Surprise – Sentencing Commission Finds Retroactive Sentence Cuts Don’t Make You More of a Criminal – Update for April 3, 2018

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USSC STUDY OF FAIR SENTENCING ACT RELEASEES SHOWS NO DIFFERENCE IN RECIDIVISM

sessions180322One of the primary complaints lodged by Attorney General Jefferson Beauregard Sessions III against sentencing reform is that all sorts of hardened criminals will be getting out of prison early to wreak havoc on society. Unsurprisingly, a U.S. Sentencing Commission study released last week refutes that claim, and suggests that the AG’s opposition to retroactive sentencing cuts is a fact-free position.

In the Anti-Drug Abuse Act of 1988, 2010, Congress panicked its way into a terrible piece of legislation that, among other things, considered crack cocaine such a scourge that defendants possessing it were punished as though they possessed 100 times the amount of cocaine. Back then, if you were caught holding 5 grams of crack, you were sentenced to the same time as someone with a kilo of cocaine in his backpack.

10grams180403The effect of the ADAA was to pack the federal prisons with black inmates, because overwhelmingly, the users of crack – which was cheap compared to cocaine powder – were the urban poor, and the urban poor are overwhelmingly black. A white college kid with no record, caught peddling a few snorts of coke, maybe 10 grams of powder, faced a 10-16 month sentence. The same kid, black with no record busted holding 10 grams of crack cocaine, got a 51-63 month sentence.

One hardly had to be a math quiz to figure out how the number of black federal inmates skyrocketed, while the amount of underlying criminal conduct pretty much stayed the same.

Over the 20 years following the ADAA, the U.S. Sentencing Commission complained to Congress repeatedly about the unintended racial impact of the ADAA. Finally, in 2010, Congress passed the Fair Sentencing Act, a bill Sessions supported as a senator, that reduced the treatment disparity between coke and crack from 100:1 to 18:1. Now the white kid still got 10-16 months, while the black kid got 27-33 months. Still not perfect, but better.

Responding to the passage of the FSA, the Sentencing Commission amended the Guidelines to reduce crack penalties in the drug table, and permitted people who had already been sentenced to apply for a sentence reduction under 18 USC 3582(c)(2). Now, the Commission has compared the post-release conduct of crack cocaine offenders who were released immediately before and after implementation of the 2011 Fair Sentencing Act Guideline amendment.

recid160321The study, with the unwieldy name of Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment, asked whether reduced sentences for the FSA retroactivity defendants resulted in increased recidivism, a near-constant warning by Sessions of the effect of any retroactive sentencing reform. 

The report said the recidivism rates were virtually identical for both groups: “Over a three-year period following their release… each group had a recidivism rate of 37.9%.” The recidivism for about a third of each group was relatively insignificant court or supervised violations, meaning that only about one out of four people committed a serious offense in the 3 years following release.

FreedomWorks.org, a free-market libertarian organization, said, “The USSC report confirmed long-held beliefs of proponents of retroactivity, and undermine the fear-driven narrative opponents of sentencing reform in their attacks on the impact of retroactivity.”

FreedomWorks, In the case of Fair Sentencing Act retroactivity, USSC report lends resounding endorsement (Mar. 28, 2018)

U.S. Sentencing Commission, Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment (Mar. 28, 2018)

– Thomas L. Root

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4th Circuit Enters the 2255(e) Savings Clause Debate… on the Right Side – Update for Monday, April 2, 2018

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4TH CIRCUIT OKs 2241 FILINGS ON SENTENCING ERRORS

The 4th Circuit reversed years of denying people who had received elevated sentences improperly due to prior state convictions in a decision last week that, at the same time, defined when the Sec. 2255(e) “savings clause” would let someone file a Sec. 2241 habeas corpus action.

The statute that permits federal prisoners to file a habeas corpus-type collateral attack on their convictions or sentences, 28 USC 2255, has fairly strict time requirements, as well as a one-to-a-customer provision that makes the filing of a second 2255 motion extraordinarily difficult.

