This week:

Liar, liar, pants on fire

It ain’t over ‘til it’s over

It wouldn’t be Christmas without a Grinch

Sentencing Commission begins to weigh public
       comments on “crimes of violence” amendment

Congressional sentence reform: A lot of talking going
       on (and some strange alliances being formed)

LIAR, LIAR, PANTS ON FIRE

When DEA agents showed up at Mike Thompson’s apartment, the officers asked if Thompson would consent to a search. Thompson eventually agreed, but he later moved to suppress the evidence they found, arguing he was coerced because the officers threatened to arrest his sister and girlfriend unless he let the search go on.

The District Court sided with the DEA agents, finding Thomp-son’s version of events not credible.   After Thompson’s motion to suppress was denied, a jury convicted him. His presentence report recommended a two-level enhancement for obstruction of justice on the grounds Thompson lied during the suppression hearing, noting: “The Court expressly characterized Mr. Thompson’s testimony as equivocal inconsistent, and contradictory. The Court concluded that his conflicting testimony on this central issue could not be credited.”

Thompson fought the enhancement, maintaining he “made [the disputed] statements believing that they were true.” But the sentencing judge didn’t rule on his objection, instead just saying, “Okay, I think the PSR accurately has calculated the guideline range.”

Last week, the 2nd Circuit reversed.

The world is full of false testimony. But contrary to what a lot of people think, most of the falsehoods that come out of witnesses’ mouths are not lies. Instead, they result from mistaken memory, poor perception, confusion over the questions, or nervousness on the stand.   In Mike Thompson’s case, his testimony about how he was threatened with the arrest of his family was pretty clearly how he perceived it. But he was ambiguous and vague on the details. The Court of Appeals said perjury requires more than a false statement. It must be a false statement made with “willful intent … rather than as a result of confusion, mistake, or faulty memory.” A district court cannot find obstruction merely because a court credits the testimony of one party over another does not necessarily mean the other party lied. The Court of Appeals said that “such a per se rule would … leave no room for consideration of possible mistake, confusion, or honest belief.”

The 2^nd Circuit said that if a defendant objects to an obstruction-of-justice enhancement based on perjury, district courts must make a finding that the false testimony was intentionally made. In other words, before a court can call a defendant “liar, liar,” it has to make a detailed finding that his pants really are on file.

United States v. Thompson, Case No. 14-2267 (2^nd Cir. Dec. 9, 2015) (to be published)

IT AIN’T OVER ‘TIL IT’S OVER

Memo to guys on supervised release: If you get violated, and you’re in front of the Judge, don’t laugh.

Ray Ochoa didn’t adjust to supervised release after he got out of prison, and finally was sent to a residential reentry center by his Probation Officer. As the court described it, things did not go well: Ochoa “demonstrated argumentative and disrespectful behavior towards the” RRC staff and his probation officer. His supervised release was violated. At sentencing, the Judge warned Ochoa “you make your choices and we respond to them,” then sent him back to prison for a year and a day.

As the Court explained Ochoa’s appeal rights, Ochoa started laughing about the sentence. That was too much for the Judge, who said “you just talked yourself into more time … I just lectured you about respect … and now you laugh at the court.” Figuring the Ochoa hadn’t gotten it yet, the Court said “you that won’t learn without getting the maximum.” He upped the sentence to two years.

Ochoa appealed, arguing that the Court’s 12-month sentence was binding the moment the Judge imposed it, and couldn’t be changed. The 9th Circuit disagreed, holding that a sentence is not final when there is no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished. The initial year-and-a-day sentence was not binding within the meaning of Rule 35, and neither 18 U.S.C. Sec. 3582(c) nor Rule 35 deprived the district court of jurisdiction to alter the sentence due to Ochoa’s apparently disrespectful conduct during the ongoing sentencing hearing.

The District Judge was right: Ochoa made his choices. The court responded.

