The United States Sentencing Commission has decided its April 2014 amendment reducing the base offense level for drug offenses by an average of 2 levels should be made retroactive to all Federal prisoners now serving time for drug offenses.

The change could affect about 46,300 offenders, about one out of five inmates now serving Federal sentences.

 The reduction isn’t automatic.  Rather, the Commission’s designation of the amendment as retroactive triggers a prisoner’s right to file a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2).  If the inmate’s drug quantity is affected by the retroactive amendment – and that’s not always a given – the sentencing judge may (and we emphasize “may”) reduce the sentence to anywhere within the new sentencing range.

In deciding a § 3582(c)(2) motion, the court considers the inmate’s conduct since he or she was locked up, whether the public safety might be compromised if the inmate is released early, and all of the same factors on history, the nature of the offense, respect for law and order, and so on and so on listed in 18 U.S.C. § 3553(a).

Several notes of caution:

First, this is for drug defendants only.  You got 63 months for tax evasion?  Tough luck to you.

Second, if you have a nondrug count with a concurrent sentence of the same length, this doesn’t help you, either.  Let’s say you got 168 months for a marijuana grow operation and a concurrent 168 months for being a felon in possession of a firearm.  A § 3582(c)(2) motion won’t be much help, because while it might drop the drug sentence, you would still have 168 months to do on the gun charge.

Third, even if you are eligible for the reduction, the sentencing judge may decide to grant the motion or to deny the motion at his or her whim.  If the motion is granted, how much of a reduction to grant is equally at the judge’s caprice.  Whatever the judge decides is unappealable.  In other words, pro se prisoner filers, remember all those choice words you had about the judge’s lineage?  Oops …

Fourth, while we’re recalling our last visit to the judge’s courtroom, recall all of those complaints you had about the Guideline enhancements the Government was trying to hang around your neck?  You can’t use the § 3582(c)(2) motion to plow that ground again.  The Guidelines say that the court has to assume everything about your Guidelines is correct except for applying the retroactive reduction. 

Fifth, here’s another limitation.  If you have a statutory minimum sentence – such as five years minimum for a kilo of cocaine – the court cannot that minimum.  Say your Guidelines were 70-87 months, but the retroactive amendment drops those to 57-71 months.  If your mandatory minimum sentence is 60 months, the judge cannot drop you below 60 months, no matter what the floor of the new Guidelines range might be.

We’re not naysayers here.  Most of the eligible § 3582(c)(2) filers get relief from their judges, and – as an old law partner used to say – you never know what’s under the rock until you turn it over.  The one thing we know for sure: the worst a court can do is deny your § 3582(c)(2) motion.  You can’t get more time for filing it.

We recommend you hold on for a bit until matters are clarified as to when you may file.  We know that no sentence reduction will be effective before November 1, 2015, but no one has yet said how soon you may file.  Be warned: most courts don’t take the motions in the order in which they’re filed.  Instead, they consider the motions in the order in which inmates are likely to be released.  If your “out” date is January 2016, you’re going to get much faster service than the guy who – even with a time cut – won’t hit the streets until next decade.

One final caveat:  Congress could refuse to approve the retroactivity.  Those people can’t even agree on a new highway bill.  The likelihood that Majority Leader Harry “Vote-on-Nothing” Reid would bring the retroactivity amendment to a vote in the Senate is about the same as the chances President Obama will sent Sarah Palin a Christmas card.

Retroactivity is a win.  But there’s many a slip twixt cup and lip.  You only get one chance to do it right.

In Bond v. United States, No. 12-158 (June 2, 2014), the Supreme Court sidestepped the key question – the scope of the Congress’s power to enact legislation under the Treaty Clause of the Constitution – in favor a frolic into the principles of federalism. Three justices concurred, arguing that the treaty question should be reached.  But for a number of people facing Federal criminal charges, the federalism aspects should be of great interest.

The Bond facts could easily have come from a dimestore novel. The defendant – who was a trained chemist – tried to poison her husband’s lover with toxic chemicals, which she spread on the mistress’s car, mailbox, and doorknob. Despite her best efforts, the attempted poisoning was a bust – the mistress sustained nothing more than a minor burn on one thumb despite something like 23 attempts. The wife was prosecuted under a federal law which was intended to implement an international convention on chemical weapons. Under the congressional statute, the toxic chemicals the wife used qualified as chemical weapons.

