We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TURNING A BREEZE INTO A HOPEMONGERING HURRICANE

The hopemongers are at it again. Several inmates readers have written to us about an email newsletter they received during the past couple of weeks, from a Chicago-area group talking about something it calls the “First Offender initiative.”

Under the Sentencing Guidelines, someone with zero or one criminal history point is considered to have a Criminal History of I. It’s a good place to be: Criminal History I people are on the left-hand column of the Sentencing Table, and get the lowest sentencing ranges.

Yet, there are some Criminal History I folks who have prior offenses that have timed out (and are not counted) or even a point for some recent misdemeanor. Others are as pure as Mother Teresa. Last December, the USSC proposed an amendment for 2017 to give the Mother Teresas of the federal criminal world a break. It floated the idea of a reduction in offense level for those folks, and asked for public comment.

Then the USSC ran out of members, as terms expired and too few were left for a quorum. The Senate finally approved two new members in late March, but by then, it was too late for any 2017 amendments. So this November 1, 2017, there will be no Guidelines changes.

A few weeks ago, the USSC re-issued the same proposals it had announced last December, including the proposal for a break for some Crim History I people. The Commission wants public comment on the idea, including on whether it should go with a 1- or a 2-level reduction, and whether to be eligible, a defendant just needs zero criminal history points or a completely clean record for his or her entire life up to that point.

No one knows whether the USSC will decide this should become an amendment. If it does, no one knows which options it will go with. Even if the Commission adopts it next April as a proposed amendment, it will not go into effect until November 2018.

If it does become effective, it will not be retroactive at that time. Retroactivity will require a whole new notice-and-comment process (and six-month waiting period). For the Guidelines change to benefit anyone currently locked up, retroactivity has to be approved by the USSC and not vetoed by Congress. Think maybe spring 2019 at the earliest.

Enter the hopemongers. An Illinois outfit we will not name sent an inmate newsletter in the last week or so saying “while the Sentencing Commission works to incorporate final comments into the holdover 2016 changes before they are published in the Federal Register, and the 180-day countdown begins, there is plenty of time to study those individuals who appear initially to qualify for this retroactive First Offender relief…” The newsletter urges people to get an “individualized analysis of their case so that it can be incorporated into a petition for relief.”

So what’s wrong with this nonsense? Plenty. First, these are not final comments; they are a complete do-over. Comments are due in October and reply comments in November. The USSC has given no indication it intends to start the 180-day clock until next April, for effectiveness in November 2018, as usual.

Second, no one yet knows who will be eligible and what the eligible will be eligible for. That makes it pretty hard to “study those individuals who appear initially to qualify…”

Third, calling it a “retroactive First Offender relief” is an utter falsehood. The USSC has not even suggested, let alone said, anything that would lead people to believe that this amendment – even if adopted – will be retroactive.

But the hopemongers’ primary purpose is to get prisoners and their families to pay money for a bogus “individualized analysis.” Guess there’s nothing wrong with turning a slight breeze of a hope into a get-out-of-prison hurricane is all right: after all, the targets are just inmates, and they deserve any misfortune that befalls them, right?

U.S. Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Aug. 25, 2017)

– Thomas L. Root