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No Christmas Treats for Prisoners from Sentencing Commission – Update for December 20, 2024

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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.

SENTENCING COMMISSION ROLLS OUT MINIMALIST 2025 AMENDMENT PROPOSAL

The United States Sentencing Commission yesterday adopted a slate of proposed amendments to the Federal Sentencing Guidelines for the amendment cycle that will end on or before May 1, 2025, with the adoption of amendments to become effective next November.

Anyone who thought the Commission might roll out a proposal to no longer enhance methamphetamine sentences because of purity – something that US District Judge Carlton Reeves (who is currently chairman of the USSC) ruled from the bench two years ago makes no sense – was disappointed (but see below).

lumpofcoal221215Likewise, any federal prisoners hoping for a resolution to last August’s surprise decision to table retroactivity for four amendments that became effective last fall just found coal in their stockings. The Commission had proposed retroactivity for changes in Guidelines covering acquitted conduct, gun enhancements, Guidelines calculation where a defendant is convicted of an 18 USC § 922(g) felon-in-possession count, a 21 USC § 841 drug trafficking count and a separate 18 USC § 924 gun conviction; and a change in the drug Guidelines to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that inflate sentencing ranges.

Generally, changes in the Guidelines do not apply to people who have already been sentenced, but Guideline 1B1.10 addresses the rare occasions where a Guideline change is retroactive, providing prisoners already sentenced with a chance for a time reduction.

I wrote at the time that the Commission was perhaps responding to criticism heaped on it for adopting amended Guideline 1B1.13(b)(6), which permits judges to grant compassionate release where a prisoner’s sentence could not be imposed today because of changes in the law that occurred after the sentence was imposed. After the Commission adopted the amended 1B1.13 in April 2023, Sens John Kennedy (R-LA), Ted Cruz (R-TX), John Cornyn (R-TX), Tom Cotton (R-AR) and Marco Rubio (R-FL) introduced the Consensus in Sentencing Act (S.4135) to require the Commission to achieve “bipartisan agreement to make major policy changes” by ”requiring that amendments to the Guidelines receive five votes from the Commission’s seven voting members.”

whine160814At the time, Kennedy complained that “[i]n recent years, the Commission has lost its way and begun forcing through amendments on party-line votes.” The Commission has seven voting members. No more than four members can belong to the same political party.

S.4135 never went anywhere, and it will die with the end of the 118th Congress in 10 days or so. Nevertheless, last June, retired US District Judge John Gleeson, a member of the Commission, met with Kennedy and – according to the Senator – “acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.”

“I look forward to seeing the fruits of this commitment,” Kennedy said at the time.

The Commission is now seeking to harvest those fruits by issuing a request that the public comment on whether “it should provide further guidance on how the existing criteria for determining whether an amendment should apply retroactively are applied” and “[i]f so, what should that guidance be? Should it revise or expand the criteria? Are there additional criteria that the Commission should consider beyond those listed in the existing Background Commentary to § 1B1.10?”

The answer to whether there should be additional criteria is self-evident, especially because the same players (except for Rubio, leaving Congress for a position in President-elect Trump’s Cabinet) will be back in the Senate.

usscretro230406What the Commission decides will only partially address the Senators’ principal beef against any USSC proposal that passes on a 4-3 vote (at least until the Republicans again hold a majority on the Commission).

Third Circuit Judge L. Felipe Restrepo’s USSC term expires next October, the earliest chance Trump will have to tip the balance of the Commission to conservative. Given that Trump’s previous nominees to the Commission (never approved by the Senate) included US District Judges Danny Reeves and Henry “Hang ‘em High” Hudson, the likelihood that 4-3 Commission decisions will start looking good to Kennedy, Cruz and the others is fairly high.

Other USSC proposals for the amendment cycle include

• creating an alternative to the “categorical approach” used in the career offender guideline to determine whether a conviction qualifies a defendant for enhanced penalties;

• addressing the guidelines’ treatment of devices designed to convert firearms into fully automatic weapons (Glock switches and drop-in auto sears);

• adding a provision to the use of a stolen gun enhancement that requires that the defendant knew the gun was stolen; and

• resolving a circuit split on whether a traffic ticket in an “intervening arrest” that can serve to bump up criminal history.

Public comments are due by February 3, 2025, with replies due by February 18, 2025.

alicecuriouser230317Curiously, Judge Reeves said, “Over the next month, the Commission will consider whether to publish additional proposals that reflect the public comment, stakeholder input, and feedback from judges that we have received over the last year – including at the roundtables we have held in recent months on drug sentencing and supervised release.”

Whether this is a teaser that changes in the Commission’s approach to meth will be on the table is unclear.

Sentencing Commission meeting video (December 19, 2024)

Sentencing Commission Public Hearing (Video) (August 8, 2024)

Sentencing Commission, Final Priorities for Amendment Cycle (August 8, 2024)

S.4135, Consensus in Sentencing Act

Sen John Kennedy, Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines (June 3, 2024)

USSC, Issue For Comment: Criteria for Selecting Guideline Amendments Covered by §1B1.10 (December 19, 2024)

USSC News Release, U.S. Sentencing Commission Seeks Comment on Proposals to Promote Public Safety And Simplify Federal Sentencing (December 19, 2024)

USSC, Summary of Proposed 2025 Amendments (December 19, 2024)

– Thomas L. Root

Director Peters, It’s Not Like You Weren’t Warned – Update for September 15, 2023

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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.