United States v. Ochoa, Case No. 14-10124 (9th Circuit, Oct. 22, 2015)

YOU MUST ACT NOW

Johnny Carson’s old sidekick Ed McMahon used to shill for some old folks life insurance on TV. He would look sternly into the camera and intone, “You must act now.” Good advice for inmates looking to file Sec. 2255 motions – the statute has specific deadlines for filing, and you ignore those to your detriment.

Weldon Gilbert found that out. After pleading guilty to a variety of offenses, he had buyer’s remorse. And who could blame him? The plea agreement recommended a sentencing range of 228 to 300 months and required Gilbert to forfeit his house, helicopter, seaplane, and speedboat to pay restitution. In November 2009, the district court sentenced Gilbert to 300 months but delayed a restitution order pending sale of assets.

Selling all of Gilbert’s stuff took awhile. Gilbert’s lawyer supposedly told him his deadline to file a Sec. 2255 motion wouldn’t run until a year after the court entered the final restitution order, which finally happened in fall 2011. Gilbert filed his Sec. 2255 a year after that. But the district court thought his deadline had run out in 2010, and dismissed the motion.

On appeal, Gilbert argued that his Sec. 2255 deadline didn’t come until a year after his 2011 restitution judgment. He contended that the Fat Lady had not sung until the time to appeal the restitution order had passed, almost two years after his 300-month sentence was handed down.

Sec. 2255(f) sets a one-year period of limitation for filing that runs from the date on which the judgment of convic-tion becomes final. The 9th Circuit held that when a judg-ment imposes a sentence but leaves restitution to be determined, the one-year statute of limitations does not restart when the restitution order is later entered. It noted that several statutes, including 18 U.S.C. Sec. 3582(b), state that a “sentence to imprisonment” is a “final judgment,” and cited a 1937 Supreme Court case that held bluntly that “final judgment in a criminal case means sentence. The sentence is the judgment.”

Gilbert’s last line of defense was that the deadline should be waived – a doctrine known as equitable tolling – because his lawyer gave him bad advice. The Court of Appeals held that an attorney’s bad advice is not an “extraordinary circumstance.” Inasmuch as inmates have no constitutional right to counsel on a Sec. 2255 motion, ineffective legal counsel doesn’t warrant equitable tolling.

Remember that. When it comes to post-conviction motions, you’re on your own. Count carefully.

United States v. Gilbert, Case No. 13-36006 (9th Cir., Dec. 7, 2015) (to be published)

IT WOULDN’T BE CHRISTMAS WITHOUT A GRINCH

A group of current and former AUSAs sent a letter to the Senate last Thursday arguing against pending bipartisan legislation that would roll back mandatory minimum sentences for drug trafficking and other crimes.

The National Association of Assistant United States Attorneys says sentencing laws enacted in the 1980s led to dramatic dip in crime, a claim disputed by many crimin-ologists. “Our system of justice is not broken,” according to NAAUSA – whose members’ bread and butter is locking people up for a long time. “Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back.” The letter called for leaving the current sentencing regime alone.

THE SENTENCING COMMISSION WEIGHS PUBLIC COMMENTS ON “CRIMES OF VIOLENCE” AMENDMENT

Last summer, the United States Sentencing Commission proposed a change in its definitions of what kinds of crimes of violence will support a “career offender” enhancement under the Sentencing Guidelines. On Dec. 5, the Commission published comments on the amendment filed by interested parties on the topic.

The proposed amendment will bring the Guidelines definition in line with the Johnson v. United States decision by striking the residual clause from the definition. The effect of the change means that, going forward, many offenses that used to be lumped under the “violent felony” label – like fleeing a cop, reckless endangerment and resisting arrest, just to name a few ¬– will no longer qualify a defendant for “career offender” status.

The other big change proposed is to clean up the definition of felony. The amendment defines “a crime of violence or a drug trafficking offense is a ‘felony’ only if it was classified at the time the defendant was initially sentenced as a felony (or comparable classification) under the laws of the jurisdiction in which the defendant was convicted.”