Maybe a little less sandbagging movants with the Savings clause?
Maybe a little less sandbagging movants with the savings clause?

For that reason, Congress included a section in the statute, 2255(e), commonly called the “savings clause,” which permits prisoners who have already filed and lost a 2255 motion, but cannot get permission to file a second one, to use a 28 USC 2241 classic habeas corpus filing when the 2255 motion “is inadequate or ineffective to test the legality of his detention.” Courts have done their level best over the years to make application of the savings clause as rate as a snowfall on July 4th. But, last week, the 4th Circuit provided some clarity and hope to prisoners.

Gerald Webster had gotten a higher sentence because of a prior North Carolina drug felony that later on was ruled not to be a felony under the United States v. Simmons case (due to a 16-year structured sentencing experiment North Carolina began in 1994). But Simmons’ retroactivity came too late for Jerry, whose 2255 motion had been heard by then. He tried a 2241 motion then, which was denied by the district court because he only showed he was actually innocent of a sentence, not of the underlying conviction.

Whether the 2255(e) savings clause applied to sentences as well as convictions had been left hanging in United States v. Surratt, which was on panel rehearing in the 4th Circuit when President Obama mooted it by giving Mr. Surratt a commutation to time served. Last week, the 4th Circuit patched the hole.

In last week’s decision, the Circuit held that the 2255(e) savings clause could be invoked if (1) when the defendant was sentenced, circuit or Supreme Court precedent made the sentence legal, but  (2) after the prisoner’s direct appeal and first 2255 motion, the settled substantive law changed and (3) the change was retroactive. The defendant must also (4) be unable to make a showing justifying a second and successive 2255 motions, and (5) due to the retroactive change, the defendant’s sentence now presents an error sufficiently grave to be deemed a “fundamental defect.”

The Circuit held that in this case, Jerry’s statutory minimum would have been half of the sentence to which the defendant was subjected, and that error “implicates separation of powers principles and due process rights fundamental to our justice system.” Thus, the error was a fundamental defect, and Jerry was entitled to resentencing with the lower statutory minimum.

United States v. Wheeler, Case No. 16-6073 (4th Cir. Mar. 28, 2018)

– Thomas L. Root

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Talk About Killing Drug Dealers Crowds Out Talk About Reforming Their Sentences – Update for March 30, 2018

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QUIET COUPLE OF WEEKS ON SENTENCING AND PRISON REFORM


hangem180330President Trump turned the criminal justice legislative front on its head last week with his call to execute drug traffickers. That’s already the law (although Trump appears not to know that), although it is a law which the Dept. of Justice has not used until now because of its questionable constitutionality. Nevertheless, little was done last week on the sentencing or prison reform issues in front of Congress.

Reps. Doug Collins (R-Georgia) and Hakeem Jeffries (D-New York) did report last week that the House Judiciary Committee will mark up their legislation, H.R. 3356, the Prison Reform and Redemption Act, after Congress returns from its Easter break in April, with a full vote expected soon after. The PRRA focuses on rehabilitation and job training ahead of an inmate’s release from federal prison, and provides good-time incentives for prisoners to enroll in programs that have a proven track record by establishing a post-sentencing risk-and-needs assessment.

justicereform161128Last week, the Leadership Conference on Civil and Human Rights wrote to Senate Majority Leader Mitch McConnell (R-Kentucky) and Minority Leader Chuck Schumer (D-New York) on behalf of 59 criminal justice, human rights, and faith-based organizations, to oppose effort to pass S.1994, the CORRECTIONS Act of 2017, which addresses prison reform without doing anything to include sentencing reform (or “front end” reform). “Any legislation that addresses only back end reforms.” The organizations said, “is doomed to fail in achieving these goals. Without changes to sentencing laws that eliminate mandatory minimums, restore judicial discretion, reduce the national prison population, and mitigate disparate impacts on communities of color, S.1994 alone will have little impact.”

