We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
MCCONNELL TO BRING FIRST STEP TO A VOTE
Senate Majority Leader Mitch McConnell (R-Kentucky) folded yesterday, announcing during a floor speech that the Senate will vote this month on the FIRST STEP Act, S.3649.
McConnell said the Senate will take up the legislation, written by Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), Sen. Richard J. Durbin (D-Illinois) and several other Democratic and GOP senators, despite the controversial nature of the bill within the Senate Republican ranks. The bill could be debated as early as the end of this week.
Proponents of the bill believe the changes could receive as many as 85 votes in the Senate. House Speaker Paul Ryan (R-Wisconsin), who also privately pressured McConnell to take up the bill, has pledged swift action before the House leaves town for the year-end holidays.
The decision to put the bill to a vote comes “at the request of the president and following improvements to the legislation” secured by several senators, McConnell said.
At this time, no one knows what FIRST STEP’s sponsors had to give away, but Sen. Ted Cruz (R-Texas) said last Friday that he was supporting the measure now because it would be amended to prevent those convicted of crimes of violence from benefitting from earning earlier release for completing programs that reduce recidivism.
McConnell warned that because of the decision to add the criminal justice bill to the Senate agenda, “members should now be prepared to work between Christmas and New Year’s.” He urged senators to “work together or prepare for a very, very long month.” On the Senate’s to-do list is passing a farm bill, averting a partial government shutdown and clearing the deck of judicial and executive branch nominations.
The legislation has the strong support of Trump and his adviser and son-in-law Jared Kushner. Responding to McConnell’s announcement, Trump’s daughter Ivanka tweeted, “It’s official . . . the #FIRSTStepAct is headed to the floor for a vote. This historic legislation will reform our prison system and lift millions of Americans!”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUPREME COURT BROADENS ACCA BURGLARY IN EARLY LUMP-OF-COAL DECISION
The Supreme Court yesterday issued an unexpectedly-early decision in United States v. Stitt, delivering a lump of coal to the stockings of people still hoping to to convince a court that their state burglary prior conviction should not count as a “prior” under the Armed Career Criminal Act. In a unanimous decision, the Court held in a Justice Breyer opinion that burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation counts as a “generic burglary” in the ACCA’s“enumerated offenses” clause.
First, a review: Under the ACCA, a defendant convicted of being a felon in possession of a firearm under 18 USC 922(g)(1) receives an enhanced sentence. The basic 922(g)(1) conviction carries a zero to ten-year sentence. But if the ACCA applies, the sentence starts at 15 years and goes to a maximum of life.
A defendant qualifies for an ACCA sentence if he or she has three prior convictions for a serious drug offense or a crime of violence. The Stitt opinion concerned the ACCA’s crime-of-violence definition. A crime of violence is either (1) one of four listed crimes, burglary, arson, extortion or use of explosives, or (2) a crime which requires the use of force or threat of force against another. The first clause is known as the “enumerated offense” clause, which the second is called the “elements clause.”
In deciding whether an offense qualifies as one of the enumerated offenses – burglary, extortion, arson or use of explosives – under the “violent felony” definition in the ACCA, the “categorical approach” first adopted in the 1990 decision Taylor v. United States requires courts to evaluate a prior conviction by reference to the elements of the offense instead of the defendant’s actual conduct. A prior state burglary conviction does not qualify as a generic burglary under the ACCA where the elements of the offense are “broader than those of generic burglary,” as explained in Mathis v. United States.
The Supreme Court has defined the elements of a generic burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. Under that definition, breaking into a car, a boat, an RV or even a mobile home often was not considered a burglary because it was not a “building or other structure.”
Yesterday’s decision changed all of that. In a consolidated case covering two defendants from two separate states, Arkansas and Tennessee, the Supreme Court expanded that previous definition, saying in effect that burglarizing anywhere that is used for overnight lodging falls within the ACCA’s generic burglary definition. The Court said Congress intended that the burglary definition reflect “the generic sense” in which the term ‘burglary’ was used in the criminal codes of most States when the ACCA was passed.
At that time, a majority of state burglary statutes covered vehicles adapted or customarily used for lodging. Also, Congress viewed burglary as an inherently dangerous crime that “creates the possibility of a violent confrontation” between the burglar and an occupant. An offender who breaks into a mobile home, an RV, a tent, or another structure or vehicle “adapted or customarily used for lodging creates a similar or greater risk of violent confrontation.”
