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Futile Arguments of the Week – Update for October 31, 2019

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

CAPTAIN OBVIOUS

obvious191031Two cases decided last week serve as reminders that some arguments are so obviously futile as to constitute a waste of everyone’s time.

Anthony Shockey violated supervised release by using methamphetamine. Use of a controlled substance is a Grade C violation, but new criminal conduct is a Grade B or A violation. His probation officer charged him with possession of meth, a violation of state law. Tony argued to the judge that he had not possessed the meth, just used it.

Guess how that turned out.

burger191031The district court found a Grade B violation, and imposed a prison term. On appeal, Tony Shockey contended that his use of meth did not require a finding that he also possessed it. The 7th Circuit would entertain none of that. “The district court reasonably could infer possession from use,” the Circuit said. “Inferring possession of a drug from the consumption of that drug is just as sensible as inferring, from the statement ‘I ate a hamburger for lunch,’ that the person possessed the hamburger before wolfing it down.”

Meanwhile, in the Western District of New York, George Moses had a proffer deal with the government. The government says that he lied through his teeth, so much so that it obtained a superseding indictment accusing him of making false statements to federal agents.

George moved to dismiss the new counts, arguing that the proffer agreement was ambiguous about whether the government could prosecute him for any lies he told, and the ambiguity should be resolved in his favor. Last week, the district court refused to throw out the counts.

The Court noted that in the proffer agreement, George had “agreed to provide complete and truthful information regarding any and all criminal matters of which the witness may have knowledge.” Under the agreement, the government could demand George take a polygraph. And paragraph 5 provided that while the information he provided could not be used against him, “any statements… provided by the witness may be used against the witness in a prosecution for perjury, making false statements or obstruction of justice.”

liar151213The district court said that plainly, the parties’ intention gleaned from the the proffer agreement was that George would tell the truth during the proffer session. “The agreement repeatedly makes it clear that Defendant must be truthful at the proffer session,” the district judge wrote. “That was the bargain struck by the parties. To interpret the agreement in the manner urged by Defendant would constitute a tortured reading of the proffer agreement that would ultimately permit Defendant to lie with impunity at the proffer session in direct contravention of the purpose of the agreement.”
Yeah, that was pretty obvious.

United States v. Shockey, 2019 U.S. App. LEXIS 31474 (7th Cir. Oct. 22, 2019)

United States v. Moses, 2019 U.S. Dist. LEXIS 181823 (WDNY Oct. 21, 2019)

– Thomas L. Root

2255 Remand Entitled to Full Resentencing – Update for October 30, 2019

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

OWN YOUR MISTAKE

It is gratifying to see a court admit that it screwed the pooch.

goofed191029Larry Flack pled guilty to two counts. Later, he filed a §2255 motion, he argued that a conviction for receipt of child porn and for a separate count of possession of child porn violated the 5th Amendment’s prohibition against double jeopardy. The district court denied him, but the 6th Circuit granted Larry’s motion on appeal. The Circuit issued a “general remand” order, with instructions to the district court to vacate one of the convictions. The remand order gave “the district court discretionary authority over which of Flack’s convictions to vacate and whether to conduct a resentencing hearing.”

The district court did just that, vacating Larry’s possession conviction but imposing the same 262-month sentence. In its order, the district court said it “need not conduct a resentencing hearing” because its previous sentence “properly accounted” for the sentencing factors listed in 18 USC § 3553. Larry appealed, arguing the district court abused its discretion by denying him a full resentencing hearing.

sentence170511Last week, the 6th Circuit agreed. “We have previously held,” the Circuit said, “albeit on direct review, that upon a general remand for resentencing, a defendant has a right to a plenary resentencing hearing at which he may be present and allocute.” Larry’s case was one of collateral review, the Court admitted, not direct review, “but the point of that decision is that a sentencing is sentencing, regardless of the docket entries that precede it. And a sentencing must occur in open court with the defendant present.”

