PATTERN Changes Coming Next Month – Update for April 26, 2022

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

PATTERN AMENDMENTS COULD BENEFIT THOUSANDS

The Dept. of Justice told Congress last week that it will soon roll out a new version of the PATTERN recidivism risk measurement system containing adjustments it says will improve accuracy, possibly benefitting up to 33,000 federal prisoners.

PATTERNsheet220131The modifications, which come after criticism was leveled at PATTERN last January for implicit racial bias, are intended to significantly increase the number of black and Hispanic men in prison who are eligible to take classes or productive activities that will result in them getting earn time credits (ETCs).

DOJ estimated that 36% more black men and 26% more Hispanic men might qualify as minimum or low risk under the change, with smaller increases for black and Hispanic women.

Even with the changes, DOJ admitted in last week’s report, it is still unable to resolve other racial disparities (such as continued overestimating the number of black women compared to white women who will commit new offenses after release).

DOJ told Congress that even after the anticipated release of a modified PATTERN early next month, it would continue to work “to ensure that racial disparities are reduced to the greatest extent possible.” That could be difficult. Most of that disparity, according to Melissa Hamilton, a law professor at the University of Surrey, results from what happens before prison and application of the PATTERN metrics. “When using factors with criminal history, prison discipline and education, the tool is almost inevitably going to have disparities — unless they correct for systemic biases in policing, prosecution, corrections, and education,” she said.

Hamilton told a House oversight committee last January that up to 11% of male and 10% of female inmates have been assigned wrong risk categories due to errors in PATTERN:

• PATTERN was designed to score risk factors at release instead of at the time of assessment. For example, if a 39-year-old man comes in for a 15-year sentence, he has an age risk factor of 21. But PATTERN should assess his age at release (52 years old), which is only 7. The difference is 14 points.

• PATTERN disproportionately predicts higher. Hamilton said, “a choice has been made to design PATTERN to perform far less accurately when predicting those who are at higher risk… placing too many individuals into the higher risk groupings.”

• PATTERN “overpredicts the general risk for African Americans, Hispanic Americans, and Asian Americans, while it underpredicts for Native Americans.”

Hamilton told the Subcommittee in January that “the various errors meant that 37 out of the possible 60 items (almost two-thirds of them) had been incorrectly weighted” in the PATTERN risk assessment. NPR previously reported that “about 14,000 men and women in federal prison… wound up in the wrong risk categories. There were big disparities for people of color.” As well, NPR uncovered sloppy math mistakes and other flaws that put thousands of prisoners in the wrong risk category and treated them differently in part because of their ethnic backgrounds.

recid160321The DOJ’s report to Congress last week puts the best face on PATTERN possible. It said, for example, that “individuals are capable of changing risk scores and levels during confinement. And importantly, these changes relate to recidivism outcomes (i.e., individuals who reduced their risk scores and levels from first to last assessment were generally less likely to recidivate).” Yet the PATTERN scorecard assigns big scores for age and criminal history, scores that either never change or change only with the passage of years. A 21-year-old with one prior felony conviction starts out with a PATTERN score of 38 (a “medium” score). Wrestling that score down by taking programs is not easy.

While admitting that some minority groups are “overpredicted,” DOJ nonetheless crowed that the new PATTERN adjustments “show relatively high predictive accuracy across racial and ethnic groups. That is, the risk scores predict recidivism well for white, Black, Hispanic, Native American, and Asian individuals.”

Of course, that’s what DOJ said when PATTERN was first unveiled in July 2019.

NPR said last week that “only low and minimum-risk prisoners are eligible for those programs, so how the Bureau of Prisons assesses risk has major consequences for their lives and their release plans.” In fact, tucked into 18 USC § 3624(g)(1)(B) is a provision that would let a medium or high PATTERN inmate use credits if he or she “has shown through the periodic risk reassessments a demonstrated recidivism risk reduction… during the prisoner’s term of imprisonment.”

bureaucrat200421But the BOP would have to exercise bureaucratic discretion to grant a medium or high PATTERN inmate early release or more halfway house/home confinement. God forbid a bureaucrat would risk such a thing. Given that no one has even talked about this alternative award of credit, the chance that any BOP employee would argue for giving a medium/high inmate the right to case in credits is pretty remote.

