FSA Resentencings Reflect District Court Confusion – Update for March 11, 2019

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

FAIR SENTENCING ACT RESENTENCINGS ALL OVER THE MAP

As prisoners who were sentenced for crack offenses before the August 2010 effectiveness of the Fair Sentencing Act (FSA) are discovering, district courts are all over the map in interpreting the First Step Act provisions that make the FSA retroactive.

crackpowder160606Here’s one problem: A number of prisoners seeking retroactive FSA application were sentenced under the mandatory pre-United States v. Booker guidelines. Are their guidelines still mandatory on resentencing?

And another: Virtually all of the eligible defendants have indictments that specified “5 grams or more” or “50 grams or more” of crack – the standard for mandatory minimums before FSA – but had judges finding at sentencing that the amount of crack in their cases was much higher, such as “400 grams or more.” Before the Supreme Court’s 2013 Alleyne v, United States decision, a Presentence Report finding of 400 grams would subject the defendant to a 10-to-life sentence no matter what the indictment said. Alleyne said that the facts supporting a mandatory minimum sentence had to be found by a jury beyond a reasonable doubt or admitted by the defendant. So what amount of crack should drive their new sentence, 50 or 400?

The issue district courts are grappling with is whether an FSA resentencing has to pretend that Booker and Alleyne were never decided, or whether a new FSA sentence has to be constitutional under all of those decisions handed down since the defendant was first sentenced.

Three district court decisions in the last week or so make it clear that those questions are still up in the air. In United States v. Glore, the government argued that because a defendant who was charged with 5 grams or more had been found in his PSR to have had 46 grams, he was not eligible for a sentence reduction under the retroactive FSA, because the 46 grams still required a 5-year minimum sentence under the FSA’s 28-gram threshold. The government said Alleyne should not apply, because it was decided well after the original sentence was imposed.

badjudge160502Citing United States v. Fleurival, the district court rejected the government argument, holding that “the government has the prerogative to argue that even if a defendant is eligible for a First Step reduction, the court should decline to exercise the broad discretion given it by the First Step Act, and refuse to reduce a defendant’s sentence. But its argument that a defendant is not eligible because the sentencing court might have elected to calculate his statutory penalties in a way that now is unlawful, and back then would have been illogical, is unpersuasive.”

Meanwhile, in United States v. Newton, a Virginia district court ruled that although the defendant was originally sentenced under pre-Booker mandatory guidelines, his new sentence under the retroactive FSA should be decided under advisory guidelines and the sentencing factors in 18 USC 3553(a). The government, comparing the FSA resentencing to an 18 USC 3582(c)(2) sentence reduction, argued that Dillon v. United States made it a limited resentencing, and the court had to pretend that the law on the day of the original sentencing remained the law at resentencing.

The district court rejected this argument, noting that the Sentencing Commission said in January that while courts would have to settle whether the FSA resentencing was subject to Dillon, district judges should nevertheless “consider the guidelines and policy statements, along with other 3553(a) factors, during the resentencing.”

In a New York case last week, United States v. Davis, the government argued the defendant was not eligible for relief under the First Step Act because his actual offense conduct involved over 1.5 kilos of crack, which even under the FSA would trigger a 10-life sentence under 21 USC 841(b)(1)(A). The government hypothesized that if the current FSA had been in place when Mr. Davis committed his crime, his indictment would have alleged “280 grams or more of cocaine base” instead of “50 grams or more,” and thus still would have triggered the higher  841(b)(1)(A) penalties.

release160523The court rejected the government’s argument out of hand, holding that “it is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.” The defendant won his release.

But the foregoing views are not universally shared. Last week, a Florida district court held in United States v. Potts that a defendant who had been charged only with a “detectable amount” of crack, which carried no mandatory minimum, was nevertheless subject to a 10-year minimum sentence because his presentence report found he was responsible for 125 grams. The district court concluded that First Step’s provision making the FSA retroactive does not “expressly provide for a full or plenary resentencing or for a reconsideration of original sentencing determinations.” Instead, “although Defendant is eligible for a reduced sentence under Fair Sentencing Act, he is not entitled to a full resentencing, and all other determinations made at the time of his sentencing must remain unchanged.” The court cited United States v. Delaney and United States v. Kamber, but neither of those decisions hold that an FSA resentencing is limited like a 3582(c)(2) resentencing.