TOLD YOU SO

shipwreck230915When Bureau of Prisons Director Colette Peters appeared for her first oversight hearing with the Senate Committee on the Judiciary about 51 weeks ago, it was an hour and a half on the Love Boat. But it’s now clear after the beating she suffered at the Committee’s hands two days ago that her ship is taking on water and the pumps can’t keep up.

Last October, I cited the friendly advice Director Peters received from the Committee about questions from legislators. I wrote

Finally, something even Peters acknowledged to be a cautionary tale: Sens Grassley, Cotton and Jon Ossoff (D-GA) all complained to her that various letters and requests for information they have sent to the BOP have gone unanswered, sometimes for years. This was a failing that former BOP Director Carvajal was beaten up with during his tenure. Not answering the mail from pesky Senators and Representatives may seem like a small thing to BOP management – it certainly has gone on for years – but if Peters wants the Judiciary Committee lovefest to go on, she should not let her staff anger Congress over something so easily corrected. Carvajal was regularly lambasted for similar failings. Peters should profit from his example.

Alas, Director Peters does not appear to be a regular reader of this blog, because she chose not to profit. The results were predictable: When she sat in front of the Committee two days ago, Peters was lambasted by friend and foe alike for a continuation of the BOP’s sorry habit of secrecy. Written questions submitted by Committee members a year ago remain unanswered, and all she could offer the senators was a milquetoast explanation that those answers must go through a “review process” and that she was as frustrated as the Committee was.

C’mon, Colette. Who’s “reviewing” these questions, most of which call for a simple factual response? (Examples from Wednesday: How many males-turned-transgender-females have been placed in federal women’s prisons? How many COs are employed by the BOP?) Providing these answers is not rocket surgery. The numbers are the numbers. How much ‘review’ of the numbers is needed?

knifegunB170404The hearing was painful. Many of the senators seemed more concerned with scoring political points on crime and LGBTQ issues than about issues broadly important to the BOP. And Director Peters seemed woefully unprepared, relying on a series of “talking points” unresponsive to the questions she should have expected. It’s as if she brought a knife to a gunfight.

The Associated Press wrote that Peters

was scolded Wednesday by members of the Senate Judiciary Committee who say her lack of transparency is hampering their ability to help fix the agency, which has long been plagued by staffing shortages, chronic violence and other problems. Senators complained that Colette Peters appears to have reneged on promises she made when she took the job last year that she’d be candid and open with lawmakers, and that ‘the buck stops’ with her for turning the troubled agency around.

After an hour and a half of senatorial belly-aching about being ghosted by Director Peters, Sen. Richard Durbin (D-IL), chairman of the Committee and as much a fan of Director Peters as he was a nemesis to former Director Carvajal, admonished her, “Senators take it very personally when you don’t answer their questions. More than almost any other thing that I would recommend I’d make that a high priority.”

Committee questions careened from the sublime to the absurd. Durbin observed that the Committee largely agreed that the BOP “needs significantly more funding” for staffing and infrastructure needs, including a $2 billion maintenance backlog. Peters told the Committee the BOP was studying how to reduce reliance on restrictive housing – read “solitary confinement” – and studying how other prison systems handle the issue.

cotton171204She also reported that the BOP had increased new hires by 60% and reduced quitting by 20%. Nevertheless, the agency still only has 13,000 correctional officers where 20,000 are needed, and it still relies on “augmentation,” using non-COs to fill CO shifts. Sen. Tom Cotton (R-AR), a professional inmate-hater who wants to increase inmate populations while excoriating the BOP for being unable to manage the load with too little money and too few staff, complained that Peters had hired too few COs (the “meat eaters,” he called them) while bringing on too many non-COs (whom he derisively called “leaf eaters”).

Cotton invited Peters to accompany him on an inspection of FCC Forrest City, an invitation she accepted with a pained smile. Spending a day with Tom Cotton, the man who tried to blow up the First Step Act… almost as nice as a root canal without novacaine.

Other senators complained that the Mexican cartels might be obtaining blueprints for BOP facilities, that transgender females were being placed in BOP female facilities and sexually terrorizing female inmates (with very little said about BOP staff sexually terrorizing female inmates), and that the BOP decided that people on CARES Act home confinement were allowed to stay home (a decision made by the Dept of Justice, not the BOP).

Sen. Sheldon Whitehouse (D-RI) invented a new word: “recidivation.” Sen. Ted Cruz (R-TX) chastised Peters for not having the facts he wanted to hear at her fingertips. Sen. Lindsey Graham (R-SC) led a Republican charge against BOP transgender policy, with more than one senator suggesting that transgender inmates number in the thousands. He also became testy when Peters failed to provide specifics about how the BOP is combatting the use of contraband phones by inmates.

Sens. Amy Klobuchar (D-MN), Thom Tillis (R-NC) and Jon Ossoff (D-GA) asked pointed but thoughtful questions. Ossoff suggested what many have long believed, that the institution audits required by the Prison Rape Elimination Act are meaningless paper exercises. As for BOP staffing, Tillis candidly observed that hiring more COs “is our job as well as yours.”

Ossoff perhaps best summarized the flavor of the hearing when he warned Peters: “You’ve now been in the post for about a year and Congress expects results.”

