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Because respondent Spink was 61 when petitioner Lockheed Corporation reemployed him in 1979, he was excluded from participation in Lockheed's retirement plan (Plan), as was then permitted by the Employee Retirement Income Security Act of 1974 (ERISA). Section 9203(a)(1) of the Omnibus Budget Reconciliation Act of 1986 (OBRA) repealed ERISA's age-based exclusion provision, and Section(s) 9201 and 9202 amended ERISA and the Age Discrimination in Employment Act of 1967 (ADEA), respectively, to prohibit age-based benefit accrual rules. To comply with OBRA, Lockheed made Spink and other previously excluded employees Plan members, but made clear that they would not receive credit for their pre-1988 service years. Lockheed subsequently added to the Plan two programs offering increased pension benefits to employees who would retire early in exchange for their waiver of any employment claims against Lockheed. Not wishing to waive any ADEA or ERISA claims, Spink declined to participate and retired without earning the extra benefits. He then filed suit, alleging among other things that Lockheed and respondent board of directors members violated ERISA by amending the Plan to create the retirement programs, that respondent Retirement Committee members violated ERISA by implementing the amended Plan, and that the OBRA amendments to ERISA and the ADEA required that Spink's pre-1988 service years be counted toward his benefits. The District Court dismissed the complaint for failure to state a claim, but the Court of Appeals reversed in relevant part. In finding the Plan amendments unlawful under ERISA Section(s) 406(a)(1)(D)--which prohibits a fiduciary from causing a plan to engage in a transaction that transfers plan assets to, or involves the use of plan assets for the benefit of, a party in interest--the court decided that there was no need to address Lockheed's status as a fiduciary. It also found that Lockheed's refusal to credit Spink with his pre-1988 service years violated the OBRA amendments, which the court decided applied retroactively.
1. ERISA Section(s) 406 does not prevent an employer from conditioning the receipt of early retirement benefits upon plan participants' waiver of employment claims. Pp. 4-13.
(a) Unless a plaintiff shows that a fiduciary caused the plan to engage in the allegedly unlawful transaction, there can be no Section(s) 406(a)(1) violation warranting relief. Cf. Peacock v. Thomas, 516 U. S. ___, ___. Thus, the Court of Appeals erred by not asking whether fiduciary status existed in this case before finding a Section(s) 406(a)(1)(D) violation. Pp. 5-6.
(b) Lockheed and the board of directors, as plan sponsors, were not acting as fiduciaries when they amended the Plan. Given ERISA's definition of fiduciary and the applicability of the duties attending that status, the rule that this Court announced with respect to the amendment of welfare benefit plans in Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. ___, applies equally to the amendment of pension plans. Thus, when employers or other plan sponsors adopt, modify, or terminate pension plans, they do not act as fiduciaries, id., ___, but are analogous to settlors of a trust. Pp. 7-9.
members acted as fiduciaries, because their payment of benefits pursuant to the terms of an otherwise lawful plan was not a ``transaction'' prohibited by Section(s) 406(a)(1)(D). That section does not in direct terms include an employer's payment of benefits. And the "transactions" prohibited by other provisions of Section(s) 406(a) generally involve uses of plan assets that are potentially harmful to the plan. The payment of benefits conditioned on performance by plan participants cannot reasonably be said to share that characteristic. Pp. 9-13.
2. OBRA Section(s) 9201 and 9202(a) do not apply retroactively to require Lockheed to use pre-1988 service years in calculating Spink's benefits. Congress expressly provided, in OBRA Section(s) 9204(a)(1), that the amendments to ERISA and the ADEA would be effective with respect to plan years beginning on or after January 1, 1988. Since the amendments' temporal effect is manifest on the statute's face, "there is no need to resort to judicial default rules," Landgraf v. USI Film Products, Inc., 511 U. S. ___, ___, and inquiry is at an end. Pp. 13-15. 60 F. 3d 616, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Scalia, Kennedy, and Ginsburg, JJ., joined, and in all but Part III-B of which Souter and Breyer, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Souter, J., joined.
On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. [June 10,1996] Justice Thomas delivered the opinion of the Court. In this case, we decide whether the payment of benefits pursuant to an early retirement program conditioned on the participants' release of employment-related claims constitutes a prohibited transaction under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. Section(s) 1001 et seq. We also determine whether the 1986 amendments to ERISA and the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. Section(s) 621 et seq., forbidding age-based discrimination in pension plans apply retroactively.
Respondent Paul Spink was employed by petitioner Lockheed Corporation from 1939 until 1950, when he left to work for one of Lockheed's competitors. In 1979, Lockheed persuaded Spink to return. Spink was 61 years old when he resumed employment with Lockheed. At that time, the terms of the Lockheed Retirement Plan for Certain Salaried Individuals (Plan), a defined benefit plan, excluded from participation employees who were over the age of 60 when hired. This was expressly permitted by ERISA. See 29 U. S. C. Section(s) 1052(a)(2)(B) (1982 ed.).
Congress subsequently passed the Omnibus Budget Reconciliation Act of 1986 (OBRA), Pub. L. 99-509, 100 Stat. 1874. Section 9203(a)(1) of OBRA, 100 Stat. 1979, repealed the age-based exclusion provision of ERISA, and the statute now flatly mandates that "[n]o pension plan may exclude from participation (on the basis of age) employees who have attained a specified age." 29 U. S. C. Section(s) 1052(a)(2). Sections 9201 and 9202 of OBRA, 100 Stat. 1973-1978, amended ERISA and the ADEA to prohibit age-based cessations of benefit accruals and age-based reductions in benefit accrual rates. See 29 U. S. C. Section(s) 1054(b)(1)(H)(i), 623(i)(1).
In an effort to comply with these new laws, Lockheed ceased its prior practice of age-based exclusion from the Plan, effective December 25, 1988. As of that date, all employees, including Spink, who had previously been ineligible to participate in the Plan due to their age at the time of hiring became members of the Plan. Lockheed made clear, however, that it would not credit those employees for years of service rendered before they became members.
When later faced with the need to streamline its operations, Lockheed amended the Plan to provide financial incentives for certain employees to retire early. Lockheed established two programs, both of which offered increased pension benefits to employees who would retire early, payable out of the Plan's surplus assets. Both programs required as a condition of the receipt of benefits that participants release any employment-related claims they might have against Lockheed. Though Spink was eligible for one of the programs, he declined to participate because he did not wish to waive any ADEA or ERISA claims. He then retired, without earning any extra benefits for doing so.
The Court of Appeals for the Ninth Circuit reversed in relevant part. the Plan were unlawful under ERISA Section(s) 406(a)(1)(D), 29 U. S. C. Section(s) 1106(a)(1)(D), which prohibits a fiduciary from causing a plan to engage in a transaction that transfers plan assets to a party in interest or involves the use of plan assets for the benefit of a party in interest. The court reasoned that because the amendments offered increased benefits in exchange for a release of employment claims, they constituted a use of Plan assets to "purchase" a significant benefit for Lockheed. 60 F. 3d, at 624. Though the court found a violation of Section(s) 406(a)(1)(D), it decided that there was no need to address Lockheed's status as a fiduciary. Id., at 623, n. 5. In addition, the Court of Appeals agreed with Spink that Lockheed had violated the OBRA amendments by refusing to include Spink's service years prior to 1988 in determining his benefits. In so holding, the court found that the OBRA amendments apply retroactively. See id., at 620, n. 1. We issued a writ of certiorari, 516 U. S. ___ (1996), and now reverse.
Nothing in ERISA requires employers to establish employee benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91 (1983); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 511 (1981). ERISA does, however, seek to ensure that employees will not be left empty-handed once employers have guaranteed them certain benefits. As we said in Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U.S. 359 (1980), when Congress enacted ERISA it "wanted to . . . mak[e] sure that if a worker has been promised a defined pension benefit upon retirement--and if he has fulfilled whatever conditions are required to obtain a vested benefit--he actually will receive it." Id., at 375. Accordingly, ERISA tries to "make as certain as possible that pension fund assets [will] be adequate" to meet expected benefits payments. Ibid.
To increase the chances that employers will be able to honor their benefits commitments--that is, to guard against the possibility of bankrupt pension funds--Congress incorporated several key measures into the Act. Section 302 of ERISA sets minimum annual funding levels for all covered plans, see 29 U. S. C. Section(s) 1082(a), 1082(b), and creates tax liens in favor of such plans when those funding levels are not met, see Section(s) 1082(f). Sections 404 and 409 of ERISA impose respectively a duty of care with respect to the management of existing trust funds, along with liability for breach of that duty, upon plan fiduciaries. See Section(s) 1104(a), 1109(a). Finally, Section(s) 406 of ERISA prohibits fiduciaries from involving the plan and its assets in certain kinds of business deals. See Section(s) 1106. It is this last feature of ERISA that is at issue today.