DOJ told Congress it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for “public safety.” Instead, the department says it will be shifting the boundaries between other risk levels for its general recidivism algorithm.

In the new report to Congress, DOJ again expressed support for the Senate to advance the EQUAL Act (S.79), legislation that would equalize sentencing penalties for crack and powder cocaine.

NPR, Justice Department works to curb racial bias in deciding who’s released from prison (April 19, 2022)

National Institute of Justice, Predicting Recidivism: Continuing To Improve the Bureau of Prisons’ Risk Assessment Tool, PATTERN (April 19, 2022)

Sentencing Law and Policy Blog, Justice Department tweaking prison PATTERN risk tool “to ensure that racial disparities are reduced to the greatest extent possible” (April 19, 2022)

Legal Information Services Associates, Is PATTERN Dooming First Step Programming? – Update For January 31, 2022

– Thomas L. Root

‘Shut Up! Won’t Talk, Eh?’ No Approach to Sentence Reduction – Update for April 25, 2022

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

SANDBAGGING NOT ALLOWED

nickdanger220426Reading this case, I could not help but recall a Firesign Theater “Nick Danger” skit in which the crusty private eye was interrogating a suspect, with questions delivered in machine-gun fashion: “Where were you on the night of the 14th? Shut up! Won’t talk, eh?”

OK, I’ve dated myself. Big deal. Were he a baby boomer instead of a Gen-X’er, Tydearain Smith would know what I mean.

Ty, convicted in 2008 of possession of over 5 grams of crack and brandishing a firearm during a drug trafficking crime, was partly into his 293-month sentence when he wrote a very short letter to his district court. All he wanted to know was whether he was eligible for a sentence reduction under Section 404 of the First Step Act (the retroactive Fair Sentencing Act). If so, TyHe just wanted appointment of an attorney, and did not argue he was eligible for the reduction or explain why – if he was – he should get a sentence cut.

The district court construed Ty’s pro se letter as a Section 404 motion. Without asking Ty or the government to brief the issue, the court denied the letter motion as moot, concluding that Ty was not eligible for a reduction.

tyletter220426Ty and the public defender both filed for reconsideration. The district court ordered the government to file a response to the motions for reconsideration, “including all substantive arguments.” Instead, the government, Ty and the PD jointly filed a motion asking that a briefing schedule be set so that everyone could argue all “substantive legal and factual arguments for relief.”

The court denied the joint motion and ordered the government to respond as originally directed. It did so, arguing Ty was ineligible for relief.

The district court denied the motions for reconsideration. It again concluded that Ty was ineligible for Section 404 relief because the Guidelines ranges he had faced at sentencing had not changed. But then the court alternatively ruled that, even if Ty were eligible for relief, a “further reduction [was] not warranted” because he had lied at trial, brandished a gun, stipulated to 94% pure crack, and had already benefitted from the 2011 and 2014 Guidelines two-level reductions.

Last week, the 11th Circuit reversed the case, holding that district courts cannot sandbag parties like that. Before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions. A complete denial of the opportunity to be heard on a material issue, the Circuit said, is a violation “of due process which is never harmless error.”

sandbagging_3Here, Ty did not have any chance to present arguments in support of his request for a Section 404 reduction. “The wide berth given to district courts by the First Step Act requires deferential review with respect to the ultimate exercise of discretion,” the 11th said, “but it does not speak to the process which must be provided to the parties… A party must have his day in court.”

United States v. Smith, Case No 19-13056, 2022 U.S. App. LEXIS 10500 (11th Cir., Apr. 19, 2022)

– Thomas L. Root

Was The Gun For Dove Hunting? The Jury Didn’t Say… – Update for April 22, 2022

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9TH CIRCUIT REVERSES § 924(c) CONVICTION FOR FLAWED INSTRUCTION

Rhett Irons was convicted of possession of controlled substances with intent to distribute and possessing, using or carrying a gun in furtherance of drug trafficking (18 U.S.C. § 924(c)).

dangerousgun220422Although his lawyer never objected to the jury instructions during trial, Rhett argued on appeal that while the statute required the jury to find that he possessed a firearm “in furtherance of” a drug trafficking crime, the court’s instruction allowed the jury to convict merely by finding that defendant’s possession of the gun had a “connection” to the trafficking.  That, Rhett argued, was not enough.