Senate Committee on the Judiciary, Oversight of the Federal Bureau of Prisons (September 13, 2023)

Associated Press, Senators clash with US prisons chief over transparency, seek fixes for problem-plagued agency (September 13, 2023)

– Thomas L. Root

‘You Can’t Just Make Stuff Up,’ Two Courts Tell BOP – Update for November 10, 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.

TWO EARLY HABEAS DECISIONS ON FSA CREDITS AND DETAINERS ARE POSITIVE

maketherules221110The Federal Bureau of Prisons has been refusing to award earned-time credits (ETCs) for prisoners who complete evidence-based programs to reduce recidivism (EBRRs) where the inmates have detainers, whether for immigration, pending charges or other sentences to be served. Challenges to the practice are in their early stages, but right now decisions on the merits stand at prisoners 2, BOP 0.

Explainer: When another agency or court wants a prisoner – either for service of a sentence, a pending charge, or so it can start deportation proceedings – a “detainer” is filed with the prison authority informing it that the prisoner is to be turned over to the detaining entity when his or her sentence is complete.

The BOP honors detainers, and refuses to place prisoners with detainers in minimum-security camps or send them home to halfway houses or home confinement at the end of their sentences.

When Congress passed the First Step Act, there was an 11th-hour flurry of amendments that severely narrowed the number of prisoners eligible to get credit for completing EBRRs. Prisoners whose crimes included carrying guns, fentanyl, certain leadership roles, sex offenses… by the time Republican fire-breathers like Ted Cruz and Tom Cotton were done, at least 64 different categories of prisoner were excluded from the ETC program, constituting about half of all federal prisoners.

But their programming penuriousness has a flip side: by detailing so many exclusions, Congress strongly implied that the BOP had not been delegated any authority to concoct its own list of additional exclusions.

Notably, the ETC exclusions mention nothing about detainers.  But that hasn’t stopped the BOP from asserting that it has the discretion to declare the inmate ineligible for early release “because the BOP is entitled to interpret the FSA to allow it to deny application of earned ETCs to those federal inmates who have pending criminal charges or a detainer.”

The very early returns are in, and the BOP is losing. In a California district court case, the BOP declared an inmate with low recidivism ineligible to have his earned ETCs applied to his sentence due to two pending Missouri criminal cases. The BOP told the court that the agency has the discretion to declare the inmate ineligible for early release “because the BOP is entitled to interpret [First Step] to allow it to deny application of earned ETCs to those federal inmates who have pending criminal charges or a detainer.”

words221110The magistrate’s recommended decision in Jones v. Engleman rejected the BOP’s position, holding that it is fundamental that a statute’s “words generally should be interpreted as taking their ordinary, contemporary, common meaning at the time Congress enacted the statute. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always give effect to the unambiguously expressed intent of Congress.”

“Here,” the Magistrate Judge ruled, “there are no such interstices, because the relevant portions of the [First Step Act] are not ambiguous or incomplete and Congress’s intent is clearly expressed through mandatory statutory language. The language of the [First Step Act] shows that Congress made a conscious choice to do three things. One, by its use of ‘shall be applied’ and ‘shall transfer”‘language in Section 3632(d)(4)(C), Congress made the application of earned ETCs to effect early release mandatory for prisoners “eligible” under Section 3624(g). Two, by Section 3624(g), Congress spelled out the prerequisites for a prisoner to be ‘eligible,’ which have been described earlier and do not contemplate any additional criteria or precondition to release akin to the Pending Charges Exclusion. Third, by Section 3632(d)(4)(C), Congress explicitly determined which prisoners are “ineligible” to have the [First Step Act]’s ETC and early release provisions applied to them, and none of these expressly delineated categories include prisoners who have pending charges or detainers.”

(After the Jones v. Engleman recommended decision, the BOP decided that inmate Jones didn’t have a detainer after all, so the District Court did not adopt that part of the recommended decision  due to mootness).

myrules221110In a New Jersey case, an inmate with a pending Pennsylvania parole detainer was denied his ETCs because under BOP rules, he was ineligible for halfway house or home confinement due to the detainer. The District Court ruled that the First Step Act’s list of prisoners ineligible for ETCs left no room for the BOP to add other categories. The Court held:

If… the warden determines that Petitioner’s earned TCs should be applied to early supervised release, rather than prerelease custody to a residential reentry center or home confinement, there is no statutory provision or BOP regulation that precludes application of TCs toward early supervised release of prisoners who have state detainers lodged against them. As Petitioner suggested, the provisions regarding detainers in BOP Program Statement 7310.04 apply only to prerelease custody to residential reentry centers and home confinement. As Respondent points out, however, supervised release is different because it does not involve BOP custody…

There is bound to be much more litigation over whether the BOP may deny prisoners with detainers from using ETC credits for shortened sentences. These early decisions suggest that courts will be skeptical of BOP efforts to expand the list of people being denied ETCs.

Jones v. Engleman, Case No 2:22-cv-05292, 2022 U.S.Dist. LEXIS 185635 (C.D. Cal., Sept. 7, 2022)

Jones v. Engleman, Case No. 2:22-cv-05292, 2022 U.S.Dist. LEXIS 185029 (C.D. Cal., Oct. 7, 2022)

Moody v. Gubbiotti, Case No 21-12004, 2022 U.S.Dist. LEXIS 181399 (D.N.J., Oct. 3, 2022)

– Thomas L. Root

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

So Who Ties Ted Cruz’s Shoes? – Update for March 30, 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.