Congress enacted Section(s) 406 "to bar categorically a transaction that [is] likely to injure the pension plan." Commissioner v. Keystone Consol. Industries, Inc., 508 U.S. 152, 160 (1993). That section mandates, in relevant part, that "[a] fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect . . . transfer to, or use by or for the benefit of a party in interest, of any assets of the plan." 29 U. S. C. Section(s) 1106(a)(1)(D). 1 The question here is whether this provision of ERISA prevents an employer from conditioning the receipt of early retirement benefits upon the participants' waiver of employment claims. For the following reasons, we hold that it does not.
We first address the allegation in Spink's complaint that Lockheed and the board of directors breached their fiduciary duties when they adopted the amendments establishing the early retirement programs. Plan sponsors who alter the terms of a plan do not fall into the category of fiduciaries. As we said with respect to the amendment of welfare benefit plans in Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. ___ (1995), "[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans." Id., at ___ (slip op., at 4) (citing Adams v. Avondale Industries, Inc., 905 F. 2d 943, 947 (CA6 1990)). When employers undertake those actions, they do not act as fiduciaries, 514 U. S., at ___ (slip op., at ___), but are analogous to the settlors of a trust, see Johnson v. Georgia-Pacific Corp., 19 F. 3d 1184, 1188 (CA7 1994).
This rule is rooted in the text of ERISA's definition of fiduciary. See 29 U. S. C. Section(s) 1002(21)(A) (quoted n. 2, supra). As the Second Circuit has observed, "only when fulfilling certain defined functions, including the exercise of discretionary authority or control over plan management or administration," does a person become a fiduciary under Section(s) 3(21)(A). Siskind v. Sperry Retirement Program, Unisys, 47 F. 3d 498, 505 (1995). "[B]ecause [the] defined functions [in the definition of fiduciary] do not include plan design, an employer may decide to amend an employee benefit plan without being subject to fiduciary review." Ibid. We recently recognized this very point, noting that "it may be true that amending or terminating a plan . . . cannot be an act of plan `management' or `administration.'" Varity Corp. v. Howe, 516 U. S. __, __ (1995) (slip op., at 15). As noted above, we in fact said as much in Curtiss-Wright, see 514 U. S., at ___ (slip op., at ___), at least with respect to welfare benefit plans.
We see no reason why the rule of Curtiss-Wright should not be extended to pension benefit plans. Indeed, there are compelling reasons to apply the same rule to cases involving both kinds of plans, as most Circuit Courts have done. 4 The definition of fiduciary makes no distinction between persons exercising authority over welfare benefit plans and those exercising authority over pension plans. It speaks simply of a "fiduciary with respect to a plan," 29 U. S. C. Section(s) 1002(21)(A), and of "management" and "administration" of "such plan," ibid. And ERISA defines a "plan" as being either a welfare or pension plan, or both. See Section(s) 1002(3). Likewise, the fiduciary duty provisions of ERISA are phrased in general terms and apply with equal force to welfare and pension plans. See, e.g., Section(s) 1104(a) (specifying duties of a "fiduciary . . . with respect to a plan"). See also Shaw v. Delta Air Lines, Inc., 463 U.S., at 91 (ERISA "sets various uniform standards, including rules concerning . . . fiduciary responsibility, for both pension and welfare plans"). Given ERISA's definition of fiduciary and the applicability of the duties that attend that status, we think that the rules regarding fiduciary capacity--including the settlor-fiduciary distinction--should apply to pension and welfare plans alike.
Lockheed acted not as a fiduciary but as a settlor when it amended the terms of the Plan to include the retirement programs. Thus, Section(s) 406(a)'s requirement of fiduciary status is not met. While other portions of ERISA govern plan amendments, see, e.g., 29 U. S. C. Section(s) 1054(g) (amendment generally may not decrease accrued benefits); Section(s) 1085b (if adoption of an amendment results in underfunding of a defined benefit plan, the sponsor must post security for the amount of the deficiency), the act of amending a pension plan does not trigger ERISA's fiduciary provisions.
Spink also alleged that the members of Lockheed's Retirement Committee who implemented the amended Plan violated Section(s) 406(a)(1)(D). As with the question whether Lockheed and the board members can be held liable under ERISA's fiduciary rules, the Court of Appeals erred in holding that the Retirement Committee members violated the prohibited transaction section of ERISA without making the requisite finding of fiduciary status. It is not necessary for us to decide the question whether the Retirement Committee members acted as fiduciaries when they paid out benefits according to the terms of the amended Plan, however, because we do not think that they engaged in any conduct prohibited by Section(s) 406(a)(1)(D).
The "transaction" in which fiduciaries may not cause a plan to engage is one that "constitutes a direct or indirect . . . transfer to, or use by or for the benefit of a party in interest, of any assets of the plan." 29 U. S. C. Section(s) 1106(a)(1)(D). Spink reads Section(s) 406(a)(1)(D) to apply in cases where the benefit received by the party in interest--in this case, the employer--is not merely a "natural inciden[t] of the administration of pension plans." Brief for Respondent 10. Lockheed, on the other hand, maintains that a plan administrator's payment of benefits to plan participants and beneficiaries pursuant to the terms of an otherwise lawful plan 5 is wholly outside the scope of Section(s) 406(a)(1)(D). See Reply Brief for Petitioners 10. We agree with Lockheed.
Section 406(a)(1)(D) does not in direct terms include the payment of benefits by a plan administrator. And the surrounding provisions suggest that the payment of benefits is in fact not a "transaction" in the sense that Congress used that term in Section(s) 406(a). Section 406(a) forbids fiduciaries from engaging the plan in the "sale," "exchange," or "leasing" of property, 29 U. S. C. Section(s) 1106(a)(1)(A); the "lending of money" or "extension of credit," Section(s) 1106(a)(1)(B); the "furnishing of goods, services, or facilities," Section(s) 1106(a)(1)(C); and the "acquisition . . . of any employer security or employer real property," Section(s) 1106(a)(1)(E), with a party in interest. See also Section(s) 1108(b) (listing similar types of "transactions"). These are commercial bargains that present a special risk of plan underfunding because they are struck with plan insiders, presumably not at arms-length. See Commissioner v. Keystone Consol. Industries, Inc., 508 U.S., at 160 . What the "transactions" identified in Section(s) 406(a) thus have in common is that they generally involve uses of plan assets that are potentially harmful to the plan. Cf. id., at 160-161 (reasoning that a transfer of unencumbered property to the plan by the employer for the purpose of applying it toward the employer's funding obligation fell within Section(s) 406(a)(1)'s companion tax provision, 26 U. S. C. Section(s) 4975, because it could "jeopardize the ability of the plan to pay promised benefits"). The payment of benefits conditioned on performance by plan participants cannot reasonably be said to share that characteristic.
According to Spink and the Court of Appeals, however, Lockheed's early retirement programs were prohibited transactions within the meaning of Section(s) 406(a)(1)(D) because the required release of employment-related claims by participants created a "significant benefit" for Lockheed. 60 F. 3d, at 624. Spink concedes, however, that among the "incidental" and thus legitimate benefits that a plan sponsor may receive from the operation of a pension plan are attracting and retaining employees, paying deferred compensation, settling or avoiding strikes, providing increased compensation without increasing wages, increasing employee turnover, and reducing the likelihood of lawsuits by encouraging employees who would otherwise have been laid off to depart voluntarily. Brief for Respondent 11.
Finally, we address whether Section(s) 9201 and 9202(a) of OBRA, which amended respectively the ADEA and ERISA to prohibit age-based benefit accrual rules, apply retroactively. 9 Two Terms ago, we set forth the proper approach for determining the retroactive effect of a statute in Landgraf v. USI Film Products, Inc., 511 U. S. __ (1994). We stated that "[w]hen a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach." Id., at ___ (slip op., at 36). Thus, we must determine whether Congress has plainly delineated the temporal scope of the OBRA amendments to ERISA and the ADEA.
Section 9204(a)(1) of OBRA, 100 Stat. 1979, expressly provides that "[t]he amendments made by sections 9201 and 9202 shall apply only with respect to plan years beginning on or after January 1, 1988, and only to employees who have 1 hour of service in any plan year to which such amendments apply." 29 U. S. C. Section(s) 623 note. This language compels the conclusion that the amendments are prospective. For plan years that began on or after January 1, 1988, age-based accrual rules are unlawful under the amendments; further, only employees who have one hour of service in such a plan year are entitled to the protection of the amendments. But for plan years prior to the effective date, employers cannot be held liable for using age-based accrual rules. Where, as here, the temporal effect of a statute is manifest on its face, "there is no need to resort to judicial default rules," Landgraf v. USI Film Products, Inc., 511 U. S., at __ (slip op., at 36), and inquiry is at an end.