There is going to be a lot of litigation before the parameters of the FSA resentencing are firmly and finally set.

United States v. Davis, 2019 U.S. Dist. LEXIS 36348 (W.D.N.Y. Mar 6, 2019)
 

United States v. Delaney, 2019 U.S. Dist. LEXIS 28792 (W.D.Va. Feb. 22, 2019)

United States v. Fleurival, 2019 U.S. Dist. LEXIS 20057 (W.D.Va. Feb. 6, 2019)

United States v. Glore, 2019 U.S. Dist. LEXIS 35838 (E.D.Wis. Mar. 6, 2019)

United States v. Kamber, 2019 U.S. Dist. LEXIS 15691 (S.D.Ill. Jan. 31, 2019)

United States v. Newton, 2019 U.S. Dist. LEXIS 33356 (W.D.Va. Mar. 1, 2019)

United States v. Potts, 2019 U.S. Dist. LEXIS 35386 (S.D.Fla. Mar. 6, 2019)

– Thomas L. Root

“Talk to Me,” Appellate Court Says – Update for March 7, 2019

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YOU DON’T HAVE TO SAY MUCH, BUT YOU HAVE TO SAY SOMETHING…

explain190307Last year, the Supreme Court held in Chavez-Meza v. United States  that a judge ruling on an 18 USC 3582(c)(2) motion for reduction of sentence must say “enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority.” Last week, the 4th Circuit put some meat on those bones, remanding two 3582(c)(2) cases for a more reasoned explanation from the district judge.

A 3582(c)(2) motion is a post-conviction motion permitted in very limited circumstances, where the U.S. Sentencing Commission has reduced a Guidelines level for an offense, and made that reduction retroactive under USSG §1B1.10. In the past decade, the only such reductions have been several rewrites of the drug quantity tables, that brought reduced sentences to thousands of federal inmates.

Paulette Martin is doing a life sentence for a major drug crime. She sought a 2-level reduction, which would make her eligible for a 360-month sentence, citing her prison record of achievement that even the government conceded was “among the best that it has seen.” But the district court denied her motion, with an explanation that was little more than “a recitation of Martin’s original criminal behavior.”

In a different case, Luis Mangual has health issues as well as an excellent prison record. When he became eligible for a reduction, the government argued he should be sentenced at the top of his amended range, solely because he was sentenced at the top of his range at his initial sentencing some years ago. The judge followed the government’s suggestion, never mentioning Luis’s health or prison record.

whatsaid170918The 4th Circuit reversed both cases in a consolidated decision. It held that the sentencing judge’s terse explanation in denying Paulette “is not the standard… for sentence-reduction motions. The district court was content to memorialize Martin’s past transgressions without giving any weight to the multitude of redemptive measures that she has taken since she was initially sentenced to life in prison…” In Luis’s case, the Circuit panel said, “given that there is no reference to his new mitigation evidence, it is clear that the district court did not comply with the standards set forth in Chavez-Meza…”

The 4th said the district courts “must provide a rationale as to why two individuals who have placed themselves on a positive life trajectory, despite the challenges of a lengthy period of incarceration, should receive no relief for their rehabilitation.”

United States v. Martin, Case No. 17-6199, 2019 U.S. App. LEXIS 5620 (4th Cir., Feb, 26, 2019)

– Thomas L. Root

So What’s The Second Step? – Update for March 6, 2019

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FIRST STEP, SECOND STEP – CRIMINAL JUSTICE REFORM STILL DEBATED

Psychology professor Keith Humphreys wrote in the Washington Post last week that even after the First Step Act, the Feds still imprison seven times as many inmates as in 1980.

Postgraphic190307Critics complained that First Step would leave the nation “overwhelmed with violent crime.” But Humphreys asked why the federal government should imprison anyone at all. “In reality,” he wrote, “virtually every murder, rape, assault and battery is charged under state law and results in imprisonment at the state or local level. The federal prison system holds only 1.8% of U.S. inmates serving time for violent crimes… It is implausible that the number of and deserved sentence length for such offenses are seven times greater than they were before the federal prison population exploded.”