THREE TAKEAWAYS FROM THE JUDGE JACKSON HEARING

shoelaces220330Judge Ketanji Brown Jackson endured hours listening to stupidity spoken by power at last week’s Senate Judiciary Committee hearing on her nomination to a Supreme Court seat.

But for federal prisoners, there are three takeaways worth remembering:

First, the Republicans intend to pound on the Democrats in this year’s mid-term elections as being soft on crime.

Senate GOP leaders said in February that they’d scrutinize Jackson’s role as a former public defender, member of the Sentencing Commission, and as a district judge. But with an increase in crime making headlines this year, the Republican strategy ultimately crystallized around painting Jackson as soft on crime.

At one point, Senator Tom Cotton (R-Ark) blasted Jackson for granting compassionate release to a crack defendant who’d been hammered by a mandatory minimum. Senators Ted Cruz (R-TX) and Josh Hawley (R-MO) both accused Jackson of “a pattern of letting child pornography offenders off the hook for their appalling crimes, both as a judge and as a policymaker,” citing seven cases where, as Hawley put it, “Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors requested.”

bullshit220330It was all crap, of course. Judiciary Committee Chairman Richard Durbin (D-IL) pointed out that ABC News, CNN, and The Washington Post have defended Jackson’s sentencing read as being mainstream. Andrew McCarthy, a former federal prosecutor, writing in the conservative National Review, called Hawley’s claims “meritless to the point of demagoguery… Judge Jackson’s views on this matter are not only mainstream; they are correct in my view. Contrary to Hawley’s suggestion… she appears to have followed the guidelines, at the low end of the sentencing range, as most judges do.”

The “Republicans have rhetorically abandoned those reformist ways and instead have returned to their tough-on-crime roots to attack her credentials for the high court,” the Washington Post said. “Far from the party that followed Grassley, and President Donald Trump, into a new approach to crime, this week’s hearings signal a GOP that is ready to return to the days of Willie Horton.”

For anyone interested in significant criminal justice reform from this Congress, that’s bad news.

Second, Jackson has the credentials and background to be a worthy successor to Justice Breyer, whose seat she is taking. Breyer was one of the Guidelines’ creators, and was the Supreme Court’s dean of criminal sentencing. Jackson has more time as a district court judge (over 8 years) than Justice Sonia Sotomayor (6 years). None of the other seven Justices was served a day on the trial bench.  And no one on the Supreme Court other than Jackson was ever a public defender, although at least two of them are former prosecutors. On top of that, Jackson was a staff attorney for the Sentencing Commission and later one of the five commissioners, the only one at the Supreme Court to have such experience.

She responded to attacks on her below-Guidelines child porn sentences in a way that provides a glimpse into her sentencing philosophy:

pervert160728“Congress has decided what it is that a judge has to do in this and any other case when they sentence,” she said. “That statute doesn’t say look only at the guidelines and stop. That statute doesn’t say impose the highest possible penalty for this sickening and egregious crime… [Instead] the statute says [to] calculate the guidelines but also look at various aspects of this offense and impose a sentence that is ‘sufficient but not greater than necessary to promote the purposes of punishment’.”

Third, the child pornography mandatory minimums and Guidelines ranges – especially in non-contact cases – are absurdly high.

In a 2014 case involving a defendant who was caught with 1,500 child pornography images on his computer, Northern District of Ohio federal Judge James Gwin, asked the jurors what they thought an appropriate sentence would be. They recommended a prison term of 14 months – far shorter than the 5-year mandatory minimum, the 20 years demanded by prosecutors, and the 27 years recommended by the Guidelines. Taking the jurors’ view to heart, Gwin sentenced the defendant to the 5-year mandatory minimum.

Reason magazine reported that Northern District of Iowa federal Judge Mark W. Bennett “likewise found that jurors did not agree with the sentences that Hawley believes are self-evidently appropriate. ‘Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,’ Bennett told The Marshall Project’s Eli Hager in 2015, ‘every time – even here, in one of the most conservative parts of Iowa… – they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that’s baloney’.”

Former federal prosecutor McCarthy agreed: “But other than the fact that Congress wanted to look as though it was being tough on porn, there’s no good reason for the mandatory minimum in question — and it’s unjust in many instances.”

Jackson made a similar argument. “As it currently stands, the way that the law is written, the way that Congress has directed the Sentencing Commission, appears to be not consistent with how these crimes are committed, and therefore there is extreme disparity.”

congressbroken220330

Ohio State law professor Doug Berman wrote in his Sentencing Law and Policy blog that he has been “quite disappointed by what seemed to me to be a general failure by all of Senators on both sides of the aisle to engage thoughtfully with the deep challenges and profound humanity in any and all sentencing determinations… Critically, in federal child pornography cases, the basic facts are rarely routine, the applicable statutory law is rarely clear, and the applicable guidelines are the very opposite of helpful. In the child pornography setting, applicable statutory law is quite messy – e.g., what is the real difference between child pornography “possession” and “receipt”, how should USSC policy statements be considered here – and the applicable guidelines are widely regarded as badly broken. Those legal realities mean federal sentencing takes on extra layers of challenge in child pornography cases… But, if anything, the senators’ questions highlight Congress’ failures in erecting the sentencing structure that federal judges across the country, including Judge Jackson, operate within. Once the confirmation process is over, the Senate should fix the very system that they criticize judges for following.”