The 6th admitted that “in this case the district court’s error was one that this court invited… The reason why the district court did not hold a resentencing hearing, in all likelihood, is that our remand order seemed to suggest that the court did not need to. But on this record that suggestion was mistaken.” The Court vacated Larry’s sentence and remanded for him to be resentenced pursuant to a sentencing hearing.

United States v. Flack, 2019 U.S. App. LEXIS 31573 (6th Cir. Oct. 23, 2019)

– Thomas L. Root

First Step Touted While Good-Time Adjustments Languish – Update for October 29, 2019

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

FIRST STEP: TRUMP FIDDLES WHILE BOP BURNS

angrytrump191003President Donald Trump touted the First Step Act in a speech last Friday at the 2019 Second Step Presidential Justice Forum in South Carolina, talking about how the Act helped African Americans by releasing thousands of non-violent offenders to gain early release from federal prison.

“In America, you’re innocent until proven guilty and we don’t have investigations in search of that crime,” he said while accepting an award at historically black Benedict College for his role in passage of First Step.  “Justice, fairness and due process are core tenets of our democracy. These are timeless principles I will faithfully uphold as president.”

Much of what was said at the conference was overshadowed by Democratic presidential hopeful Sen. Kamala Harris (D-California), who refused to attend the conference because Trump was included on the list of speakers. Harris, whose record as a take-no-prisoners prosecutor has caused some to be skeptical of her 11th-hour conversion to the cause of criminal justice, flip-flopped on the boycott threat and agreed to show after all, after winning a window-dressing removal of one of the sponsors for its sin of giving an award to Trump.

During the hour-long address, Trump called on several people who had been released from prison under the First Step Act to the stage to offer testimonials.

Many of Trump’s Democratic presidential rivals spoke over the weekend, and took turns slamming Trump. Sen. Cory Booker, D-New Jersey, argued, “The fact of the matter is Donald Trump was given an award for the 10 seconds it took him to sign a bill into law that contradicts every one of his instincts and history of promoting racist criminal justice policies.”

I’m no Trump fan, but Sen. Booker needs to be fact-checked on this assertion.

All was not bliss for implementation of First Step last week. Filter magazine, launched in September 2018 to advocate for rational and compassionate approaches to drug use, drug policy and human rights, blasted the Bureau of Prisons for its “incompetent” application of the star-crossed additional 7 days-a-year good time.

Citing long-time prisoners who would be camp-eligible if they were granted the additional good time to which they are entitled, Filter said that due to “a potential failure, attributable to administrative inadequacy, to apply a much-anticipated reform to… federal prisoners until over a year after it was supposed to be implemented in July 2019.

screwup191028

Filter reported that as of September 16th, the Designation and Sentence Computation Center “had made First Step Act updates only for incarcerated people with previously projected release dates that fell before October 2020.” The magazine quoted a response to an August 22 administrative remedy request for recalculation filed by an anonymous inmate, in which the BOP gave no clear date for when the inmate could expect an updated GCT calculation, only explaining their prioritization of projected release dates and stating that “there may be some variance in the speed with each DSCC team completes the recalculations for the inmates assigned to them.” The BOP said “this process may take up to a year.”

A BOP official told Filter that implementing the change in good time is “complex” due to the “various federal statutes and BOP policy” with which recalculations must be “carried out in accordance.”

The BOP’s information technology systems are “dinosaurs,” Kara Gotsch, the director of strategic initiatives for The Sentencing Project, told Filter, citing explanations she’s heard from BOP staffers. Gotsch said that even this description “is generous,” adding that “it’s like they don’t have the right kind of computer” to perform the recalculations in time.

The BOP denied this claim, calling Gotsch’s explanation “speculation based on hearsay,” and added that “the computers and technology utilized by our staff are not outdated and incompetent. They use commercially-available and fully-supported technology.