Federalist, Trump’s Plan to Execute Drug Dealers is Bluster Masquerading as a Solution (Mar. 19, 2018)

H.R. 3356, Prison Reform and Redemption Act

S.1994,  CORRECTIONS Act of 2017

World, Lawmakers seek end to justice reform stalemate
(Mar. 22, 2018)

The Leadership Conference, Letter to Mitch McConnell on S. 1917 (Mar. 23, 2018)

– Thomas L. Root

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Burrage Won’t Save You if the Evidence is There – Update for March 29, 2018

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RIGHT EVIDENCE BUT WRONG INSTRUCTION IS NOT GOOD ENOUGH ON 2255

heroinkill180329People convicted of drug trafficking can get a greatly increased minimum sentence, up to natural life, if the government proves that drugs they distributed caused the death of a user. Up until a few years ago, this provision – 21 USC 841(b)(1)(A) – was a great bludgeon for the government, which was winning enhanced sentence just by showing that someone who died had taken drugs sold by the defendant, no matter how many other things they might have taken, too.

We saw one case where a woman died when she nodded off at the wheel and drove off the road, hitting a tree. She was legally drunk, but also had marijuana and oxycontin in her system. The guy who sold her the oxy got a minimum 20 years.

In 2014, common sense prevailed in Burrage v. United States, when the Supreme Court held that unless the government could prove that “but for” the drugs sold by the defendant, the user-death enhancement could not be applied. In our drunk-driving case above, the defendant got a sentence reduction because no one could testify that without the oxy, our drunk driver would have stayed on the road. But as Lorenzo Roundtree found out last week, Burrage has its limits.

Lorenzo sold heroin to some people who shared their smack with the victim. Shortly after using the heroin, the drunk victim became unresponsive and died. The medical examiner testified that he died as a result of alcohol and drug intoxication. The judge instructed the jury that if it found the heroin contributed to the victim’s death, that was enough, even if it was not the primary cause of death.

After Burrage, that instruction was no longer good law. (In fact, Burrage said the instruction had never been good law). Lorenzo had a 28 USC 2255 on file when Burrage was handed down, so he amended it to claim that his jury instructions were flawed. Last week, the 8th Circuit turned him down.

Lorenzo’s problem was that a medical examiner testified for the government that the alcohol and heroin had worked together, “synergistically” as the doc put it, to depress the victim’s respiratory system. No one contradicted the doctor’s opinion that the percent of alcohol found in the victim’s bloodstream, 0.16%, was not enough to cause death “if that were the only thing that was in his blood.” The doctor testified the alcohol and morphine “probably worked together,” but “the morphine alone could have caused his death.”

death160714The Circuit held that based on doctor’s uncontradicted testimony, “the incorrect jury instruction did not result in prejudice” to Lorenzo. The doc’s opinion that “the morphine alone could have caused the victim’s death” would be enough to let the jury to find that Lorenzo’s drugs were an “independently sufficient cause of the victim’s death,” as Burrage required. What’s more, the 8th said, because the heroin and liquor “worked synergistically to cause” the victim’s death, but the amount of alcohol alone in the victim’s bloodstream was not enough to cause death, any reasonable jury would have found that the heroin was a “but-for” cause of the victim’s death. Therefore, Lorenzo was not harmed by the bad jury instruction, because if the jury had been properly instructed, it would have found Lorenzo qualified for his natural life sentence anyway.

Roundtree v. United States, Case No. 16-3298 (8th Cir. Mar. 22, 2018)

– Thomas L. Root LISAStatHeader2small

Agreeing to Shoot Someone is Hardly Violent – Update for March 28, 2018

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WHEN IT COMES TO VIOLENCE, A CONSPIRACY WITHOUT AN OVERT ACT JUST AIN’T A CONSPIRACY

Taison McCollum was a felon in possession of a gun, a violation of 18 USC 922(g). At sentencing, his district court applied the Guidelines 2K2.1(a)(4)(A) sentencing enhancement, which sets a higher sentencing range for felons-in-possession if they have a prior conviction for a crime of violence. The enhancement was  based on Taison’s prior conviction under 18 USC 1959(a)(5) for conspiracy to commit murder in aid of racketeering.