The principal question was whether Congress had exceeded its constitutional powers to implement a treaty.  But Chief Justice Roberts’ majority opinion addressed federalism instead.  Chief Justice Roberts notes that

our constitutional structure leaves local criminal activity primarily to the states.

Fair enough, but the chief justice then goes on to cite United States v. Lopez for the propositions that only the states have broad police powers, while the federal government is one of limited powers. He says “In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.” Quoting James Madison, Roberts also opines that the United States is a “compound republic” which “keeps power ‘divided between two distinct governments.’ ”

The opinion notes that interpreting the statue at issue to apply to the wife’s conduct “would ‘dramatically intrude[] upon traditional state criminal jurisdiction.’ ” Then, in another significant comment on federalism, the majority opinion holds that

these precedents make clear that is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute.

Chief Justice Roberts concludes that Pennsylvania state law was sufficient to prosecute the wife for her poisoning efforts – in fact, the Feds had stepped in only after Pennsylvania prosecutors declined to charge her for the botched poisoning – and that “the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”

These passages  could quite easily be incorporated into an opinion striking down congressional legislation enacted under the Commerce Clause or other authority, where that legislation impacts areas of the law traditionally falling within the realm of state sovereignty.  Possession of controlled substances, arson, even basic business fraud, all are equally chargeable under state law.  Money laundering is especially susceptible to such analysis, because using the proceeds of any theft offense, however pedestrian, to buy a money order, make a bank deposit, or even buy a car, can offend the money laundering statute.

Central passages from Chief Justice Roberts’ majority opinion in Bond can, as Justice Jackson once put it in Korematsu v. United States, “lie[] around like a loaded weapon” to be used in the next opinion undermining the Federal criminal code.

Words matter, and often have a life of their own beyond their immediate context.

Remember as a child how you were taught that “the policeman is your friend?”  This, of course, was perhaps true … but only until you got to age 12  or so.  Veterans of the Federal criminal system are well acquainted with a lie to match that law enforcement whopper – the venerable old saw that in criminal cases, “people only plead guilty if they’re really in fact guilty.”

Judge Jed Rakoff, a sitting judge on the U.S. District Court in the Southern District of New York, spoke recently at the USC Gould School of Law’s lecture on “Why Innocent People Plead Guilty.”  He laid the leather to that canard.  People plead guilty for all sorts of reasons, the least important of which is whether they’re guilty or not.

You can read a news report on the Judge’s talk, and his interesting proposal for fixing the problem, here.

The following quotation is worth excerpting, however (not like anyone who’s ever been a defendant in Federal court is surprised):

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

The Department of Justice has announced the plans and criteria for the long discussed new clemency initiative.  The basics of the program are set out in two DOJ documents, one a press release and the other a speech given by a Deputy Attorney General

Announcing New Clemency Initiative, Deputy Attorney General James M. Cole Details Broad New Criteria for Applicants

Remarks as Prepared for Delivery by Deputy Attorney General James M. Cole at the Press Conference Announcing the Clemency Initiative

DOJ is adopting six criteria for identifying appropriate prisoners to be considered in the expedited clemency program, which appears to apply only to drug offenders:

•         The prisoner is currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;

•         The prisoner is a non-violent, low-level offender without significant ties to large scale criminal organizations, gangs or cartels;

•         The prisoner has served at least 10 years of his or her sentence;

•         The prisoner does not have a significant criminal history;

•         The prisoner has  demonstrated good conduct in prison; and

•         The prisoner has no history of violence prior to or during his or her current term of imprisonment.

The proof of the pudding is in the tasting, and we’re not especially optimistic about this.  We remember well how Congress authorized a home detention program for elderly offenders in the Second Chance Act of 2008, and – by the time the BOP adopted an implementing program statement for the program – the criteria had become so narrow that only about 10 prisoners in the entire 200,000-inmate Federal system qualified.