Speculation it may be, but the BOP has known since last Christmas it would have to recalculate inmate good time. It’s failure to get the process in place, which would require  the use of a simple formula that any high school math geek could write with a Texas Instruments nine-buck calculator, is equally explainable as institutional arrogance or institutional incompetence.

The Columbia, South Carolina, State, Trump’s Columbia visit wraps with praise of HBCUs and reform, peaceful demonstrations (Oct. 26)

Filter, The Consequences of an Incompetent First Step Act Rollout (Oct. 15)

– Thomas L. Root

Lack of Subject-Matter Jurisdiction is Largely a Myth – Update for October 28, 2019

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

SUBJECT MATTER JURISDICTION AIN’T WHAT YOU THINK

drytoast191028Over 25 plus years of post-conviction work, I can’t count the number of inmate-written post-conviction motions I have seen claiming that a district court lacked subject-matter jurisdiction over their cases. What I can count is the number of times the claim has worked. That would be zero.

Subject-matter jurisdiction is a pretty dry topic, but it is a basic concept that should be understood by your basic high school government class student. Other than the Supreme Court, which was established in the Constitution, all federal courts are creatures of statute. That is to say, those lower courts exist only because Congress passed a law saying they exist. Congress could eradicate everything from the courts of appeal down to federal magistrate judges (who aren’t really judges, but that is a matter for another day) simply by passing a law doing so. Of course, the President would have to sign, but given the fits federal judges have given Mr. Trump in enjoining many of his prized initiatives, it’s a safe bet he’d find his pen real fast.

Because lower federal courts are creatures of statute, Congress is allowed to dictate what issues they may hear and not hear. That’s called subject-matter jurisdiction. This much-abused concept arises often in civil suits, and occasionally in post-conviction matters. But as a matter of a criminal conviction, subject-matter jurisdiction is easy and straightforward. The question boils down to this: Is the defendant accused of violating a federal criminal statute? If, yes, the district court has subject-matter jurisdiction under 18 USC § 3231. If no, the district court may not.

Most defendants raising subject-matter jurisdiction claim some defect is jurisdictional when it isn’t. The First Circuit reminded Daniel Carpenter of that last week. Dan had been sentenced and filed a notice of appeal. While the appeal was pending, the district court issued a forfeiture order. Dan argued that because he had filed his notice of appeal, the district court lacked subject-matter jurisdiction to issue any further orders in his case.

buttercup191028The 1st said Dan’s “use of the term ‘subject matter jurisdiction’ is a misnomer here.” While he may not have known it, Dan was really relying on what is known as the “appellate divestiture” rule. That rule holds that the filing of a notice of appeal “divests the district court of its control over those aspects of the case involved in the appeal,” but it does “not divest the district court of all authority.”

The appellate divestiture rule is not jurisdictional, the Circuit said. Rather, it “is rooted in concerns of judicial economy, crafted by courts to avoid the confusion and inefficiency that would inevitably result if two courts at the same time handled the same issues in the same case. Application of the divestiture rule is not mandatory and efficiency concerns are central to determining whether we should apply it here.”

In this case, the district court said at sentencing that a forfeiture proceeding would be held later. Thus, the Circuit said, “forfeiture was a certainty; the only question was the amount.” Because there would be no point to a remand, inasmuch as the forfeiture order had issued, the divestiture rule did not block the forfeiture order.

United States v. Carpenter, 2019 U.S. App. LEXIS 31113 (1st Cir. Oct 18, 2019)

– Thomas L. Root

Cops’ Crooked Pasts Not Disclosed to Defense Attorneys (Gasp!) – Update for October 24, 2019

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

NEWSPAPER SHOCKED TO DISCOVER DISHONEST COPS GET PEOPLE LOCKED UP

Under Brady v. Maryland, prosecutors must tell anyone accused of a crime about all evidence that might help their defense. That includes sharing details about police officers who commit crimes, lie on the job or whose honesty has been called into doubt.