To most reasonable people, a conspiracy to commit murder sounds like it ought to be a crime of violence. But in a remarkable decision last week, the 11th Circuit disagreed, and vacated Taison’s sentence.

blind-referee-memeGarden-variety conspiracy, both federal and state, requires an overt act. If you all get drunk one night during the NCAA Final Four games, and agree to shoot an especially blind referee, you haven’t committed a crime if you wake up the next morning sober and think better of it. But if after you agree to shoot the ref (which may have even seemed like a good idea when you were drunk), your buddy goes out and buys a gun and tickets to the next playoff game, an overt act has been committed toward the conspiracy’s goal. Then, even if you never shoot the guy, that overt act makes you  guilty of the conspiracy.

The Feds have passed several conspiracy laws that do not require an overt act, such as 21 USC 846 drug conspiracies and conspiracy in aid of racketeering, (which is what Taison had been convicted of). The 11th Circuit noted that 36 US states and territories, regular federal conspiracy under 18 USC 371, and two other circuits, the 9th and 10th, all hold that the general conspiracy needs an overt act.

Because 1959(a)(5) does not require an overt act, the 11th said, the statute “criminalizes a broader range of conduct than that covered by generic conspiracy.” Taison’s 1959(a)(5) conviction “therefore cannot support his enhanced sentence because it is not categorically a crime of violence.”

United States v. McCollum, Case No. 17-4296 (11th Cir. Mar. 20, 2018)

– Thomas L. Root

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Maybe Prison Reform Won’t Be Such a Bad Thing – Update for March 27, 2018

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GREATEST GOOD FOR THE GREATEST NUMBER?

Federal inmates understandably focus most on changes in the law that would retroactively reduce their sentences. For that reason, a lot of people are not happy that President Donald Trump has turned the debate from sentencing reform to prison reform, which is changing reentry and rehabilitation programs.

A U.S. Sentencing Commission letter to the Congressional Budget Office – which is responsible for assessing the impact of proposed bills – was posted last week on the USSC website. The letter addresses the impact of S. 1917, the Sentencing Reform and Corrections Act of 2017, on current sentences and the size of the BOP inmate population.

numbers180327Surprisingly, the USSC analysis finds the prison reform provisions of SRCA could impact ten times as many federal prisoners as would the sentencing reform provisions. The analysis finds that about 7,000 inmates could benefit from the retroactive sentencing provisions of Title I of the SRCA, but over 75,000 federal prisoners could be eligible for the corrections credits – increased earned good time for completion of education programs – offered by Title II of the bill.

In his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman said, “I sincerely hope… criminal justice reform advocates will appreciate that a huge number of… federal prisoners could and would benefit from enacting just the corrections piece of the SRCA. Given widespread support for reform provisions that could have widespread impact, I hope we see some movement on the corrections front soon.  But, sadly, given an array of problematic personalities and politics, I am not optimistic.”

Letter to Congressional Budget Office from U.S. Sentencing Commission (March 19, 2018)

Sentencing Law and Policy, Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017 (Mar. 22, 2018)

– Thomas L. Root

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Correcting Some 5K1.1 Sentence Duplicity – Update for March 26, 2018

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THEY’RE BA-A-A-A-CK

snitch160802A substantial percentage of defendants who get sentenced every year in the federal system cooperate with the government. Rats, snitches, narcs, whatever you call it, cooperating with the authorities is most of the time nothing more than an exercise in self-preservation. The US criminal code has so many offenses carrying harsh and inflexible mandatory minimum sentences, and the advisory Sentencing Guidelines (which are followed by judges about half of the time) can be unforgiving. The only way a defendant can escape application of a mandatory minimum sentence is through cooperation with the government.