The broad criteria listed above have more holes than a swiss cheese factory.  First, how many prisoners would have a substantially lower sentence if sentenced today?  The crack offenders, maybe, but most of them have had their sentences adjusted already under 18 U.S.C. § 3582(c)(2).  Second, what is a “significant” criminal history?  Is that a Criminal History II?  A III?  Only a Guidelines career offender?  And what is good conduct in prison?  No loss of good time days?  No 200-series or higher incident reports?  No incident reports at all?

Back in 2009, we knew of a 79-year prisoner suffering from cancer and heart disease who would have made the elderly offender pilot detention program but for his “history” of violence.  That history?  An aggravated assault for a barroom brawl in a Pittsburgh bar, circa 1949.  The BOP interpretative rules called this a “history of violence.”

Perhaps this time it’ll be different.  But that’s not how the smart money’s betting.

President Obama is preparing to make much broader use of his power to grant commutations to non-violent drug convicts who have served long sentences, Attorney General Eric Holder said in a video released Monday.

“The White House has indicated it wants to consider additional clemency applications, to restore a degree of justice, fairness, and proportionality for deserving individuals who do not pose a threat to public safety,” Holder said. “The Justice Department is committed to recommending as many qualified applicants as possible for reduced sentences.”

Forgive us for being underwhelmed.  Like Lucy and Charlie Brown’s football in Peanuts, too many inmates have been misled by too many hollow promises from this Administration.  At least the Bush White House didn’t pretend to have sympathy for plight of the Federal prisoner. 

Certainly, in April 2009, the Administration promised to reduce the disparity between penalties for crack cocaine and powder cocaine, and ultimately, Congress lessened the disparity, but did not eliminate it.  But the 2009 pledge was not just to reduce the disparity.  Rather, Assistant Attorney General Lanny A. Breuer said that

This Administration is committed to reviewing criminal justice issues to ensure that our law enforcement officers and prosecutors have the tools they need to combat crime and ensure public safety, while simultaneously working to root out any unwarranted and unintended disparities in the criminal justice process that may exist.

The Administration announced then that it had established a Cabinet-level task force under Holder to redo Federal sentencing “top to bottom.”  But for the change in the crack-to-powder ratio, nothing.   The number of Federal prison inmates continued to rise, more mandatory minimum sentences were mandated by Congress, and President Obama himself issued fewer pardons and commutations than any president in modern history.

Five months ago, President Obama released a statement announcing eight – yeah, count ‘em – eight  commutations in December.  In it, he said “thousands of inmates” were in jail for longer terms than they would have received under current law.   But under his Administration, the BOP has fallen far short of using its full power under the Second Chance Act, compassionate releases have been virtually impossible to obtain, and the Department of Justice has fought against more liberal interpretation of “good time” and against application of the Fair Sentencing Act to defendants who committed their offenses before the law’s effect but were sentenced after the law went into effect.

Suddenly, the President announces he has discovered his clemency power?  Yeah, right.  All the Obama Administration has done for existing inmates is make empty promise after empty promise, with nothing to show for it.

Even now, Administration officials are promising only vague action.  “Well, I don’t think that we’d be looking for group commutation. We’d be looking for individuals who would be deserving of clemency or commutations, given the nature of their conduct, their lack of ties to violence or to drug-dealing gangs or cartels,”  Attorney General Eric Holder said. “We’ve begun an initiative to identify additional clemency recipients. This is something that I know is important to the president. And we’re trying to come up with ways in which we can make individualized determinations about who should receive clemency.”

Trying to come up with ways?  How about just doing it, instead of wondering how to do it?  How about commuting the sentences of all inmates without an existing BOP public safety factor for violence in their offenses by, say, 50 percent.  The BOP could be directed to implement it, with a single level of administrative review for people denied the commutation.  It would leave the courts out of the procedure altogether.

This isn’t hard, people.  We deal with inmates daily, and it angers us to see this Administration to enter its fifth year of recognizing the gross unfairness of the system while not being willing to use its constitutionally-granted powers to fix it.  Dorothy could be forgiven – she didn’t know her ruby slippers could get her back to Kansas.  But this Administration, headed by a former constitutional law professor, knows that it has always had the power to lessen the unfairness of the system.  It’s a shame it has wrung its hands instead of acting.

The United States Sentencing Commission voted this afternoon to reduce the base offense levels for nonviolent drug offenses (§ 2D1.1(c)) by two levels.   The amendment would reduce the advisory guidelines range for sentences for drug traffickers by an average of 11 months.

