After Wild Week, Criminal Justice Reform Postponed Until November, If Then – Update for August 27, 2018

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TOPSY-TURVY WEEK IN WASHINGTON FOR CRIMINAL JUSTICE REFORM

Last week, the editor of this newsletter took a vacation away from the Internet and cellphone coverage for the first time in years. After all, the last weeks of August are always quiet in the courts and halls of Congress.

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The Supreme Court may be gone for the summer, but no one else in Washington seems to be…

What a mistake leaving town turned out to be…

The week started out well. Senate Minority Whip Richard Durbin (D-Illinois), the No. 2 Senate Democrat, said he could support the compromise criminal justice reform bill that Republican colleagues presented to President Trump and senior White House officials three weeks ago. That bill, which combined four sentencing changes with FIRST STEP Act, is a compromise pushed by senior White House adviser Jared Kushner in order to win the support of Senate Judiciary Committee Chairman Charles Grassley (R-Iowa). Grassley, co-sponsor of the Sentencing Reform and Corrections Act of 2017 (which was approved by the Committee last February), has opposed FIRST STEP because of the absence of sentencing reform provisions that change some mandatory minimums.

oddcouple180702Durbin’s announcement made him the first Democratic senator to support the legislation, which is key to assuring Senate passage.

Two days later, the news site Axios reported that Senate Majority Leader Mitch McConnell (R-Kentucky) agreed in a meeting with Kushner, Grassley, Sen. John Cornyn (R-Texas) and Sen. Mike Lee (R-Utah) to bring the compromise bill to a vote if an informal review showed that the measure had at least 60 votes in support. Axios admitted that McConnell’s spokesperson said a commitment to a vote had not been made, but asserted that another source said the Majority Leader came just shy of promising a vote.

Axios also reported President Trump had said earlier on Thursday that while he will not endorse the bill before the midterms, he was open to the compromise currently being negotiated, according to a senior administration official and Sen. Lee. The White House said in a statement “the President remains committed to meaningful prison reform and will continue working with the Senate on their proposed additions to the bill.”

While many, including Lee, wish the vote would occur today, McConnell’s willingness to bring it to a vote if the support is there (and earlier reports are that the compromise would collect 80 votes or more) is encouraging. The delay is entirely political: “I think the sentencing reforms are still controversial and divide Republicans,” Cornyn said. “I just don’t see the wisdom of dividing Republicans on a contentious matter like that before the election.

sessions180322Then, on Friday, the Washington Free Beacon reported that Trump told Attorney General Jefferson Beauregard Sessions III and Kushner the day before that he was opposed the FIRST STEP compromise, in large part due to an exception he believes it carves out that may release convicted drug traffickers early. A statement released by the Dept. of Justice seemed to confirm that. DOJ said: “We’re pleased the president agreed that we shouldn’t support criminal justice reform that would reduce sentences, put drug traffickers back on our streets, and undermine our law enforcement officers who are working night and day to reduce violent crime and drug trafficking in the middle of an opioid crisis.”

The Free Beacon story, however, said that Trump had later walked back his opposition, and told Grassley and Kushner that he was “willing to take up prison/sentencing reform” after the election.

The Free Beacon said “McConnell is famously skittish about dividing his caucus, and so is still unlikely to bring a bill to the floor if it does not have Republican caucus support. Trump’s backing—once held out, and now withdrawn—would almost certainly be vital to getting more Republicans on board.”

dontknow180828So the compromise may be voted on after the mid-term elections the first week of November. Or it may not. Trump may support it. Or he may not. The Democrats may support the compromise. Or they may not.

Of course, last week also brought the conviction of Paul Manafort, Trump’s former campaign chairman, on fraud charges unrelated to the Trump campaign, and the guilty plea (and probable cooperation agreement with the Feds) of Trump’s former lawyer, Michael Cohen. That is bad news for the defendants and for Trump, but to the extent it makes Trump angrier and more fearful of the Justice Department, it probably increases the chances Trump will support criminal justice reform.