Notwithstanding the clarity of Section(s) 9204(a)(1), the Court of Appeals believed that the text of Section(s) 9201 and 9202(a) require retroactive application of the benefit accrual rules. To deny an employee credit for service years during which he was excluded from the plan based on age, even though that exclusion was lawful at the time, the Court of Appeals reasoned, is to reduce the rate of benefits accrual for that employee. 10 60 F. 3d, at 620. When Congress includes a provision that specifically addresses the temporal effect of a statute, that provision trumps any general inferences that might be drawn from the substantive provisions of the statute. See generally Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992); Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228 -229 (1957). Even if it were proper to disregard the express time limitations in Section(s) 9204(a)(1) in favor of more general language, Section(s) 9201 and 9202(a) cannot bear the weight of the Court of Appeals' construction. A reduction in total benefits due is not the same thing as a reduction in the rate of benefit accrual; the former is the final outcome of the calculation, whereas the latter is one of the factors in the equation.
Justice Breyer, with whom Justice Souter joins, concurring in part and dissenting in part.
I join the Court's opinion except for its conclusion in Part III-B that "the payment of benefits pursuant to an amended plan, regardless of what the plan requires of the employee in return for those benefits, does not constitute a prohibited transaction." Ante, at 13. The legal question addressed in Part III-B is a difficult one, which we need not here answer and which would benefit from further development in the lower courts, where interested parties who are experienced in these highly technical, important matters could present their views. Accordingly, I would follow the suggestion of the Solicitor General that the Court not reach the issue in this case.
[ Footnote 1 ] Section 408 enumerates specific exceptions to the prohibitions in Section(s) 406. See 29 U. S. C. Section(s) 1108(b). Lockheed does not argue that any of these exceptions pertain to this case.
[ Footnote 2 ] ERISA Section(s) 3(21)(A) provides: "[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan." 29 U. S. C. Section(s) 1002(21)(A).
[ Footnote 3 ] Instead of pursuing this inquiry, the Court of Appeals found that Lockheed was a "party in interest" under Section(s) 3(14)(C), and asserted that "a party in interest who benefitted from an impermissible transaction can be held liable under ERISA." 60 F. 3d 316, 623 (1995). For that same proposition, several Courts of Appeals have relied on statements in Mertens v. Hewitt Associates, 508 U.S. 248 (1993), that "ERISA contains various provisions that can be read as imposing obligations upon nonfiduciaries," id., at 253-254; see also id., at 254, n. 4 (citing Section(s) 406(a)), and that "[p]rofessional service providers . . . must disgorge assets and profits obtained through participation as parties-in-interest in transactions prohibited by Section(s) 406," id., at 262. See, e.g., Reich v. Stangl, 73 F. 3d 1027, 1031-1032 (CA10 1996), cert. pending, No. 95-1631; Landwehr v. DuPree, 72 F. 3d 726, 733-734 (CA9 1995); Reich v. Compton, 57 F. 3d 270, 285 (CA3 1995). Insofar as they apply to Section(s) 406(a), these statements in Mertens (which were in any event dicta, since Section(s) 406(a) was not at issue) suggest liability for parties in interest only when a violation of Section(s) 406(a) has been established--which, as we have discussed, requires a showing that a fiduciary caused the plan to engage in the transaction in question. The Court of Appeals thus was not necessarily wrong in saying that "a party in interest who benefitted from an impermissible transaction can be held liable under ERISA" (emphasis added); but the only transactions rendered impermissible by Section(s) 406(a) are transactions caused by fiduciaries.
[ Footnote 4 ] See, e.g., Siskind v. Sperry Retirement Program, Unisys, 47 F. 3d 498, 505 (CA2 1995); Averhart v. US WEST Management Pension Plan, 46 F. 3d 1480, 1488 (CA10 1994); Fletcher v. Kroger Co., 942 F. 2d 1137, 1139-1140 (CA7 1991); Hozier v. Midwest Fasteners, Inc., 908 F. 2d 1155, 1160-1162 (CA3 1990) (listing cases); Sutton v. Weirton Steel Div. of Nat. Steel Corp., 724 F. 2d 406, 411 (CA4 1983), cert. denied, 467 U.S. 1205 (1984).
[ Footnote 5 ] As Lockheed notes, see Brief for Petitioners 13; Reply Brief for Petitioners 7, n. 4, there is no claim in this case that the amendments resulted in any violation of the participation, funding, or vesting requirements of ERISA. See 29 U. S. C. Section(s) 1051-1061 (participation and vesting); Section(s) 1081-1086 (funding).
[ Footnote 6 ] Indeed, federal law expressly approves the use of early retirement incentives conditioned upon the release of claims. The Older Workers Benefit Protection Act, Pub. L. 101-433, 104 Stat. 983 (1990), establishes requirements for the enforceability of employee waivers of ADEA claims made in exchange for early retirement benefits. See 29 U. S. C. Section(s) 626(f). Of course, the enforceability of a particular waiver under this and other applicable laws, including state law, is a separate issue from the question whether such an arrangement violates ERISA's prohibited transaction rules. But absent clearer indication than what we have in Section(s) 406(a)(1)(D), we would be reluctant to infer that ERISA bars conduct affirmatively sanctioned by other federal statutes.
[ Footnote 7 ] Spink's amicus the United States suggests that Section(s) 406(a)(1)(D) is not violated so long the employer provide benefits as compensation for the employee's labor, not for other things such as a release of claims. See Brief for United States as Amicus Curiae 15-16. But the Government contradicts its own rule with the examples it gives of lawful plans. For instance, the Government recognizes that "[a]n employer may provide increased pension benefits as an incentive for early retirement." Id., at 20. While retirement benefits themselves may be defined as deferred wages, an increase in retirement benefits as part of an early retirement plan does not compensate the employee so much for services rendered as for the distinct act of leaving the company sooner than planned. The standard offered by the Government is thus of little help in identifying transactions prohibited by Section(s) 406(a)(1)(D).
[ Footnote 8 ] If the benefits payment were merely a sham transaction, meant to disguise an otherwise unlawful transfer of assets to a party in interest, or involved a kickback scheme, that might present a different question from the one before us. Spink does not suggest that Lockheed's payment was a cover for an illegal scheme, only that payment of the benefits conditioned on the release was itself violative of Section(s) 406(a)(1)(D).
[ Footnote 9 ] Section 9203(a)(1) of OBRA, amending ERISA to prevent the exclusion of employees of a certain age from plan participation applies "only with respect to plan years beginning on or after January 1, 1988, and only with respect to service performed on or after such date." OBRA Section(s) 9204(b), 100 Stat. 1980. The Court of Appeals acknowledged that Lockheed fully complied with that amendment by admitting Spink as a member of the Plan as of December 25, 1988, the first day of Lockheed's 1988 plan year.
[ Footnote 10 ] See 29 U. S. C. Section(s) 1054(b)(1)(H)(i) (OBRA Section(s) 9202(a)) (defined benefit plan violates ERISA's benefit accrual requirements "if, under the plan, an employee's benefit accrual is ceased, or the rate of an employees's benefit accrual is reduced, because of the attainment of any age"); Section(s) 623(i)(1)(A) (OBRA Section(s) 9201) (forbidding employers from establishing or maintaining a defined benefit plan that "requires or permits . . . the cessation of an employee's benefit accrual, or the reduction of the rate of an employee's benefit accrual").

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No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation Clause jurisprudence. But ten years after the Supreme Court's landmark decision, scholars, practitioners, and judges still debate its logic and its consequences. This Symposium continues that debate, featuring essays written by Professors Richard D. Friedman and Jeffrey L. Fisher, who advocated in Crawford itself for the Supreme Court to adopt the "testimonial" approach to the Confrontation Clause; Professor George Fisher, one of the nation's premier scholars of criminal law and evidence; and Professor Deborah Tuerkheimer, who has written extensively on the Crawford regime's effect on domestic violence prosecutions.
The Symposium consists of five essays. Professors George Fisher and Tuerkheimer both wrote longer essays, while Professors Friedman and Jeff Fisher each wrote a shorter piece and collaborated on a joint response to George Fisher's essay.
We hope this Symposium fosters further debate about the merits of the Crawford regime and inspires the practitioners, scholars, and judges who will shape the contours of the Confrontation Clause over the next ten years.