A USA TODAY investigation reported last week that widespread failure by police departments and prosecutors to track problem officers makes it impossible to disclose information to people whose freedom hinges on the integrity of law enforcement. Reporters and the Chicago-based Invisible Institute spent more than a year gathering “Brady lists” from police and prosecutors in thousands of counties to measure compliance with the ruling.

shocked191024The report found that thousands of people have faced criminal charges or gone to prison based in part on testimony from law enforcement officers deemed to have credibility problems by their bosses or by prosecutors. At least 300 prosecutors’ offices are not taking steps necessary to comply with the Supreme Court mandates. These places do not have a list tracking dishonest or otherwise untrustworthy officers. In many places that keep lists, police and prosecutors refuse to make them public, making it impossible to know whether they are following the law.

USA TODAY identified at least 1,200 officers with proven histories of lying and other serious misconduct who had not been flagged by prosecutors. Of those officers, 261 were specifically disciplined for dishonesty on the job.

USA Today, Hundreds of police officers have been labeled liars. Some still help send people to prison (Oct. 17)

– Thomas L. Root

District Court Weighs in on Post-Davis “Attempt” Crime – Update for October 23, 2019

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EDNY DISTRICT COURT SAYS ATTEMPTED HOBBS ACT ROBBERY IS CRIME OF VIOLENCE

Last June’s Supreme Court United States v. Davis decision held that conspiracy to commit a violent crime is not itself a crime of violence. That has raised the obvious question of whether an attempt to commit a violent crime is itself a violent crime.

Robber160229Two weeks ago, an Eastern District of New York court said it was. A defendant had moved to dismiss an 18 USC § 924(c) count on the grounds that the underlying offense, attempted Hobbs Act robbery, was not a crime a violence after the Davis decision. The district court disagreed:

A completed Hobbs Act robbery itself qualifies as a crime of violence under 924(c)(3)(A) and, therefore, attempt to commit Hobbs Act robbery requires that the defendant intended to commit every element of Hobbs Act robbery, including the taking of property in a forcible manner. The definition of a crime of violence in 924(c)(3)(A) equates the use of force with attempted force, and thus the text of 924(c)(3)(A) makes clear that actual force need not be used for a crime to qualify under 924(c)(3)(A). Thus… given 924(c)’s ‘statutory specification that an element of attempted force operates the same as an element of completed force, and the rule that conviction of attempt requires proof of intent to commit all elements of the completed crime,’ attempted Hobbs Act robbery qualifies as a crime of violence under 924(c)(3)(A) as well.

The decision, which is rather thinly justified, is hardly the last word on the issue.

United States v. Jefferys, 2019 U.S. Dist. LEXIS 177234 (EDNY, Oct. 11, 2019).

– Thomas L. Root

What’s Old Is New Again As 5th Circuit Reverses Herrold – Update for October 22, 2019

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

5TH CIRCUIT UNDOES HERROLD DECISION

A lot of people were jubilant last year when the 5th Circuit reversed its long-standing United States v. Uribe decision, and held that Texas burglary was no longer a generic burglary under the Armed Career Criminal Act. If you were benefitted by the decision, we hope you got your petition in fast, because last week, the Circuit reversed course yet again.

rollercoaster191022The Herrold case has had a topsy-turvy history. A 5th Circuit panel originally affirmed Mike Herrold’s ACCA sentence on the basis that Texas burglary fit the generic definition. Then the Supreme Court, based on its intervening decision in Mathis v. United States, sent the case back for further consideration. Applying the Uribe decision, the 5th Circuit reimposed the ACCA sentence. But the hearing the case en banc, the Circuit reversed Uribe, holding that to be guilty of generic burglary, a defendant must have the intent to commit a crime when he enters or remains in the building or structure. The Court said held the Texas statute “contains no textual requirement that a defendant’s intent to commit a crime contemporaneously accompany a defendant’s unauthorized entry,” and thus was nongeneric and could not support an ACCA sentence.