The Court said it did not matter if the vehicle or structure was only used for lodging part of the time, meaning that conceivably, breaking into new RVs on the dealer’s lot would still count toward an ACCA sentence.
One of the two defendants, Jason Sims complained that Arkansas’ statute remained too broad, because it also covers burglary of “a vehicle… [w]here any person lives.” He said since homeless people sometimes sleep in cars, this means that breaking into any car would fall under the ACCA definition. The Supreme Court said the question of whether the statute would be applied that way needed to be decided by a lower court, and remanded Jason’s case to a lower court to decide the merits of the claim.
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 GETS KNOCKED DOWN, BUT IT GETS UP AGAIN, CAN MCCONNELL EVER KEEP IT DOWN?
The lyrics from “Tubthumping,” Chumbawamba’s 1997 hit, describe the FIRST STEP Act’s week. The bill got knocked down early in the week by inaction and demagoguery, to the point that pundits were writing the bill’s obituary last Thursday. But the prison and sentencing reform act stumbled back up again on Friday, with three surprisingly positive developments.
FIRST STEP is still far from being passed, but the pressure (for a change) is on Senate Majority Leader Mitch McConnell (R-Kentucky) instead of on the bill’s supporters. Sen. John Thune (R-South Dakota) seemed to signal that McConnell may yield to pressure. On Face the Nation yesterday, Sen. Thune said of FIRST STEP, “There are timing issues associated with it but there – at the moment at least there are still some substantive issues that are being resolved. I think if they get that worked out, if they can attract the support of more Republican Senators, there – there’s still an opportunity I think for that to be finished this year, but if not obviously it – it will be taken up again next year-”
The big news of the week came late on Friday, when President Trump decided to check back in on the bill, and pressured McConnell to bring FIRST STEP to a vote during the crowded lame duck session. After going mostly silent on the bill for several weeks, Trump singled McConnell out on Friday on his Twitter feed:
Trump’s public demands do not guarantee McConnell will bring the bill to a vote. He has told Trump several times that the Senate calendar is too cluttered in December to take up a bill that divides Republicans. As late as Thursday, McConnell had not mentioned the bill at either of two GOP senator meeting, and he has reportedly told senators there’s almost no window to take up the bill this year, according to multiple GOP sources.
One McConnell adviser said the senator does not intend to have a vote on the legislation because he does not have enough time and is more focused on other things — like funding the government and confirming judges. “He doesn’t like the bill,” the Washington Post reported Republican donor Doug Deason, a key White House ally, said of McConnell’s view of FIRST STEP. “He’s a Jeff Sessions-style, lock-them-up-and-throw-away-the-key kind of guy.”
White House officials say McConnell doesn’t want a vote unless the overwhelming majority of Republicans will vote for it — although both Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Sen. Mike Lee (R-Utah) said that 28 or 30 GOP senators support the bill. There are 51 Senate Republicans, and nearly all of the 49 Senate Democrats are expected to back it.
McConnell complained at a Wall Street Journal event last week that such a bill requires a week or ten days to consider, while there are only two weeks left before the planned holiday recess and budget bills that must be passed. FIRST STEP advocates argue that it would only take a few days, with a cloture vote capping debate at 30 hours. McConnell acknowledged support on both sides of the aisle but called the legislation “extremely divisive inside the Senate Republican conference,” with more members undecided or opposed than in favor.
“That’s his calling card, protecting his conference,” said Kevin Ring, president of FAMM. The Atlantic suggested yesterday that while past majority leaders like Lyndon Johnson might have strong-armed their members, McConnell waits for near-unanimity among Senate Republicans. “I think he’s not just looking for 60 votes,” said Brett Tolman, a former U.S. Attorney in Utah who also worked as a GOP Senate staffer and now advocates for criminal-justice reform. “He’s looking for a majority of Republicans.”
But it’s not a bad thing.
Earlier in the week, FIRST STEP opponents Sen. Tom Cotton (R-Arkansas), John Kennedy (R-Louisiana) and Ted Cruz (R-Texas) seemed to be on a roll, denouncing FIRST STEP as giving immediate release to sexual predators, drug kingpins and gun-toting gangbangers. But Friday, just before Trump’s renewed support, Sen. Cruz flipped, issuing a press release pledging support:
“I have long supported criminal justice reform. I believe in reducing mandatory minimum sentences for non-violent drug offenders, and providing greater opportunities for offenders to be rehabilitated. At the same time, I do not believe we should be granting early release to violent offenders.
