The Department of Justice has announced the plans and criteria for the long discussed new clemency initiative.  The basics of the program are set out in two DOJ documents, one a press release and the other a speech given by a Deputy Attorney General

Announcing New Clemency Initiative, Deputy Attorney General James M. Cole Details Broad New Criteria for Applicants

Remarks as Prepared for Delivery by Deputy Attorney General James M. Cole at the Press Conference Announcing the Clemency Initiative

DOJ is adopting six criteria for identifying appropriate prisoners to be considered in the expedited clemency program, which appears to apply only to drug offenders:

•         The prisoner is currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;

•         The prisoner is a non-violent, low-level offender without significant ties to large scale criminal organizations, gangs or cartels;

•         The prisoner has served at least 10 years of his or her sentence;

•         The prisoner does not have a significant criminal history;

•         The prisoner has  demonstrated good conduct in prison; and

•         The prisoner has no history of violence prior to or during his or her current term of imprisonment.

The proof of the pudding is in the tasting, and we’re not especially optimistic about this.  We remember well how Congress authorized a home detention program for elderly offenders in the Second Chance Act of 2008, and – by the time the BOP adopted an implementing program statement for the program – the criteria had become so narrow that only about 10 prisoners in the entire 200,000-inmate Federal system qualified.

The broad criteria listed above have more holes than a swiss cheese factory.  First, how many prisoners would have a substantially lower sentence if sentenced today?  The crack offenders, maybe, but most of them have had their sentences adjusted already under 18 U.S.C. § 3582(c)(2).  Second, what is a “significant” criminal history?  Is that a Criminal History II?  A III?  Only a Guidelines career offender?  And what is good conduct in prison?  No loss of good time days?  No 200-series or higher incident reports?  No incident reports at all?

Back in 2009, we knew of a 79-year prisoner suffering from cancer and heart disease who would have made the elderly offender pilot detention program but for his “history” of violence.  That history?  An aggravated assault for a barroom brawl in a Pittsburgh bar, circa 1949.  The BOP interpretative rules called this a “history of violence.”

Perhaps this time it’ll be different.  But that’s not how the smart money’s betting.

President Obama is preparing to make much broader use of his power to grant commutations to non-violent drug convicts who have served long sentences, Attorney General Eric Holder said in a video released Monday.

“The White House has indicated it wants to consider additional clemency applications, to restore a degree of justice, fairness, and proportionality for deserving individuals who do not pose a threat to public safety,” Holder said. “The Justice Department is committed to recommending as many qualified applicants as possible for reduced sentences.”

Forgive us for being underwhelmed.  Like Lucy and Charlie Brown’s football in Peanuts, too many inmates have been misled by too many hollow promises from this Administration.  At least the Bush White House didn’t pretend to have sympathy for plight of the Federal prisoner. 

Certainly, in April 2009, the Administration promised to reduce the disparity between penalties for crack cocaine and powder cocaine, and ultimately, Congress lessened the disparity, but did not eliminate it.  But the 2009 pledge was not just to reduce the disparity.  Rather, Assistant Attorney General Lanny A. Breuer said that

This Administration is committed to reviewing criminal justice issues to ensure that our law enforcement officers and prosecutors have the tools they need to combat crime and ensure public safety, while simultaneously working to root out any unwarranted and unintended disparities in the criminal justice process that may exist.

The Administration announced then that it had established a Cabinet-level task force under Holder to redo Federal sentencing “top to bottom.”  But for the change in the crack-to-powder ratio, nothing.   The number of Federal prison inmates continued to rise, more mandatory minimum sentences were mandated by Congress, and President Obama himself issued fewer pardons and commutations than any president in modern history.

Five months ago, President Obama released a statement announcing eight – yeah, count ‘em – eight  commutations in December.  In it, he said “thousands of inmates” were in jail for longer terms than they would have received under current law.   But under his Administration, the BOP has fallen far short of using its full power under the Second Chance Act, compassionate releases have been virtually impossible to obtain, and the Department of Justice has fought against more liberal interpretation of “good time” and against application of the Fair Sentencing Act to defendants who committed their offenses before the law’s effect but were sentenced after the law went into effect.

Suddenly, the President announces he has discovered his clemency power?  Yeah, right.  All the Obama Administration has done for existing inmates is make empty promise after empty promise, with nothing to show for it.

Even now, Administration officials are promising only vague action.  “Well, I don’t think that we’d be looking for group commutation. We’d be looking for individuals who would be deserving of clemency or commutations, given the nature of their conduct, their lack of ties to violence or to drug-dealing gangs or cartels,”  Attorney General Eric Holder said. “We’ve begun an initiative to identify additional clemency recipients. This is something that I know is important to the president. And we’re trying to come up with ways in which we can make individualized determinations about who should receive clemency.”

