Mandatory Guidelines ‘Johnson’ Challenge Neither Fish nor Foul – Update for September 13, 2018

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8TH CIRCUIT SLAMS PROCEDURAL DOOR ON A MANDATORY GUIDELINES JOHNSON CHALLENGE

In 2004, Jeff Russo was convicted of some drug and firearm offenses. The court sentenced him as a Guidelines career offender to 235 months for reasons. After Jeff was sentenced, the Supreme Court declared the Guidelines to be advisory in United States v. Booker, but that didn’t help Jeff, whose Guidelines were considered mandatory when they were imposed.

BettyWhiteACCA180503In 2015, the Supreme Court declared the residual clause of the Armed Career Criminal Act (ACCA) unconstitutionally vague in Johnson v. United States. Within a year of Johnson, Jeff filed a 28 USC 2255 motion, claiming district court relied on the residual clause of USSG 4B1.2(a)(2) to conclude that he was a Guidelines career offender. He argued that the residual clause in 4B1.2(a)(2) was unconstitutionally vague because it was almost identical to the clause held unconstitutional in Johnson. Jeff argued the court should vacate his sentence because it was calculated based on an unconstitutionally vague provision in the mandatory guidelines.

After he filed his motion, the Supreme Court held in Beckles v. United States, that the residual clause of 4B1.2(a)(2) in the post-Booker advisory guidelines is not subject to a vagueness challenge. Jeff argued that Beckles did not apply to the old mandatory Guidelines, because they “fix” a defendant’s sentence like the statute in Johnson, and are not flexible like the advisory guidelines ruled on in Beckles.

The district court dismissed Jeff’s motion as untimely, ruling that his motion was timely only if he filed it within a year of the date on which the right asserted was initially recognized by the Supreme Court. The district court said Jeff’s claimed right to be sentenced without the residual clause required “an extension, not an application, of the rule announced in Johnson.” Because the Supreme Court had not yet recognized the right that Jeff asserted, the district court ruled, his 2255 was untimely and should be thrown out.

vaguenes160516Last week, the 8th Circuit agreed with the district court. The Circuit admitted that it is “reasonably debatable whether Johnson’s holding regarding the ACCA extends to the former mandatory guidelines. However, it ruled, “the better view is that Beckles leaves open the question whether the mandatory guidelines are susceptible to vagueness challenges. Because the question remains open, and the answer is reasonably debatable, Johnson did not recognize the right Jeff was asserting, and he thus cannot benefit from the limitations period in Sec. 2255(f)(3).

Russo v. United States, Case No. 17-2424 (8th Cir. Sept. 6, 2018)

– Thomas L. Root

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Reality TV Star Talks to Reality TV Star About Clemency – Update for September 12, 2018

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KIM KARDASHIAN GOES TO WASHINGTON TO TALK CLEMENCY POLICY

kardashian180604Kim Kardashian was back at the White House last Wednesday to discuss prison reform with top Trump administration officials.

The reality television star, who successfully lobbied for the commutation of Alice Johnson in June, attended a listening session on clemency with a number of officials, Jared Kushner, President Trump’s son-in-law, and Ivanka Trump.

“The discussion is mainly focused on ways to improve that process to ensure deserving cases receive a fair review,” according to Hogan Gidley, White House deputy press secretary.

Others at the meeting included CNN commentator Van Jones, Georgetown law professor (and former federal inmate) Shon Hopwood, former U.S. District Court Judge Kevin Sharp, Mark Holden, the general counsel of Koch Industries, Jessica Jackson Sloan, a human rights attorney and prison reform advocate, law professors Rachel Barkow and Mark Osler, both of whom are sentencing and clemency specialists, and Leonard Leo of the Federalist Society.

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How many people have gotten clemency from President Trump?

Following the round-table discussion Wednesday, Sharp visited the Oval Office with Kushner, Ivanka Trump, Kardashian and a few others to brief the President. “We talked about criminal justice reform in general and the need for it, (and) for a change in the clemency and pardon process,” Sharp said, who noted the President seemed receptive during the roughly 20-minute meeting. “My sense was, he cares and he was listening to us. Sitting in that room, you would not have known it’s been a busy week – it was very relaxed. You wouldn’t know there was anything else going on.”