Noting that the federal criminal code has exploded with white-collar crimes, carjacking, DVD piracy, and street-corner drug dealing ¬– all offenses that states punish as well – Humphreys suggests that “the extremely broad coalition that supported the First Step Act can reasonably aim higher in its next round of proposed reform, returning the federal prison system to its traditional role as an important – but small – part of the U.S. correctional system.”

softoncrime190307Meanwhile, the ultra-progressive Socialist Worker last week complained that First Step “is more of a tip toe than a first step. But… no matter how ineffective, First Step is a sign of changing times. It wasn’t too long ago that any politician who favored prison reform would be labeled as ‘soft on crime’. First Step reflects a lessening of the tough-on-crime rhetoric…”

It is virtually impossible to count the number of people benefitting from the retroactive Fair Sentencing Act Sec. 404 of the First Step Act) but last week The Providence Journal reported that “so far, 14 Rhode Islanders convicted under stiff mandatory-sentencing laws have gained early release under the newly enacted federal law called the First Step Act…”

Washington Post, The new criminal justice law will modestly shrink prison populations. Should we go further? (Feb. 25)

Socialist Worker, Is First Step a Step Forward? (Feb. 25)

Providence Journal, ‘First Step’ toward freedom for R.I. drug offenders (Mar. 2)

– Thomas L. Root

One Lost, One Still in Certiorari Limbo – Update for March 5, 2019

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

LAST WEEK’S SCORE IS 0-1-1 ON SCOTUS CERTIORARI

Two Supreme Court petitions for certiorari (which is how parties get the Court to take their cases for review) came up last week, leaving our score 0-1-1.

jenga190305The petition in United States v. Rivera–Ruperto, important to people with stacked 924(c) sentences, who were left behind by the First Step Act’s nonretroactivity, asked whether 160 years for a defendant who carried a gun to multiple government-staged drug buys could get 130 years’ worth of stacked 924(c) sentences complied with the 8th Amendment ban on cruel and unusual punishments. Despite a lot of interest in the criminal justice community that this argument be addressed (and the 1st Circuit’s remarkable en banc opinion asking SCOTUS to take up the issue), the Supremes denied certiorari last week without further comment.

Meanwhile, the government’s request for certiorari in United States v. Wheeler was relisted a second time, and yesterday appeared to be relisted yet again. As noted last week, Wheeler asks whether a prisoner whose 2255 motion challenging a statutory minimum was denied based on current circuit precedent may later seek habeas relief in a 2241 petition (allowed by the 2255(e) “escape clause”) on the ground that the circuit’s interpretation of the statutory minimum has changed. A relist does not mean that cert will be granted, but it increases the odds.

Beneath the surface in Wheeler there is percolating a mootness battle. The 4th Circuit refused to stay its decision in the case, instead issuing the mandate – which is the green light for the district court to apply its holding – nine months ago. Last week, the district court got around to resentencing defendant Gerald Wheeler, and reduced his sentence to time served. Gerry walked out the door a free man, having had whopping eight months cut off his 120-month sentence.

mootness190305In an inversion of what usually goes on at the Supreme Court – a defendant begs to be heard while the Dept. of Justice Solicitor General’s office argues the case is unworthy of review – the government filed a letter with SCOTUS last week arguing that “the grant of habeas relief to shorten [Gerald’s] term of imprisonment means that this case ‘continue[s] to present a live controversy regarding the permissibility of such relief.’”  Gerry’s lawyers, showing their irritation at the government’s conduct in the case, shot back that the Supremes should take a hard pass on this one:

The district court entered its written judgment on March 1, 2019, and Mr. Wheeler has filed a notice of appeal to challenge one aspect of the district court’s resentencing decision. During the course of those appeal proceedings, the government will have the opportunity to ask the en banc Fourth Circuit to reverse the panel decision… Given that the government recently—in the middle of this case—changed a two- decades-old position regarding its interpretation of § 2241, the opportunity for additional percolation in the courts of appeals would be beneficial for this Court’s ultimate review.