“That is why I drafted an amendment that would exclude violent offenders from being released early. I’m happy to report that, after working closely with the White House and the sponsors of this bill, they have decided to accept my amendment. This new version of the bill resolves my concerns, and is one that I wholeheartedly support and cosponsor.”
Also, last Friday a leading FIRST STEP opponent announced his support of key planks of the legislation. Larry Leiser, president of the National Association of Assistant U.S. Attorneys, told the Washington Examiner he supports in principle three of four major sentencing reforms included in FIRST STEP.
The possible turning of the tide seems to have little effect on McConnell’s reluctance to hold a vote. He has angered some GOP senators and created an unusual rift with Sen. Grassley, a longtime McConnell ally. Grassley has spent years building a coalition around FIRST STEP and is pushing hard for a vote this year. “We’ve done what needs to be done,” Grassley said about the overwhelming support for the bill. “So what’s holding it up?”
On Friday, Sen. Lindsey Graham (R-South Carolina) intervened, talking directly to President Trump about attaching the criminal justice legislation to the must-pass year-end spending bill, which is already tangled in a separate fight over funds for the border wall with Mexico. “Just talked with President,” Graham tweeted. “He strongly believes criminal justice reform bill must pass now. He also indicated he supports putting criminal justice reform bill on year-end spending bill which must include MORE wall funding.”
The spending bill will need approval by Dec. 21 to avoid a funding lapse days before Christmas.
On Thursday, Sen. Lee said there were 28 hard “yes” Republican votes plus 49 Democrats for the bill. “It’s rock-solid,” he said. But Sen. John Cornyn (R-Texas), the Senate Republican whip, said more Republicans needed to be convinced. “Right now we have a majority of the Republican conference either undecided or no,” he told reporters. He also continued to call for some changes to the bill.
Despite Sen. Lee’s assurance that he has 49 Democrat votes in favor of FIRST STEP, The Hill reported Wednesday Democrats who are mulling 2020 presidential bids have split over whether to support FIRST STEP. The decision to support or oppose the bill is a significant policy decision for 2020 Democrat candidates.
Among Republican senators, Sen. Rand Paul (R-Kentucky) told CNN that there’s a generational divide within the party on the issue. “I think there are people who were teenagers in 1937 watching ‘Reefer Madness’ and they’re still concerned that Reefer Madness is going to take over and everybody is going to become zombies, hacking and killing everyone if they smoke pot,” said Sen. Paul, a FIRST STEP supporter. “And then there are a couple of generations after 1937 of people who don’t see it with the same degree of evil.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
INDICTMENT “PILING ON” VIOLATES DOUBLE JEOPARDY
Pablo Chilaca was convicted of four counts of possessing child pornography in violation of 18 USC 2252(a)(4)(B). He got four concurrent 66-month prison terms. Chilaca appealed, arguing that his four counts of conviction were multiplicitous.
An indictment is not multiplicitous merely because it charges more than one violation of the same statute based on related conduct; instead, a defendant can be convicted of multiple violations of the same statute if the conduct underlying each violation involves a separate and distinct act. However, where a single act or transaction is alleged to have resulted in multiple violations of the same statutory provision, the proper inquiry involves the determination of what Congress has made “the allowable unit of prosecution.”
Last week, the 9th Circuit held that under 18 USC 2252(a)(4)(B), which makes it a crime to knowingly possess one or more matters containing any visual depiction of child pornography, simultaneous possession of different matters containing offending images at a single time and place constitutes a single violation. The panel held that the four counts charging the defendant with possession of child-pornography images on separate hard drives found at the same time and in the same place were multiplicitous and constituted double jeopardy.
The panel held the error was not harmless, but that because the record clearly shows that evidence presented at trial would have been the same regardless of the number of counts charged, no new trial was warranted. The panel remanded with instructions to vacate three of the four counts of convictions and to resentence the defendant on the remaining count.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUPREME COURT HEARS TWO CONSEQUENTIAL CASES
The Supreme Court heard oral arguments last week on forfeiture and whether someone screwed up in leaving a big chunk of Oklahoma as Indian Country.
Tyson Timbs, an Indiana man who lost his 2012 Land Rover after he pleaded guilty to drug charges. The state argued that it could seize the car because it had been used to transport drugs, but Tyson countered that requiring him to forfeit the $42,000 car – which he had bought with inheritance money – would violate the 8th Amendment’s ban on excessive fines, because the value of the vehicle was nearly four times the maximum fine that could have been imposed. The question before Court in Timbs v. Indiana was simply whether the 8th Amendment’s prohibition of excessive fines applies to the states at all.