Wall Street Journal, Kim Kardashian Visits White House to Discuss Prison Reform (Sept. 5, 2018)

Chicago Tribune, Kim Kardashian meeting with President Trump on prison reform (Sept. 5, 2018)

Nashville Tennessean, Former Nashville judge speaks with Donald Trump about clemency, criminal justice reform (Sept. 7, 2018)

– Thomas L. Root

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“Sort of Violent” Is Kind of Like “Sort of Pregnant” – Update for September 11, 2018

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HOBBS ACT ROBBERY ONLY SORT OF VIOLENT

In what may to some seem like hair-splitting, the 6th Circuit last week held that a Hobbs Act robbery under 18 USC 1951 is a crime of violence for purposes of 18 USC 924(c), but it is not a crime of violence for purposes of Guidelines 4B1.2 “career offender” status.

violence180508Desmond Camp robbed a dollar store at gunpoint. Because he had a prior 924(c) conviction, he faced a 300-month (25 year) mandatory minimum on the gun charge. But on top of that, Des had two priors that qualified as crimes of violence under Chapter 4B of the Guidelines. With the Hobbs Act robbery in his current case as a third violent offense, Des got 72 month stacked on top of the 300 months.

Last week, the 6th Circuit upheld the 924(c) conviction, joining every other circuit in America in holding that a Hobbs Act robbery was a crime of violence under that statute. However, the appeals court ruled, the Guidelines “career offender” section is different. The Circuit said that “an offense is a crime of violence under that clause if it has as an element the use, attempted use, or threatened use of physical force against the person of another. The plain text of the Hobbs Act criminalizes robbery accomplished by using or threatening force against “person or property.” Though this may be sufficient under 924(c), it is not under the Guidelines. Given their definitional differences, “[t]here is nothing incongruous about holding that Hobbs Act robbery is a crime of violence for purposes of 18 USC 924(c), which includes force against a person or property, but not for purposes of USSG 4B1.2(a)(1), which is limited to force against a person.” Therefore, Hobbs Act robbery is not a crime of violence under the Guidelines’ use-of-force clause.

kindofpregnant180911So Hobbs Act robbery is only kind of violent.

Robbery is listed in the Guidelines as a crime that by definition is a crime of violence. But that, the Circuit said, does not matter. Recognizing that “most modern statutes limit robbery to force or threats against a person,” the court held that because Hobbs Act robbery encompassed “mere threats to property,” it was not categorically ‘robbery’ as used in the Guideline.

Not that all of this helps Desmond that much. On resentencing, he will still get somewhere between 300 and 372 months.

United States v. Camp, Case No. 17-1879 (6th Cir. Sept. 7, 2018)

– Thomas L. Root

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The House Giveth and the House Taketh Away – Update for September 10, 2018

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HOUSE PULLS A FAST ONE ON ‘CRIME OF VIOLENCE’

violence151213While everyone was watching the Supreme Court confirmation last week, the House of Representatives passed a bill at the speed of light that would reclassify dozens of federal crimes as “crimes of violence,” making them deportable offenses under immigration law. Criminal justice advocacy groups say the bill, rushed to the floor without a single hearing, is unnecessary, is overbroad, and will intensify the problem of over-criminalization.

The Community Safety and Security Act of 2018, H.R. 6691, passed by a largely party-line vote of 247–152. Among the crimes that it would make violent offenses are burglary, fleeing, and coercion through fraud. The bill, introduced only a week before, sailed to the House floor without a single hearing or markup prior to last Friday’s vote.

The Supreme Court ruled in Sessions v. Dimaya last spring that the definition of a “crime of violence” used in 18 USC 16(b) was unconstitutionally vague. House Republicans say they crafted the bill in response to the Court’s recommendations in that case. But the criminal justice reform advocacy group FAMM warned that the bill “would label seemingly nonviolent offenses such as burglary of an unoccupied home and fleeing as violent offenses.” The bill was also opposed by the House Liberty Caucus, which released a statement saying that the legislation “expands unconstitutional federal crimes and provides grossly disproportionate consequences for nonviolent offenses.”