Last week, the 9th Circuit agreed and reversed Rhett’s conviction. Although Rhett’s failure to object meant the appellate review was for plain error only, the Circuit held that the “in furtherance of” requirement in 18 U.S.C. § 924(c)(1)(A) means more than just that “there must be a connection between the firearm” and the alleged drug trafficking offense. It means a defendant must possess the firearm with the intent that it further or advance the drug offense.

To win a case on “plain error” review, a defendant has to show a mistake, that the mistake is “plain” (or obvious), the error affected his substantial rights, and the error affected the integrity of the proceeding. The 9th ruled that because the error in the instruction “effectively removed from the jury’s consideration the only disputed issue concerning the 924(c) charge – the defendant’s intent in having the gun under his mattress while living in his home,” his substantial rights had been affected by the flawed instruction.

lawyermistake170227“Removing the key disputed issue at trial from the jury’s consideration,” the Circuit held, “certainly casts doubt on the fairness of the proceedings, even if Iron’s own counsel failed to catch the error. Indeed, counsel’s failure to detect this plain error in the supplemental instruction arguably implicates Iron’s right to effective assistance of counsel, which is a consideration that bears upon the integrity and public reputation of the proceedings… We agree that the evidence of an objective connection between the firearm and Irons’s drug trafficking was strong. But the defect here relates to the issue of Irons’s subjective intent. Although we might have found the Government’s reading of the evidence more persuasive if we were the trier of fact, we conclude that the evidence is not so overwhelming that reversal here would impugn the integrity or fairness of the proceedings.”

United States v. Irons, Case No 20-30056, 2022 US App. LEXIS 9616 (9th Cir Apr 11, 2022)

– Thomas L. Root

EQUAL Act But Unequal Reform? – Update for April 21, 2022

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EQUAL ACT MAY BE ALL WE GET

Congress was recessed all last week and for part of this one, so no legislative progress was made on the EQUAL Act (S.79), the MORE Act (H.R. 3617), or – for that matter – anything else. But nothing can stop politicians from talking, even during vacations.

crack-coke200804The good news is that all of the talk about EQUAL – which makes crack sentences equal to cocaine powder sentences – suggests it has the support for passage. The only question is when Senate Majority Leader Chuck Schumer (D-NY) will bring it up for a vote. While the Judiciary Committee held a hearing on the crack-cocaine disparity bill last year, it has yet to schedule a markup.

The bad news is everything else. Politico ran an analysis last week reporting that Sens Richard Durbin (D-IL) and Charles Grassley (R-IA), the top Democrat and Republican on the Senate Judiciary Committee, are still talking about a merger of bills such as the First Step Implementation Act (S.1014), the Smarter Sentencing Act (S.1013), and the COVID-19 Safer Detention Act (S. 312) into a single narrow follow-up bill amending the First Step Act, Durbin and Grassley are calling a Second Step Act. 

“But both senior senators acknowledge it’s not a glide path forward,” Politico said, “particularly given the GOP messaging on rising crime ahead of the 2022 midterms — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.”

Jackson was blasted last month by a few Republican senators for being too soft on sentencing child sex abuse and drug offenders. “One of the most important consequences of these confirmation hearings is there are district judges across the country who may have ambitions for elevations,” Sen. Ted Cruz (R-TX), who led the charge against Judge Jackson, told CNN. Any judges looking for future promotions “are going to think twice about letting violent criminals go or giving them a slap on the wrist, rather than following the law and imposing serious sentences for those who have committed serious crimes.”

snake220421[Editor’s note: While it is correct that Cruz has been described by one conservative columnist as being “like a serpent covered in Vaseline” who “treats the American people like two-bit suckers in 10-gallon hats,”  some maintain that there are good snakes in Texas (but Sen. Cruz is not on their list).]