"Does Prison Privatization Distort Justice? Evidence on Time Served and Recidivism"
I contribute new evidence on the impact of private prisons on prisoner time served and recidivism by exploiting the staggered entry and exit of private prisons in Mississippi between 1996 and 2004. Little is known about this topic, even though burgeoning prison populations and an effort to cut costs have caused a substantial level of private contracting since the 1980s. The empirical challenge is that prison assignment may be based on traits unobservable to the researcher, such as body tattoos indicating a proclivity for violent behavior.
My first result is that private prisons increase a prisoner's fraction of sentence served by an average of 4 to 7 percent, which equals 60 to 90 days; this distortion directly erodes the cost savings offered by privatization. My second result is that prisoners in private facilities are 15 percent more likely to receive an infraction (conduct violation) over the course of their sentences, revealing a key mechanism by which private prisons delay release. Conditional on receiving an infraction, prisoners in private prison receive twice as many.
My final result is that there is no reduction in recidivism for prisoners in private prison despite the additional time they serve, suggesting that either the marginal returns to incarceration are low, or private prisons increase recidivism risk. These results are consistent with a model in which the private prison operator chooses whether to distort release policies, i.e., extend prisoner time served beyond the public norm, based on the typical government contract that pays a diem for each occupied bed and is imperfectly enforced.
Spencer cannot collaterally attack his sentence based on a misapplication of the advisory guidelines. Spencer’s sentence falls below the statutory maximum, and his prior conviction for felony child abuse has not been vacated. Spencer’s sentence was and remains lawful. We affirm the denial of Spencer’s motion to vacate his sentence.
At the end of the day, what constitutes a fundamental defect resulting in a complete miscarriage of justice comes down to a matter of considered judgment. In my judgment, having an individual serve an additional 81 months in prison due to an erroneous career offender designation under the advisory Sentencing Guidelines constitutes such a miscarriage of justice, and for that reason I respectfully dissent.
Kevin Spencer is serving more than 12 years in prison (151 months to be exact) for selling $20 worth of crack cocaine. The panel found, see Spencer v. United States, 727 F.3d 1076, 1100 (11th Cir. 2013), the government now concedes, see En Banc Brief for the United States at 57-58, and the majority does not dispute, that Mr. Spencer’s mistaken career offender designation more than doubled his advisory sentencing range from 70-87 months to 151-188 months. For those of us familiar with — and sometimes numbed by — the ranges produced by application of the Sentencing Guidelines, it may be easy to overlook the dramatic increase resulting from the error. To put it in perspective, the 81-month increase is roughly the time needed to complete both college and law school.
Mr. Spencer timely and consistently objected to the career offender designation, only to be told he was wrong. As it turns out, he was right. Unfortunately, the majority now rules that Mr. Spencer cannot use 28 U.S.C. § 2255 to correct the error.
Over the years, we’ve seen that over-incarceration doesn’t just crush individual opportunity. At a more fundamental level, it challenges our nation’s commitment to our highest ideals. And it threatens to undermine our pursuit of equal justice for all.
Fortunately, we come together this evening at a pivotal moment — when sweeping criminal justice reforms, and an emerging national consensus, are bringing about nothing less than a paradigm shift in the way our country addresses issues of crime and incarceration, particularly with respect to low-level, nonviolent drug offenses.
For the first time in many decades, it’s clear that we’re on the right track, and poised to realize dramatic reductions in criminal activity and incarceration. In fact, the rate of violent crime that was reported to the FBI in 2012 was about half the rate reported in 1993. This rate has declined by more than 11 percent just since President Obama took office. And the overall incarceration rate has gone down by more than 8 percent over the same brief period.
This marks the very first time that these two critical markers have declined together in more than 40 years. And the Justice Department’s current projections suggest that the federal prison population will continue to go down in the years ahead. As a result of the commonsense, evidence-based changes that my colleagues and I have implemented – under the landmark “Smart on Crime” initiative I launched last year — I’m hopeful that we’re witnessing the beginning of a trend that will only accelerate as new policies and initiatives fully take hold.
Equal justice is not a Democratic value or a Republican value. It’s an American value — and a solemn pursuit – that speaks to the ideals that have always defined this great country. It goes to the very heart of who we are, and who we aspire to be, as a people. And it will always drive leaders of principle from across the political spectrum — including those in this room and others throughout the nation — to keep moving us forward along the path to transformative justice.
The phrases I highlighted should be of interest to all SCOTUS followers because the term "emerging national consensus" has great meaning and significance in Eighth Amendment jurisprudence. I think it is quite right to say that there is now a constitutionally significant "emerging national consensus" concerning the use of mandatory long terms of imprisonment "particularly with respect to low-level, nonviolent drug offenses." And it is quite exciting to hear this legally-important phrase coming from the US Attorney General, especially because I think statements like this might lay the foundation for overturning, sooner rather than later, troublesome Eighth Amendment precedents like Harmelin v. Michigan (and maybe even also Ewing v. California).
NY Times debates "Parole When Innocence Is Claimed"
With the increasing notoriety of cases in which prisoners have proved their innocence, some parole boards have permitted the release of inmates without the traditional requirement that they admit their guilt, if there is strong evidence of wrongful convictions.
Should prisoners for whom there is substantial evidence of innocence be required to admit guilt to be granted parole?
"'I Expected It to Happen/I Knew He'd Lost Control': The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5"
The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.
My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of that Manual, it will force them to seriously confront — in a wide variety of cases — the impact of PTSD on sentencing decisions. And this may lead to more robust debates over the impact of mental disability generally on sentencing outcomes.
My optimism here is tempered by (1) the reality that courts deal teleologically with mental disability evidence in general (subordinating it when it is introduced by the defendant, and privileging it when introduced by the state), and (2) the power of sanism — an irrational prejudice of the same quality and character as other irrational prejudices that cause, and are reflected in, prevailing social attitudes such as racism, sexism, homophobia, and ethnic bigotry — in this entire inquiry.
On the other hand, we must also consider the impact of therapeutic jurisprudence on the question in hand. Therapeutic jurisprudence (TJ) presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law that can have therapeutic or anti-therapeutic consequences. Although some scholars have considered TJ in the context of the Federal Sentencing Guidelines, it remains mostly an “under the radar” topic.” I believe it is essential we give it a new and urgent focus.
I am convinced that, if courts take seriously the new treatment of PTSD in DSM 5, and couple that with an understanding of sanism and an application of TJ, that will lead to an important sea change in the ways that defendants with that condition — especially those who are Iraqi and Afghanistani war veterans - are sentenced. This paper proceeds in this manner. First, I briefly review the law of sentencing as it relates to persons with disabilities, focusing on developments that followed the Supreme Court’s decision in United States v. Booker (making the Federal Sentencing Guidelines advisory rather than mandatory), the role of sanism, and the significance of therapeutic jurisprudence. Then, I look at how courts have, until this moment, treated PTSD in sentencing decisions. I will then look at DSM 5 to highlight its definitional changes. I then try to “connect the dots” to show how DSM 5 demands changes in sentencing practices, and explain how this change can be consonant with the principles of TJ. I will end with some modest conclusions.
Chadwick Banks, 43, was pronounced dead at 7:27 p.m. EST Thursday after a lethal injection at Florida State Prison, the office of Gov. Rick Scott said. Banks was condemned for the September 1992 killing of 10-year-old Melody Cooper. Banks also received a life sentence for the murder of his wife, Cassandra Banks, in the attack in the Florida Panhandle region.
Banks wore the white skullcap of the Muslim Brotherhood before the lethal drugs were administered, looking directly at the family of the victims when he delivered his final statement. "I'm very sorry for the hurt and pain I have caused you all of these years," Banks said. "Year after year I have tried to come up with a reasonable answer for my actions. But how could such acts be reasonable?"
The [Miller] ruling applied to mandatory sentences and the U.S. Supreme Court justices avoided declaring whether the new standard should be applied retroactively to older cases. South Carolina's high court, however, not only called for a rehearing of older cases but applied the new parameters to all juveniles cases where life sentences were imposed, even when that decision was at a judge's discretion.
Colin Miller, an associate professor at the University of South Carolina School of Law, and who participated in a moot court dry run of the Supreme Court arguments with attorney John Blume, called the high court's ruling "significant" and a victory for juvenile rights. He said the court went beyond what many observers expected in extending projections to all juveniles facing life without parole. "That was not a foregone conclusion," he said. "Here we have the Supreme Court of South Carolina saying the state will not impose life without parole on a juvenile without looking at the totality of the person in this situation."