Even Judiciary Committee Chairman Durbin agrees. Last Wednesday, he said Congress was partly to blame for the outdated guidelines. “We have failed in responding to the changing circumstances,” he said, noting that at least 15 years had passed since the body reviewed the child pornography guidelines. “We should be doing our job here.”

Bloomberg Law, Crime Focus at Jackson Hearing Most Intense Since Marshall (March 23, 2022)

Sentencing Law and Policy, In praise of the continued sentencing sensibility of the National Review’s Andrew McCarthy (March 24, 2022)

Washington Post, Republicans, after years of pushing for softer criminal sentences, return to the party’s law-and-order posture in Jackson’s confirmation hearing (March 23, 2022)

Baltimore Sun, Senators questioning of Judge Jackson’s sentencing history during Supreme Court confirmation hearings reveals their own failures (March 25, 2022)

National Review, Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography (March 20, 2022)

Reason, Josh Hawley Absurdly Suggests That Ketanji Brown Jackson Has a Soft Spot for ‘Child Predators’ (March 18, 2022)

Wall Street Journal, Ketanji Brown Jackson Hearings Shine Spotlight on Child Pornography Law (March 25, 2022)

– Thomas L. Root

Ted Fumes, Committee Votes, Prisoners Hope – Update for June 11, 2021

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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.

RETROACTIVE FIRST STEP CLOSER TO REALITY

The Senate Judiciary Committee yesterday approved sending the First Step Implementation Act (S.1014) to the full Senate by a 13-9 vote.

retro160110The FSIA extends retroactive treatment to changes in 18 U.S.C. § 924(c) gun charges and 21 USC 841(b)(1) drug penalties made by the First Step Act in 2018. As well, the legislation extends a more lenient definition of prior drug offenses to the lower level penalties of 21 USC § 841(b)(1)(C), (D), and (E).

Additionally, FSIA changes application of the drug offense safety valve (18 USC 3553[f]) to let judges apply safety valve sentences where the court finds that a defendant’s criminal history score overstates the seriousness of a criminal past. The bill also includes extensive changes in the review of juvenile sentences and expungement of records.

A charge of using or carrying a gun during a drug trafficking crime (18 USC § 924(c)) carried a mandatory consecutive sentence of at least five years. If the offense was the second or a successive § 924(c) offense, the minimum sentence was 25 years. The government often would charge multiple § 924(c) counts in a single indictment. So if a defendant carried a gun while selling drugs on Monday, the sentence would be perhaps 36 months for selling the drugs, but an extra 60 months for carrying a gun. If the defendant carried a gun while selling drugs on Tuesday as well, the sentence would be a total of 36 months for selling the drugs on both days, but another 300 months would be added for carrying a gun the second day, for a total sentence of 396 months. If the defendant carried a gun while selling drugs on Wednesday, another 300 months would be added, and so on.

Sentencestack170404The First Step Act changed the law so that the 300-month additional time would not be added unless a defendant had previously been convicted of a § 924(c) offense. That change would give Tuesday’s defendant a total sentence of 156 months instead of 396 months. However, the First Step Act did not make the change retroactive, leaving people sentenced on December 20, 2018, with 300-month add-on sentences, while those sentenced on December 22, 2018, would only get 60-month additional sentences.

The same retroactivity would apply to changes in the drug mandatory minimum sentences mandated by the First Step Act. The mandatory life sentence under 21 USC § 841(b)(1)(A) for offenses enhanced by prior drug convictions was reduced to 25 years, and the 20-year mandatory minimum in 21 USC § 841(b)(1)(B) for offenses involving lesser drug quantities was cut to 15 years.

The First Step Act included another change. People convicted of drug trafficking under 21 USC § 841 would receive higher sentences if they had prior “felony drug convictions,” even if they had received probation for the offense. First Step substituted “serious drug felony,” which requires that the defendant have served more than a year in prison for the offense. That change has been extended to all punishment sections of § 841(b)(1) and made the changes retroactive.

The Judiciary Committee approved the FSIA to move on to the Senate on a bipartisan vote. All 11 Democrats and three Republicans voted for FSIA, but only after Sen Ted Cruz (R-Texas) argued for three amendments that would have limited judges’ authority to reduce sentences. All three amendments failed, after which Cruz delivered a polemic against Democrats, predicting that FSIA would never pass the Senate because his amendments were rejected. The diatribe was epic, one in which Cruz used the phrase “murderers, rapists and child molesters” as a substitute for prisoners no fewer than ten times.

cruz210611A dramatic moment occurred when, part way through Cruz’s denunciation of more lenient sentences, Committee Chairman Richard Durbin (D-Illinois) interrupted to report that the union representing BOP corrections officers had thrown its support behind FSIA. That would have given more reasonable people reason the reflect on their denunciation of the dangers of letting judges make decisions on reducing sentences. I mean, if the people who spend their careers guarding federal inmates think that a little flexibility and leniency in sentencing is appropriate, maybe a guy who leaves his constituents freezing in the dark while he jets off to Cancun should defer to their judgment.

But reflection and reason are for lesser mortals, not Ted (who has been described by a fellow Republican in terms not normally associated with mortals).

Even if Cruz is wrong, the FSIA and other bills – the COVID-19 Safer Detention Act (S.312), passed by the Committee on May 27, and the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S.601), approved yesterday – have a long way to go. The full Senate and House of Representatives both must pass the measures. There is no schedule for full Congressional action.