The vote was unanimous, but that doesn’t necessarily mean that the Commission will decide to make the change retroactive.  Chief U.S. District Judge Patti B. Saris, the Chair of the Commission, cautioned that no one should assume retroactivity is a slam dunk:

Over the next few months, the Commission will be studying the issue of whether the drug amendment should apply retroactively, which we are statutorily required to do. This is a complex and difficult issue, and requires a different analysis than the decision we have made today about reducing drug sentences prospectively. The Commission will take into account, as it always does when considering retroactivity, the purposes of the amendment, the magnitude of the change, and the difficulty of applying the change retroactively, among other factors. I know the Commission will carefully consider this issue, and many stakeholders will have strong views. I do not know how it will come out, but we will carefully review data and the retroactivity impact analysis we have directed staff to conduct as well as public comment in order to ensure that we weigh all perspectives.

Retroactivity would affect a very large number of Federal inmates.  Previously, the Commission has declined to make changes retroactive because of the burden retroactivity would place on the court system.   Recall the change in criminal history “recency” points, back in 2010, which was not made retroactive in large part because up to 100,000 inmates would have flooded the system with § 3582(c) motions to reduce sentence.

Not to be a wet blanket, but we think that retroactivity for this change is far from certain.

Despite our skepticism – some might call it cynicism – about the likelihood that Congress will act to reform the Federal sentencing system, the issue seems to be gaining steam in the Senate.

The Smarter Sentencing Act (S. 1410) picked up two more co-sponsors last Friday, Sen. John “Johnny” Isakson (Republican from Georgia), and Senator Timothy Kaine (Democrat from Virginia).   The bill now has 16 co-sponsors, 10 Democrats, 5 Republicans and one independent.  Traditionally, this kind of bi-partisan support for a bill is a good thing, increasing the likelihood that the bill will be passed.

The companions bill to S. 1410 – H.R. 3382 – is still in committee in the House of Representatives, but it has 20 co-sponsors, and Govtrack.us gives the measure a 60 percent chance of getting out of committee and a 45% chance of passage.  Govtrack is notoriously stingy in its assessments of a bill’s chance of passage, making this number pretty heartening.  By comparison, Govtrack gives S. 1410 a 57 percent chance of passage, a major increase from moths ago, when its chances were still in the single digits.

Finally, a lengthy New York Times piece last Thursday and an op-ed opinion piece today cover the legislative push on sentencing.  The Thursday story reported on the factors driving Republican support for sentencing reform:

“[L]eading Republicans are saying that mandatory minimum sentences in the federal system have failed — too costly, overly punitive and ineffective. So they are embracing a range of ideas from Republican-controlled states that have reduced prison populations and brought down the cost of incarceration.

“The shift turns upside down the “war on crime” ethos on the right, and even among some on the left, an approach that has dominated the policy of punishment for more than two decades.

“Religious conservatives see these efforts as offering compassion and the hope of reuniting broken families. Fiscal conservatives say the proposals would shave billions off the federal budget. The combination has made closing prisons and releasing inmates who no longer appear to pose a threat new articles of faith among politicians who would have rejected them out of hand only a few years ago….

“The changes represent a rare example of both parties agreeing in a major area of domestic policy. The Obama administration is engaged and supportive of the efforts in Congress, as was evident on Thursday when Attorney General Eric H. Holder Jr. endorsed a proposal that would reduce prison sentences for people convicted of dealing drugs, the latest sign that the White House is making criminal justice a priority of President Obama’s second term.”

The Judiciary Committee report on The Smarter Sentencing Act of 2013 has been delivered, with the revised text of the Act as reported by the Committee.

There is nothing in the Act as reported that grants any retroactivity, other than for crack offenses that could have gotten an 18 U.S.C. § 3582(c)(2) reduction except for a mandatory minimum that changed in The Fair Sentencing Act of 2010.  The revised Smarter Sentencing Act gives the Sentencing Commission a lot of leeway, and its assignment could be read as supporting making changes retroactive, but passage of this bill – if that happens – won’t have any real impact on existing federal prison populations.