We recognize that in holding the Eighth Amendment proscribes a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders, the Court did not expressly extend its ruling to states such as South Carolina whose sentencing scheme permits a life without parole sentence to be imposed on a juvenile offender but does not mandate it. Indeed, the Court noted that because its holding was sufficient to decide the cases before it, consideration of the defendants' alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles was unnecessary. Id. at 2469. However, we must give effect to the proportionality rationale integral to Miller's holding — youth has constitutional significance. As such, it must be afforded adequate weight in sentencing.
Thus, we profoundly disagree with the position advanced by the respondents and the dissent that the import of the Miller decision has no application in South Carolina. Miller is clear that it is the failure of a sentencing court to consider the hallmark features of youth prior to sentencing that offends the Constitution. Contrary to the dissent's interpretation, Miller does more than ban mandatory life sentencing schemes for juveniles; it establishes an affirmative requirement that courts fully explore the impact of the defendant's juvenility on the sentence rendered.
As evidenced by the record, although some of the hearings touch on the issues of youth, none of them approach the sort of hearing envisioned by Miller where the factors of youth are carefully and thoughtfully considered. Many of the attorneys mention age as nothing more than a chronological fact in a vague plea for mercy. Miller holds the Constitution requires more.
U.S. District Judge Michael W. Mosman, presiding on Thursday in the case of U.S. v. Bounlith "Bong" Bouasykeo, asked lawyers if the vote in Oregon and a similar vote in Washington, D.C., signal "a shift in the attitude of people generally towards marijuana."
"I guess I'm curious whether I ought to slow this down a little bit," he asked lawyers, according to a transcript of the hearing obtained by The Oregonian. Under federal law, marijuana in any form or amount remains illegal.
Mosman wondered aloud if there was any move afoot to take a different position on marijuana enforcement in Oregon. This was not to suggest – he hastened to add – that he agreed on marijuana legalization. The judge wondered whether his position on sentencing ought to move a notch in the defendant's favor because of the nation's evolving view of pot.
"I'm not suggesting that what's on the table is that the whole case ought to go away or anything like that," the judge said. "But would something like that at the margins have some sort of impact on my sentencing considerations? I think I ought to take into account any evolving or shifting views of the executive branch in determining the seriousness of the crime?
"Should I delay this, in your view, or go ahead today (with sentencing)?" After hearing arguments from the lawyers, Mosman decided to delay Bouasykeo's punishment.
"A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle"
For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, the Supreme Court's guidance on sentencing ACCA defendants has been unclear. The resulting ambiguity creates inequity between defendants and fails to give them fair warning of the statute's scope. This ambiguity also depletes the resources of courts, defendants, and prosecutors and prevents the statute from realizing its full potential of deterring violent crime.
This Note argues that rather than allowing this debacle to continue, Congress should delegate to a federal agency the task of compiling a binding list of state statutes that qualify as predicate offenses. Under this approach, the states would assist the federal agency by providing initial guidance on their ambiguous statutes. The U.S. Sentencing Commission has the manpower, subject familiarity, and institutional incentives to build and maintain the appendix, and state sentencing commissions would make ideal partners. In states that do not have sentencing commissions, comparable agencies and even properly incentivized attorneys general may be able to aid the federal Sentencing Commission. Congress should leverage this undertaking to resolve related definitional questions about the meaning of a violent crime in other areas of federal law.
Makers of Ohio's lethal-injection drugs would be kept anonymous, and physicians who testify about the state's execution method couldn't have their medical license revoked, under House legislation introduced Monday. Attorney General Mike DeWine has said that lawmakers need to pass the reforms if Ohio is to resume executions next year, once a court-ordered moratorium ends.
House Bill 663 would keep secret the identities of compounding pharmacies, small-scale drug manufacturers that create individual doses of lethal-injection drugs on demand. The proposed change is a sign that state officials could turn to compounding pharmacies for lethal-injection drugs that courts have upheld but that larger companies have stopped selling, such as pentobarbital. Rep. Jim Buchy, a Greenville Republican co-sponsoring the bill, said the measure would protect compounding pharmacies from lawsuits.
House Speaker Bill Batchelder, a Medina Republican, and Senate President Keith Faber, a Celina Republican, each said last week they plan to pass the legislation. "That is something that we cannot leave in abeyance, otherwise we're going to have people who pass away prior to execution," Batchelder said.
I have a inkling that Speaker Batchelder's comments emphasized above may have been taken a little out of context, as the quote makes it seem he considers it is essential to fix quickly Ohio's machinery of death so that prisoners do not die on their own before being able to be killed by the state.
I just came across these remarks delivered by Attorney General nominee Loretta Lynch in August 2014 to the Convention on the Elimination of Racial Discrimination in Switzerland as part of the US delegation. These remarks were intended to share with the Convention "some of the highlights of the Department of Justice’s efforts to eliminate racial discrimination and uphold human rights in the area of criminal justice."
[T]he department has made great progress in reforming America’s criminal justice system. Our focus is not just on the prosecution of crime, but on eradicating its root causes as well as providing support for those re-entering society after having paid their debt to it.
To further ensure that the elimination of discrimination is an ongoing priority, the Attorney General has created a Racial Disparities Working Group, led by the U.S. Attorney community, to identify policies that result in unwarranted disparities within criminal justice and to eliminate those disparities as quickly as possible.
Obviously, if Loretta Lynch become the next US Attorney General, she will be in a great position to seize "the opportunity to do even more" with respect to criminal justice reform. I wonder what she might have in mind.
Mayor Bill de Blasio, who took office promising to reform the Police Department and repair relations with black and Latino communities, on Monday unveiled his plan to change the way the police enforce the law on marijuana possession.
Arrests for low-level marijuana possession have had an especially harsh impact on minority communities, and under the change announced on Monday, people found with small amounts of marijuana will typically be given a ticket and cited for a violation instead of being arrested and charged with a crime.
The news, outlined by the mayor and his police commissioner, William J. Bratton, at Police Headquarters, marked the most significant criminal justice policy initiative by Mr. de Blasio since he was sworn in as mayor in January. While he stressed that he was not advocating the decriminalization of marijuana, Mr. de Blasio said the impact of enforcement on the people arrested and on the Police Department compelled him to rethink how the police handle low-level marijuana arrests.
For a Police Department that has devoted enormous resources to tens of thousands of marijuana arrests a year, the shift in strategy should, the mayor said, allow officers to focus on more serious types of crime by freeing up people who would otherwise be occupied by the administrative tasks lashed to minor marijuana arrests.
Critics have said the police and prosecutors have been improperly charging people with possession of marijuana in public view, often after officers ask them to empty their pockets during street stops.
In 2011, Raymond W. Kelly, then the police commissioner, issued an order reminding officers to refrain from such arrest practices. Mr. Bratton said such practices were not now in use and the problem had been fixed. By now, the number of marijuana arrests has decreased, roughly mirroring the drastic reduction in the frequency of police stop, question and frisk encounters.
Of the 394,539 arrests made last year, marijuana arrests totaled slightly more than 28,000, or a little less than 10 percent of all arrests made in the city. That is down from 50,000 a few years ago.
Apart from a passionate certainty that either liberal Democrats or conservative Republicans (pick one) are a danger to the republic, what does this motley crew have in common?
Here’s what: They all agree that America’s practice of mass incarceration—unique in the world—is at worst a moral and practical failure or at best an outdated policy badly in need of adjustment.
That’s why they have busted out of their party and ideological boxes to try to do something about a dilemma that has become the ugliest face of America’s social, economic, and racial divisions. That’s why, for example, Gingrich and some prominent Christian conservatives joined hands this fall with the Soros-affiliated Open Society Foundation and the ACLU to back Proposition 47, a California ballot measure that redefines many lower-level felonies as misdemeanors. (Prop 47 passed comfortably last Tuesday.) It’s why the Kochs and the defense lawyers’ group just teamed up to train public defenders and help indigent defendants get counsel. It’s why Democratic and Republican senators are daring to co-sponsor bipartisan legislation like the Redeem Act—which, among other changes, would curb solitary confinement for youths and make it easier for nonviolent ex-offenders to survive without returning to crime.
There are 2.3 million Americans in prison right now. And the support of prisons and prisoners is costing taxpayers as much as $74 billion a year. No wonder criminal-justice reform is no longer the sole concern of balladeers and bleeding hearts. The United States of America locks up more of its population than any nation in human history.
Between mandatory sentencing, the war on drugs, the profiteering of private prisons, and the political glee of being “tough on crime,” the land of opportunity has become a vast empire of imprisonment. And the insane cost of keeping so many nonviolent people locked up is an investment in failure. It breaks up families, burns hope, and perpetuates cycles of misery. If you are poor and black and can’t afford the right lawyer, you’re likely to vanish into the system and enter a forever world of forgotten pain.