The amendment won’t immediately benefit people currently doing time. Remember the Guidelines “two-step.” First, the Sentencing Commission has to amend the Guidelines to give relief to people who have not been sentenced yet. Then, the Commission has to conduct a separate proceeding to decide whether to make the Guidelines change retroactive to people already sentenced.

The Sentencing Commission has not yet talked about whether its proposed change should be retroactive. But that didn’t keep some of the commenting parties from addressing it. The Depart-ment of Justice, a couple of county sheriffs and a group of probation officers said that they opposed any move to make the “crime of violence” changes retroactive.

Meanwhile, organizations of public defenders, the Drug Policy Alliance, FAMM and an organization of private lawyers all noted their support for the amendment and for retroactivity.

The Commission plans to adopt a final form of the “crimes of violence” amendment before February. If the Commission would decide to consider retroactivity, it would likely propose to do so early next year.

CONGRESSIONAL SENTENCE REFORM: A LOT OF TALKING GOING ON

On December 3, President Obama met with 13 members of the House and Senate who are leading criminal justice reform in Congress to discuss strategy and the state of the issue in Congress. Discussion focused on the leading proposals that have been voted out of committee in the House and Senate, H.R. 3713 and S. 2123, which include substantial relief for Federal prisoners serving drug and gun offenses.

Meanwhile, last Wednesday, FBI Director James Comey told the Senate Judiciary Committee that he objected to the term “mass incarceration.” Although he praised efforts to achieve “more just” federal sentencing, he said the discussion must be thoughtful, based on a fair and honest understanding of how far we’ve come slashing the crime rate, and without resort to language that distorts reality.

A Bloomberg story last week warned that Federal criminal reform is not yet “a done deal. All sides agree action is essential by early next year or the push will get ensnared in presidential politics. Republican contenders Ted Cruz and Donald Trump already inveigh against putting criminals back on the street.”

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement.

If you have a question, contact us using our handy contact page. We don’t charge for consultation.

Do you want this newsletter in PDF format?  Click here.

This week:

•     Is there hope for habeas corpus in the 4th Circuit?

•     U.S. Attorney’s Office abandons back-door tattletale policy

•     Drug sentence reductions by the numbers

•     Johnson v. United States is starting to look ‘retro’

•     S. 2123 watch – Concern growing for prompt action

IS THERE HOPE FOR HABEAS CORPUS IN THE 4TH CIRCUIT?

Last summer, the Fourth Circuit ruled that a defendant who had received a life sentence based on a prior conviction that shouldn’t have counted could not attack it through a § 2241 habeas petition. In United States v. Surratt, the defendant entered a guilty plea to conspiracy to distribute cocaine and was sentenced to life imprisonment. He appealed and later filed a § 2255 motion, to no avail. Then, in 2011, the Fourth Circuit decided in United States v. Simmons that it had been incorrectly finding a number of North Carolina misdemeanors to be felonies. If he had been sentenced after Simmons, Mr. Surratt would have faced a 10 year minimum sentence, a far cry from the mandatory life term that he received.

Mr. Surratt filed a request to file a second § 2255 raising Simmons, but the Fourth Circuit said he did not meet the standards set by statute for a second petition. Mr. Surratt then filed a § 2241 petition arguing he was actually innocent of the mandatory minimum sentence the court had previously imposed.