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Rep. Karen Handel (R-Georgia), however, one of H.R. 6691’s sponsors, claims the bill is urgently needed to keep communities safe from violent crime. “We don’t have the privilege to squabble over hypotheticals that have no bearing on the application of this law,” Handel argued during floor debate. “I can assure my colleagues this bill is not overly broad. It’s not a dangerous overexpansion. Instead, it’s a carefully crafted response to the Supreme Court’s recommendations.”

OSU law professor Doug Berman wrote in his Sentencing Law and Policy blog last Friday that “because the definition of “crime of violence” under federal law matters in lots of arenas beyond immigration, I am hopeful that the Senate will take a more careful and deliberative approach to this issue than has the House.” Although usually a bill introduced so late in the 2-year Congressional session stands no chance of becoming law, there is a risk that if criminal justice reform legislation passes the Senate, the House may try to force inclusion of H.R. 6691 in the final, compromise package.

Reason.com, House Passes Bill to Reclassify Dozens of Offenses as ‘Crimes of Violence’ (Sept. 7, 2018)

Sentencing Law and Policy, US House passes broad rewrite of the federal definition of “crime of violence” without any hearings (Sept. 7, 2018)

H.R.6691 – Community Safety and Security Act of 2018

– Thomas L. Root

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We’ve Got the Shorts – Update for September 7, 2018

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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. Today, a couple of short takes from last week’s federal criminal news…

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AND YET THEY LOCK UP THE INMATES…

Frank Lara, BOP’s Assistant Director for Correctional Programs until his resignation earlier this year, is now working at director of operations of private prison-owner The GEO Group. The company is one of the largest private prison contractors housing federal inmates, having received $147 million in BOP awards during fiscal 2017.

conflictmix180907In a January 24, 2018, memo entitled “Increasing Population Levels in Private Contract Facilities,” Lara directed wardens to identify inmates for transfer to private facilities, saying it would “alleviate the overcrowding at Bureau of Prisons’ institutions and maximize the effectiveness of private contracts.” The memo mentioned only one facility by name, Rivers Correctional Institution in Winton, N.C., which is owned and operated by the GEO Group.

Government Executive magazine reported that The GEO Group did not respond to several emails, and when asked about the hiring over the phone, a company official hung up.

A correctional officers’ union local leader called Lara’s move “the biggest damn conflict of interest that I’ve ever seen.”

Government Executive, Federal Official Boosted Use of Private Prisons; Now He Has a Top Job at One (Aug. 29, 2018)

– Thomas L. Root

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STUDY UNCOUPLES SENTENCE LENGTH FROM RECIDIVISM

recividists160314A Dept. of Justice-funded study published last month found that the average length of a federal sentence could be reduced by 7.5 months with a small impact on recidivism. The authors concluded from the data that “length‐of‐stay effects do not vary by criminal history, offense seriousness, sex, race, and education level.”

The study concluded that reducing the average length of stay for the federal prison population by 7.5 months could save the BOP 33,203 beds once the inmate population reaches steady state.

Criminology & Public Policy, Relationship Between Prison Length of Stay and Recidivism: A Study Using Regression Discontinuity and Instrumental Variables with Multiple Break Points (Aug. 8, 2018)

– Thomas L. Root

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Too Little, Too Late for a Lot of Defendants – Update for September 6, 2018

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AT LEAST THEY’RE TALKING ABOUT IT…

hammer160509Hearings on the nomination of Judge Brett Kavanaugh to serve on the Supreme Court opened this past Tuesday and are to conclude tomorrow, and debate (at least among scholars, rather than the rabble in the hearing room) has already ramped up on the Judge’s dislike of the acquitted conduct rules in the Sentencing Guidelines.

Under the Guidelines, a defendant convicted on one count but acquitted on other counts can be sentenced as if he or she was guilty on everything, as long as the court finds it more likely than not that the defendant did what the jury acquitted him or her on.

Kavanaugh, a generally conservative judge, wrote separately in a 2015 appeal decision to ask, if a defendant has a right to “have a jury find beyond a reasonable doubt the facts that make him guilty and received, for example, a five-year sentence, why doesn’t he have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?”