The Hill, Democratic leader gives boost to criminal justice reform compromise (Aug. 21, 2018)

Axios, McConnell commits to moving forward on criminal justice bill after midterms (Aug. 23, 2018)

Washington Free Beacon, Trump Strongly Opposed to FIRST STEP (Aug. 24, 2018)

– Thomas L. Root

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3rd Circuit Goes for 2255 Petitioner in Remarkable Johnson Holding – Update for August 21, 2018

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3RD CIRCUIT EASES JOHNSON BURDEN FOR 2255 CHALLENGES

Ronnie Peppers was sentenced to a 180-month mandatory minimum under the Armed Career Criminal Act for being a felon in possession of a firearm. But after the 2015 Johnson v. United States decision, which invalidated the “residual clause” of the ACCA as unconstitutionally vague, Ronnie challenged his sentence under 28 USC 2255.

BettyWhiteACCA180503But the 2255 motion was not his first, and 28 USC 2255(h) places limits on any effort to file a second or successive collateral attack on a criminal judgment. The District Court denied Ronnie’s second 2255 motion after determining that his prior convictions remained predicate offenses because they are covered by portions of the ACCA that survived Johnson.

Last week, the 3rd Circuit reinstated Ronnie’s motion in a pro-defendant decision that conflicts with a number of other circuits. First, the Circuit held that the jurisdictional gatekeeping inquiry for second or successive Johnson 2255 motions requires only that a defendant prove he might have been sentenced under the ACCA’s residual clause, not that he was in fact sentenced under that clause. Second, a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) does not preclude a defendant from collaterally attacking his sentence in a 2255 motion if his sentence would be unlawful once he proved that the ACCA no longer applies to him in light of Johnson. Third, a defendant seeking a sentence correction in a second or successive 2255 motion based on Johnson, and who has used Johnson to satisfy the gatekeeping requirements of 2255(h), may rely on post-sentencing cases (many of which hold other state crimes not to be ACCA predicates, either) to support a Johnson claim.

In Ronnie’s case, the 3rd Circuit found that his two state robbery convictions are no longer categorically violent felonies under the ACCA, and, consequently, it was error to treat them as such.

United States v. Peppers, Case No. 17-1029 (3rd Cir.  Aug. 13, 2018)

– Thomas L. Root

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Rough Road Ahead in the Senate for Criminal Justice Reform? – Update for August 20, 2018

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CRIMINAL JUSTICE REFORM: TRUMP WANTED TO LEAD, NOW IT’S TIME TO DO IT

Now that the Senate has resumed sessions after a shorter-than-normal August break, criminal justice reform advocates are escalating pressure on Majority Leader Sen. Mitch McConnell (R-Kentucky). They want him to schedule a vote on the revised FIRST STEP Act bill, which will include mandatory minimum relief, a bill backed by President Donald Trump.

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But there are worrisome signs that a long-running GOP rift on the issue has not healed. Politico reports that interviews with a dozen GOP senators show that the future of FIRST STEP, either amended or in its original form, remains precarious. That’s because the handful of Republicans who have long protested reducing mandatory-minimum sentences leave McConnell without any incentive to call up legislation that would split his conference.

One of the critics of adding sentencing reform to the House-passed FIRST STEP Act, Sen. John Kennedy (R-Louisiana) predicted last week that McConnell would not bring the bill to the floor any time soon. “I’m not sure that we can put together a deal,” Kennedy said in an interview. “I’m not sure we should.” 