Trying to come up with ways?  How about just doing it, instead of wondering how to do it?  How about commuting the sentences of all inmates without an existing BOP public safety factor for violence in their offenses by, say, 50 percent.  The BOP could be directed to implement it, with a single level of administrative review for people denied the commutation.  It would leave the courts out of the procedure altogether.

This isn’t hard, people.  We deal with inmates daily, and it angers us to see this Administration to enter its fifth year of recognizing the gross unfairness of the system while not being willing to use its constitutionally-granted powers to fix it.  Dorothy could be forgiven – she didn’t know her ruby slippers could get her back to Kansas.  But this Administration, headed by a former constitutional law professor, knows that it has always had the power to lessen the unfairness of the system.  It’s a shame it has wrung its hands instead of acting.

The United States Sentencing Commission voted this afternoon to reduce the base offense levels for nonviolent drug offenses (§ 2D1.1(c)) by two levels.   The amendment would reduce the advisory guidelines range for sentences for drug traffickers by an average of 11 months.

The vote was unanimous, but that doesn’t necessarily mean that the Commission will decide to make the change retroactive.  Chief U.S. District Judge Patti B. Saris, the Chair of the Commission, cautioned that no one should assume retroactivity is a slam dunk:

Over the next few months, the Commission will be studying the issue of whether the drug amendment should apply retroactively, which we are statutorily required to do. This is a complex and difficult issue, and requires a different analysis than the decision we have made today about reducing drug sentences prospectively. The Commission will take into account, as it always does when considering retroactivity, the purposes of the amendment, the magnitude of the change, and the difficulty of applying the change retroactively, among other factors. I know the Commission will carefully consider this issue, and many stakeholders will have strong views. I do not know how it will come out, but we will carefully review data and the retroactivity impact analysis we have directed staff to conduct as well as public comment in order to ensure that we weigh all perspectives.

Retroactivity would affect a very large number of Federal inmates.  Previously, the Commission has declined to make changes retroactive because of the burden retroactivity would place on the court system.   Recall the change in criminal history “recency” points, back in 2010, which was not made retroactive in large part because up to 100,000 inmates would have flooded the system with § 3582(c) motions to reduce sentence.

Not to be a wet blanket, but we think that retroactivity for this change is far from certain.

Despite our skepticism – some might call it cynicism – about the likelihood that Congress will act to reform the Federal sentencing system, the issue seems to be gaining steam in the Senate.

The Smarter Sentencing Act (S. 1410) picked up two more co-sponsors last Friday, Sen. John “Johnny” Isakson (Republican from Georgia), and Senator Timothy Kaine (Democrat from Virginia).   The bill now has 16 co-sponsors, 10 Democrats, 5 Republicans and one independent.  Traditionally, this kind of bi-partisan support for a bill is a good thing, increasing the likelihood that the bill will be passed.

The companions bill to S. 1410 – H.R. 3382 – is still in committee in the House of Representatives, but it has 20 co-sponsors, and Govtrack.us gives the measure a 60 percent chance of getting out of committee and a 45% chance of passage.  Govtrack is notoriously stingy in its assessments of a bill’s chance of passage, making this number pretty heartening.  By comparison, Govtrack gives S. 1410 a 57 percent chance of passage, a major increase from moths ago, when its chances were still in the single digits.

Finally, a lengthy New York Times piece last Thursday and an op-ed opinion piece today cover the legislative push on sentencing.  The Thursday story reported on the factors driving Republican support for sentencing reform:

“[L]eading Republicans are saying that mandatory minimum sentences in the federal system have failed — too costly, overly punitive and ineffective. So they are embracing a range of ideas from Republican-controlled states that have reduced prison populations and brought down the cost of incarceration.

“The shift turns upside down the “war on crime” ethos on the right, and even among some on the left, an approach that has dominated the policy of punishment for more than two decades.

“Religious conservatives see these efforts as offering compassion and the hope of reuniting broken families. Fiscal conservatives say the proposals would shave billions off the federal budget. The combination has made closing prisons and releasing inmates who no longer appear to pose a threat new articles of faith among politicians who would have rejected them out of hand only a few years ago….

“The changes represent a rare example of both parties agreeing in a major area of domestic policy. The Obama administration is engaged and supportive of the efforts in Congress, as was evident on Thursday when Attorney General Eric H. Holder Jr. endorsed a proposal that would reduce prison sentences for people convicted of dealing drugs, the latest sign that the White House is making criminal justice a priority of President Obama’s second term.”

The Judiciary Committee report on The Smarter Sentencing Act of 2013 has been delivered, with the revised text of the Act as reported by the Committee.