Far from the only effect, the Jackson hearings have also “dampened the interest in doing what we call the Second Step Act, but we’re still seeing what can be worked out,” Grassley said in a brief interview. He added that if Democrats agree to certain provisions related to law enforcement, “that might make it possible to get something done.”

Meanwhile, Durbin said he’s concerned about a Second Step Act’s prospects for passage, ‘particularly given Republican accusations during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime. The Judiciary chair ranked criminal justice as high on his list of priorities, though he said legislation addressing crime and law enforcement “may be just as challenging as immigration” — a famously tough area of bipartisan compromise on Capitol Hill.

Durbin and Grassley both think a Second Step Act is needed to implement sentencing changes in the First Step law by making them retroactive, midterms are coming up in a little more than 6 months and “campaign-season politics surrounding criminal justice reform threaten broader GOP support. While some lonely voices are calling for passage of such a bill, with Democrats in control of the White House and both houses of Congress, expect a cacophony of Republicans claims that Democrats are to blame for rising crime rates. That should make sentencing changes that much harder, Politico said.

Senate aides on both sides of the aisle warn that EQUAL could still face a challenging path to final passage, including a potentially arduous debate over amendments. Republicans who oppose the bill would almost certainly want to force vulnerable Senate Democrats to take tough amendment votes amid reports of rising violent crime in major cities and the approaching November election. Even Grassley, who is not a co-sponsor but is unapologetically pro-reform, has outlined concerns about whether EQUAL could garner enough Republican support in the Senate to pass.

cotton190502So the climate for criminal justice reform is getting ugly. Once, only Sen Tom Cotton (R-Ark) (who calls First Step Trump’s biggest mistake) demanded longer sentences. Last week, mainstream Newsweek magazine ran an opinion piece claiming that “America, in the year 2022, does not suffer from an over-incarceration problem. On the contrary, we suffer from an under-incarceration problem.” The column called on Congress to end “the jailbreak of slashed sentences and the broader civilizational suicide of the ‘criminal justice reform’.”

Politico, Criminal justice reform faces political buzzsaw as GOP hones its midterm message (April 14, 2022)

Politico, What’s next for criminal justice reform? (April 14, 2022)

CNN, Ambitious trial judges could be wary after GOP attacks on Judge Jackson’s sentencing record (April 11, 2022)

Wichita Eagle, Former U.S. attorney tells how criminal justice could be more just (April 12, 2022)

EQUAL Act (S.79)

First Step Implementation Act (S.1014)

Smarter Sentencing Act (S.1013)

COVID-19 Safer Detention Act (S. 312)

MORE Act, (H.R.3617)

– Thomas L. Root

Free Willie (1st Circuit-style) – Update for April 19, 2022

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WILLIE GOT HIS GUN…

freewilly220419Back in 2009, Willie Minor got into a minor beef with his wife that led to him being charged with domestic violence. When the Maine court told Willie that if he got convicted, he couldn’t possess a gun, Willie refused to plead to the charge (despite the prosecutor’s offer of no jail time).

The Maine prosecutor amended the charge to a simple “Assault, Class D” and struck out the sentence in the complaint stating, “this conduct was committed against a family or household member…” The judgment and commitment form had initially been printed with the offense “Domestic Violence Assault,” but the words “Domestic Violence” had been crossed out by hand. The assistant district attorney told Willie this change assured that Willie could continue to own firearms.

Six years later, Willie was caught with a handgun that he was sure he was allowed to have. The Feds this time (no county assistant district attorney) charged Willie with an 18 USC § 922(g)(9) felon-in-possession charge. Well, not really a “felon” in possession, but rather a wife-beater in possession: § 922(g)(9) prohibits possession of a gun by someone convicted of a misdemeanor crime of domestic violence (MCDV).