White House officials and FIRST STEP supporters have been talking with Republican holdouts to convince them to back the compromise, which adds four sentencing reform provisions to the House bill. Trump senior adviser and son-in-law Jared Kushner “will be making the rounds on the Hill,” according to a veteran Kentucky Republican strategist who now leads the nonprofit Justice Action Network. “And once we have the requisite number of Republican votes, I think his father-in-law is going to lean in hard.”

sessions180215A lot of involvement from the President will be required for the GOP to unify over reducing mandatory minimum sentences as part of a prisons package. Sen. Charles Grassley (R-Iowa) has 15 Republican cosponsors on the Sentencing Reform and Corrections Act, which contains mandatory minimum reductions, but Attorney General Jefferson Beauregard Sessions III opposes SRCA, and is even against FIRST STEP. Another conservative who is vocal in opposing either bill, let alone a blend of them, is Sen. Tom Cotton (R-Arkansas). Cotton wrote an op-ed piece last week that was breathtaking in its falsehoods and shibboleths, calling FIRST STEP a “jailbreak” sentencing bill that would flood the streets with stone-killer ex-cons. Cotton’s opinion piece was roundly condemned, but McConnell is hypersensitive to any dissention in the Republican caucus. There is little doubt that Cotton’s intemperate complaints concern McConnell a lot.cotton171226

Besides Cotton, other reliable allies of the White House, including Senate Majority Whip John Cornyn (R-Texas), are opposing the administration’s approach, which would combine FIRST STEP with changes to some of SRCA’s sentencing and mandatory minimums. The proposal nevertheless has wide, bipartisan support in the Senate.

Supporters say completing the bill would give the administration a needed win heading into November’s midterm elections. Opponents say it would make Trump look soft on crime.

A senior White House official said the Administration has 30 to 32 locked down “yes” votes among Republican senators. He offered hope that the number of Republican supporters could eventually grow as many as 40 to 46.

Trump and McConnell, once implacable foes, have forged something of a partnership these days. That arrangement will be tested in the coming days.

The Hill, Sentencing reform heats up, pitting Trump against reliable allies (Aug. 17, 2018)

CBS News, Trump, McConnell forge partnership as mid-terms approach (Aug. 17, 2018)

Politico, Criminal justice deal faces steep Senate hurdles despite Trump’s push (Aug. 17, 2018)

– Thomas L. Root

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Apply to College Without Ratting Yourself Out – Update for August 16, 2018

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WHEN DOES THE PUNISHMENT END?

The Austin American-Statesman featured a fascinating story today about Lewis Conway, who served a sentence for manslaughter but now is running for elected office and challenging a Texas law banning felons from holding such positions. The article is slugged with the provocative heading, “Austin candidate Lewis Conway’s run asks when a criminal sentence ends.”

Perhaps sooner than “never,” which has otherwise become American society’s default position. Last week, Inside Higher Education reported that for the first time in 12 years, prospective students using the Common Application to apply to college will not be asked to report whether they have criminal histories.

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Accepted by over 700 colleges and universities worldwide, the Common App is America’s most broadly used college application. The change comes following a 10-year campaign to “Ban the Box” by a broad coalition of advocates who claim that the question creates “an undue barrier that harms certain groups of students.”

Individual colleges will still maintain the right to ask the question on their supplements to the Common Application, just as they have had the ability to not consider the information provided to date. But advocates for “banning the box,” as the movement to end the question has been known, have said that including or dropping the question from the main application would have a major impact.

IHS reported that the criminal history question had not been demonstrated to meaningfully improve campus safety, and many accounts suggested that it deterred those who had been involved in the justice system from seeking higher education upon release.

A study conducted by the Education from the Inside Out Coalition found that for every student rejected by SUNY application committees because of a prior felony conviction, 15 did not complete their applications because they feared checking the box.

Inside Higher Education, Common App Drops Criminal History Question (Aug. 8, 2018)

The Crime Report, Ending Crime Checkbox for College Praised by Inmate Advocates (Aug. 10, 2018)

– Thomas L. Root

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What Will A Blended FIRST STEP Bill Contain? – Update for August 15, 2018

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WHAT WILL BE ADDED TO FIRST STEP IN THE WHITE HOUSE DEAL?