There is nothing in the Act as reported that grants any retroactivity, other than for crack offenses that could have gotten an 18 U.S.C. § 3582(c)(2) reduction except for a mandatory minimum that changed in The Fair Sentencing Act of 2010.  The revised Smarter Sentencing Act gives the Sentencing Commission a lot of leeway, and its assignment could be read as supporting making changes retroactive, but passage of this bill – if that happens – won’t have any real impact on existing federal prison populations.

Of course, all of this presupposes that Senate Majority Leader Harry Reid will bring this to a vote before the end of the year.  He’s notorious for letting bills – such as the ill-fated Second Chance Reauthorization Act of 2011 – die even after a bipartisan Committee unanimously recommends it.

Update – March 14:   The Wall Street Journal  reported this morning that a new agreement between Senate Republicans and Democrats has resulted in “under a fresh process that could clear the way for the chamber to pass other bipartisan bills.”    Among the bills that the Senate expects to consider using the new procedure – in which Harry Reid agrees to bring bills to a vote and Republicans agree to limit the number and reach of amendments they introduce – are “a manufacturing bill, federal sentencing changes and stalled energy-efficiency legislation.”

Perhaps we may yet see the Senate consider the Smarter Sentencing Act.  If so, we still have the House or Representatives to worry about.

Rosemond v. United States, Case No. 12-895 (March 5, 2014)

Federal law (18 U.S.C. § 2) provides that people who help other people commit crimes can be convicted of those crimes just as if they had committed them  themselves.  This is called “aiding and abetting” liability.  If one aids or abets (that generally means “helps”) someone else commit a crime, the aider or abettor can be found guilty of a crime he or she did not physically commit.  Thus if you loan money to someone to buy a kilo of cocaine, and they then buy it and resell it in small lots, you can still be convicted of distribution although you never saw the cocaine, let alone handled it.

(This is different from conspiracy – 18 U.S.C. § 846 – in which one is much more easily ensnared than aiding or abetting).

In a case decided March 5^th by the Supreme Court of the United States, Rosemond v. United States, (Case No. 12-895), defendant Rosemond joined with two other people to sell drugs – but he claimed he didn’t know his companions would use a gun.  Federal law makes it a separate crime to commit a drug trafficking offense while using a gun (18 U.S.C. § 942(c)), a crime that carries a mandatory additional sentence of five years or more extra years in prison.  In Rosemond, the Supreme Court ruled that to convict a defendant of a § 924(c) offense on an “aiding or abetting” theory, the government must prove that the defendant knew in advance that someone else would use a gun, and at least far enough in advance so that he could, if he chose to, quit the crime.  If the defendant only learned about the gun when there was “no realistic opportunity” to quit, then he can’t be convicted.  In the words of law, he would lack the “mens rea” – the mental state – required, about the gun to convict.

The Justices agreed that because § 924(c) has two basic elements – drug trafficking plus a firearm — a criminal § 924(c) aider or abettor must have “foreknowledge” that someone will use a gun, and not just foreknowledge that a drug deal is planned.  The trial court instructed the jury that it was enough for them to find that Rosemond knew it was a drug trafficking crime and that “his cohort used a gun” – not that Rosemond also knew that his companion would use a gun.  The trial court’s error was that the requirement that there be “foreknowledge” regarding the gun was not well conveyed to the jury.

The Justices unanimously rejected the idea that a defendant must be proven to have “desired” the use of a gun in order to be convicted.  That he “knowingly elected to aid” even after learning that a gun was involved is enough – “[t]he law does not, nor should it, care whether he participates with a happy heart or a sense of foreboding.”

The majority further subdivided the ques-tion of “foreknow-ledge,” deciding that the standard requires advance knowledge of a gun “at a time the accomplice can do something” about it.   Such advance know-ledge “enables [the accomplice] to make [a] legal (and indeed moral) choice” – either to continue participating even with the risks that presence of a firearm can bring ­– or stop.  “[I]f a defendant continues to participate … after a gun is displayed …, the jury can permissibly infer” that he had the requisite foreknowledge.”  “But when an accomplice knows nothing of a gun until it appears at the scene, … he may at that point have no realistic opportunity to quit the crime.”  When this is so, the majority rules, he lacks the required intent to aid the gun-use, as aiding and abetting doctrine requires.

Trial courts frequently punish what otherwise might be aiding or abetting liability under 18 U.S.C. § 924(c) by upward adjustments of two levels for possession of a firearm during a drug offense under § 2D1.1(b)(1).  The standard of proof is much lower, in where a large quantity of drugs was involved, the additional two levels often can add five years or more to the advisory Guidelines sentence.  Whether the Rosemond “aiding or abetting” liability analysis will be employed in assessing § 2D1.1(b)(1) liability is a fertile ground for argument.