On remand after the en banc decision, the district court sentenced Mike to time served. Meanwhile, the government filed a petition for certiorari. Two intervening Supreme Court decisions, Quarles v. United States and United States v. Stitt, foreclosed the two principal grounds on which Mike had contested his ACCA sentencing enhancement, so the Supreme Court sent the case back to the Circuit again.

texasburglary191022Before Quarles and Stitt, the Circuit held the Texas burglary statute is non-generic “because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.” But because of the Supreme Court decisions, the 5th said, Mike’s “old arguments no longer avail and his new ones lack merit. We hold that Section 30.02(a)(3) is generic — and Herrold’s three prior felonies are therefore qualifying predicates for a sentence enhancement under the ACCA.”

United States v. Herrold, 2019 U.S. App. LEXIS 31139 (5th Cir. Oct. 18, 2019)
– Thomas L. Root

House Subcommittee Holds Oversight Hearing on First Step, and Tales Abound – Update for October 21, 2019

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

A TALE OF TWO BOPs

twocities191022At a House of Representatives Subcommittee on Crime, Terrorism and Homeland Security oversight hearing last Thursday on implementation of the First Step Act, it seemed at times that legislators were hearing about two different Bureaus of Prisons. One was staffed by dedicated professionals who were rapidly “developing guidance and policies to ensure appropriate implementation” of First Step. The other BOP was cutting halfway house, providing inadequate programs and “acting in ways that result in lengthier and less productive terms of incarceration despite the obvious will of Congress.”

Dr. Kathleen Hawk Sawyer, the veteran BOP hand brought back from retirement to take over the agency 12 weeks ago in the wake of the Jeffrey Epstein suicide fiasco, told the subcommittee that sentence reductions under the newly-retroactive Fair Sentencing Act has resulted in over 2,000 orders for release, with the release thus far of over 1,500 of those inmates. She told the Subcommittee that BOP “staff also immediately began the challenge of re-programming our Good Conduct Time (GCT) sentence computations to reflect the change. As a result, on July 19, 2019, when the GCT change took effect commensurate with the Attorney General’s release of the Risk and Needs Assessment System, the Bureau executed timely releases of over 3,000 inmates.”

This will come as surprising news to the thousands of people whose sentences have not yet had the revised GCT computations applied to their sentences.

She also reported that since First Step was signed into law, 95 inmates have received compassionate release (although she did not specify how many releasees were recommended by the BOP). She said the BOP has approved 328 inmates for the Elderly Offender Home Detention program, with 242 already on home detention and the balance awaiting placement.

wereonit191022Sawyer Hawk urged the Subcommittee to fund and approve expanded UNICOR purchasing approval, authorizing more agencies, nonprofits and governments to buy UNICOR products. She said UNICOR employment has fallen from 20,000 several decades ago to 11,000 now, but that expansion of the pool of eligible buyers in the First Step Act assured that the number of UNICOR inmate employees would increase.

Sawyer Hawk implied that UNICOR, GED, literacy and drug programs would be among the programs for which earned-time credit was given once the PATTERN risk and needs assessment system was implemented. Apparently, the independent review committee that developed PATTERN also “selected programs to designate as evidence-based recidivism-reduction programs and productive activities,” according to Review Committee member John P. Walters, but neither he nor any other government witness identified what the programs would be.

Sawyer Hawk testified that training of BOP staff is underway for application of PATTERN as well as a yet-undefined system of assessing an inmate’s needs for programming. The suggestion is that BOP staff will select the programs that an inmate can take for earned-time credit according to the individual needs of the inmate for such programming. Sawyer-Hawk said, “The Bureau already has in place a robust Needs Assessment system, and we are working with experts in the field and research consultants to further enhance it.”