As we have reported, the Trump Administration is brokering a deal to amend the FIRST STEP Act to include some of the sentencing reform provisions of the Sentencing Reform and Corrections Act. The compromise, intended to appease SRCA co-sponsors Sen. Charles Grassley (R-Iowa) and Sen. Richard Durbin (D-Illinois), should clear the way for a Senate vote on FIRST STEP, and passage of some badly needed prison reform.

grassley180604Not everything in SRCA will get dropped into the Senate version of the FIRST STEP Act. Nevertheless, what is proposed is significant to a lot of people.

The SRCA additions to FIRST STEP will probably include:

• Reductions in some drug mandatory minimums, reducing penalty from life to 25 years for a third drug conviction, and from 20 to 15 years for a second drug conviction.

Sentencestack170404•   Ending 18 USC 924(c) “stacking” charges. This provision would prohibit the doubling up of mandatory sentences for carrying a gun during drug or violent crime offenses. The way 924(c) is written now, a defendant who carries a gun while selling pot three days in a row commits three separate 924(c) offenses. The first one carries a consecutive 5 years, and the second and third each carry a consecutive 25 years, meaning the defendant gets 55 years plus the pot sale guidelines. The change in the law makes clear that the increased penalty for a second or third 924(c) offense applies only after conviction for the first one.

• Increase “safety valve” application. This provision would give judges more discretion in giving less than the mandatory minimum for certain low-level crimes, including people with Criminal History II in the safety valve provisions of 18 USC 3553(f).

• Retroactivity for the 2010 Fair Sentencing Act. This provision would make the FSA, which changed sentencing guidelines to treat offenses involving crack and powder cocaine more equally, retroactive to people sentenced before the law went into effect.

"Just the facts, FAMM."
                          “Just the facts, FAMM.”

Last Friday, FAMM released an extended series of fact sheets reviewing which SRCA sentencing provisions are in play. The document, written as a memo to Congress members and staff, is entitled “Fact sheets explaining potential sentencing additions to FIRST STEP Act.” It explains in detail the provisions possibly being added to FIRST STEP, and describes cost savings and justice issues surrounding each.

Also last week, Marc Holden, general counsel to Koch Industries and point man for the Koch initiatives on criminal justice reform, wrote, “By supporting these smart-on-crime, soft-on-taxpayers reforms, President Trump is demonstrating exemplary leadership. If Congress is able to pass the FIRST STEP Act with these sentencing provisions included, it would give the president a lasting, landmark achievement on criminal justice reform that has eluded previous administrations.”

FAMM, Facts sheets explaining potential sentencing additions to FIRST STEP Act (Aug. 10, 2018)

Freedom Partners, President Trump is Leading on Criminal Justice Reform; Senate Should Send Him a Bill (Aug. 9, 2018)

– Thomas L. Root

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DC Circuit Slams DOJ Information Shell-Game – Update for August 14, 2018

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DC CIRCUIT HAMMERS DOJ OVER FREEDOM OF INFORMATION ACT ARROGANCE

foia160930Who hasn’t had this happen? You file a Freedom of Information Act request seeking documents showing prosecutorial misconduct, only to wait many months for a two-page letter claiming that all of the requested material is exempt law-enforcement stuff. And it’s hard to appeal, because you cannot tell what records were not included, so you cannot argue that the withheld records were non-exempt.

That happened to Greg Bartko. After he was convicted in a case “beset by prosecutorial misfeasance,” as the DC Circuit put it, he filed multiple Freedom of Information Act requests with the Dept. of Justice Office of Professional Responsibility and other relevant agencies trying to get records of other times the Assistant U.S. Attorney assigned to his case had cut corners. OPR categorically refused to acknowledge the existence of, let alone disclose any, potentially relevant documents outside of Greg’s own case. And even with respect to Greg’s case, OPR held back a lot of material, asserting a sweeping exemption for law enforcement records under FOIA Exemption 7(C) and providing a “Glomar” response that it could neither confirm or deny the records existed, because that would implicate law enforcement activities.