Willie went to trial, arguing that he hadn’t been convicted of an MCDV, and even if he had, he had no idea that he had. Relying on Rehaif v. United States, Willie argued the government had to prove he knew it was illegal for him to have the gun. The government argued Willie only needed to know he had done the acts that led to the assault conviction, and because the assault was against a family member – regardless of what the state conviction documents said or did not say – he had the guilty knowledge that supported the conviction.

Last week, the 1st Circuit split the case down the middle but vacated Willie’s conviction in the process. The Circuit agreed it is no defense for those charged with a 922(g) offense to say that they did not know that persons convicted of misdemeanor crimes of domestic violence could not possess guns. But, the 1st said, “while a defendant need not have known that possessing firearms was unlawful… the government need[s to] prove that he knew he violated the material elements of § 922(g)… which in this case means that he knew he had been convicted of a misdemeanor crime of domestic violence.”

manyguns190423In this case, whether the defendant knew was a dicey proposition. Willie had no lawyer for the assault conviction, and the Maine assistant DA told him that changing the domestic violence charge to a simple assault would let him keep his guns. But – as I have pointed out repeatedly where the definition of “crime punishable by imprisonment for a term exceeding one year” (§ 922(g)(1)) is concerned – the definitions undergirding Section 922 can be tricky. MCDVs are like that. They are defined as any misdemeanor assault where the victim is a family member or significant other. The offense doesn’t have to be called “domestic violence,” or even specify the victim’s connection to the defendant. What’s more, the court said, a § 922(g) usually results from the defendant having been convicted of a felony in a prior case where he had been represented by counsel. “And,” the Circuit said, “competent defense counsel is usually going to advise the client of the serious collateral ramifications of conviction.” (This pollyannish observation is laughable, but we’ll reserve discussion of it for another time).

So who cares about Willie’s victory (besides Willy, of course)? This decision could have ramifications for § 922(g)(1) felon-in-possession offenses. As I noted, the definition of a “crime punishable by imprisonment for a term exceeding one year” is detailed and legalistic, set out in 18 USC 921(a)(20). The logic used by the 1st Circuit in freeing Willie could well apply to any 922(g) conviction.

United States v. Minor, Case No 20-1903, 2022 U.S. App. LEXIS 9632 (1st Cir., Apr. 11, 2022)

– Thomas L. Root

Biden Makes Former Public Defender DOJ Pardon Attorney – Update for April 18, 2022

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NEW BLOOD IN THE PARDON OFFICE

clemency220418It only took him 15 months, but President Joe Biden has taken baby steps on addressing clemency by appointing a new Dept of Justice Pardon Attorney. Elizabeth G. Oyer, the first permanent Pardon Attorney in six years (everyone else was “acting” without official appointment), formerly served as Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland.

Oyer, a Harvard law graduate, has “represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes,” law prof Mark Osler, a national expert in clemency law, said last week on Twitter.

“It means something that Prez Biden has actually filled this slot,” Ohio State University law prof Doug Berman said last week in his Sentencing Law and Policy blog. “It’s also significant – and positive – that he has given a career defender an important job in the Department of Justice.”

Don’t expect miracles, however. Osler warns that the problem of the 18,000-petition backlog “may not have been the Pardon Attorney, but the bureaucracy that takes up the petitions after they are evaluated by the pardon attorney,” referring to review by the Attorney General and White House. There are over 18,000 pending petitions, many of them now years old (including unresolved petitions from the Obama administration). “It’s a mess,” Osler wrote. “We just know what kind of mess, or where the mess is located. The whole thing needs reform.

chickens160208In last week’s blog, Berman argued again that the federal clemency process should be removed from DOJ, noting the FIX Clemency Act (H.R. 6234), introduced four months ago, that would set up an independent clemency authority to review applications. GovTrack, a website that tracks legislation, gives the bill a 2% chance of passing.

Berman warns that “a full 15 months into his administration, Prez Biden has not granted a single pardon and has not granted a single commutation. With more than 18,000 applications pending, not to mention many low-risk, COVID-vulnerable persons released to [CARES Act] home confinement, it ought not be that hard to find at least a handful of “non-violent and drug” offenders who deserving of clemency… Whomever is in charge of the matters at DOJ, where these is a clemency will there is surely a clemency way. As of now, though, it does not appear that Prez Biden really has much of a clemency will.”