Or, as Blakely v. Washington put it, “[A]s the law now stands, prosecutors can brush off the jury’s judgment by persuading judges to use the very same facts the jury rejected at trial to multiply the duration of a defendant’s loss of liberty threefold. In that regime, the jury is largely “relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish” at sentencing.”

hammer171221Writing at SCOTUSBlog last week, Sen. Orrin Hatch (R-Utah), senior senator on the Judiciary Committee, said, “In the past, I have been supportive of considering all relevant conduct at sentencing, including acquitted conduct. But Kavanaugh and others have convinced me that this practice must end — as a matter of fundamental fairness if not of constitutional law. I plan to soon introduce the Acquitted Conduct Sentencing Reform Act, which will stop judges from punishing defendants for crimes for which a jury found them “not guilty.” The contours of civilization require fairness in our criminal justice system, and the Constitution demands that American men and women hold prosecutors and judges accountable. The role of the jury is central to the Constitution’s protection of individual rights, and it is time for Congress to restore power to the people.”

SCOTUSBlog.com, Judge Kavanaugh’s fight for stronger jury rights (Aug. 31, 2018)

– Thomas L. Root

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Too Exhausted to Exhaust? – Update for September 5, 2018

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PLRA EXHAUSTION REQUIREMENT EXCUSED IF INMATE UNABLE TO COMPLY

exhaustedThe Prison Litigation Reform Act was adopted in the 1990s to make it more procedurally complex for inmates to file civil actions. One provision of the PLRA requires a prisoner to exhaust all available administrative remedies before filing a federal lawsuit. Not meeting this exhaustion requirement usually gets an inmate civil action tossed out.

Rodolph Lanaghan is a very ill Wisconsin state prison inmate. Wisconsin prison regs require an inmate to file a grievance within 14 days of the occurrence giving rise to the complaint. Rodolph, who suffers from a severe degenerative muscle disease, filed a federal suit under 42 USC 1983, alleging state authorities were deliberately indifferent to his medical needs, and this violated his 8th Amendment rights.

The problem is that he did not file a state prison grievance first. After Rodolph was released from the hospital back into general population, a fellow inmate tried to sit with him in the day room to prepare a grievance on the prescribed form. But all the rec tables were occupied, and Rodolph needed a flat surface to write on. The day room study tables were available, but a corrections officer (CO) denied him use of a study table because prison regulations stated that those were reserved for studying only.

plra180906Unable to secure a table, Rodolph – who lacked any stamina because of the disease – went back to his cell with the help of the other inmate. Rodolph “spent the next week trapped inside his own body, believing he was going to die,” before being sent back to the hospital for two months.

He got out of the hospital in March, but by then he was months past the deadline for filing a grievance. Therefore, he did not bother to try. Instead, he filed his lawsuit against the prison a few months later, in July. When Rodolph learned that the PLRA required he file a grievance before suing in order to exhaust his remedies, as the legal jargon puts it, he immediately did so, but the grievance was rejected as untimely.

At a hearing on whether Rodolph’s lawsuit complied with the PLRA, the Wisconsin institutional complaint examiner testified that Rodolph’s physical condition would have been good cause to extend the time for filing until March, had Rodolph only asked for a waiver to do so. Nothing, however, but nothing supported a delay from March until July, which was months after Rodolph’s return from the hospital.

The district court held Rodolph had failed to exhaust his administrative remedies with the prison, and his lawsuit should be tossed for violating the PLRA. Last week, however, the 7th Circuit reversed.

A prisoner does not have to follow the PLRA exhaustion requirements when the grievance procedure is not available to him or her. The appeals court noted that the proper focus is not whether the prison officials engaged in any misconduct that kept Rodolph from filing, but instead whether Rodolph was not able to file the grievance within the time period through no fault of his own. The availability of a grievance procedure is not an “either‐or” proposition, the Court said. “Sometimes grievances are clearly available; sometimes they are not; and sometimes there is a middle ground where, for example, a prisoner may only be able to file grievances on certain topics.” For that reason, the availability of a remedy is therefore a fact‐specific inquiry.