OPRFOIA180814Last week, the DC Circuit slammed OPR’s reckless use of Exemption 7(C) and its arrogant “Glomar” claim (which exists to enable agencies to dodge making admissions about records for national security reasons). To qualify as law-enforcement records, the Circuit said, “the documents must arise out of investigations which focus directly on specifically alleged illegal acts which could, if proved, result in civil or criminal sanctions. Records documenting only government surveillance or oversight of the performance of duties of its employees do not qualify.

The Circuit held that an agency must establish a rational nexus between the investigation and one of the agency’s law enforcement duties, and a connection between an individual or incident and a violation of federal law. OPR does not do law enforcement, but instead internal DOJ discipline. Plus, one of OPR’s primary responsibilities is not to generate reports, but rather just to obtain reports from others that arise as a result of internal agency monitoring and review allegations of non-law violations by DOJ attorneys for internal disciplinary purposes. Thus, the Court said, OPR bears the burden of showing on a case-by-case basis that requested records were actually compiled for law-enforcement, rather than employment-supervision purposes.

In defense of its Glomar response, OPR offered only a bare-bones declaration that the records Greg requested consist of complaints or allegations of misconduct which, if they exist at all, would have been compiled as part of OPR’s investigations of DOJ attorneys “who are alleged to have committed specific acts of professional misconduct which, if proved, could result in civil or criminal penalties.” The Court said that “is not even in the ballpark.” OPR “cannot rely on a bare assertion to justify invocation of an exemption from disclosure.” A “near-verbatim recitation of the statutory standard is inadequate” to justify the use of an exemption.

foia160328Greg’s FOIA request was broadly worded to include a wide variety of actual or alleged violations by the AUSA of the U.S. Attorney’s Manual, the North Carolina Code of Professional Conduct, and other ethical and legal obligations. While violations of some of those standards could conceivably result in civil or criminal sanctions, the Court said, many of them would not and would bear only on internal disciplinary matters.

Bartko v. DOJ, Case No. 16-5333 (D.C.Cir., Aug. 3, 2018)

– Thomas L. Root

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Trump Hits the Throttle on Reform Bills – Update for August 13, 2018

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WHITE HOUSE, SENATE CUTTING A DEAL ON AMENDING FIRST STEP

The FIRST STEP Act, which has stalled in the Senate because of opposition from top Republicans who want more sentencing relief than the bill offers, got a jump start in the last week, and, according to White House sources, may be set for a vote in the Senate before the end of the month.

firststepB180814Behind the scenes, the administration and legislators are hammering out an agreement that would add significant changes in the nation’s mandatory sentencing laws to the widely popular prison reform bill that passed the House earlier this year, the Washington Post said, crediting officials familiar with the discussions.

President Trump met with a number of state governors during  his golf course vacation at Bedminster, New Jersey, last week, holding a “roundtable” that was intended to signal the important to the President of getting a Senate vote on FIRST STEP.

During Thursday’s meeting, Trump said the administration was working to “refine” the House-backed measure in the Senate. “I have to say, we have tremendous political support. It surprises me. I thought that when we started this journey about a year ago, I thought we would not have a lot of political support,” Trump said, flanked by state officials and top aides. “People I would least suspect are behind it, 100 percent.”

deal180723The deal being discussed would add four sentence reform measures from the Sentencing Reform and Corrections Act (legislation sponsored by Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Sen. Richard J. Durbin (D-Illinois) and backed by a broad coalition of Senate Democrats and Republicans) to the House bill. Ohio State law professor Doug Berman said last week in his Sentencing Law and Policy blog that he believed the revised measure will breeze its way to passage in the Senate, with a vote of in favor of 80% or more.