Walters tried to assuage concerns about PATTERN, telling the Subcommittee that the commission is working on “somewhat substantial” changes aimed in particular at removing possible bias in the tool. He said the contractors who developed the PATTERN system have run 200 additional hours of analysis at the independent review commission’s direction with the hopes of weeding out bias. “Obviously we want the instrument to be valid, but we also want the instrument to capture real differences and not bias,” Walters said.

A much less rosy picture was painted by New York City Federal Defender executive director David E. Patton and Professor Melissa Hamilton. Patton pointed out that current DOJ data show 49% of federal inmates complete no programs, 82% of such inmates receive no technical/vocational courses or UNICOR employment, and 57% of federal inmates needing drug treatment receive none. “Relatedly,” Patton said, “we are deeply troubled that there is still no needs assessment as required under the FSA, and that the BOP does not expect one to even be available for testing until the second quarter of 2020.”

Hamilton complained that PATTERN was being developed in an opaque process, one in which routine requests for release of the underlying data – something the U.S. Sentencing Commission does as a matter of course – and Freedom of Information Act requests have been ignored. The Brennan Center for Justice “requested release of information on the BRAVO/BRAVO-R tools that the DOJ Report indicates are foundations for PATTERN,” Hamilton testified, “yet were rebuffed because of proprietary claims. This initial assertion of secrecy is deeply concerning.”

casemanagers191022Patton also questioned the BOP’s commitment to halfway house placement. The BOP said in a 2017 memorandum that “due to fiscal constraints,” the average length of halfway house stay was “likely to decline to about 120-125 days.” However, Patton asserted, “anecdotal information from prisons indicates that counsellors have been told to limit the amount of prerelease time in reentry centers to even less than 120 days. At one prison, individuals reported seeing a printed sign on the counsellor’s wall reading: ‘We will put you in for a maximum of 90 days of RRC time, but it will most likely be less. Yes we know what the Second Chance Act says’.”

Rep. David Cicilline (D-Rhode Island), pointedly asked Sawyer-Hawk why people close to release whose dates were advanced by the additional 7 days-a-year good time were not having halfway house dates changed accordingly. Sawyer Hawk expressed surprise, saying that this was not happening throughout the system, and she would look into whether it was happening in New England.

Subcommittee’s questions focused primarily on the heating crisis at MDC Brooklyn, the Epstein suicide at MDC New York, BOP staffing levels nationwide and the PATTERN programming. One noteworthy moment came at the beginning of questions from Rep. Hakeem Jeffries (D-New York). He read a statement from the family of Troy Pine, the man Noel Francisco allegedly murdered in Providence, Rhode Island, several weeks ago. Francisco was released early because of the retroactive Fair Sentencing Act, creating a firestorm of criticism over the First Step Act.

Pine’s nephew urged people not to blame Trump or the First Step Act. “Anyone who speaks my uncle’s name, please speak it in a way that will draw people together, and bring help to people in these communities, including human beings who have been locked up for too long,” Jeffries read from the statement.

A Washington Times column on Saturday agreed: “The First Step Act is working. According to the FBI, the violent crime rate is at its second-lowest point since 1991. As previously stated, thousands of people have returned home as a result of First Step, more than 1,700 releases as a result of the crack cocaine/powdered cocaine disparity provision alone. And this case is the first reported incident of a First Step Act recipient re-committing a serious crime.

“But even one tragedy is one too many, and we still have much work to do. Our system is still broken, and we should focus on reforms that offer second chances, but more importantly, keep us safe.”

House of Representatives Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the Federal Bureau of Prisons and Implementation of the First Step Act (Oct. 17)

Washington Times, First Step Act is working, but the criminal justice system is still broken (Oct. 19)

Providence Journal, Nephew of Providence murder victim: Don’t blame First Step Act (Oct 18)

– Thomas L. Root

A Lesson in Government – Update for October 17, 2019

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

HOW (AND WHY) OUR LAWS ARE MADE

howlawsmade191018Remember government class in high school? Not so much, huh? Back to school time, boys and girls… Here’s a real-life example of how legislation is written:

In 2010, Congress passed the Fair Sentencing Act, reducing the 100-1 ratio of crack to powder cocaine to 18-1. Under the old regime, a defendant with 1 gram of crack cocaine was deemed to have 100 grams of powder cocaine. Because sentences vary in proportion to the amount of controlled substance possessed, a defendant (almost always black) with a slight amount of crack was punished much more severely than a defendant (usually white) with a slight amount of powder coke.