If the United States Attorney’s Office files a motion for a downward departure under 18 USC 3553(e) and Sec. 5K1.1 of the Guidelines, a sentencing judge may sentence without regard for mandatory minimum sentences or the advisory Guidelines. Consider a defendant charged with two drug transactions on successive days, at each of which he sold 6 grams of methamphetamine (about the weight of a sugar cube) while carrying a gun. He has a prior state conviction for drug dealing, too, although the conviction is 25 years old. Under 21 USC 841(b), he faced a statutory minimum of 10 years for the drugs, a consecutive 5 years for carrying the gun during the first sale, and another consecutive 25 years for carrying the gun the second day. Under the law, the sentencing judge would have to lock up the miscreant for 40 years (and in the federal system, he would have to serve 87% of that sentence, even if he behaved).

cubes180326But the government wants the guy who put you on the street corner. So it offers to drop one of the 18 USC 924(c) gun charges and not file the required not
ice to force the court to consider your 25-year old prior conviction. This cuts your minimum sentence from 40 years to 10 years. On top of that, the government offers to consider a 5K1.1 motion. All you have to do is cooperate.

Do you do the stand-up thing? Of course, if you’ve always admired the kamikazes. Otherwise, you cooperate. At sentencing, the government files the 5K1.1, recommending a 30% reduction from your statutory minimum 120 months. The court agrees, and you get a sentence of 87 months. Not a bad outcome for having started at 480 months.

It’s little wonder that 30% of defendants facing a drug mandatory minimum sentence get credit for cooperation. More would if the government offered it to them. But there is a dark side (at least if you, the defendant, are willing to so quickly forget the 40 years you faced without the deal).  Inmates who got 5K1.1 downward departures in their sentences that took them below their statutory minimums have been the red-headed stepchildren of the Sentencing Commission’s 2-level reductions.

fineprint180308In our above illustration, the defendant’s advisory Guidelines sentencing range – not considering the statutory mandatory minimum of 480 months – was 18-24 months. The plea agreement our defendant signed contained the usual boilerplate saying the district court would consider applicable guideline provisions, but everyone knew that the statutory minimum of 10 years was what was driving the train, not the advisory Guidelines.

Three times in the last decade, the Sentencing Commission has reduced the base offense levels applicable to drugs by 2-levels per step. The last one was in 2014, at which time 31,089 already-convicted people won retroactive sentence reductions. But when our defendant in the example subsequently applies for the 2-level reduction, the government argues that he expressly acknowledged in his plea that the crime was subject to a mandatory minimum sentence. Thus, the government says, the sentence was based on a statutory minimum, not a guideline and not on “a sentencing range… lowered by the Sentencing Commission” (which is required for a sentence reduction).

The Supreme Court last considered the “based on” language in 2011, and in Freeman v. United States, split 4-1-4, which left only confusion. It takes up the matter again tomorrow in two arguments, Koons v. United States and Hughes v. United States.

stitches180326In Koons, the justices will decide whether defendants subject to statutory mandatory minimum sentences, but who received prison terms below the minimum because they provided substantial assistance to the government, are nonetheless eligible for reductions under 18 U.S.C. §3582(c)(2). The petitioners, five guys who were denied the 2-level reduction approved by the USSC in Amendment 782, lost in front of the 8th Circuit, which declaring that each defendant had received a sentence “based on his statutory mandatory minimum sentence and his substantial assistance” and thus could not claim to have received a prison term “based on a sentencing range that has subsequently been lowered by the Sentencing Commission .”

The USSC issued a policy statement directing that defendants in this position are eligible for reductions, but the government does not care, arguing the Commission may not legally construe or define a sentence as being “based on” a guideline when it was not.