Our criminal justice system isn’t simply bloated and cruel. It’s also, on the face of it, unjust.
"Why Are There Up to 120,000 Innocent People in US Prisons?"
Guilty pleas and false confessions by the innocent are counterintuitive phenomena, says Rebecca Brown, director of state policy at the non-profit Innocence Project. But of the 321 DNA exonerations that have occurred in the United States, 30 have involved people who originally pled guilty to crimes they didn't commit. It's hard to accept that people who are innocent would knowingly incriminate themselves, but it happens frequently.
"Our cases are almost exclusively rapes and murders — very, very serious crimes — and even then, innocent people are pleading guilty," Brown says. "Now spread that out across the entire system to include lower-level offenses, the vast majority of which are pled out, and the implications are clear."
"The system isn't geared to discover innocence or guilt — it's geared to get people through the system as quickly and efficiently as possible," says John Pollok, a defense lawyer who has defended clients ranging from the mayor of Waterbury, Connecticut to members of the Gambino crime family. "What it comes down to for a defense lawyer is really to try and minimize harm."
Overwhelmingly, minimizing harm means taking a deal instead of taking your chances at trial. And just as false confessions lead to false convictions, coercive plea bargains are also responsible for sending thousands of innocent people to prison. "Everybody swallows the lie because they want to believe that the system works," Pollok says. "The short of it is, each component of the system, from lawyers to judges to the way we charge people, is broken."
As federal judge Jed Rakoff wrote recently in the New York Review of Books, "The Supreme Court's suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: It is much more like a 'contract of adhesion' in which one party can effectively force its will on the other party."
Rakoff tells me there are too many variables involved to pin down precisely how many innocent people are in prison, but he says criminologists peg the rate at which innocent people confess to crimes during plea bargains between 2 percent and 8 percent. A spread that wide rightfully raises suspicions, and so Rakoff chooses to instead use an extremely conservative estimate of 1 percent. Even then, that puts up to 20,000 people behind bars for crimes they did not commit due to pressure to accept pleas. "We know for a fact that there are innocent people taking pleas and going to prison," Rakoff says. "That's not conjecture."
No one can be forced to accept a plea bargain; the right to a trial is guaranteed by the US Constitution. However, a pernicious phenomenon called the "trial penalty" dissuades many defendants from exercising it. The federal conviction rate is an astonishing 97 percent, and studies have shown that defendants who refuse plea bargains are put behind bars for roughly nine times as long as those who take deals. (Twelve of the inmates exonerated by the Innocence Project were threatened with the death penalty before deciding to plead guilty.) As one former US Attorney told Human Rights Watch (HRW) last year, "If you reject the plea, we'll throw everything at you. We won't think about what is a 'just' sentence."
When Sandra Avery was caught with 50 grams of crack cocaine, prosecutors offered her a 10-year sentence if she agreed to plead guilty. Avery decided to take her chances at trial, and was promptly convicted, after which prosecutors "threw everything" at her by invoking Avery's three previous convictions for possession. The total value of the drugs Avery had been caught with in the previous three cases amounted to less than $100, but because Avery had three priors, she was sentenced to life in prison. There is no parole in the federal system. Avery will die behind bars.
Darlene Eckles, a nursing assistant with a clean record, agreed to let her brother stay with her after he got out of prison. She protested when he began dealing crack from her home, and finally kicked him out six months later. When the brother was later arrested on federal drug trafficking charges, Eckles got picked up too. Like Avery, Eckles refused to plead guilty, and went to trial. Although the jury convicted her on lesser charges that did not carry a mandatory minimum, prosecutors argued Eckles was every bit as responsible as her brother. The judge sentenced her to 19 years and seven months in prison. Her brother, who pled guilty, got 11 years and eight months.
Weldon Angelos sold $350 worth of marijuana to a confidential informant, who claimed that the 22-year-old Angelos was armed with a gun during two of the transactions. After Angelos was arrested, police found 3 pounds of pot and three guns during a search of his apartment. There was no evidence the guns had ever been fired or used to threaten someone else. Prosecutors offered Angelos 10 years for the weed, and five years for the guns. Angelos declined, opting for a trial. Prosecutors responded by filing a superseding indictment that stacked five new charges on top of the existing ones. Angelos was convicted and sentenced to 55 years in federal prison. He will be nearly 80 years old when he is released.
Property crimes decreased 4.1 percent, marking the 11th straight year the collective estimates for these offenses declined.
I will have a lot more to say about these data later today, but for now I just want to celebrate the latest great news on crime rates.
Thirteen defendants charged with or convicted of distributing large amounts of heroin in the District had their cases dismissed Friday because prosecution had been tainted by an FBI agent who is accused of tampering with evidence linked to the cases, including drugs and guns.
Friday’s ruling in U.S. District Court follows similar action Thursday, when another judge threw out charges involving 10 people convicted in a separate drug conspiracy involving the sale of heroin and cocaine. Charges in other cases could be dropped in the near future.
Prosecutors had recommended dropping the charges amid the investigation of Matthew Lowry, 33, an FBI agent assigned to the Washington field office who worked with police on crime that spilled over from the District into Maryland and Virginia. Lowry has been suspended but not charged. The investigation is being led by the Justice Department’s inspector general, and court documents link the dismissals to the probe involving Lowry.
Authorities have said little about the investigation, but court documents filed as part of the release of suspects say that Lowery is accused of tampering with drug and gun evidence. Officials with knowledge of the investigation have said the agent allegedly took heroin and used it himself. Other officials said Lowry was found in the last week of September slumped over the wheel of an unmarked FBI car near the Navy Yard, along with two drug evidence bags, heroin and two guns.
The fallout has been swift. Within days, prosecutors identified at least three drug cases and started to send defendants home from jail and prison to await further action. Prosecutors began dismissing cases outright Thursday. In all, 23 of 28 defendants in two drug cases have had their charges dismissed.
“We do not lightly dismiss these cases, particularly when the defendants face the serious drug charges at issue here,” U.S. Attorney Ronald C. Machen Jr. said in a statement. But, he added, “The credibility of the system is paramount and more important than any individual prosecution. That’s why we are carrying out a case-by-case, defendant-by-defendant review to determine which cases should go forward.
One of the defendants freed, 59-year-old Brandon Beale, went straight from the courtroom to the Pretrial Services Agency so he could turn in his ankle bracelet and shed the restrictions of home detention, said his attorney, Greg English. English said Beale, who was jailed for nearly a year, planned to fight the charges on the grounds that he was merely a drug user, not a dealer. Now, English said, there will be no reason to do that.
“This turn of events is absolutely extraordinary for an agent to commit misconduct like this. It goes to the basic integrity of the system,” English said. “But having said that, I think the U.S. Attorney’s Office did the right thing today and dismissed it. . . . They were completely ethical and upfront in their conduct in this case.” English said it was technically possible for prosecutors to bring the charges against Beale and others again, but he doubted they would do so.
In addition to being eager to praise federal prosecutors for their swift and aggressive response to learning that an FBI agent has gone rogue, I am also eager to know if anyone (e.g., Bill Otis) might be incline to criticize the federal prosecutors for moving to vacate a bunch of convictions rather than to seeking to contend that any evidence problems created by the rogue agent produced on harmless errors.
Repeatedly, we have been confronted with compelling evidence that our community has a serious problem with racial disparity in its justice system. Repeatedly, we have either said, “We can stop,” or we get defensive and attack the messenger. The time has come for us to change our response.
We need to accept we have a problem. All of us have a right to be safe, but protecting the public and being racially fair are not mutually exclusive. The ACLU report is interesting, in part, because it is not focused on “serious” or “violent” crime. There is no legitimate reason why there is a vastly disproportionate arrest rate for young black people for possession of small amounts of marijuana or for loitering.
There is a connection between racial disparity in the justice system and what is happening in our community. Child protection failures, racial disparity in low-level offenses, achievement gaps in school, and yes, even violent crime and gang problems are all related. The beginning of an end to these issues starts with a collective admission that we have a problem with race.
Given the persistence of the problem of racial disparity in the justice system, however, a very good case can be made that reasoned experiments to find solutions are a better alternative than continually repeating what we are presently doing — and hoping for a different result.
"Aging Prisoners Shackle State Budgets"
Nearly 10 percent of inmates housed in California state prisons were age 50 or older in 2003. About a decade later, that percentage has doubled. Thanks to an aging prison population and a 2011 prison realignment bill that sent lower-level and typically younger offenders to county jails, about 21 percent of the total state prison population today is over age 50.
While the circumstances in California are unique, the predicament is not. As baby boomers age nationally, America’s prison population is graying. What’s less understood, though, is the full extent of the demands an older prison population will place on corrections systems and just how much it will end up costing.