The law prevents Mr. Surratt from challenging his conviction and sentence under § 2241 unless 28 U.S.C. § 2255(e) (called the “savings clause”) applied. The district court concluded that § 2255(e) did not give it jurisdiction to consider Mr. Surratt’s claim in a § 2241 petition. Last summer, the Court of Appeals agreed, saying it was “sympathetic” to Mr. Surratt’s plight, but Congress has the power to define the scope of the writ of habeas corpus, and Congress narrowly limits the circumstances in which a § 2241 petition may be brought.  Mr. Surratt’s petition did not present one of the permitted circumstances. The decision had a spirited dissent, in which the dissenting judge argued that it using habeas corpus to correct a miscarriage of justice like Mr. Surratt’s was “our solemn responsibility.” Instead, he complained, “we guard the Great Writ itself, and so closely that Surratt must spend the rest of his life in prison — against the will of the government and the district court. Our abdication of this responsibility begs the question: quis custodiet ipsos custodies? Who will guard the guards themselves?”

Last Wednesday, the full Fourth Circuit vacated the Surratt opinion from last summer and ordered rehearing en banc (that is, by all 15 active-duty judges). The defendant’s petition for rehearing was supported by a powerful amicus brief from the National Association of Criminal Defense Attorneys.

Rehearing en banc is no guarantee that the decision of the original three-judge panel will be overturned, but en banc rehearings are not common, and usually do not get ordered because the other judges like the original opinion. A new Surratt opinion permitting use of the § 2241 would be a powerful tool for a lot of inmates who too often cannot take advantage of substantive changes in the law, like Simmons, that they in fairness should benefit from.

United States v. Surratt, No. 14-6851 (4th Cir. July 31, 2015), vacated and rehearing en banc ordered, Dec. 2, 2015.

EDNY U.S. ATTORNEY’S OFFICE ABANDONS BACK-DOOR TATTLETALE POLICY

This may only be of interest to the 90% plus of defendants who plead guilty pursuant to plea agreements, but the U.S. Attorney for the Eastern District of New York has been shamed into abandoning its policy of notifying sentencing judges about proffer statements that defendants make in unsuccessful cooperation agreement talks.

Under Guidelines § 1B1.8, any information provided in a proffer session where the Government promises not to use the information against the defendant, cannot be used to set the sentencing guidelines. Despite that, the EDNY U.S. Attorney’s Office made a habit of telling the sentencing judge, usually off the record without the defendant knowing about it, what the defendant might have admitted to during unsuccessful proffer sessions (sessions that did not lead to substantial assistance credit). Last June, Eastern District Judge John Gleeson criticized the policy in an opinion explaining why he imposed an 8½-year prison term for a “fairly run of the mill heroin trafficker” whom Judge Gleeson knew had admitted in proffer sessions to kidnapping, robbery and calling for a drug courier’s murder. The judge said he chose “not to consider in any way” the defendant’s proffer statements.

Judge Gleeson confirmed last month that, soon after his decision, Eastern District prosecutors stopped notifying sentencing judges about proffer statements made in unfruitful cooperation agreement discussions. The discontinuance of the outlying policy brings the Eastern District in line with

In the underlying case, United States v. Rivera, Case No.12-cr-700, Judge Gleeson wrote that that the district policy, which was not disclosed to proffering defendants before they incriminated themselves in proffer sessions, “violates the defendant’s rights in every case in which it is invoked.”

LAST YEAR’S DRUG SENTENCE REDUCTIONS BY THE NUMBERS

The U.S. Sentencing Commission has just issued the 2014 Drug Guidelines Amendment Retroactivity Data Report. The report, available online, reports that 27,824 inmates applied for a sentence reduction pursuant to the 2014 retroactive reductions in the base offense levels for drug sentencing (Section 2D1.1(c) of the Guidelines). Of those applications, 21,003 (75.5 percent) were granted.

The average decrease in sentence amount to 17.8 percent.

JOHNSON V. UNITED STATES IS STARTING TO LOOK ‘RETRO’

Charles Woods was convicted in 2002 of being a felon in possession. Because he had three prior state felonies considered to be violent under the Armed Career Criminals Act (18 USC § 924(e)), he was sentenced to 15 years. Without the ACCA enhancement, he would have gotten a maximum of 10 years.