Twitter, Biden Administration has appointed a Pardon Attorney (April 14, 2022)

Sentencing Law and Policy, Justice Department has new Pardon Attorney who is a former public defender … which means …? (April 15, 2022)

DOJ, Meet the Pardon Attorney (April 12, 2022)

H.R. 6234, FIX Clemency Act

– Thomas L. Root

Supremes Reject ‘The Greater The Harm, The Lesser the Remedy’ § 1983 Standard – Update for April 15, 2022

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SUPREMES EXPAND RIGHT TO SUE LOCAL COPS UNDER 42 U.S.C. § 1983

Larry Thompson was charged with resisting arrest when he tried to stop police from entering his apartment in response to a false child abuse complaint. A New York court later dismissed the case on motion of the prosecution “in the interest of justice,” which is code for “no way we can win this dog of a case.”

policestate190603When Larry later sued under 42 U.S.C. § 1983, alleging that the police violated his 4th Amendment right to be free of unreasonable search or seizure), his case was thrown out. Existing New York law held the plaintiff had to show the underlying criminal case had been initiated without probable cause, initiated for a purpose other than bringing the defendant to justice, and terminated in favor of the defendant. A “favorable termination” was one where the plaintiff had been found to be not guilty.

Larry’s problem was that the criminal case against him was so specious that it didn’t make it to trial. He never enjoyed a “favorable termination” because the prosecution gave up before trial.

You can see the problem in this approach: the sketchier the criminal case, the more likely it is that the matter will never make it to trial. That means the greater the outrage visited on a hapless defendant, the less likely he or she will be found “not guilty” after a trial, because the lower the likelihood that there will even be a trial. The “favorable termination” rule thus punishes the people who have been most aggrieved.

champions220415Last week, the Supreme Court greatly expanded a former defendant’s ability to bring a 42 U.S.C. § 1983 claim, holding that “terminated in favor” means only that the “prosecution ended without a conviction” and not “with some affirmative indication of innocence.”

Justice Brett Kavanaugh wrote for a six-justice majority:

The question of whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed. And the individual’s ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed. In addition, requiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a §1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense. Finally, requiring a plaintiff to show that his prosecution ended with an affirmative indication of innocence is not necessary to protect officers from unwarranted civil suits—among other things, officers are still protected by the requirement that the plaintiff show the absence of probable cause and by qualified immunity.

Thompson v. Clark, Case No. 20-659, __ S.Ct. __, 2022 WL 994329, 2022 U.S. LEXIS 1885 (April 4, 2022)

– Thomas L. Root

Acquitted Conduct No Panacea for Current Prisoners – Update for April 14, 2022

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ACQUITTED CONDUCT AND THE HOPEMONGERS

The House of Representatives’ passage of the Prohibiting Punishment of Acquitted Conduct Act of 2021 (H.R. 1621) ten days ago appears to be chum on the water for some hope-mongering sharks who prey on inmates.

shark170607I already have heard from one person who is busy hiring an outside “research” service to evaluate his case to tell him whether he’ll benefit from the Prohibiting Punishment of Acquitted Conduct Act. For everyone’s benefit, here are two things to keep in mind.

First, the Act has not passed the Senate. It may. It may not. It may pass, but with different text, and then a conference committee will have to work out compromise text.

Second, the Act will apply to very few cases. It does not necessarily apply to relevant conduct. It does not apply to conduct not mentioned to a jury. If you did not have a jury trial, it does not apply (unless you were acquitted of the same conduct in a prior federal or state trial).

Finally, it is very unlikely that the Act will be retroactively applied to people already sentenced. The bill does not specify that it applies retroactively. Such bills are usually presumed not to be retroactive. Read 1 USC § 109 and Dorsey v. United States before you decide the courts will open their doors to post-conviction motions seeking resentencing because Prohibiting Punishment of Acquitted Conduct Act passes.