If the prison had a procedure under which grievance forms were provided to all inmates and they were required to fill them out without any assistance from others, the Court said, “that procedure might render the grievance remedy available for the majority of inmates, but the same procedure could render it unavailable for a subset of inmates such as those who are illiterate or blind, for whom either assistance or a form in braille would be necessary to allow them to file a grievance.”

plrachart180906Here, even though most inmates could have returned when a rec table was available, the Court said, and even though the COs were only following the rules in denying Rodolph a table, Rodolph’s particular circumstances (the disease) in conjunction with the CO’s decision made the prison grievance remedy unavailable to him.

What’s more, the Court said, Rodolph could not be held responsible for not filing after he got back from hospital months later. While nothing prevented him from filing the grievance immediately after he returned, a time when it might have been considered because his physical incapacity could have constituted good cause for the delay, nothing in the inmate handbook made him aware of such a procedure. The Court said that “a secret grievance procedure is no procedure at all, at least absent some evidence that the inmate was aware of that procedure.”

Lanaghan v. Koch, Case No. 17-1399 (7th Cir., Aug. 29, 2018)

– Thomas L. Root

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Kushner Unrelenting On Criminal Justice Reform – Update for September 4, 2018

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KUSHNER PUTS PRESSURE ON SENATE TO PASS REFORM BILL

kushner180622Jared Kushner, son-in-law and senior advisor to the President, told reporters last week that the White House is “very close” to finalizing a criminal-justice-reform package that combines the Sentencing Reform and Corrections Act (S.1917) and the FIRST STEP Act (S.2795), to break a Senate logjam due to internal Republican Party divisions. The House passed a pared-down criminal-justice bill earlier this year with significant bipartisan margins.

Kushner has worked for months with key House lawmakers and senators to shepherd through a legislative package that reforms federal prison policy and mandatory-minimum sentencing laws. The measure is still far from being signed into law and otherwise allies of the White House, such as Sen. Tom Cotton (R-Ark.), are determined to kill it.

Ten days ago, Kushner turned up the pressure on Majority Leader Mitch McConnell (R-Kentucky) to bring the revised FIRST STEP Act to a vote. Kushner is touting a Kentucky poll showing that 70% of those surveyed support FIRST STEP to convince McConnell to bring the issue to a vote. Kushner told the media he has spoken several times with Trump about FIRST STEP, which passed the House in May on a 360 to 9 vote.

The legislation has been met with divisions in the Senate where critics, including Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois) say it does not address the “front end” problem of longer prison sentences which have fueled decades of growth in the federal prison population. 

A recent White House-driven compromise to the Senate version of FIRST STEP would loosen mandatory minimum sentences for repeat non-violent drug offenders and scrap the “three-strike” mandatory life in prison provision. A spokesman for McConnell said he discussed the hybrid bill 10 days ago week with Kushner, Grassley, and Sens. John Cornyn (R-Texas) and Mike Lee (R-Utah).

mcconnell180219McConnell “made it clear” after the meeting that the hybrid FIRST STEP/SRCA won’t come up for a vote before the November election. McConnell’s spokesman. said that although McConnell did not commit to holding a vote, “proponents of the legislation will continue to discuss the issue with their colleagues followed by a whip count after the October session to accurately assess the Conference’s view on the issue.”

The Washington Post, Jared Kushner ramps up push for criminal justice reform (Aug. 30, 2018)

Lexington, Kentucky, Herald-Leader, Jared Kushner joins campaign to press McConnell on criminal justice reform (Aug. 30, 2018)

– Thomas L. Root

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Could It Be ‘Sayonara, Sessions?’ – Update for August 29, 2018

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TRUMP BLASTS SESSIONS AGAIN, FUELING SPECULATION THE AG WILL BE FIRED
Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

Reports that Trump promised Attorney General Jefferson Beauregard Sessions III last Thursday that the President would oppose the compromise criminal justice bill are puzzling, because of the simmering rift between Trump and Sessions that exploded again into public view late last week.

Trump complained in a Fox & Friends interview that Sessions “never took control of the Justice Department” and that he was disloyal. Sessions, whom Trump called a moron last year, finally had enough, issuing a statement saying he and the DOJ “will not be improperly influenced by political considerations.”

Trump has been furious at Sessions ever since he recused himself from the Trump Russia investigation. Trump said he considered Sessions’ decision to be a sign of disloyalty, and the two have an unusually cold relationship for a president and the nation’s top law-enforcement official.