The justices appeared to agree that it does. However, there is wide disagreement on what kind of forfeiture is excessive. Federal defendants can hope for the Court to define when forfeiture is too much, but observers think that the justices are likely to say that excessive fines clause applies to the states, but not much more.
Carpenter v. Murphy asked whether a large part of eastern Oklahoma, including where Patrick Murphy is alleged to have committed murder and the entire City of Tulsa, still lies within the borders of a reservation granted to the Creek Nation when it was forcibly relocated to the Oklahoma Territory in the early 19th century. If so, then Oklahoma had no jurisdiction to try Murphy: The Major Crimes Act would give exclusive jurisdiction over that murder to federal authorities, because Murphy is a Native American. The formal procedures that Congress followed when it organized the state of Oklahoma did not explicitly terminate the reservation on which the crime occurred. Because the Supreme Court’s earlier cases have emphasized the importance of statutory language explicitly terminating a reservation, the lower court concluded that the reservation remains in place.
The case is important to a number of federal defendants, whose prior convictions could be wiped out, affecting not only ACCAconvictions and 21 USC 851 drug enhancements, but Guidelines criminal histories as well.
The Court is clearly grappling with the law that plainly makes eastern Oklahoma Indian Country versus the wholesale dislocation that upholding the Tenth Circuit would cause. Yesterday afternoon, the Court took the unusual step of calling for additional briefing on two questions that suggest it is looking for a creative way to decider the case. The first is whether some statute out there may authorize Oklahoma prosecutions “irrespective of the area’s reservation status.” If Oklahoma has such authority, then the criminal-law disruption from recognizing the reservations as still existing would be substantially less.
The second question is whether there “are circumstances” in which land that still qualifies as Indian Country might nevertheless not be “Indian country as set forth in 18 USC 1151(a).” If so, the Major Crimes Act would not divest Oklahoma of the authority it has exercised through the years to prosecute offenses committed by Native Americans.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
STATE TIME MAY NOT BE BETTER… BUT IT IS SHORTER
Federal inmates (and especially their families) often complain that the prisoner would be better off with a state conviction, because he or she would have gotten a shorter sentence? True? Or just a federal inmate myth?
The Bureau of Justice Statistics released a report last Wednesday reporting on how much time offenders serve in state prisons, and it is illuminating.
The average time served by state prisoners released in 2016, from initial admission to initial release, was 2.6 years. By comparison, in 2016, federal prisoners served an average of 3.6 years.
All of those who thought they would have been better off killing someone than, say, looking at child porn or selling drugs, now have some hard numbers to back up their beef: defendants sentenced for murder or non-negligent manslaughter served an average of 180 months in state prison before their initial release. This means that if a federal inmate has more than 206 months – like the guy who contacted us the other day with a 360-month sentence for a marijuana conspiracy – he or she should have just shot that meth customer instead of dealing to him.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
MCCONNELL EQUIVOCATES AS COTTON YELLS “SEX OFFENDER!” IN BID TO TANK FIRST STEP ACT
Sen. Charles Grassley (R-Iowa), chairman of Judiciary Committee, introduced the long-awaited hybrid FIRST STEP Act (S.3649) last Monday, and moved it out of Committee to the floor of the Senate the same day. That’s pretty much good news of the week.
President Trump is still pressing the Senate to take action this year, and the ACLU is running ads in Kentucky demanding that Senate Majority Leader Mitch McConnell (R-Kentucky) schedule a floor vote. McConnell said last Tuesday that he will go where the votes are within the Republican Party. “We will be whipping that to see whether — what the consensus is — if there is a consensus in our conference about not only the substance, but the timing of moving forward with that particular piece of legislation,” McConnell told reporters.
Sen. Roy Blunt (R-Missouri) said last Friday that at least half of the Republican conference supported the bill. “If we get to it this year, it’ll be largely because of White House pressure,” said Blunt, a member of the GOP Senate leadership. “My guess is that at least half of our members are for it and most of the Democrats.”
As of yesterday, McConnell was declining to talk about his plans for FIRST STEP. An unnamed attendee at a White House meeting last Tuesday, which McConnell attended as well, assessed the prospect that McConnell will put FIRST STEP on the floor at “less than 50/50.”