As everyone with any interest in the matter knows, last June the Supreme Court held in Johnson v. United States that the “residual clause” of the ACCA is unconstitutional. Mr. Woods had such an interest, and he promptly asked the 8th Circuit to give him permission to file a successive § 2255 petition.  Amazingly enough, the Government joined in his request.

One of Woods’s three ACCA predicate offenses was a conviction for attempted burglary, which at the time qualified as a violent felony under the ACCA’s residual clause because it created a “serious potential risk of physical injury to another.” With Johnson throwing out the residual clause, Woods’s conviction for attempted burglary was no longer a predicate offense under the ACCA.

In order to be allowed to file a second § 2255 petition, a defendant has to meet very specific requirements. One is that the motion is being filed within a year of a Supreme Court decision announcing a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

The 8th Circuit noted that “every circuit confronted with the issue of whether the Supreme Court’s prior holdings have made Johnson retroactive for purposes of § 2255(h)(2) has taken a different approach.” For itself, the Court of Appeals said it had “previously accepted the government’s concession of retroactivity of a new Supreme Court rule as a sufficient prima facie showing to allow a second or successive § 2255 petition. “ Because the Government here admitted that it thought the Johnson ruling was retroactive (based on prior Supreme Court cases defining when a case should be retroactive), the 8th Circuit agreed that “Woods has made a prima facie showing” that he should be allowed to proceed with a second § 2255 motion.

The different Circuits are all over the map on whether Johnson is retroactive or not, and we suspect that it will someday be resolved by the Supreme Court. But anyone whose case might benefit from the Johnson holding should beware: even if the question of Johnson’s retroactivity is not yet settled, § 2255(f)(3) requires that a 2255 seeking relief be filed within one year of Johnson, or by June 26, 2016. You snooze, you lose.

United States v. Woods, Case No. 15-3551 (8th Cir., Nov. 20, 2015) (to be published).

S. 2123 WATCH: CONCERN GROWING FOR PROMPT ACTION (BUT HOUSE VERSION IS PROGRESSING)

S. 2123 (the Sentencing Reform and Corrections Act of 2015) is supposed to be a rare example of bipartisan cooperation in the Senate, but a crowded legislative calendar and the looming election year are endangering the last best hope for criminal justice reform while President Obama is still in office.

With under three weeks left until Christmas, the Senate is focusing on passing a tax extension bill, a reconciliation package to defund Obamacare, a transportation bill, and legislation to fund the government. That means time has run out for criminal justice reform in this calendar year.

Senate Judiciary Chairman Charles Grassley (R-Iowa) said on Nov. 30 that there is “no chance it can be done between now and Christmas.” Observers have long believed that the best chance for passage of criminal justice reform would be before the practical realities of electoral politics intruded in 2016. With the remainder of 2015 taken up by other matters, reformers will have to wait until the Senate gavels back in the new year, in the midst of presidential primary season.

The prospects of pushing forward with the Senate bill just as the presidential primary season is in full swing, with the expected tough-on-crime appeals to the conservative base, is daunting. Primary season is hardly the time for the Republicans back in Washington to be giving up on the well-honed GOP attack lines on crime and pushing forward a progressive new position on incarceration.

Sen. Grassley’s strategy all along has been not to rush the criminal justice reform bill. In fact, he was once a fierce opponent of reductions in mandatory minimums, but he came to support them through a long and arduous committee negotiation. Now, Sen. Grassley and other S. 2123 supporters (the bill now has 28 cosponsors, picking up an additional Republican and Democrat last week) are running short on time to get their bill on the floor, especially if Republican frontrunner Donald Trump stays on top.

The news is not all bad, however. The companion bill in the House of Representatives, H.R. 3713, the Sentencing Reform Act of 2015, has 45 cosponsors, 32 Democrats and 13 Republicans, and was ordered on November 18, 2015, to be voted on with a voice vote (a good sign the Committee does not see it as controversial).

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.

Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement.

If you have a question, contact us using our handy contact page. We don’t charge for consultation.

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.”