In Hughes v. United States, which will be argued first, the justices will consider the meaning of the 2011 4-1-4 split in Freeman. It is not a slam-dunk for either side in this case, but a favorable ruling – which will come in June – could open the door to 2-level reductions for a number of people who were previously not eligible.

Hughes v. United States, Case No. 17-155 (Supreme Court, oral argument Mar. 27, 2018)

Koons v. United States, Case No. 17-5716 (Supreme Court, oral argument Mar. 27, 2018)

– Thomas L. Root

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Sentencing Reform, We Hardly Knew Ye – Update for March 21, 2018

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COALITION TO PASS SENTENCING REFORM IS FALLING APART

The bipartisan sentencing reform movement is breaking apart in the face of President Trump’s prison reform proposals, which focus on prisoners re-entering society instead of reducing mandatory minimums. The division between prison reform and sentencing reform advocates, especially in the Senate, could threaten the momentum behind either proposal.

trump170515
President Trump counts the number of high officials he has fired or who have left his Administration… could the Attorney General be next?

Trump and Attorney General Jefferson Beauregard Sessions III have no interest in anything more than prison reform right now. And Jared Kushner, the White House’s sentencing reform advocate, has reportedly decided prison reform is the only way forward. Senate Majority Whip John Cornyn (R-Texas) won’t support Sen. Charles Grassley (R-Iowa) on the Sentencing Reform & Corrections Act – which Grassley’s Judiciary Committee passed last month 15-5 — despite his prior support. Cornyn is pushing instead for his bill, the CORRECTIONS Act with Sen. Sheldon Whitehouse (D-Rhode Island) that calls only for prison reforms aimed at aiding re-entry and reducing recidivism. An aide to a Judiciary Committee member told Axios last week that “McConnell isn’t going to put sentencing reform on the floor, particularly now that the administration opposes it. So the options are the Whitehouse-Cornyn bill, or nothing.” 

reform160201On the House side, Rep. Doug Collins (R-Georgia), whose Redemption Act mirrors the Cornyn-Whitehouse bill and has the most momentum in the House, told Axios he supports some kind of broader, more comprehensive criminal justice reforms, but right now, “prison reform can get the votes in Congress… but sentencing reform can’t.” Reps. Bobby Scott (D-Virginia) and Jason Lewis (R-Minnesota, who are cosponsoring a bipartisan House sentencing reform bill, are still optimistic about the chances for sentencing reform. The odds of getting any bill through the House Judiciary Committee, whose chairman Bob Goodlatte (R-Virginia) is so notoriously slow at moving legislation that the Committee has become known as the place bills go to die, are considered slim. “This guy just refuses to move legislation,” said a senior Republican lawmaker. “I can’t think of a single thing he’s actually accomplished,” added a top GOP Republican aide.

Progressive groups and senators like Grassley, Dick Durban (D-Illinois), Lindsey Graham (R-South Carolina) continue to push for sentencing reform.

sessions180322There’s some good news coming out of the Washington rumor mill. After Secretary of State Rex Tillerson was fired and Trump economic advisor Gary Cohn quit last week, several publications reported that the President had Sessions on his short list of people to be fired. Vanity Fair said that according to two Republicans in regular contact with the White House, there have been talks that Trump could replace Sessions with EPA Administrator Scott Pruitt, former Oklahoma attorney general, who would not be recused from overseeing the Russia probe. Such a replacement could soften Trump Administration opposition to SRCA, inasmuch as Pruitt is not reputed to be as hidebound as Sessions.

Axios, The criminal justice reform coalition is breaking up (Mar. 15, 2018)

Politico, The Place Bills Go to Die (Mar. 15, 2018)

Just Security, How Trump Might Replace Sessions with Pruitt as Attorney General (Mar. 15, 2018)

Vanity Fair, “Trump wants them out of there”: After swinging the axe at Tillerson, Trump mulls what to do with McMaster, Sessions, Jared, and Ivanka (Mar. 14, 2018)

– Thomas L. Root

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ATF Stings Are Slimy… Just Not Slimy Enough – Update for March 20, 2018

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N.D. ILLINOIS SLAMS STASH HOUSE STINGS, BUT DOES NOT DISMISS CASES

stash171120We have reported ad nauseam about the battle over whether stash house stings – where federal agents convince unwitting defendants to rob nonexistent stash houses of nonexistent drugs, all so they can arrest them – are designed to target minorities.