“We are trying to get a Senate vote in the next two weeks,” an administration said. White House officials hope that Trump’s meeting with governors will spark action in the Senate and prompt leaders to put legislation on the summer calendar. Senate Majority Leader Mitch McConnell has kept the Senate in session. 

“There can’t be any doubt that by having this as the only major event on the president’s schedule that he is laser focused on this,” said a Trump aide. “We think that with this momentum and with the coalition behind it, that this can actually happen.”

firststep180814At the session with governors, Trump said, “Our first duty is to our citizens, including those who have taken the wrong path but are seeking redemption and a new beginning.  That’s people that have been in prison, and they come out and they’re having a hard time… We’ve passed the FIRST STEP Act through the House, and we’re working very hard in the Senate to refine it and pass it into law.  We think we’ll be successful in that regard.  The bill expands vocational educational programs to eligible federal inmates so that more of them can learn a trade.  And that’s what we’re doing.  We’re teaching them trades.  We’re teaching them different things that they can put into good use, and put into use to get jobs.”

ABC News reported last Thursday that “the Senate is now expected to move forward with a modified version of the House bill that will reduce the current mandatory life sentence for certain drug offenses from a life sentence to 25 years, prohibit the doubling of mandatory sentences for certain gun and drug offenses, broaden judicial discretion, and make retroactive the 2010 Fair Sentencing Act that narrowed the discrepancy in sentencing guidelines for crack versus powdered cocaine.”

Jon Ponder, an associate minister at a Las Vegas church who has two priors for robbery, was one of the ministers who met with the President at the White House in late July. Ponder, founder of HOPE for Prisoners, a program that helps more former inmates adjust to life after prison by providing financial advice, personal mentoring and connections to employers, said he believes Trump supports inmate re-entry programs as much as he does.

sincerity180814“I think that something would really have to be wrong with that man to sit down in that room and have the conversation with the (ministers) that he did, if he was not being sincere about this,” Ponder said. “I believe that he spoke from his heart. He shared in that room that he was very compassionate about this, and about the importance of people who are fighting for a second chance.”


Washington Post, Trump huddles with governors, other officials on prison overhaul (Aug. 9, 2018)

McClatchy Newspapers, Trump, Congress try to breathe life into long-delayed criminal justice reform package (Aug. 8, 2018)

Washington Examiner, Jared Kushner helps Trump pave rare bipartisan path to big win (Aug. 9, 2018)

ABC News, Trump has privately expressed openness to broad criminal justice reform (Aug. 9, 2018)

– Thomas L. Root

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The Error Wasn’t Plain… But Your Lawyer Was Plainly in Error – Update for August 7, 2018

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GOVERNMENT PLEA BREACH NOT PLAIN ERROR, BUT DEFENSE COUNSEL WAS PROBABLY INEFFECTIVE
A defendant is supposed to get what he reasonably believed he negotiated in a plea deal
A defendant is supposed to get what he reasonably believed he negotiated in a plea deal

Marquette Murray had a couple of problems, a federal drug conspiracy indictment and a couple of misdemeanors in D.C. Superior Court. His lawyer negotiated a favorable plea deal in which the government agreed Marquette was looking at Criminal History I and a sentencing range of 24-30 months.

After the deal was made, however, Marquette got sentenced in D.C. Superior Court before his federal sentencing. The presentence report used the misdemeanor convictions and made Marquette a Crim History II. His sentencing range rose to 27-33 months, and the government recommended a 33-month sentence.

On appeal with a different lawyer, Marquette claimed the government had breached the plea agreement, because in D.C., the government runs prosecutions in federal court and superior court. Because the government had the power, Marquette said, it should have delayed Superior Court sentencing so Marquette would have remained a Crim History I for federal sentencing purposes. To add insult to injury, the government demandedMarquette get 33 months, and thus breached its promise to recommend a within-range guidelines sentence.

ausalies171207What did in the government was that it agreed in the plea agreement that based on the information it knew, Marquette had a criminal history of I and a sentencing range of 24-30 months. Last week, the Court of Appeals agreed with Marquette that the government had welshed on the deal, but it denied Marquette relief… even while dangling a post-conviction carrot in front of him.