First Step Implementation Act of 2021

Senate Judiciary Committee, Hearing (June 10, 2021)

Office of Senator Charles Grassley, Senate Judiciary Committee Advances Two Bipartisan Durbin, Grassley Criminal Justice Bills (June 10, 2021)

– Thomas L. Root

First Step Vote Set, But Drama Will Go To The Wire – Update for December 17, 2018

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

FIRST STEP SENATE VOTES SET FOR TODAY AND WEDNESDAY

firststep1800509Senate Majority Leader Mitch McConnell (R-Kentucky) ended the Senate’s 4-day work last Thursday night by scheduled a procedural vote on the latest revision of the First Step Act of 2018 for 5:30 p.m. today. That vote, promised weeks ago, will be a crucial test of the bill’s backing, where supporters will need to put up 60 votes to advance the bill.

In the latest iteration of First Step, the measure has been renumbered this year for the third time this year as S.3747 and has dropped its unwieldy title of “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act” – and thus the need for all capital letters.

If the Monday vote is successful, the Senate leadership says First Step could be wrapped up Wednesday, after allowing opponents the opportunity to have yet amendments considered. “My impression is that people are not going to string this out unnecessarily for procedural reasons, as long as they get an opportunity to make their arguments and have a vote on their amendment,” said Senate Majority Whip John Cornyn (R-Texas), who announced his support for First Step this week.

Supporters say they have at least 70 votes for the measure, although cosponsors of the measure are officially at 35. Sen. Roy Blunt (R-Missouri), a member of Senate leadership, predicted that “slightly more than half” of the GOP conference and as many as 30 of the 51 GOP senators could back it.

As McConnell set the week’s votes last Thursday, Sen. Mike Lee (R-Utah) sought to make last-minute changes in First Step that would reflect a compromise the bill’s supporters had reached with Sen. Ted Cruz (R-Texas). Cruz endorsed the bill because it was supposed to bar many violent criminals from earning early release, but the version that was presented on Wednesday (which is available online) did not include all of the exclusions Cruz had been promised. Lee tried to get McConnell to change them, according to multiple people familiar with the matter, but McConnell wanted to give his divided caucus at least 24 hours to review the new just-released text. The bill‘s chief critic, Sen. Tom Cotton (R-Arkansas), joined in a private meeting with McConnell, Lee and Cornyn on the Senate floor Thursday afternoon, during which Lee argued that the changes should be made to increase the bill‘s conservative support.

To get any amendments into the bill, the legislation must be amended on the Senate floor. Cruz’s endorsement was critical to moving the bill forward, and he has repeatedly touted that the legislation would no longer allow the early release of violent criminals.

senatevote181217McConnell will allow only a little time and very few amendments to First Step before the Wednesday vote. After the Senate begins debating the bill, it will ultimately take 60 votes to pass it. And an amendment, however, will require just 50 votes in the narrowly divided Senate. Cotton and Sen. John Kennedy (R-La.) are expected to offer an amendment to add new exclusions to the list of inmates not allowed to get program credits. Because amendments need only a simple majority, some Republicans will have to vote against them to keep the provisions from being added to the legislation. One senator predicted that many Democrats would probably defect from the legislation if the Cotton amendment passed.

Still, First Step will pass as long as it survives an uncertain amendment process. Most Senate Democrats support it, a significant bloc of Republicans is expected to back it, and President Donald Trump is expected to sign it if it passes the Senate and House ahead of the Dec. 21 partial government shutdown deadline.

The biggest immediate impact of First Step would be felt by nearly 2,600 federal prisoners convicted of crack offenses before 2010. That’s the year the Fair Sentencing Act reduced the disparity in punishment between crack cocaine and the powdered form of the drug. First Step would make the reform retroactive.

goodconduct180509All federal inmates will benefit from an increase in good time from 47 days a year to 54 days a year, retroactive to the beginning of each inmate’s sentence. The change is estimated to result in 4,000 extra prisoners being released in the next year, some immediately.

If it passes the Senate, the House and Senate will have to reconcile their different versions of First Step and then approve the reconciled version, all before Dec. 21. Rep. Steny Hoyer, D-Maryland, the House minority whip, told reporters last week, “I presume… we will be able to approve it next week. I’m hopeful that it can move that quickly.” The New York Times said House Speaker Paul Ryan (R-Wisconsin) has pledged swift action before the House leaves town for the year-end holidays.

The Hill, McConnell sets Monday test vote on criminal justice bill (Dec. 13)

Politico, GOP infighting continues as criminal justice bill advances (Dec. 13)

The Hill, Senate heads toward floor fight on criminal justice bill (Dec. 14)

The Marshall Project, What’s Really in the First Step Act? (Nov. 16)

First Step Act of 2018, S.3747 (Dec. 12)

The New York Times, Criminal Justice Bill Will Go Up for a Vote, McConnell Says (Dec. 12)

– Thomas L. Root
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FIRST STEP Sponsors Gave Away a Lot to Get the Bill to a Vote– Update for December 13, 2018

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

FIRST STEP GETTING WATERED DOWN AS IT APPROACHES THE FINISH LINE

We now have some idea of what had to be given away to convince House Majority Leader Mitch McConnell (R-Kentucky) to agree to schedule a vote on the FIRST STEP Act, perhaps as soon as tomorrow. The Senate released the text of the revised FIRST STEP Act (S.3649) this afternoon.

firststepB180814McConnell cited “improvements to the legislation that have been secured by several members” in his surrender speech last Tuesday, in which he agreed to bring the bill to the floor for debate and a vote. Whether these changes actually count as improvements depends on your perspective, but they were crucial to gaining the support of Sen. Ted Cruz (R-Texas) and a few other Republican senators who were initially opposed to the bill, which according to The New York Times “seemed to be the clincher” in moving McConnell off the fence.