White House spokesman Hogan Gidley said last week that Trump has made clear he supports the prison reform legislation “that will ultimately make American communities safer and save taxpayers money. The president recognizes there are some injustices in the system that should be fixed.”

Sen. Tim Scott (R-South Carolina) said it ultimately won’t matter whether they have Sessions’ support or not. “Listen,” Scott said, “[Sessions] doesn’t have a vote on this one.”

The notion that Trump mollified Sessions by agreeing to oppose the compromise package, only several weeks after Trump said he would sign anything Congress sent him on criminal justice reform, is suspect. The fact that he told White House advisor Jared Kushner and Sen. Charles Grassley (R-Iowa) the next day that he was willing to take up reform after the November elections and that White House officials continue to state his support for criminal justice reform, makes the alleged Sessions promise even harder to believe.

A Bloomberg article last Thursday provides the starkest evidence that Trump has little to gain by agreeing to kill criminal justice reform to please his AG. Bloomberg reported that Trump “may have received a crucial go-ahead signal from two Republican senators” to fire Sessions “with a key condition attached: wait until after the November elections.”

Confronted with the Manafort conviction and the Cohen guilty plea last week, Bloomberg said, Trump has reaffirmed his open resentment that Sessions recused himself from what’s become a wide-ranging investigation led by Special Counsel Robert Mueller.

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Beauregard, we hardly knew ye.

The pivotal message to Trump came from Sen. Lindsey Graham (R-South Carolina). “The president’s entitled to an attorney general he has faith in, somebody that’s qualified for the job, and I think there will come a time, sooner rather than later, where it will be time to have a new face and a fresh voice at the Department of Justice,” Graham said. However, he added, forcing out Sessions before November “would create havoc” with efforts to confirm Trump’s Supreme Court nominee Brett Kavanaugh, as well as with the midterm elections on Nov. 6 that will determine whether Republicans keep control of Congress.

Grassley, the Judiciary Committee’s chairman, also changed his position on Thursday, saying in an interview that he’d be able to make time for hearings for a new attorney general after saying in the past that the committee was too busy.

Some senior Republican senators still strongly rejected Graham’s seemingly impromptu fire-him-later idea.

Despite the political hell-storm that Trump’s dismissal of Sessions would create, it is clear that criminal justice reform would only benefit from Sessions being run out of town. 

McClatchy News, Trump, Sessions feud spills over into dispute over policy on criminal justice reform (Aug. 21, 2018)

Politico, Senators Signal Sessions’ Ouster (Aug. 24, 2018)

Bloomberg, Key Republicans Give Trump a Path to Fire Sessions After the Election (Aug. 23, 2018)

– Thomas L. Root

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More of the Same Ol’ Same Ol’ at the Sentencing Commission – Update for August 28, 2018

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SENTENCING COMMISSION ANNOUNCES PRIORITIES FOR COMING YEAR

The U.S. Sentencing Commission last week approved a list of policy priorities for the coming year, including a multi-year examination of the “differences in sentencing practices that have emerged across districts, within districts, and, in some cases, within courthouses under the advisory guidelines system.”

In light of the Supreme Court’s decision in Koons v. United States, the Commission will also consider application issues related to the calculation of retroactive sentence reductions for certain offenders convicted of mandatory minimum penalties.

newsun180828For the third consecutive year, the Commission also set as a priority the adoption of a uniform definition of “crime of violence.”  The Dept. of Justice has raised several application issues that have arisen since the Commission’s 2016 amendment, including the meaning of “robbery” and “extortion.”  The Commission will also consider possible amendments to Guideline § 4B1.2 (the “career offender” guideline) to allow courts to consider the actual conduct of the defendant in determining whether an offense is a crime of violence or a controlled substance offense.

The USSC will also continue to study recidivism among federal offenders as well as the use of mandatory minimum penalties in the federal system.

Over the past two years, the Commission released eight reports on those topics. Despite the net effect of the prior reports (being zero), the Commission plans an additional recidivism report this coming year, as well as reports on the use of mandatory minimums in cases involving identity theft and sex offenses.

U.S. Sentencing Commission, Final Priorities for Amendment Cycle Ending May 1, 2019 (Aug. 22, 2018)

– Thomas L. Root

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