Sure, the Court ruled, the government breached the plea agreement. But because Marquette’s trial attorney did not object, the appeals court could only grant relief for FRCrimP 52(b) plain error. “And to find plain error,” the Court said, “it is not enough to base our reading on the parties’ ‘reasonable understanding’ and on ‘construing any ambiguities’ against the government. Rather, we must find that the breach was clear or obvious.”

While reasonable defendants could have understood the agreement the way Marquette did, the agreement did not expressly address whether the not-yet-entered pleas would affect his final criminal history category and Guidelines range, and the agreement does not expressly address the expected timing of those pleas. “In sum, we conclude that the government breached its plea agreement with appellant [Marquette]. But [Marquette] did not object to the breaches in the district court, and we therefore cannot provide him with relief because the breaches were not plain. Although his interpretation of the agreement’s ambiguous language is the best one, we cannot say that the breaches should “have been obvious to the trial court.”

However, the Court said in an unmistakable hint to Marquette, it seemed pretty clear his trial counsel was ineffective in not seeking a continuance in Superior Court and in not objecting to the government asking for more than 30 months.

lawyerjoke180807And because “in most cases the Guidelines range will affect the sentence,” the prospect that effective performance would have put [Marquette’s] 33-month sentence above the Guidelines range is sufficient to establish a reasonable probability of prejudice.

The Court strongly implied that Marquette might get the deal he was entitled to on post-conviction review, and it hinted to Marquette that he should be sure to file a 2255 motion, which he will no doubt be doing soon.

United States v. Murray, Case No. 17-3006 (D.C. Cir., July 31, 2018)

– Thomas L. Root

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Trump Speaks… Will Criminal Justice Reform Become Law? – Update for August 6, 2018

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TRUMP BREAKING CRIMINAL JUSTICE REFORM LOGJAM?

President Trump told Republican senators last Wednesday that he’s open to a proposal on prison and sentencing reform that combines the FIRST STEP Act with provisions of the Sentencing Reform and Corrections Act of 2017, giving new life to criminal justice reform that had seemed hopelessly stalled on Capitol Hill.

trumplogjam180806The compromise presented to President Trump by Republican senators at a White House meeting on Wednesday would combine the FIRST STEP Act with four sentencing reform provisions that have bipartisan Senate backing, according to a source familiar with the meeting.  

A senior White House official described the president as “positively inclined” toward the compromise proposal. The source said Trump told GOP senators to “do some work with your colleagues” and “let’s see where the Senate is and then come back to me with it.”

The White House meeting with Republican senators included Mike Lee (Utah), Lindsey Graham (South Carolina), and Senate Judiciary Committee chairman Charles Grassley (Iowa).

Trump’s support is significant because the core group of Republicans and Democrats behind the Senate bill has insisted on including sentencing reform as part of any criminal justice legislation, but Senate Majority Leader Mitch McConnell (R-Kentucky) is not about to bring a bill to the floor if there is vocal opposition from either the White House or the Republican caucus. “The question is whether there [are] enough sentencing provisions in there to make those guys happy without turning off too many Republicans and making it too toxic for McConnell to put on the floor,” says Alex Gudich, deputy director of #Cut50, a criminal justice advocacy group.

The Hill reports that some of the bill backers now think there’s a possibility of moving the modified legislation through the Senate as soon as this month, although it’s more likely be delayed until the lame-duck session after the midterm elections, that starts in mid-November.

cotton171226Conservatives such as Sen. Tom Cotton (R-Ark.) and Attorney General Jeff Sessions have opposed combining prison and sentencing reform. Cotton argued in a speech at the Hudson Institute earlier this year that “if anything, we have an under-incarceration problem.”

