marriages. Some critics, including a number of Republican state attorneys general, have criticized Holder’s position as an impermissible exercise of “prosecutorial nullification,” and violative of their duty to enforce all laws, including those that may be unconstitutional. However, Professor Gershman explains that Holder’s directive is a well-settled exercise of prosecutorial authority, as “discretion is at the heart of the prosecutor’s function, it is virtually unlimited, and virtually unreviewable.”
Professor Gershman further explains that “[p]rosectors decide every day – -as a matter of policy and justice– whether and to what extent to use their limited resources to enforce the law. And the kinds of determinations that prosecutors make every day is whether it would be unjust to enforce or defend certain laws, especially if the prosecutor believes in good faith that the law is invalid, unworkable, or unconstitutional.” He points out that “defending  [unjust] laws, as the Republican attorneys general claim they must do, may be a principled exercise of discretion, but a foolish and irrational one.”
Material witness orders give prosecutors the power to detain uncooperative witnesses in the rare circumstance in which they might flee. However, recent wrongful conviction cases reveal that NY prosecutors may be misusing such orders to coerce testimony from reluctant witnesses. The law may be clear but prosecutors may be bypassing the required judicial review, detaining witnesses, and coercing testimony that is ultimately unreliable.
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As the closing arguments are being delivered in the Zimmerman trial, Prof. Bennett L. Gershman of Pace Law School takes a look at the Prosecutor’s case so far. He asserts in his most recent take on the case that the prosecution made THE mistake in the trial when it “introduced in its own case the several audio and video statements made by George Zimmerman to the police after he shot and killed Trayvon Martin” and therefore the prosecutor “allow[ed] Zimmerman’s statements to be heard by the jury, and his demeanor seen by the jury, without being able to confront and cross-examine him in court.” What do you think – will this blunder cost the prosecutor a victory?
In his most recent Huffington Post blog post titled Overcharging George Zimmerman With Murder, Prof. Bennett L. Gershman of Pace Law School analyzes the implications of prosecutors charging defendants with crimes “that cannot reasonably be supported by the evidence.” He points out the extraordinary discretionary power prosecutor possesses and the potential for abuse this power can lead to. Prof. Gershman takes the Florida George Zimmerman case in which the defendant was charged with second degree murder and demonstrates the considerations and the decision process the prosecutor engages in when charging a defendant.
What do you think – did the prosecutor in the Zimmerman case overcharge to create leverage for plea bargain, was it a trial tactic, or was she pressured by public?