The Washington Post reported last Tuesday that Republicans are actively discussing changes to FIRST STEP in order to win more GOP support. One change being discussed privately is tightening the “safety valve” provision. Although the most recent draft of the bill broadens the people eligible for “safety valve” treatment, Sen. David Perdue (R-Georgia) said senators are talking about reducing the people who would qualify for the “safety valve” provision.
Breitbart.com reported Saturday that a Senate document circulating among FIRST STEP opponents lists 20 violent crimes it says would be eligible for early release under the bill. The letter lists crimes including failing to register as a sex offender, drug trafficking, assaulting law enforcement, and making death threats against U.S. lawmakers, asks, among other things, whether the Senate can “trust the BOP to correctly categorize who is high vs. low risk?”
This is consistent with vocal complaints last week from Sen. Tom Cotton (R-Arkansas), FIRST STEP’s biggest opponent, that sex offenders could get off easy. He based his claim on a Dept. of Justice report that the bill could make people convicted of some sex crimes eligible for early release.
Ohio State University law professor Doug Berman lamented last week in his Sentencing Law and Policy blog that, while it seems “a super-majority of all Senators (representing a super-super majority of the nation’s population) want this legislation enacted… that a few Senators from a few states can, in essence, exercise a heckler’s veto highlights why thoughtful federal criminal justice reform has been so very hard.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BOP WALKS INTO BAD PRESS BUZZSAW
BOP Acting Director Hugh J. Hurwitz probably felt more like the dinner than the diner by the time Thanksgiving rolled around a week ago, after the beating his agency took in the media in the preceding days.
First, the New York Times published a long story detailing the sexual harassment suffered by female BOP staff. “For women who work in federal prisons, where they are vastly outnumbered by male colleagues and male inmates,” the Times wrote, “concealing every trace of their femininity is both necessary and, ultimately, futile… Some inmates… stare… grope, threaten and expose themselves. But what is worse, according to testimony, court documents, and interviews with female prison workers, male colleagues can and do encourage such behavior, undermining the authority of female officers and jeopardizing their safety. Other male employees join in the harassment themselves.”
The Times found that women who reported harassment “face retaliation, professional sabotage and even termination,” while the careers of many male BOP harassers and those who protect them flourish. The Times named names.
But The Gray Lady wasn’t done with the BOP. Two days later, the paper ran a detailed piece questioning how Whitey Bulger ended up at Hazleton general population, where he was promptly murdered. The Times reported, “Several prison workers questioned why so many people at Coleman and in the Texas office would have approved a transfer of Mr. Bulger to Hazelton, a facility that houses some inmates tied to organized crime and that has a reputation for being dangerous for snitches. The workers also questioned why staff members at Hazelton would have approved placing Mr. Bulger in the prison’s general population. Mr. Bulger was the third inmate to be killed at Hazelton this year.”
The paper quoted one unnamed worker who said, “That was a monumental failure and a death sentence for Whitey.”
The Times said the BOP issued a statement saying that Bulger’s transfer to Hazelton was made in accordance with its policy, including a review of whether inmates there were known to be a threat to him.
Meanwhile, The Marshall Project suggested that the BOP’s 2014 policy that promised better care and oversight for inmates with mental-health issues was a fraud. “Data obtained through a Freedom of Information Act request shows that instead of expanding treatment, the bureau has lowered the number of inmates designated for higher care levels by more than 35 percent.” TMP says prison staff are determining that prisoners—some with long histories of psychiatric problems—don’t require any routine care at all. As of last February, the BOP classified just 3% of inmates as having a mental illness serious enough to require regular treatment. By comparison, more than 30% of California state prisoners receive care for a “serious mental disorder.” In New York, its 21%, and In Texas, it’s about 20%.
TMP says that when BOP changed its rules, “officials did not add the resources needed to implement them, creating an incentive for employees to downgrade inmates to lower care levels.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TURKEYS PARDONED, NOW HOW ABOUT PEOPLE?
President Trump “pardoned” two turkeys at the annual White House ceremony held last week, but told reporters afterwards that he hadn’t considered giving any people clemency for Thanksgiving.
Speaking to reporters, Trump side-stepped a question about whether he would issue holiday pardons. “I love the pardons for the turkey,” Trump said. Asked if he would pardon any people, Trump said: “I haven’t thought of it — it’s not a bad thing.”