The FSA as proposed would have eliminated the disparity altogether, so that the mandatory minimum for a kilo of powder was the same for a kilo of crack. The House passed the bill with a 100-1 ration reduced to 1-1. But when the bill finally passed the Senate, 1-1 has mystically become 18-1. No one could figure out where the 18-1 ratio came from. Careful deliberation? Scientific studies?

sessions170811“We could find no objective proof that crack cocaine was in fact more dangerous than powder cocaine,” said Sen. Richard Durbin (D-Illinois), sponsor of the Senate version of the bill, explaining the rationale behind the original draft. But then-Sen. Jefferson Beauregard Sessions III (R-Alabama) was opposed to changing the ratio at all, believing that the crime rate was falling because more people were being locked away for a long time (as well as thoroughly enjoying the prospect of those dangerous black criminals from the hood being warehoused in federal prisons for decades on end).

The day the bill was to come up for a committee vote, Durbin ran into Sessions at the Senate gym. Durbin recounted, “I said to Jeff, “come on, Jeff. We can’t just stop the conversation and see this bill die in committee.” said Durbin. “If you won’t do this 1-1 deal, what deal will you do?”

Sessions offered lowering 100-to-1 to 25-to-1. Durbin countered, 10-to-1. No dice, Sessions said.

What about 15-to-1?

“I’ll take 18-to-1,” Durbin recalls as Sessions’ response.

“We moved from 100-to-1 to 18-to-1 because of a conversation in the Senate gym, that is literally how it happened,” said Durbin.

violent160620A further lesson, this one on what influences legislators. It does not matter how many success stories arise from people who got out early because of the First Step Act’s retroactivity for crack defendants. The public will be reminded endlessly of the one failure.

Stories last week continued to highlight Joel Francisco, released on a sentence reduction last spring, who is a fugitive after allegedly stabbing a man to death in a Providence, Rhode Island, hookah lounge. The Providence Journal again noted that “the life sentence was reduced to time served under a bipartisan criminal justice reform law signed by President Trump in December.”

The conservative American Thinker was more graphic:

Cmdr. Thomas Verdi, the deputy chief of the Providence Police Department, who was familiar with Francisco, warned federal officials that the ‘crown prince of the Almighty Latin Kings’ gang… had a ‘propensity for violence…” At the news of his release, Verdi expressed his doubts about Francisco’s rehabilitation. He was right. Last Wednesday, Francisco, 41, stabbed 46-year old Troy Pine to death.

It only takes one failure, and a compliant news media, to poison the public on sentencing reform.

An opinion piece in The Hill this week, however, tried to put the Francisco matter in context: 

[I]f Francisco is guilty of this crime, he is the exception not the norm. Thousands of individuals are being released from custody under the First Step Act, and many more who have worked hard to prove their rehabilitation stand to benefit in the months to come. While it’s still too early to assess how many of these individuals will commit a new offense, there has hardly been a widespread spike in crime.  

The criminal justice system is not perfect; there will always be cases where someone returns to crime after re-entering society. The only way to guarantee that this doesn’t happen – the fear-filled, totalitarian way – is to imprison everyone who commits a crime for life. The pragmatic, limited-government way is to continue reforming the criminal justice system until we’ve achieved a balanced measure of accountability and rehabilitation.