Meanwhile. the Washington Free Beacon published a leaked letter from the Dept of Justice to the White House outlining its concerns about the FIRST STEP Act. “In the Department’s view,” the letter says, “this legislation, if passed in its current form, would further and significantly erode our long-established truth-in-sentencing principles, create impossible administrative burdens, effectively reduce the sentences of thousands of violent felons, and endanger the safety of law-abiding citizens and law enforcement officers.”

The DOJ letter also tied the declining federal prison population to rising crime rates. “The number of federal inmates has declined more than 16% since 2013 and is at its lowest level since 2004,” the letter reads. “It is likely no coincidence that, at the same time, we are in the midst of the largest drug crisis in our nation’s history and recently experienced the two largest single-year increases in the national violent crime rate in a quarter of a century.”

sessions180322Conservative groups supporting criminal justice reform pushed back against the DOJ letter. FreedomWorks rebutted the report, saying, “Simply put, correlation doesn’t equal causation.” And when reporters asked Grassley today about his former Senate colleague Sessions’ efforts to derail the criminal justice legislation, Grassley responded sharply, “With all that I have done to help Sessions, to keep the president from firing him, I think Sessions ought to stay out of it.”

Criminal justice reform groups have been bolstered by a poll released last week by Freedom Partners, a nonprofit group that funds conservative and libertarian causes, showing 70% of voters nationwide think the Senate should pass the FIRST STEP Act.

Ohio State University law prof Doug Berman said in his Sentencing Law and Policy blog this past weekend, “I am not counting any sentencing reform chickens before they hatch, but this description of the compromise combo FIRST STEP Act and SRCA would seem to make a lot of sense in light of various positions staked out on both sides of the aisle. And if Prez Trump signals support for such a reform package and is willing to make it a priority, I would now be inclined to predict this will get done this year. But because Prez Trump has never seemed a serious advocate for sentencing reform, and because his Attorney General likely dislikes all of this, and because the run-up and aftermath of an election can disrupt lots in DC, I am inclined to remain pessimistic about all of this until votes are being scheduled and taken.”

The Hill, Trump gives thumbs up to prison sentencing reform bill at pivotal meeting (Aug. 3, 2018)

Reason, The White House Is Moving Forward on Prison Reform Despite Justice Department Resistance (Aug. 2, 2018)

Sentencing Law and Policy, Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018 (Aug. 4, 2018)

– Thomas L. Root

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3rd Circuit Lowers Procedural Hurdles for Actual Innocence Claims – Update for July 31, 2018

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3RD CIRCUIT HOLDS “ACTUAL INNOCENCE” EVIDENCE NEED NOT BE NEWLY DISCOVERED

The Supreme Court ruled in Schlup v. Delo that an actual innocence claim was an exception to habeas corpus “procedural default.” More recently, McQuiggin v. Perkins held that actual innocence excuses filing a habeas petition late. But courts of appeal have wrestled with whether the evidence of actual innocence has to be newly discovered, or just be evidence the jury never saw before.

Some of the people who say this really are...
Some of the people who say this really are...

The 3rd Circuit weighed in on the issue last week, joining the 1st, 2nd, 6th, 7th and 9th in holding that the evidence the petitioner relied on could be simply evidence the jury never saw before, even if it was evidence that the defendant knew about, but his lawyer never presented.

The 3rd said, “in a case where the underlying constitutional violation claimed is ineffective assistance of counsel premised on a failure to present evidence, a requirement that the new evidence be unknown to the defense at the time of trial would operate as a roadblock to the actual innocence gateway. To overcome this roadblock, we now hold that when a petitioner asserts ineffective assistance of counsel based on counsel’s failure to discover or present to the fact-finder the very exculpatory evidence that demonstrates his actual innocence, such evidence constitutes new evidence for purposes of the Schlup actual innocence gateway.”

Reeves v. Fayette SCI, Case No. 17-1043 (3rd Cir., July 23, 2018)

– Thomas L. Root

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