No reputable legal services company will take any money now to tell you whether you can get any sentencing benefit from the Prohibiting Punishment of Acquitted Conduct Act. It’s just too premature.

Prohibiting Punishment of Acquitted Conduct Act of 2021 (HR 1621)

Dorsey v. United States, 567 US 260 (Supreme Ct., 2012)

SPEAKING OF PREMATURE…

George Fower was sentenced to 24 months, but before he self-surrendered to the Bureau of Prisons, he sought compassionate release under 18 USC § 3582(c)(1)(A)(i) on the grounds he was very susceptible to COVID. Because he was not yet in prison, George found the statute’s administrative exhaustion requirement challenging, but he wrote to the warden of the prison to which he was to surrender in a month’s time, and later to the BOP’s Designation and Sentence Computation Center, the Regional Director and the Bureau of Prisons General Counsel.

Thirty days later (while still not in custody), George filed his compassionate release motion. The district court denied it, holding in part that “compassionate relief is not available to a defendant not in custody.”

Last week, the 9th Circuit agreed. It noted that the First Step Act amended the compassionate release statute only to allow the prisoner, rather than requiring BOP, to file the motion. At no time in the history of the “matrix of statutory and other enactments,” the Circuit said, were the BOP’s powers ever extended to grant it jurisdiction over those who had yet to commence their incarceration.

compassion160208It makes sense that the BOP has no place to play in compassionate release prior to a prisoner’s incarceration, the 9th noted. “The statute states that the defendant’s request must be addressed to ‘the warden of defendant’s facility,’ which cannot be known until there has been a designation by the BOP. This is further evidence that the statute contemplates that the defendant must be in a BOP facility before qualifying for compassionate relief.”

The 9th suggests that before a defendant self-surrenders, he or she may ask the district court to delay sentencing or to extend the surrender date.

United States v. Fower, Case No 21-50007, 2022 U.S. App. LEXIS 8919 (9th Cir., April 4, 2022)

– Thomas L. Root

A Tale of Two Bills (Part 2 – Up in Smoke) – Update for April 12, 2022

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… MARIJUANA REFORM IS SUFFERING FROM TOO MUCH INTEREST

Politico was just one of several news outlets last week admitting that the MORE Act – far-reaching marijuana legalization bill passed two weeks ago by the House – still has “no real path to President Joe Biden’s desk.”

MORE’s passage marks the second time in less than two years that the House passed legislation to decriminalize pot, but the Democrats have “passed a party-line bill that has little chance of getting the necessary Republican support to pass the Senate.”

senatemarijuana220412“You’re not going to be able to get Republicans on board… the way that the MORE Act is done,” said Rep Nancy Mace (R-SC), who introduced a bill last year that decriminalizes marijuana and expunges some records but does not create federal grant programs. “You’ve got to have Republicans on board if we’re going to have any chance of getting it done in the Senate.”

Ironically, Republican complaints about MORE relate to federal funding of pot programs. No one is critical of the expungement and retroactive sentencing reforms.

The Senate — where Senate Majority Leader Chuck Schumer (D-NY), Sen. Cory Booker (D-NJ) and Sen. Ron Wyden (D-OR), are working on the Cannabis Administration and Opportunity Act — is even tougher ground for weed.

Booker and Schumer have refused to even hold a hearing on a cannabis banking bill the House has approved six times because it does not address criminal justice reform. But Democrats’ pursuit of a perfect comprehensive pot bill worries some lawmakers and advocates, who do not see a clear path forward for sweeping drug policy changes under Republican leadership in either chamber — especially the Senate. Given that Democrats may not control both houses of Congress next year, the window for federal cannabis policy port reform may not be open much longer.

MORE faces significant hurdles in the Senate. First, not all Democrats are in favor of marijuana legalization; conservative Democrats, represented by a few senators such as Sen Joseph Manchin (WV), stand in the way of reform. In order to pass the Senate, the bill needs to secure 60 votes to be safe from a Republican filibuster. Because not all Democrats are expected to vote in favor of the MORE Act, ensuring its success would require more than 10 Republicans voting in favor of it.

marijuana220412But the future of marijuana legalization does not rely solely on the success of the MORE Act. Schumer intends to introduce  CAOA later this month. If CAOA gets a vote in the Senate, it will be the first time in 50 years that the Senate voted on cannabis reform. The downside, according to the National Law Review, is that “the competing interests of these two bills could create an unnecessary deadlock, potentially leaving the cannabis industry with another year of failed reforms.”