Of course, all of this presupposes that Senate Majority Leader Harry Reid will bring this to a vote before the end of the year.  He’s notorious for letting bills – such as the ill-fated Second Chance Reauthorization Act of 2011 – die even after a bipartisan Committee unanimously recommends it.

Update – March 14:   The Wall Street Journal  reported this morning that a new agreement between Senate Republicans and Democrats has resulted in “under a fresh process that could clear the way for the chamber to pass other bipartisan bills.”    Among the bills that the Senate expects to consider using the new procedure – in which Harry Reid agrees to bring bills to a vote and Republicans agree to limit the number and reach of amendments they introduce – are “a manufacturing bill, federal sentencing changes and stalled energy-efficiency legislation.”

Perhaps we may yet see the Senate consider the Smarter Sentencing Act.  If so, we still have the House or Representatives to worry about.

Rosemond v. United States, Case No. 12-895 (March 5, 2014)

Federal law (18 U.S.C. § 2) provides that people who help other people commit crimes can be convicted of those crimes just as if they had committed them  themselves.  This is called “aiding and abetting” liability.  If one aids or abets (that generally means “helps”) someone else commit a crime, the aider or abettor can be found guilty of a crime he or she did not physically commit.  Thus if you loan money to someone to buy a kilo of cocaine, and they then buy it and resell it in small lots, you can still be convicted of distribution although you never saw the cocaine, let alone handled it.

(This is different from conspiracy – 18 U.S.C. § 846 – in which one is much more easily ensnared than aiding or abetting).

In a case decided March 5^th by the Supreme Court of the United States, Rosemond v. United States, (Case No. 12-895), defendant Rosemond joined with two other people to sell drugs – but he claimed he didn’t know his companions would use a gun.  Federal law makes it a separate crime to commit a drug trafficking offense while using a gun (18 U.S.C. § 942(c)), a crime that carries a mandatory additional sentence of five years or more extra years in prison.  In Rosemond, the Supreme Court ruled that to convict a defendant of a § 924(c) offense on an “aiding or abetting” theory, the government must prove that the defendant knew in advance that someone else would use a gun, and at least far enough in advance so that he could, if he chose to, quit the crime.  If the defendant only learned about the gun when there was “no realistic opportunity” to quit, then he can’t be convicted.  In the words of law, he would lack the “mens rea” – the mental state – required, about the gun to convict.

The Justices agreed that because § 924(c) has two basic elements – drug trafficking plus a firearm — a criminal § 924(c) aider or abettor must have “foreknowledge” that someone will use a gun, and not just foreknowledge that a drug deal is planned.  The trial court instructed the jury that it was enough for them to find that Rosemond knew it was a drug trafficking crime and that “his cohort used a gun” – not that Rosemond also knew that his companion would use a gun.  The trial court’s error was that the requirement that there be “foreknowledge” regarding the gun was not well conveyed to the jury.

The Justices unanimously rejected the idea that a defendant must be proven to have “desired” the use of a gun in order to be convicted.  That he “knowingly elected to aid” even after learning that a gun was involved is enough – “[t]he law does not, nor should it, care whether he participates with a happy heart or a sense of foreboding.”

The majority further subdivided the ques-tion of “foreknow-ledge,” deciding that the standard requires advance knowledge of a gun “at a time the accomplice can do something” about it.   Such advance know-ledge “enables [the accomplice] to make [a] legal (and indeed moral) choice” – either to continue participating even with the risks that presence of a firearm can bring ­– or stop.  “[I]f a defendant continues to participate … after a gun is displayed …, the jury can permissibly infer” that he had the requisite foreknowledge.”  “But when an accomplice knows nothing of a gun until it appears at the scene, … he may at that point have no realistic opportunity to quit the crime.”  When this is so, the majority rules, he lacks the required intent to aid the gun-use, as aiding and abetting doctrine requires.

Trial courts frequently punish what otherwise might be aiding or abetting liability under 18 U.S.C. § 924(c) by upward adjustments of two levels for possession of a firearm during a drug offense under § 2D1.1(b)(1).  The standard of proof is much lower, in where a large quantity of drugs was involved, the additional two levels often can add five years or more to the advisory Guidelines sentence.  Whether the Rosemond “aiding or abetting” liability analysis will be employed in assessing § 2D1.1(b)(1) liability is a fertile ground for argument.