Behind bars, Trump has generated enormous hope for presidential clemency. Two weeks ago, he endorsed the FIRST STEP Act, after saying in October that “a lot of people” are jailed for “no reason” and that he was “actively looking” for inmates to release.
There are signs that the White House and the Dept. of Justice Office of Pardon Attorney are processing commutation requests from prisoners and pardon requests from already released inmates, making clemency advocates hopeful for near-term reprieves. Trump already has been more generous than recent predecessors early in his first term, issuing nine pardons and prison commutations. He hasn’t given any clemency grants in four months, however, in an apparent pause for the midterm elections.
Last week, New York University law professor and former federal prosecutor Mark Osler wrote that “the process used to choose which turkey might be pardoned is far more rational, efficient and effective than the one used to evaluate clemency for humans.
First, he said, the pardons occur regularly, every year, not just in the last days of an administration. Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation responsible for managing a thorough selection process. Third, there are defined criteria. The finalists are selected based on their willingness to be handled, their health and their natural good looks. Fourth, attention is paid to making sure they thrive after their grant of clemency. After the ceremony, they are sent to Virginia Tech’s “Gobbler’s Rest” exhibit, where they are well cared for.
By contrast, Osler said, the clemency process “is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release.”
Osler said the DOJ Pardon Attorney is part of the problem. The DOJ, “after all, is the entity that prosecutes these individuals in the first place. Within that office, staff members evaluate cases and provide a report to the pardon attorney, who decides on a recommendation after seeking out the opinion of the very US attorney’s office that prosecuted the case.
But then, instead of going to the President, the Pardon Attorney’s recommendation is routed to an aide to the deputy attorney general, who makes a recommendation to the DAG, the same DAG who is “the direct supervisor of and closely allied with the United States attorneys in the field, whose offices chose to pursue the challenged convictions and sentences in the first place.”
If the recommendation has survived this far, it goes to the White House, where some assistant to the White House counsel evaluates it and makes yet another recommendation to the boss. And, of course, that boss, who has many other duties, also has a conflict: “this time, the tendency to protect the President from risk, something that is inherent in any use of the pardon power.”
What’s missing, Osler argued, is “all the things that make the turkey process work. It’s irregular, as inattention by any one of the numerous sequential evaluators stops the whole thing. And instead of objective specialists, we have decisions being made by the deputy attorney general, who is neither objective nor a specialist. The criteria are poorly articulated and currently issued by the stiflingly conflicted DOJ. And finally, there is little to no connection between the process and what comes after, as prison gives way to freedom.”
Osler suggested that the process be taken from DOJ altogether and be given to an independent clemency board, as most states do. “If we did that,” Osler claimed, “the clemency process would finally be at least as functional as the one that informs a silly holiday tradition.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TENNESSEE SENTENCING SCHEME MAKES SOME STATE DRUG CONVICTIONS INELIGIBLE FOR ACCA
Dwayne Rockymore, who had some prior felonies, got caught with a gun. His three prior Tennessee delivery-of-cocaine convictions seemed to qualify him for a 15-year Armed Career Criminal Actconviction. But the district court refused.
Last week, the 6th Circuit agreed. Complaining that “Tennessee’s criminal sentencing scheme is sufficiently complicated that even Tennessee courts have experienced difficulty in understanding the different classes, ranges, and tiers involved in making a sentencing determination,” the Circuit decided that while the cocaine charges were punishable by more than 10 years in prison, a separate statute “takes each felony class’s authorized sentence and narrows those sentences into ‘ranges’ that correspond with the defendant’s prior record.” A defendant with no criminal background who commits a Class C felony like Dwayne’s must be sentenced to no more that 6 years in prison.
The ACCA classifies a serious drug offense as one with a max sentence of more than 10 years. The 6th said it has to look at “all the relevant law that Tennessee applies to sentencing,” and because Dwayne faced a six-year-maximum sentence for two of the cocaine charges, those priors did not qualify him for ACCA.
Senate Majority Leader Mitch McConnell (R-Kentucky) folded yesterday, announcing during a floor speech that the Senate will vote this month on the FIRST STEP Act, S.3649.
McConnell warned that because of the decision to add the criminal justice bill to the Senate agenda, “members should now be prepared to work between Christmas and New Year’s.” He urged senators to “work together or prepare for a very, very long month.” On the Senate’s to-do list is passing a farm bill, averting a partial government shutdown and clearing the deck of judicial and executive branch nominations.