Efforts specifically aimed at reducing aging prison populations remain fairly limited. One common approach they've taken, Peterson says, is to study compassionate release programs. In 2011, California implemented a parole program for individuals permanently medically incapacitated to the point where they required 24-hour care. Until that program, there had been a few extreme cases of aging California prisoners in comas being guarded and kept alive through breathing and feeding tubes at acute care facilities at a cost of nearly $1 million a year.
At least 15 states provide some form of early release for geriatric inmates. But a Vera Institute of Justice report found those provisions were rarely used, in part attributable to restrictive eligibility criteria, political considerations, and long referral and review processes.
It’s hard to say just how much older prisoners will end up costing states. At least 16 states mandate the use of specialized corrections impact statements to help lawmakers understand how various criminal justice proposals affect prison populations and associated costs, according to the National Conference of State Legislatures.
The Florida Supreme Court on Thursday heard arguments in a debate about sentencing for juveniles convicted of first-degree murder. Pointing to a 2012 U.S. Supreme Court ruling, two inmates who are serving life in prison for murders they committed as juveniles are challenging their sentences.
The ruling, in a case known as Miller v. Alabama, banned mandatory life sentences for juveniles convicted of murder. Juveniles can still face life sentences in such cases, but judges must weigh criteria such as the offenders’ maturity and the nature of the crimes before imposing that sentence.
On Thursday, attorneys for Rebecca Lee Falcon and Anthony Duwayne Horsley argued that the ruling — and a new state law that carries it out — should apply retroactively to their clients, giving them the possibility of release.
Lawmakers this spring approved new juvenile sentencing guidelines that went into effect July 1 in response to Miller and to a 2010 U.S. Supreme Court ruling in a case known as Graham v. Florida.
On Thursday, Assistant Attorney General Kellie Nielan argued that a life sentence does not violate the Constitution if it includes the option of parole. But Justice Ricky Polston said that would create new questions, due to Florida abolishing parole decades ago on new crimes. A commission still hears cases from before the time parole was abolished.
“I’m asking this court to follow precedent,” Nielan said. “I understand that we have to fashion a remedy for this.” But while the new law was designed to bring Florida into compliance with the U.S. Supreme Court rulings, it doesn’t mention retroactivity.


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Abstract: Business papers, correspondence, photographs and memorabilia related to the James Lockhart Autry family of Texas (1875-present) and of North Carolina (1832), Tennessee (1824-1840) and Mississippi (1840-1875) show the life style of a family who moved into Texas and played an important role in developing both the social and economic framework of Houston. Among the business papers are correspondence and legal briefs from the terms Autry served as general counsel to the Texas Company, president of Fidelity Trust Company, and vice-president and general counsel of the American Republics Corporation.
James Lockhart Autry, II was born in Holly Springs, Mississippi, on November 4, 1859. Educated in Mississippi schools for most of his life, Autry attended the University of the South on a scholarship before moving to Texas in 1876. He moved to Navarro County to undertake management of a ranch given to his grandfather's heirs for his part in the Texas Revolution.
Once established in Texas, Autry began the study of law in the offices of Judge Sam Frost in Corsicana, and was admitted to the bar in 1880 at the age of twenty-one. While still studying law in 1879, Autry served as enrolling clerk for the House of Representatives of the Texas Legislature and he served again in the sessions of 1880 and 1881. Autry began the practice of law in partnership with Richard Channing Beale; he retired from this partnership, however, to serve two terms as County Judge of Navarro County. He then formed a partnership with W. J. McKie which lasted until Autry left Corsicana to become General Attorney for the Texas Company in Beaumont.
The partnership of McKie and Autry served as counsel to J.S. Cullinan, an oil operator who moved into Corsicana with the oil boom of the area during the 1890's. After the dissipation of oil in the Corsicana area and the discovery of oil in the Spindletop - Beaumont area, Cullinan moved to the coastal town to form the Texas Fuel Company. For several years McKie and Autry continued to serve Cullinan, taking turns on leaving Coriscana to spend one or two weeks at a time in Beaumont. Finally in 1904 the partnership of McKie and Autry was dissolved with McKie staying in Corsicana and Autry moving to Beaumont as general counsel of the Texas Fuel Company.
A reorganization and expansion of the Texas Fuel Company in 1905 resulted in the incorporation of the Texas Company in which Autry was elected a director and became general attorney. The corporate headquarters were moved to Houston in 1908 when Spindletop began to decline and other fields down the Gulf Coast like Humble and Goose Creek began to produce. Autry again moved with the company. He remained with the Texas Company until November of 1913 when a dispute over management of the company became a major issue in a stockholders' meeting and a proxy struggle ensued. Cullinan with the open support of Autry and Will C. Hogg lost the battle and resigned as president and director. Autry and Hogg both resigned at this time.
Autry, Cullinan and Hogg then combined their capital and talents to form the Fidelity Trust Company, Farmers Petroleum Company, American Petroleum Company and Republic Production Company. Autry served as president of Farmers Petroleum Company, president of Fidelity Trust Company and vice-president and general counsel of the last two under the combined name of American Republics Company. In 1915 Autry suffered a stroke and he spent the last five years of his life a semi-invalid seeking rehabilitation and use of his right side. He died on September 29, 1920. He was survived by his wife, the former Allie Kinsloe, whom he married in 1896, a son James Lockhart Autry III, and a daughter Allie May Autry.
Allie Belle Kinsloe Autry was born in Corsicana, Texas in 1873. She married James Lockhart Autry II in 1896. Throughout her life she was active in philanthropic causes in Corsicana and Houston. In 1921 she donated money for the construction of a community house at Rice Institute. A memorial to her husband, Autry House served as social meeting place for students, faculty, and campus organizations at Rice Institute. She also donated $50,000 towards the establishment of a hospital school for children with tuberculosis, Autry Memorial Hospital School, as a memorial to her son, James Lockhart Autry III. She died in 1935.
James Lockhart Autry, III was born in Corsicana, Texas 1899. The only son of James Lockhart Autry II, he graduated from Rice Institute in 1921. After graduation he was the vice-president of the American Supply Company. He died after complications from appendicitis at the age of 23.
Allie May Autry Kelley was the second child of James L. Autry II and Allie Kinsloe Autry. She was born 1903 in Corsicana, Texas. She graduated from Rice Institute in 1925, the first woman in her family to attend college. As a student at Rice she was extremely popular, elected class vice president 1921-22 and 1924-25, queen of May Fete 1925 and was a lifelong supporter of her alma mater. She helped establish Autry Court, the Allie Kelley Dittmar lounge in the student center, and generously supported the Friends of the Fondren Library. She married Edward Watson Kelley in 1935 and had two children, Edward "Mike" Watson Kelley, Jr and Allie Autry Kelley Dittmar. She died in 1998 at the age of 94.
The collection contains business papers, correspondence, photographs, and memorabilia of the James Lockhart Autry family. Among the business papers are correspondence and legal briefs from the terms Autry served as general counsel to the Texas Company, president of Fidelity Trust Company, and vice-president and general counsel of the American Republics Corporation.
Family papers include correspondence from Autry's grandfather Micajah Autry (1792-1836) to his wife describing his travels to Texas. Micajah Autry came to Texas to fight in the revolution and died at the Alamo. Autry's father, James Lockhart Autry, served as Speaker of the House of Representatives in Mississippi and practiced law in partnership with Lucius Cincinnatus Lamar. A number of papers deal with this aspect of his career as well as his service in the Confederate Army in which he attained the rank of Lieutenant Colonel and was killed at the Battle of Murfreesboro on December 31, 1862. Also included are correspondence from Autry's mother, Jeanie Valliant Autry Brown to her immediate family.
The bulk of the collection pertains to James Lockhart Autry II's business papers, legal papers, numbered files, personal papers, memorabilia, and papers dealing with administration of his estate.
This material is open for research. Researchers may only use photocopies of Micajah Autry letters.
Boxes 1-87 Stored off-site at Iron Mountain and requires 48-hour notice for retrieval. Please contact the Woodson Research Center at 713-348-2586 or woodson@rice.edu for more information.
Boxes 88-100 stored off-site at the Library Service Center. Please request this material via woodson@rice.edu or call 713-348-2586. Allow 24 hours retrieval time.
Permission to publish from The James Lockhart Autry family papers must be obtained from the Woodson Research Center, Rice University.
See also Rice University architectural drawings, oversize manuscript material, maps and photographs, UA 226.
The papers were a gift of Mrs. Edward W. Kelley and her daughter Allie Autry Kelley Dittmar. Date Received: Summer 1959. An addendum to the collection was received from Mrs. Edward W. Kelley and her granddaughter Kelley Dittmar in 1989 and 1992.