The votes of Cruz and the others were hardly needed to pass FIRST STEP, which already had the support of Democrats, most Republicans, the president, and several law enforcement groups that are ordinarily leery of sentencing reform. The bill, which may get a Senate vote as soon as today, is expected to pass by a margin of more than 2 to 1. But McConnell “wanted every conceivable guarantee that the criminal justice measure would not blow up on him politically,” The Times said. The cost of reassuring McConnell was further dilution of a bill that was already pretty weak tea, the result of compromises on top of compromises.

Here are some of the additional concessions that were necessary to get McConnell to honor his promise of a vote:

• The bill now excludes all 924(c) firearm offenders from earning time credits.

• The bill now excludes fentanyl and heroin traffickers who are leaders/organizers from earning time credits.

• The bill now limits early release from prison to supervised release by specifying that only low and minimum risk offenders are eligible and specifying that the maximum amount of time off a sentence is 12 months. Also specifies that if a prisoner violates a condition of his or her prerelease custody, and the violation is nontechnical in nature, the Director of the Bureau of Prisons shall revoke the prisoner’s prerelease custody.

• The bill removed first time 18 USC 2252A(a) porn download offenders from earning time credits.

• The bill specifically excludes additional offenses from receiving earned time credits, including smuggling aliens into the U.S. with records of aggravated felonies, importing aliens for prostitution, drug-related robberies involving assault with dangerous weapon, carjacking resulting in serious bodily injury, threatening to murder a congressman, senator or government official, assault of a spouse or intimate partner or dating partner resulting in substantial bodily injury, assault of a law enforcement officer with a deadly weapon, arson, possessing contraband in prison, rioting in prison, gang-related felonies, escape, and failure to register as a sex offender.

good-bad-news-400pxSo is there any good news? Well, the 54 days a year good time is still in the bill, still applies to everyone, and still is retroactive. No one has messed with the Fair Sentencing Act retroactivity, or the changes in the compassionate release or elderly offender home detention program. And Politico is asking in headlines, “Is Tom Cotton’s winning streak about to end?”

Who said schadenfreude was a bad thing?

At Reason magazine, Jacob Sullum said today, “On the whole, the FIRST STEP Act still represents a significant improvement. But the changes are quite modest in the context of a federal system that imprisons more than 180,000 peoplschaden170306e and state systems that hold another 2 million. The difficulty of passing these incremental reforms, which took years notwithstanding broad bipartisan support, does not bode well for further progress anytime soon.”

There remains the possibility that after the Senate passes the bill, some of the good stuff will get put back into the bill by the joint conference committee. The irony is that if FIRST STEP gets back what has been given away to get the bill to the floor, the overwhelming support for the bill in the Senate guarantees that changes – even if McConnell, Cruz and Cotton do not like them – will sail through.

Politico, Is Tom Cotton’s Winning Streak About to End? (Dec. 13)

U.S. Senate, S.3649, Amendment to FIRST STEP Act (Dec. 13, 2018)

Reason.com, Here Are the ‘Improvements’ That Won a Senate Vote on Sentencing Reform (Dec. 13, 2018)

– Thomas L. Root

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Progress on FIRST STEP, or Just Generating Heat Without Light? – Update for December 10, 2018

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

FIRST STEP GETS KNOCKED DOWN, BUT IT GETS UP AGAIN, CAN MCCONNELL EVER KEEP IT DOWN?

The lyrics from “Tubthumping,” Chumbawamba’s 1997 hit, describe the FIRST STEP Act’s week. The bill got knocked down early in the week by inaction and demagoguery, to the point that pundits were writing the bill’s obituary last Thursday. But the prison and sentencing reform act stumbled back up again on Friday, with three surprisingly positive developments.

chumba181210FIRST STEP is still far from being passed, but the pressure (for a change) is on Senate Majority Leader Mitch McConnell (R-Kentucky) instead of on the bill’s supporters. Sen. John Thune (R-South Dakota) seemed to signal that McConnell may yield to pressure. On Face the Nation yesterday, Sen. Thune said of FIRST STEP, “There are timing issues associated with it but there – at the moment at least there are still some substantive issues that are being resolved. I think if they get that worked out, if they can attract the support of more Republican Senators, there – there’s still an opportunity I think for that to be finished this year, but if not obviously it – it will be taken up again next year-”

The big news of the week came late on Friday, when President Trump decided to check back in on the bill, and pressured McConnell to bring FIRST STEP to a vote during the crowded lame duck session. After going mostly silent on the bill for several weeks, Trump singled McConnell out on Friday on his Twitter feed:

tweet181210

Trump’s public demands do not guarantee McConnell will bring the bill to a vote. He has told Trump several times that the Senate calendar is too cluttered in December to take up a bill that divides Republicans. As late as Thursday, McConnell had not mentioned the bill at either of two GOP senator meeting, and he has reportedly told senators there’s almost no window to take up the bill this year, according to multiple GOP sources.