MORE Act (H.R. 3617)

Politico, House passes marijuana legalization bill (again), but with no clear path forward (April 1, 2022)

Shepherd’s, Marijuana Legalization Act Passes the House, Likely to Die in the Senate (April 7, 2022)

National Law Review, The House Does It Again: MORE Act Ready for Senate Action (April 4, 2022)

Cannabis Administration and Opportunity Act (not yet introduced)

– Thomas L. Root

A Tale of Two Bills (Part 1 – Fixing a ‘Crack’ in the Law) – Update for April 11, 2022

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

EQUAL ACT PICKING UP STEAM…

capitol160110Last Monday, Sen. Roy Blunt (MO) became the 11th Republican to sign onto the EQUAL Act (S.79/H.R.1693), joining a spectrum of Republicans from Sen. Lindsay Graham (SC) to Sen. Susan Collins (ME) adding their names to the bill.

The significance of Blunt’s co-sponsorship is that with full Democrat support for the measure and at least 11 Republican votes, EQUAL’s passage is assured if it is put up to a vote. The legislation was approved by the House of Representatives last fall.

If it becomes law, the EQUAL Act will make statutory punishment for crack cocaine no different than for powder cocaine. Currently, crack is penalized at an 18:1 ratio, meaning that while a half kilo of coke powder carries a five-year mandatory minimum, only 28 grams of crack is needed to get a defendant the same sentence. The EQUAL Act is fully retroactive, meaning that thousands of current sentences involving crack could be reduced.

lineofcoke160803The question always is when – or if – the Senate will bring the bill up for a vote. That decision lies with Senate Majority Leader Chuck Schumer (D-NY). Axios reported that Schumer – who also is an EQUAL Act co-sponsor – met last Tuesday with advocates and formerly incarcerated leaders, where he described the legislation as “a priority.” He has given no indication of timing on EQUAL, but he told Axios last week he does plan to bring the legislation to the floor.

The Hill said last Wednesday that EQUAL’s having collected 60 sponsors is a “threshold that is expected to trigger a hearing in the coming weeks.” Politico says the measure “may already have the votes to get to President Joe Biden’s desk.”

The Congressional Black Caucus sent Schumer a letter last Monday urging quick passage of EQUAL. The letter said in part

We write in support of bringing the EQUAL Act (H.R. 1693/S. 79) to the Senate Floor for consideration as soon as possible. It would eliminate the crack and powder cocaine sentencing disparity and ensure that those who were convicted or sentenced for a federal offense involving cocaine can receive a re-sentencing under the new law. According to a recent analysis from the U.S. Sentencing Commission, approximately 827 individuals would benefit from the prospective section of the bill each year, and 7,787 offenders in BOP custody would be eligible to seek a modification of their sentence based on the retroactive section. In total, the EQUAL Act will reduce excessive prison time by 67,800 years, and 91% of the individuals who will get this critical relief are Black.

optimism220411Politico optimistically reported last week that “other bipartisan federal legislation that could reach President Biden’s desk this year include bills that abolish federal life without parole sentences for juveniles, prevent the use of acquitted conduct in sentencing, extend Medicaid to otherwise eligible individuals within 30 days of their release from incarceration, and invest in treatment for people with mental illness in the justice system.”

We’ll see about some of that tomorrow…

Axios, Congress closes in on cocaine sentencing disparity (April 6, 2022)

The Hill, Confirmation combat can’t crush bipartisan criminal justice reform (April 6, 2022)

Politico, A major group of House Democrats is asking the Senate to end a policy widely considered racist: sentencing disparities between crack and powder cocaine (April 5, 2022)

Hakeem Jeffries, Letter to Schumer and Durbin (Apr 5)

– Thomas L. Root