A "Holder Effect" on Federal Sentencing?

Last summer at the ABA delegate meeting, Attorney General Holder made news when he said what many of us in this business have known for a long time, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Speech here.  After the nation's chief law enforcement officer joined the chorus for sentencing reform, some legal pundits wondered whether there would be any kind of "Holder Effect" driving down the length of federal sentences.

Sentencing guru and law professor Doug Berman thinks there just might be (post here) and speculates that perhaps judges are thinking even harder about the wisdom of imposing guideline sentences that call for lengthy incarcerations.  Three weeks ago, the U.S. Sentencing Commission issued its quarterly sentencing data report for the last quarter of FY 2013 (here) and Professor Berman has finished crunching the numbers.  His analysis reveals a small uptick in judge-initiated, below-guideline sentences to just over 20% of all federal sentences (up from 18% from early 2013) -- the largest percentage of below-guideline sentences for any quarter on record.  But the news is not all good.  The single largest determinant of a below-guideline sentence still remains the recommendation of the prosecutor on behalf of a cooperating defendant.  

Is it too much to hope that the Department backs up AG Holder's words with below-guideline recommendations for non-cooperators in appropriate cases?  Now that would be change we could believe in.  

Confirmation Update: More Good Judicial News

Today, Judges Darrin Gayles and Beth Bloom both were approved by voice vote by the Senate Judiciary Committee.  Judge Robin Rosenbaum should have her vote in front of the full Senate completed sometime Monday. Best of luck to all three nominees.

Not Breaking News: It's Still Illegal to Carry a Concealed Gun in Florida During a Zombie Apocalpyse

From the "Only in Florida Department" on a slow news day.  The NRA is on high alert this week after a rare sunshine state legislative defeat.  The bill, which would have allowed Floridians to carry concealed firearms while evacuating during a state or local emergency, was voted down by the Florida Senate after Senator Dwight Bullard, apparent fan of The Walking Dead, sarcastically proposed the bill be amended to include any "act relating to the zombie apocalypse."  The Florida Sheriffs Association ("FSA") also opposed the bill, with one sheriff calling it "insane."  Standing its ground, the NRA issued a response alert (here) yesterday labeling the criticism of the FSA, the "barking of a cut dog."    

TRADITION! Supremes Endorse Prayers for Legislators 5-4

Yesterday, in Town of Greece v. Galloway (decision here), the Supreme Court reversed the Second Circuit and upheld the practice of opening monthly town board meetings in Greece, New York, with a prayer given by clergy.  The 5-4  decision upheld the practice—even though the prayers were usually led by Christian clergy—because it comported with the "tradition" of legislative prayer and did not coerce participation from non-adherents.  Justice Kennedy, writing for the majority, opined that “legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.” One can only imagine  what the state of good government would be without the time-honored tradition of legislative prayer . . . 

The Majority Opinion also found that the small town's omission of a local Buddhist temple and several nearby synagogues from the monthly prayer rotation was unintentional.  Justice Kagan, writing for the dissent, ignored the Buddhist temple angle, arguing instead that the monthly legislative prayers either should have been non-denominational in content or rotated among clergy of different faiths. 

More interesting was Adam Liptak's piece yesterday in the New York Times on a recent study concluding that both liberal and conservative Supreme Court Justices tend to vote in free speech cases for the "side they agree with."  Article here.  

Judge Rosenbaum Update -- Full Senate Vote Likely Within the Week

Judge Robin Rosenbaum is FINALLY nearing a full Senate vote.  Senate Majority Harry Reid laid the groundwork today by calling for a cloture vote on Judge Rosenbaum's nomination to occur no later than this Thursday. The timing of the actual final vote is unclear as Republicans can demand up to 30 hours of post-cloture delay. The Senate Judiciary Committee unanimously approved Judge Rosenbaum’s nomination in March and both Florida Senators are supporting her nomination.  Her confirmation cannot come soon enough.  Normally a court of twelve, the 11th Circuit currently only has eight full-time judges -- a fallout of the judicial confirmation gridlock.

Happy Cinco De Mayo

Happy Cinco de Mayo (aka DUI lawyer day)!  The Amigos are excited to be guest blogging this week (and looking forward to an early margarita happy hour on DOM’s expense card).  As we commemorate the Mexican army’s unlikely victory over the French at the Battle of Puebla in 1862 (more here), you might be surprised to learn who (Mexican drug cartels?) is behind the rising cost of a quality lime.  From CNN.

Cartel members have demanded a certain percentage of orchard owners' lime shipments . . . .  The violence in the region and threats from criminal organizations has made it all but impossible for the U.S. Food and Drug Administration to certify the limes that are emerging from Mexico are being grown in a sanitary way.

The fallout has jacked up prices for U.S. and Mexican consumers and businesses accustomed to celebrating Cinco de Mayo with limes in their beers, margaritas and mojitos.  A case of limes now goes for close to $100, up substantially from reports of $15 to $20 last year. 

Stay thirsty my friends  . . .

In other news, some Scalia clerk needs a stiff drink right about now.  Last week, Nino penned one of his trademark blistering dissents denouncing regulatory overreach, only to have overreached himself by misstating the facts of a prior unanimous Supreme Court decision -- that he himself authored.  Oops. The blogosphere has been having fun with this one.    The latest here.

   

Guest Bloggers

Please join me in welcoming Jeff Marcus, Jeff Neiman, and Dan Rashbaum as my guest bloggers next week.  The three amigos just started their own law firm MNR.

Republicans hold over vote for Judges Bloom & Gayles

Ho hum... more of the same... and for no reason.  Just because:



Sen. Leahy: “Florida nominees backed by Senators Rubio and Nelson to fill judicial emergency vacancies but I understand Republicans want to hold them over, as is their right … I hope we can vote them out next week; I don’t think there is any controversy about any of them. We should be able to get them confirmed before the recess.”



People for the American Way aren't happy with Sen. Rubio on this.


I wish voters knew more about this wasteful and silly process. 


Good luck to Judges Bloom and Gayles next week!


HT: Glenn Sugameli