Peoria, Illinois, Journal Star, Sen. Dick Durbin recalls how he and Jeff Sessions struck deal on Fair Sentencing Act in Senate gym (Oct. 10, 2019)

Providence Journal, Heartbroken father urges son, accused of fatal Providence stabbing, to turn himself in (Oct. 9, 2019)

American Thinker, Trump-supported early prison release law draws blood (Oct. 10, 2019)

The Hill, Don’t give up on the First Step Act (Oct. 17, 2019)

– Thomas L. Root

Too Many Questions, Too Few Commissioners – Update for October 16, 2019

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

DENIAL HIGHLIGHTS JUDICIAL SPLIT ON COMPASSIONATE RELEASE

compassion160208A key provision of the First Step Act allows federal courts to reduce sentences under the so-called compassionate release statutory provisions of 18 USC § 3582(c)(1)(A)(i) – which establishes an ‘extraordinary and compelling” reason standard – without needing a motion from the Bureau of Prisons. Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that “if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.”

A decision last week in the Southern District of Iowa denying Les Brown compassionate release illustrates the conundrum. Under 28 USC § 994(t), the Sentencing Commission is directed to define “the criteria to be applied and a list of specific extraordinary and compelling examples” for grant of § 3582(c)(1)(A)(i) motions. The Commission defined four examples, one medical, one due to age, one due to family circumstances, and one catch-all (that “there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)).”

Now the problem: The USSC has not updated its definition since the First Step Act passed. Instead, its policy statement still simply guides the Bureau of Prisons (which has traditionally been very resistant to an Sentencing Commission guidance). The new procedure mandated by the First Step Act calls for new guidance, but the Commission remains mute.

noquorum191016Sadly, there’s a reason for the USSC’s quiescence. The Commission cannot amend its policy statement because the agency lost its quorum last December, about two weeks before First Step passed, and it is still two commissioners short of a quorum. The Trump Administration apparently sees the Commission as a backwater for which no urgency exists in nominating replacement commissioners. For the foreseeable future, the Commission remains impotent, and the compassionate release policy cannot not be updated.

Some district courts have concluded this means the Commission lacks any applicable policy statement dictating when a judge can grant compassionate release. These courts have decided that this means the district judge can consider anything — or at least anything the BOP could have considered (whether it did or not) — when assessing a defendant’s motion.

But others have held that First Step merely lets them grant a motion for compassionate release if the BOP Director could have done the same under the guidelines and the old Program Statement. These courts hold that judges may not stray beyond the four bases listed in USSG §1B1.13.

Sentencestack170404Last week’s ruling by Senior Judge Robert Pratt is a thoughtful opinion about compassionate release, issued in response to defendant Les Brown’s motion to reduce his 510-month sentence. That sentence was pumped up by a 300-month second 18 USC §924(c) sentence, one that could no longer be imposed since passage of the First Step Act. While Judge Pratt finds that “much about Defendant’s situation is extraordinary and compelling,” he concluded “the Court cannot exercise its discretion to grant release at this time.”

The Judge calculated that even if First Step let him retroactively reduce the second § 924(c) sentence from 300 months to 60 months (which the Act doe not permit), Les would still face a total of 210 months in prison. As of now, he has served only 167 months, “a long stretch by any measure, and perhaps more than appropriate for Defendant’s crimes. Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an ‘extraordinary and compelling reason’ for compassionate release.”

Judge Pratt suggested that Les could come back at 210 months to make his argument. For what it’s worth, I believe that by then, Congress will have revisited the issue and made the § 924(c) sentencing change retroactive, just as it did with the Fair Sentencing Act’s changes to crack minimums.

Prof. Berman complained that “Judge Pratt refuses to use the legal tool available to him to reduce Brown’s sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.” He is correct. However, until higher courts resolve the conundrum of the missing USSC guidance (or the Commission regains a quorum, and fixes the statement on its own), the present confusion is going to work to the detriment of a lot of inmates.

United States v. Brown, 2019 U.S. Dist. LEXIS 175424 (SD Iowa Oct. 8, 2019)

– Thomas L. Root