Now one might wonder why Gerry, now a free man (to the extent that anyone on supervised release is truly free) would have found anything to appeal in a “time served” sentence. No one involved in the case has Skyped me to explain this, but I suspect his lawyers, whose primary duty to their client was to get him out of prison, filed the notice of appeal in order to be able to do exactly what they have done: to argue that because the case is headed back to the 4th Circuit, the Supreme Court does not need to take it up at this time.

The Supreme Court neither granted nor denied certiorari on the case yesterday, suggesting yet another realist. The Court undoubtedly wanted to digest the dueling letters it received at the end of last week.

lovelawyerB170811My selfish view is that I would like the Supreme Court to settle the issue on the 2255(e) “escape clause,” going with the ten circuits that recognize the legitimate use of a 28 USC 2241 petition in cases like Gerald’s. But Gerald’s lawyers – the Federal Public Defender in the Western District of North Carolina – are doing some first-rate lawyering for their client. As a result, he awoke last Saturday in his own bed for the first time in almost a decade.

That’s what good criminal defense lawyering is all about.

Sentencing Law and Policy, After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences? (Feb. 25)

United States v. Wheeler, Case No. 18-420 (Sup.Ct.) petition for certiorari pending)

– Thomas L. Root

Could SCOTUS Decision in Haymond “Bring Down Supervised Release?” – Update for March 4, 2019

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AN UNSURPRISING WIN AND A PROMISING ORAL ARGUMENT

The Supreme Court last week ruled that even if a defendant’s plea agreement includes an appeal waiver, defense counsel renders ineffective assistance of counsel by not filing a notice of appeal  if the defendant asks for one.

The decision – Garza v. Idaho – is not such a big deal. Every circuit that has considered the question, except for the 3rd and 7th, already follows the rule.

appeal181107Since the 2000 Roe v. Flores-Ortega decision, if a defendant asks defense counsel to file a notice of appeal, and the lawyer does not, it is considered ineffective assistance of counsel (which violates the 6th Amendment) regardless of whether the appeal had any chance of winning. Some courts, however, have wondered whether the Roe rule should apply where a defendant’s plea agreement waiving appeal rights. A few places, including Idaho, have held that in that case, failure to file a notice of appeal would be ineffective assistance of counsel only if the defendant could show a reasonable probability that he or she would have won on appeal.

easyappeal190304Last week, the Supreme Court disagreed. It noted that even a defendant waiving appeal retains the right to appeal limited issues (such as claiming defense counsel was ineffective for ever getting the defendant to sign the plea agreement to begin with). The Supremes said that filing the one-page notice of appeal is very easy (the notice does not even have to list the issues being appealed), and most defendants have a pretty ill-formed idea of what the issues should be before the transcripts are prepared. For those reasons, SCOTUS said, the Roe rule should apply for plea waivers: if your lawyer fails to file a notice of appeal after you ask him or her to, it is ineffective assistance of counsel, even where you waived your appeal rights.

Perhaps more significant, the Supremes heard oral argument last week that could bring down supervised release. The case question the constitutionality of 18 USC 3583(k), which requires convicted sex offenders to return to prison for at least five years if a judge finds they have committed certain crimes. The defendant in the case, Andre Haymond, served time for child porn, and was returned to prison after he violated supervised release. He argued that the law violates his right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt.

Eight justices seemed likely to agree with him, even if it was not yet clear how they will remedy the constitutional violation. Several questioned the government’s view that a jury was not required to find the facts leading to a supervised release violation and more prison time. Much of the oral argument focused less on whether the law was unconstitutional and more on how to fix it.

supervisedleash181107Haymond is consequential to all of supervised release. As it is, while on supervised release, a defendant is subject to violation for a variety of technical, non-criminal conduct, and may be returned to prison if the court finds by a mere preponderance of the evidence that the defendant committed the violation. Haymond could upend this, extending the constitutional guarantees of Apprendi v. New Jersey and Blakely v. Washington (that people can lose liberty only upon admissions of guilt or findings of a jury beyond a reasonable doubt) to supervised release violations as well. In fact, Justice Samuel Alito – the only Justice in the government’s corner – complained during argument that a ruling for Haymond could “bring down the entire supervised release system.”