Last December, we told you that the issue had come to a head in an unprecedented three-day hearing in Chicago before a panel of nine U.S. district judges.

Each of the judges on the panel was presiding over one or more of 12 separate stash-house cases, with the liberty of 43 defendants at stake. The judges  simultaneously heard expert testimony about the stings after lawyers for all 43 defendants moved for the stash-house charges to be tossed on grounds of racial bias. The testimony focused on dueling experts who reached starkly different conclusions about the racial breakdown of targets in the stash house cases. 

stash171031
Real life is not like the movies…

In a decision last week, the chief federal judge in the Northern District of Illinois issued the first of at least nine decisions on the issue, finding that the controversial drug stash house stings run by the ATF have an ugly racial component and should be discontinued. However, Chief U.S. District Judge Ruben Castillo  stopped short of dismissing charges against eight defendants, finding that the evidence fell short of proving the stings unfairly targeted blacks and Hispanics.

“These… cases have served to undermine legitimate law enforcement efforts in this country,”  Judge  Castillo said from the bench. “It is time for these false stash house cases to end and be relegated to the dark corridors of our past… Fortunately for the government, the question before this court is not whether the practices used in these sting operations are honorable or fair.”

The remaining judges are expected to issue opinions of their own in coming weeks, and any significant differences among the rulings are expected to lead to appeals.

ATF180321How the 13 Chicago-area cases are decided is being watched across the country, where hundreds of similar stings have been used over the past two decades. While judges in other districts have criticized the operations for inventing crime and targeting vulnerable people, Judge Castillo’s ruling was the first to call them out on the issue of race.

United States v. Brown, Case No. 12-cr-632 (N.D.Ill. Mar. 12, 2018)

– Thomas L. RootLISAStatHeader2small

No Consensus Among “First Offender” Witnesses at USSC Hearing – Update for March 19, 2018

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FIRST OFFENDER VIEWS CLASH AT SENTENCING COMMISSION HEARING

falsehope170206For the past year, we have constantly run into one federal inmate newsletter or another that has breathlessly predicted the imminent adoption of the U.S. Sentencing Commission’s First Offender proposal. One was soliciting money from inmates and their families last summer, so that it could determine whether the inmates were eligible for “first offender” relief and then presumably prepare whatever filing it believed would deliver this sentencing morsel to the door of the inmate’s prison.

Lately, another newsletter was stirring up hope by forecasting that the U.S. Sentencing Commission would adopt the “First Offender” proposal on March 14.

We revel in our well-deserved reputation as a wet blanket for most inmate rumors, a role we have undertaken because, face it, almost all inmate rumors have as much basis in fact as a Trump tweet. So, in that spirit, let us hose down the “First Offender” proposal with some cold water.

abscissa180319The USSC’s sentencing guidelines are based on a cartesian system with the abscissa being the offense level and the ordinate being the defendant’s criminal history. If you rob a bank, that offense is worth a base offense level of so many points. If you threatened an old lady in the process, that is worth a few more points, but if you confess after being caught, that takes a few points off.

Your criminal history is calculated based on the number, severity and age of prior criminal convictions. A prior drunk driving is not as bad as a felony burglary, and while a 12-year old misdemeanor possession of pot charge isn’t worth anything, a 12-year old felony trafficking in pot is. The result is a Total Offense Level and Criminal expressed in Arabic numbers (such as a Level 22) and a Criminal History Category expressed in Roman numerals (such as a “III”). On the sentencing table that is Chapter 5A of the Federal Sentencing Guidelines, a defendant with a Total Offense Level of 22 and a Crim History Level III would have a suggested sentencing range of  51-63 months.

