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

WE ARE CURIOUS AS TO WHY THEY’RE CURIOUS

In the post-conviction world, a number of legal and paralegal purveyors offer inmates assistance (for a fee, of course) in filing habeas corpus petitions, motions to reduce sentences, and other appropriate (and sometimes, not-so-appropriate) means of cutting prison time. We don’t have trouble with shameless commerce: we provide some of those services, too, and we don’t do it for free.

Nevertheless, prisoners are an extraordinarily vulnerable class of consumers. The desire for freedom is a fairly powerful urge, and many inmates are less-than-educated in the ways of the criminal justice system. Anyone mongering hope finds it fairly easy to shake money out of the families of inmates wanting to get out early.

For that reason, people offering post-conviction help to inmates should have a strong moral compass as well as a sense of caution when it comes to suggesting that a change in the law/ regulations/guidelines/ whatever is about to make everything better. Which brings us to today’s puzzler:

Another outfit which shall remain nameless (we’ll call it “XYZ Paralegal”) sent out a inmate-targeted email last week that included this observation about the U.S. Sentencing Commission:

“We were also curious why November 6 came and went without the new First Offender proposal being published in the Federal Register, which must be done to start the clock for making it effective for potential sentence reduction.”

This comment left us curious, too, curious as to what part of the Sentencing Commission’s rulemaking process the folks at XYZ don’t get. Remember that the so-called first-offender proposal is a contemplated change in the criminal history section of the Guidelines that would award extra credit to first-time people who had no prior criminal history. Currently, the best criminal history category – Criminal History I – is reserved for people with zero or one criminal history point. But someone can fall into Crim History I with a prior misdemeanor conviction, or even a sheaf of prior felonies if they are somewhere more than 15 years old. The first-offender proposal would award extra credit, in the form of a reduction in Guidelines score, for virgins, people with utterly clean records.

The Sentencing Commission released an 85-page package of proposed amendments, which included the first-offender proposal, last August, setting a public comment period that ended Oct. 10, and a reply comment period ending Nov. 6. In the proposal, the USSC asked for suggestions on a couple of alternatives: first, should the benefit be a one-level reduction or two-? Second, should the credit go to anyone with a zero criminal history score (which would benefit people who had convictions that were too old to be counted) or should it be reserved only for the purest of the pure, people with no prior convictions inter lifetimes?

So what would have made the XYZ people think that (1) all of the comments and reply comments would be digested as of midnight on November 6, and (2) the Commission would have adopted a first-offender proposal from the various options it floated, and (3) the adopted proposal would already be in the Federal Register. At minimum, this supposition exhibits a faith in the efficiency of government that anyone who’s ever dealt with Uncle Sam has long since lost.

The USSC has never suggested that the amendment proposals it released last August were intended to be adopted at any time before November 1 of this year. Indeed, anyone who is familiar with how the USSC has run the annual amendment cycle for the past 30 years knows how it works. The Commission plans to assemble a final package of amendments for adoption in April 2018. By law, those amendments will only become effective after a 6-month review period by Congress, or November 1, 2018.

There is an alternative explanation for the XYZ folks’ email. They note that XYZ is “continu[ing] to review the cases of people who appear to be eligible for relief under that proposal.” This may be why they are implying that an amendment not slated for effectiveness (if ever) for almost a year is on the cusp of being announced.

Inmates having their cases reviewed for “eligibility” under the first-offender proposal (and their families, who are paying the bill) should be forewarned: (1) No one yet knows whether there will even be a first-offender proposal; (2) If one is ever adopted, no one yet knows what the requirements will be for a Guidelines reduction, or whether the reduction will be 1-level or 2-level; and (3) Most important, the first-offender proposal will not apply to people who are already sentenced as of the day it goes into effect, unless the USSC has a separate proceeding to decide whether the first-offender proposal will be retroactive.

If all the stars align and if the first-offender proposal is adopted, and if it applies to an inmate’s case, and if it is retroactive, we never-theless expect that no one already convicted would be eligible to seek relief before about March or April of 2019 (based on what happened in the 2-level drug quantity reductions in 2007, 2011 and 2014). That is a guess, but it is one that – unlike suggesting that relief is just around the corner and you had better get your case reviewed now – makes sense.

U.S. Sentencing Commission, Proposed Amendments to the Sentencing Guidelines, 82 FR 40651 (Aug. 24, 2017)

– Thomas L. Root