Statistics say one out of three people released on supervised release will be violated, making this case huge.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that “there may now be eight Justices prepared to extend Apprendi/Blakely rights to supervised release revocation. Now we what to see just how big the ultimate opinion will be (and how loudly Justice Alito will complain about more procedural rights for criminal defendants).”

Garza v. Idaho, Case No. 17-1026 (Feb. 26, 2019)

United States v. Haymond, Case No. 17-1672 (argued Feb. 26)

Sentencing Law and Policy, Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations (Feb. 26)

– Thomas L. Root

A Star is Born to Help the Dying – Update for February 28, 2019

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IS COMPASSIONATE RELEASE THE SLEEPER STAR OF FIRST STEP?

compassion160208Ohio State law professor Doug Berman, whom I cite often, wrote in his Sentencing Law and Policy blog last week that he “considers the statutory changes to the so-called compassionate release provisions in federal law to be the ‘sleeper provisions’ of the First Step Act,” chiefly because for the first time, inmates may ask their sentencing courts directly for compassionate release (18 USC 3582(c)(1)) if the Federal Bureau of Prisons does not act within 30 days, or if – after going through the BOP’s administrative remedy process – the inmate is denied.

Since the BOP usually takes four months plus to grant compassionate release in the rare cases the agency did so, this provision is important. Maybe no more will die like Steve Cheatham did. Sick with cancer, he filed for compassionate release on Dec. 13. The BOP denied receiving it until Jan. 11. Desperate to get him home, Steve’s lawyer filed with Steve’s sentencing judge on Jan. 30. The court granted compassionate release the next day. Before Steve could be told the news that afternoon, he died at FMC Butner.

Prof. Berman hopes that the kind of failure seen in Steve’s case will end, and that compassionate release will become a tool to reduce mass incarceration. He wrote that

more than 5000 federal prisoners are in ‘care level’ 3 or 4 facilities… As the [Dept. of Justice Inspector General] explained to the USSC in his testimony three years ago, beyond the humanitarian value of allowing ill persons to receive treatment outside of prison facilities, releasing ill prisoners helps ‘reduce overcrowding in the federal prison system” and can “result in cost savings for the BOP” and in turn the federal taxpayer.

Even if we imagine only 10% of elderly and ill federal inmates are suitable candidates for compassionate release, we still could be looking at a means for releasing many thousands of federal prisoners in relatively short order.

Sentencing Law and Policy, Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court? (Feb. 18)

New York Times, A New Law Made Him a ‘Free Man on Paper,’ but He Died Behind Bars (Feb. 15)

– Thomas L. Root

Not Technically Innocent Enough… – Update for February 27, 2019

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WHO YOU GONNA CALL?

violent160620Gurmeet Singh Dhinsa was convicted of racketeering and murdering a witness to keep him from talking to federal agents. Years later, he filed a 28 USC 2241 habeas petition under the “savings clause” in 28 USC 2255(e), arguing that under the Supreme Court’s 2011 Fowler v. United States decision the government had to show that the murder victim was “reasonably likely” to have communicated with a federal official had he not been murdered. Because it could not, Gurmeet said, he was innocent of the offense.

Last week, the 2nd Circuit dismissed Gurmeet’s petition for lack of jurisdiction. Under the “savings clause,” a court only has jurisdiction to hear the 2241 motion if “the remedy by motion is inadequate or ineffective to test the legality of his detention.” The showing required includes being able to prove a change in the law makes the prisoner actually innocent of the offense.

innocent161024The Circuit held Gurmeet had failed to show his innocence under Fowler, because his “extensive racketeering enterprise represents a type of criminal activity that is commonly investigated and prosecuted by federal officials.” Thus, the Court ruled, a juror could have reasonably found that Gurmeet’s two victims were “reasonably likely” to have called federal officials about federal crimes.