Now for the “First Offender” proposal. It is entirely possible to have prior convictions galore and yet be a Criminal History I (the best score you can achieve). The Guidelines define a Crim I as someone with zero or one criminal history point, which means you could have had a couple of heroin distribution felonies in the 1980s, a string of misdemeanor domestic violences between 1990 and 2006, and one minor misdemeanor 2014, and – because of the age of the offenses – be a Criminal History I. Such a defendant is far different from the 55-year old guy who has never even gotten a traffic ticket, but ends up with a tax fraud conviction. Both defendants get the best treatment from the Sentencing Table that’s possible, but one is a genuine virgin while the other has simply mastered the talent of not getting caught. In recognition, the USSC proposed  that the Phoebe Snows of the criminal world get bonus points for a prior record that’s purer than Crim I.

phoebe170202Two options for a “First Offender” guideline were floated for this. One was that any defendant with zero criminal history points should be considered a First Offender. The stricter one was like an Academy Award for lifetime achievement, and would give bonus points to those with no criminal convictions any time in their past, no matter how old.

As for nomenclature, the First Offender guideline would adjust a first offender’s Total Offense Level downward. The Sentencing Commission suggested that either all defendants who qualify as “first offenders” would receive a 1-level reduction from their offense level, or perhaps that  defendants who qualify as “first offenders” would receive a 2-level reduction if their Total Offense Level was below 16 and a 1-level reduction if it’s above. 

The First Offender proposal, if adopted at all, will be included in the package of proposed amendments sent to Congress by the Commission on or before May 1. If Congress does not veto the proposal, it will become effective November 1.  But it became clear at  last week’s hearing on proposed amendments, the witnesses interested in First Offender had very different ideas on what should be done, leaving the Commission with a lot of work to do before deciding on the final product.

baddude180319The Dept. of Justice told the USSC there should be no “first offender” reduction at all, because it “ignores the reality that first offenders routinely engage in conduct that warrants stiff punishment.” The National Association of AUSAs agreed, but said if there is to be a First Offender reduction, it should award first offender status only where the offender has “no prior convictions of any kind,” since “offenders with ‘stale’ prior criminal convictions obviously present a higher recidivism risk than true first offenders.” The AUSAs also argued that any reduction to be limited to 1 level.

The Commission’s Probation Officer Advisory Group also argued against a First Offender reduction, suggesting instead that a current ban on criminal history downward departures be lifted. Currently, a judge may depart upward on criminal histories, but not downward. The POs suggested this change would let courts reduce criminal histories below Crim History I if the defendant’s criminal history category substantially over-represents the seriousness of his past or the likelihood that the he will commit other crimes. The USSC Victims Advisory Group proposed that “first offender” status should not be awarded to anyone convicted of a crime of violence.

Unsurprisingly, public defenders, faith-based groups and tribal advocates argued for giving “first offender” status to anyone without any crim history points, and for giving a 2-level reduction to people with a guidelines offense level under 16.

retro160110No witness said anything about retroactivity. A Guideline amendment that – had it been in effect before – lowered the Guidelines of people already convicted, does not automatically entitle anyone sentenced before to a reduction. Instead, the USSC must determine the amendment should be retroactive, and included in the retroactivity Guideline (1B1.10). Retroactivity is usually considered in a separate proceeding.

Although the Commission included language in last summer’s proposal inquiring about retroactivity (fairly standard boilerplate), nothing has been said about it since. Last week, not a single witness addressed it.

Without retroactivity, the First Offender proposal will not do a thing for people who are already locked up. This does not mean that the USSC may not make the change retroactive in the future, but it suggests any retroactivity decision will be made much later than April.

U.S. Sentencing Commission, Public Hearing (Mar. 14, 2018)

– Thomas L. Root

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