One McConnell adviser said the senator does not intend to have a vote on the legislation because he does not have enough time and is more focused on other things — like funding the government and confirming judges. “He doesn’t like the bill,” the Washington Post reported Republican donor Doug Deason, a key White House ally, said of McConnell’s view of FIRST STEP. “He’s a Jeff Sessions-style, lock-them-up-and-throw-away-the-key kind of guy.”

mcconnell180219White House officials say McConnell doesn’t want a vote unless the overwhelming majority of Republicans will vote for it — although both Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Sen. Mike Lee (R-Utah) said that 28 or 30 GOP senators support the bill. There are 51 Senate Republicans, and nearly all of the 49 Senate Democrats are expected to back it.

McConnell complained at a Wall Street Journal event last week that such a bill requires a week or ten days to consider, while there are only two weeks left before the planned holiday recess and budget bills that must be passed. FIRST STEP advocates argue that it would only take a few days, with a cloture vote capping debate at 30 hours. McConnell acknowledged support on both sides of the aisle but called the legislation “extremely divisive inside the Senate Republican conference,” with more members undecided or opposed than in favor.

“That’s his calling card, protecting his conference,” said Kevin Ring, president of FAMM. The Atlantic suggested yesterday that while past majority leaders like Lyndon Johnson might have strong-armed their members, McConnell waits for near-unanimity among Senate Republicans. “I think he’s not just looking for 60 votes,” said Brett Tolman, a former U.S. Attorney in Utah who also worked as a GOP Senate staffer and now advocates for criminal-justice reform. “He’s looking for a majority of Republicans.”

But it's not a bad thing.
                   But it’s not a bad thing.

Earlier in the week, FIRST STEP opponents Sen. Tom Cotton (R-Arkansas), John Kennedy (R-Louisiana) and Ted Cruz (R-Texas) seemed to be on a roll, denouncing FIRST STEP as giving immediate release to sexual predators, drug kingpins and gun-toting gangbangers. But Friday, just before Trump’s renewed support,     Sen. Cruz flipped, issuing a press release pledging support:

“I have long supported criminal justice reform. I believe in reducing mandatory minimum sentences for non-violent drug offenders, and providing greater opportunities for offenders to be rehabilitated. At the same time, I do not believe we should be granting early release to violent offenders.

“That is why I drafted an amendment that would exclude violent offenders from being released early. I’m happy to report that, after working closely with the White House and the sponsors of this bill, they have decided to accept my amendment. This new version of the bill resolves my concerns, and is one that I wholeheartedly support and cosponsor.”

firststep180814Also, last Friday a leading FIRST STEP opponent announced his support of key planks of the legislation. Larry Leiser, president of the National Association of Assistant U.S. Attorneys, told the Washington Examiner he supports in principle three of four major sentencing reforms included in FIRST STEP.

The possible turning of the tide seems to have little effect on McConnell’s reluctance to hold a vote. He has angered some GOP senators and created an unusual rift with Sen. Grassley, a longtime McConnell ally. Grassley has spent years building a coalition around FIRST STEP and is pushing hard for a vote this year. “We’ve done what needs to be done,” Grassley said about the overwhelming support for the bill. “So what’s holding it up?”

On Friday, Sen. Lindsey Graham (R-South Carolina) intervened, talking directly to President Trump about attaching the criminal justice legislation to the must-pass year-end spending bill, which is already tangled in a separate fight over funds for the border wall with Mexico. “Just talked with President,” Graham tweeted. “He strongly believes criminal justice reform bill must pass now. He also indicated he supports putting criminal justice reform bill on year-end spending bill which must include MORE wall funding.”

The spending bill will need approval by Dec. 21 to avoid a funding lapse days before Christmas.

On Thursday, Sen. Lee said there were 28 hard “yes” Republican votes plus 49 Democrats for the bill. “It’s rock-solid,” he said. But Sen. John Cornyn (R-Texas), the Senate Republican whip, said more Republicans needed to be convinced. “Right now we have a majority of the Republican conference either undecided or no,” he told reporters. He also continued to call for some changes to the bill.

reefer181210Despite Sen. Lee’s assurance that he has 49 Democrat votes in favor of FIRST STEP, The Hill reported Wednesday Democrats who are mulling 2020 presidential bids have split over whether to support FIRST STEP. The decision to support or oppose the bill is a significant policy decision for 2020 Democrat candidates.

Among Republican senators, Sen. Rand Paul (R-Kentucky) told CNN that there’s a generational divide within the party on the issue. “I think there are people who were teenagers in 1937 watching ‘Reefer Madness’ and they’re still concerned that Reefer Madness is going to take over and everybody is going to become zombies, hacking and killing everyone if they smoke pot,” said Sen. Paul, a FIRST STEP supporter. “And then there are a couple of generations after 1937 of people who don’t see it with the same degree of evil.”

The Atlantic, Mitch McConnell Appears to Be Killing Bipartisan Sentencing Reform (Dec. 9)

Politico, Trump leans on McConnell to vote on criminal justice reform (Dec. 7)

The Hill, Criminal justice reform splits 2020 Democrats (Dec. 5)

Washington Examiner, Trump pushes Congress to pass floundering sentencing reform bill (Dec. 7)

Washington Post, McConnell tells White House little chance of Senate vote on criminal justice bill (Dec. 6)

Pittsburgh Tribune, McConnell blocks sentencing bill, upsetting Grassley, GOP (Dec. 7)

– Thomas L. Root

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