Because Gurmeet could not show actual innocence, the trial court correctly held he had failed to meet the requirements of the 2255(e) savings clause. The test is jurisdictional, meaning that the courts had no power to hear Gurmeet’s petition.

Dhinsa v. Krueger, 2019 U.S. App. LEXIS 4865 (2nd Cir. Feb. 20, 2019)

– Thomas L. Root

Timbs a Yawner at Supreme Court – Update for February 26, 2019

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‘DOG BITES MAN’ AT SUPREME COURT

Dogbite160314In journalism, a “dog bites man” story is one that is completely expected and ho-hum. The Supreme Court’s handed down a decision like that last week in Timbs v. Indiana, holding that the 8th Amendment’s ban on excessive fines applied to the states through the 14th Amendment.

SCOTUS did not find that Indiana’s forfeiture of Mr. Timbs’ $42,000 Land Rover for the sale of a couple of hundred dollars’ worth of heroin was excessive. Instead, the case was remanded for the trial court to figure that out. The Feds already operate under the 8th Amendment, which has had limited effect on federal forfeitures.

Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that during the Timbs oral argument, some Justices seemed to struggle with the notion that forfeiture of an SUV for selling drugs may violate the 8th Amendment, but forfeiture of a lifetime of liberty for possessing drugs does not.

Today, SCOTUS will hear oral argument in two significant supervised release cases, In Mont v. United States, a 6th Circuit case asking whether the supervised release term for one offense is tolled under 18 USC 3624(e) while a releasee is locked up in pretrial confinement for a new criminal case. In United States v. Haymond, SCOTUS will review a 10th Circuit decision that 18 USC 3583(k), which requires additional prison time for sex offenders who violate supervised release, is unconstitutional, because it imposes additional punishment based on new conduct for which the offenders have not been convicted beyond a reasonable doubt.

habeas_corpusUnited States v. Davis will decide whether 18 USC 924(c)(3)(B) is unconstitutional. SCOTUS has set April 17, 2019, for oral argument. Alas, the government’s request for certiorari in United States v. Wheeler, which was relisted for conference last Friday, was again relisted for March 1st. Wheeler asks whether a prisoner whose 28 USC 2255 motion challenging a statutory minimum was denied based on current circuit precedent may later seek habeas relief in a 28 USC 2241 petition (allowed by the 2255(e) “escape clause”) on the ground that the circuit’s interpretation of the statutory minimum has changed.

Sentencing Law and Policy, Why I am certainly hoping, but not really expecting, Timbs to end up being a big deal (Feb. 22)

Timbs v Indiana, Case No. 17-1091, 2019 U.S. LEXIS 1350 (Sup.Ct. Feb. 20, 2019)

Mont v. United States, Case No. 17-8995 (Supreme Court oral argument Feb. 26, 2019)

United States v. Haymond, Case No. 17-1672 (Supreme Court oral argument Feb. 26, 2019)

United States v. Davis, Case No. 18-431 (Supreme Court oral argument Apr. 17, 2019)

United States v. Wheeler, Case No. 18-420 (relisted for Supreme Court conference on March 1, 2019)

– Thomas L. Root

No One Much Cares About the ‘Seven Days’ Debacle – Update for February 25, 2019

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BAD NEWS, GOOD NEWS

fishbicycle190225The bad news: We have already reported in detail on the error in the First Step Act that accidentally tied the effective date for the additional seven-days-a-year good-conduct time for federal inmates to the effectiveness of the earned-time credits, a pairing that makes as much sense at relating a fish to a bicycle.

Although there has been a hue and cry from all of the usual advocate-suspects, no one has owned up to the blunder, let alone taken steps to fix it.

I’m not often right, but I predicted a month ago that Congress would be uninterested in doing anything to correct the sloppy drafting. This is because Congress, as an institution, addresses a problem once, happily concludes that the problem is all fixed, and then moves on to the next problem. Criminal justice and prison reform got their moment in the sun with passage of First Step. It will be a long time before Congress comes back to the issue. That is all the more true here, because the drafting gaffe will remedy itself in July, when the seven-day credits take effect.  Some prisoners who should be home now will surely suffer, but that’s hardly an effect that will fire the imagination of Congress, especially the Senate leadership. 