Researchers may only use photocopies of Micajah Autry letters.
19 Photograph of Dewitt Clinton Smith, n.d.
29 "Sketch of my Life," by Mary Autry Greer n.d.
30 "Siege of the Alamo," and other sketches by Mary Autry Greer n.d.
32 Photograph of Mary Autry Greer n.d.
89 Alexander F. Martin to James L. Autry n.d.
90 Miscellaneous Social Notes to James L. Autry n.d.
James Lockhart Autry served as a representative to the Mississippi Legislature from Marshall County from 1854-1859. He was also elected Speaker of the House 1857-1859.
102 Newspaper clipping mentioning James L. Autry n.d.
James Lockhart Autry served as lieutenant colonel of B/F-S, 9th Regiment, Mississippi Infantry. After reorganization in spring 1862, Autry became lieutenant colonel of the 27th Regiment, Mississippi Infantry. He was killed during the Battle of Murfreesboro on December 31, 1862. His promotion to general, signed by President Jefferson Davis, was on its way to Autry at the time of his death.
Source: The hour of our nation's agony: the Civil War letters of Lt. William Cowper Nelson of Mississippi. Edited by Jennifer W. Ford, 2007.
2 13 Bill of William F. Henderson against the Estate of Micajah Autry n.d.
14 Professional Card of James L. Autry n.d.
Locket with photograph of James L. Autry inside and strands of hair.
33 Correspondence - Mr. Jo Caruthers to Mrs. J.V. Autry ALS 1870 Feb.
46 Jeanie V. Brown calling card n.d.
47 Miscellaneous Poems typed by James L. Autry for his Mother n.d.
2 Photographs - Captain Isaac Newton Brown n.d.
4 Isaac Newton Brown Autobiography - typescript (photocopies from Briscoe Center for American History collection) n.d.
9 Family Correspondence - Received by Jeanie V. Brown after Death of Eloise B. Landon 1912 Jan.-Mar.
10 Photographs - Eloise Brown Landon's grave n.d.
Not all of James L. Autry's business files are represented in the numbered files. Autry wrote a memorandum describing the function, order and safekeeping of his files. From "Memorandum concerning Jas. L. Autry's files" (September 7, 1916): "All of my files are regarded as personal...the plan of filing is numerical...each file takes a title of subject-matter." Although the various represented companies retained most of the correspondence that dealt strictly with the day to day business, there is still a great deal of important business correspondence and personal material in the files, especially that dealing with his Navarro County Ranch, since he apparently preferred that his secretary keep up such files. The files are arranged numerically indicated by number in brackets after file name (e.g., Hughes Rice Farm  1904).
Numbered files pertaining to Autry's work for the Texas Company have been removed and organized numerically in the sub-series Business Papers. Also removed are files containing correspondence and records regarding the building of the Autry residence on Courtlandt Place. These have been organized within the sub-series: Personal. Numbered files relating to Autry's legal career have been removed and organized in sub-series: Legal.
33 "Texas Abstract & Land Company, Incorporated" seal n.d.
4 Wireless-James L. Autry, Jr.  n.d.
Numbered files pertaining to Autry's legal career beginning in 1881 under the apprenticeship of Beale up to and including his partnership with W.J. McKie.
10 Beale Estate Tripoli Mines  1868-1893 Feb.
3-4 Surrogates' Court New York County. In the matter of the transfer tax upon the estate of John W. Gates deceased (2 folders) n.d.
This sub-series contains numbered files pertaining to The Texas Company and correspondence regarding Autry's other business interests. Autry's files on American Republics Corporation, Fidelity Trust Company, Mexico Fuel Company, and Texas Land & Abstract Company can be found in the Numbered Files series. An example of the business files of importance is the correspondence between McKie and Autry while they were still partners and representing the Texas Fuel Company. Also there are files related to Autry's resignation from the Texas Company with personal letters from friends commenting on his actions. Correspondence with Autry's other business partners: J.S. Cullinan and Will C. Hogg is also included.
10 Texas Court of Civil Appeals - Brief, Texas Co. v. D.W. Strange n.d.
11 District Court Abstract, Acadia Parish, La. "Houssiere - Latreille" Cases n.d.
12 Supreme Court of Louisiana, Jennings-Heywood Oil Syndicate v. HoussiereLatreille Oil Co., et. al., vol. I, II n.d.
13 Supreme Court of Louisiana, Reply to Brief - Houissiere-Latreille Oil Co. v. Jennings Heywood Oil Syndicate n.d.
14 Supreme Court of Louisiana, Brief - Caddo Oil and Mining Company v. Producers Oil Company n.d.
15 Texas Court of Civil Appeals, Brief - Lena Bender, et. al. v. R.E. Brooks et. al. n.d.
16 Supreme Court of Oklahoma, Brief - State of Oklahoma and Jim Crow Oil Company v. Larry Nolegs et. al. n.d.
17 General Corporation Laws of the State of Delaware n.d.
This sub-series contains correspondence between family members and friends; numbered files referring to Autry's personal residences (Corsicana, Beaumont, and Courtlandt Place in Houston); family genealogy; photographs, clippings, memorabilia, and Autry family histories.
31 James L. Autry, Jr. to Jeanie V. Brown n.d.
31 C. Cotton to J.L. Autry n.d.
8 Miscellaneous Autry notes n.d.
7 Memorabilia - programs n.d.
7 Friends of Autry, n.d.
6 Printed Material - Poem; Author unknown n.d.
7 Printed Material - book belonging to James L. Autry while at St. Thomas Hall including Latin exercises and newspaper clippings on the Know Nothing Party n.d.
The materials in this sub-series deal with the administration of James L. Autry's estate: correspondence, financial statements, trust indentures, and personal bequests. Materials are arranged alphabetically by subject.
9 Autry Estate - Garden Furniture Pamphlets n.d.
Removed from the collection are programs from the annual meeting of the United Daughters of the Confederacy from years 1897, 1899-1902, 1904, and 1908. These have been catalogued separately.
This sub-series contains correspondence, personal financial statements, photographs, and memorabilia related to Allie Kinsloe Autry. Also included are materials related to her mother, Katherine S. Kinsloe and other Kinsloe family members.
Removed from the collection is the program from the Salvation Army convention in 1922. This has been catalogued separately.
53 1 Correspondence - Personal n.d.
8 Party Plans given by Allie & James L. Autry n.d.
6 Photographs: Dr. Kinsloe n.d.
8 Photographs: Ralph Kinsloe n.d.
10 Photographs: Kinsloe Family n.d.
6 "Allie May and Jane's Chariter Book" n.d.
10 Correspondence - to Allie Autry Kelley 1932-1995, n.d.
61 1 Correspondence - to Allie Autry Kelley 1932-1995, n.d.
6 Various Correspondence - Cards n.d.
5 Floorplan for the "Kelley Lounge" [Rice University] n.d.
14 Memorabilia - Ration Books [World War Two] n.d.
5 Photographs - U.S.S. Brush D.D. 745 n.d.
9 Photographs - vacations 1927, 1953, n.d.
10 Printed Material - "Songs of the Confederacy and Plantation melodies"
11 Printed Material - "Why Kinkaid School needs a gymnasium"
4 Scrapbook - [pages] Wedding Guests, Christmas cards n.d.
Col. Edward Watson Kelley was born June 12, 1896, in Newport, Rhode Island. He was a veteran of World War I and World War II. He was awarded a Purple Heart in World War I and remained in the army until 1936 when he retired with the rank of Major. He re-entered the army in 1941 and retired from service in 1944. He married Allie May Autry in 1930. He purchased the Kelley Manufacturing Co., a steel manufacturing plant in 1936. He was active in civic, church and business affairs in Houston. He died May 1, 1946.
15 Photographs - military n.d.
4 Photographs - Mike Kelley, Baby 1932-35, n.d.
5 Photographs - Mike Kelley n.d.
6 Photographs - Mike Kelley + Friends 1931-57, n.d.
4 Photographs - Dittmar and Kelley family 1962, 1975, n.d.
4 Photographs - Allie Kelley Dittmar, n.d.
7 Printed Materials - "Shadyside Amature" n.d.
5 Texas Corinthian Yacht Club Scrapbook pages n.d.
6 Allie Autry Kelley baby portrait n.d.
4 Photograph - Group with train, Corsicana n.d.
7 Photographs - Ralph Kinsloe n.d.
12 Photographs - Allie Kelley Dittmar n.d.
3 Matthews Garden Craft Catalog n.d.
5 Inventory of Furnishings, No. 5 Courtlandt Place n.d.
94 Judge James L. Autry, Jr.

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