And more: Law professor Nora V. Demleitner, editor of the Federal Sentencing Reporter, complained last week in The Hill that new Attorney General William Barr is no reformer. “Congress should have demanded an attorney general committed to decreasing the federal prison population, improving re-entry, and limiting prison sentences for minor offenders… an attorney general committed to the spirit of the [First Step] Act. Instead it settled for someone who will interpret it as narrowly as possible and implement it grudgingly.”

retro160110The Good News: Speaking last week at a crime symposium, Koch Industries general counsel Mark Holden identified three priorities for the next federal prison reform legislation. Holden, who was point man for Koch Industries’ backing of First Step, said that congress first should apply First Step’s sentencing changes retroactively – the 18 USC 924(c) destacking provision, the reductions in mandatory minimums under the drug trafficking statute, and “safety valve” qualifications.

In addition, Holden called on Congress to codify the Supreme Court’s Brady v. Maryland ruling requiring prosecutors share all of the information that they have about the alleged crime with the accused at the outset the case, and to adopt a clearer and more stringent mens rea rule. Also, he urged the Trump administration to reform the executive clemency process and then to apply it to “create second chances for people who wouldn’t necessarily qualify for relief under the First Step Act.”

Meanwhile, a push is on to again make Pell Grants available for prisoners. Complaints that hard-work Americans were paying for criminals to go to college cauaed Congress to prohibit issuing prisoners Pell Grants, which provide students with financial need aid for college. Without Pells, the number of prison college programs plummeted from 772 to just eight by 1997.

In 2015, the US Dept of Education started a pilot program, allowing some colleges to use Pells to increase access to college courses in prison.

education180509Last week, a conservative magazine called on Congress to expand Pell grants to prisoners nationwide. “Such programming brings gains for both prisoners and public safety,” the American Conservative said, “rebuilds families, is fiscally prudent, and acknowledges the individual dignity of those in prison.”

It may happen. There has been bipartisan support for legislation to reinstate Pells for prisoners. Sen. Lamar Alexander (R-Tennessee), chairman of the Senate Education and Labor Committee, has hinted the change may be part of reauthorizing the Higher Education Act. “Most prisoners, sooner or later, are released from prison, and no one is helped when they do not have the skills to find a job,” Alexander said last year. “Making Pell Grants available to them in the right circumstances is a good idea.”

The Hill, Barr confirmation reveals shallowness of congressional commitment to justice reform (Feb. 19)

The Crime Report, The First Step Act: It’s Only a ‘First Step’ (Feb. 18)

American Conservative, Sending Our Prisoners to College (Feb. 21)

The Intercept, How The Federal Government Undermines Prison Education (Feb. 18)

– Thomas L. Root

Court Cannot Hear Government Dog Whistle – Update for February 20, 2019

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SUMMONING THE SPIRITS

In law school, a cynical but wise professor told me that whenever someone argued you were violating the “spirit of the law,” that necessarily meant that you were not violating the letter of the law.

Ed Raifsnider learned that the hard way last week. Like many people with plea agreements, he reasonably expected the government to keep its word by recommending an in-Guidelines sentence. The AUSA literally did that, but Ed said, “the Government effectively recommended an alternative sentence by strongly suggesting the district court should not follow its formal recommendation.”

dogwhistle190220That’s hardly unusual. The government does that all the time, telling the court things like, “We are obligated by the plea agreement to recommend an in-guidelines sentence,” which is a dog whistle if ever there was one, communicating to the sentencing court that the government will provide the picket signs for an angry mob if the judge does not hammer the defendant, despite anything the plea agreement may say to the contrary.

But the Court was not very sympathetic to Ed. It found no breach, holding that “we do not suggest the Government can never breach a plea agreement by implicitly recommending a different sentence than the one it is bound to recommend by the agreement, but we do not believe this line has been crossed here.”

If there’s a line somewhere, we’re still waiting to see it.

United States v. Raifsnider, 2019 U.S. App. LEXIS 4443 (8th Cir. Feb. 14, 2019)

– Thomas L. Root