Tag Archives: fair sentencing act

Retroactive Crack Law Applies to Some Completed Sentences, 6th Says – Update for February 11, 2020

Leave a comment

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

ANOTHER CIRCUIT RULES SUPERVISED RELEASE DEFENDANT ELIGIBLE FOR RETROACTIVE FAIR SENTENCING ACT CUTS

The 6th Circuit joined the 4th last week in ruling that a defendant now serving a prison term for violating supervised release could apply for a retroactive sentencing cut under the Fair Sentencing Act, despite the fact he had completed serving the underlying crack cocaine sentence.

supervisedrevoked181106Aaron Woods served 120 months after being convicted in 2001 for distributing crack. After he was released, he was on supervised release for five years, during which time he caught a state marijuana case. His SR was violated, and he was sent back to federal prison for another 37 months for the revocation.

Aaron applied under the First Step Act for retroactive application of the 2010 Fair Sentencing Act sentence cut. The district court held he was ineligible because his current sentence was for violating SR, not for crack.

The 6th disagreed. “Postrevocation penalties relate to the original offense,” the Circuit held. Treating “revocation and reimprisonment as punishment for the violation of the conditions of supervised release” instead of a continuation of the original offense would raise “serious constitutional questions, such as double jeopardy concerns.” Therefore, Aaron was eligible for an FSA sentence cut.

United States v. Woods, 2020 U.S. App. LEXIS 3462 (6th Cir. Feb. 4, 2020)

– Thomas L. Root

Living Under the Sword – Update for February 4, 2020

Leave a comment

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

LET’S NOT GET AHEAD OF OURSELVES

Who would not want to be Ronald Mack?

sword200204Ron, his brother Rodney and friend Jesse Opher were never supposed to get out of prison. They were sentenced to LWOPs (“life without parole”) after being convicted of crack conspiracy charges in 2001. But then in 2014, a change in the Sentencing Guidelines that reduced the base offense level for the quantity of drugs charged against them cut their sentences to 30 years. A few years later, the First Step Act let them apply for retroactive application of the Fair Sentencing Act of 2010. In November 2019, same judge who took their futures in 2002 gave them back, reducing their sentences (and that of a fourth man in their case) to time served.

But their freedom may be short-lived. Just as they were beginning to get a feel for their life outside of prison, the four men learned the U.S. Attorney’s Office of New Jersey had filed a notice to appeal their release.

The government had argued the four men were not eligible for reduced sentences because they were also convicted of conspiring to distribute powder cocaine, the penalties for which have not changed under the First Step Act. Their conviction today would still trigger a possible life sentence, the government argued at the November hearing, and the 20 years or so they had served just wasn’t enough.

The judge didn’t buy it. She noted that the government’s original trial case, and how the jury verdict sheet (written by the government) was worded, both revolved around the mandatory minimums that would come from a crack cocaine conviction. In fact, the judge observed, prosecutors were “asking the jury to make the findings that would, in fact, drive the sentence… I just want to tell you when you look at this jury verdict sheet, it is a graphic on the sentencing guidelines disparities between crack and powder cocaine.”

sowwind200205Sow the wind, reap the whirlwind, the judge told the U.S. Attorney.

The men’s lawyers argued that First Step is written to be applied broadly. The judge agreed, saying it was “simple.” The men were convicted of conspiracy to commit a crack offense before 2010, so they are eligible. That’s all First Step requires.

So the government filed its notice of appeal, indeed, filing it before the deadline. In so doing, however, the government got a little ahead of itself, however. A government criminal appeal has to be approved by the Solicitor General. Right now, the appeal is stayed, because Washington has not yet given the New Jersey U.S. Attorney approval to proceed.

Such approval is not automatic. The SG has to consider whether the facts of the case and the judge’s holding are such that the government can win. Right now, the government has a single district court case (which does not bind other district courts) going against its position. If it does not appeal, Ron and his co-conspirators go free after doing about 20 years. If it does appeal and loses, it has a Circuit court precedent that will bind district courts in three states, as well as serve as persuasive authority in the rest of the country.

For years, Ron  expected to die in prison. He has been free for almost three months, but ever since the government’s notice of appeal he is living under the Sword of Damocles. He wonders daily, “Am I going back? “When are they going to stop?,” he asked in a recent interview. “That’s what I want to know. When are they ever going to stop? Are they ever going to stop?”

NJ.com, Judge released 4 N.J. men after nearly 20 years in prison. Now, the feds want to send them back (Jan 26)

Order, United States v. Mack, Case No. 19-3891 (3rd Cir. Jan 14, 2020)

– Thomas L. Root

First Step Act Turns a Year Old – Update for December 26, 2019

Leave a comment

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

ANOTHER YEAR OLDER AND DEEPER IN DOUBT

firststepB180814A year ago last Saturday, President Trump signed the First Step Act. A year later, I wish it was benefiting as many people in the system as hoped for by its proponents:

• First Step was intended to be just that, a first step. Follow-on legislation, S.697 (dubbed The Next Step Act), will improve prospects for job placement when people are released, is tied up in House and Senate subcommittees. With the 2020 presidential election season starting in two weeks, there is virtually no likelihood (Skopos Labs, the company that handicaps Congressional bills, gives it a 4% chance) that it will pass next year.

• First Step expanded the elderly offender home detention program enshrined in 34 USC § 60541(g)(5). This permits people over 60 years old who are nonviolent offenders to serve that last third of their sentences in home confinement. The rub is that the “two-thirds” referred to in the measure means two-thirds of the whole sentence. With good conduct time credits, a prisoner now serves only 85% of his or her sentence. It appears that no one thought carefully about it, because H.R.4018 was introduced this year to clarify things by permitting elderly offenders to go home at two-thirds of their net sentence (time to be served minus good time) instead of two-thirds of their total sentence. The measure passed the House by voice vote in October. Last week, the bill was put on the Senate Calendar of Business under general orders (the Calendar is a list of all measures, sequenced by order number, that are eligible for Senate floor consideration). Nevertheless, Skopos Labs gives the bill only an 8% chance of passage in 2020.

fairchancebanbox190906• Last week, Congress passed and the President signed the Fair Chance Act, which started life as HR 1076, but was later tucked into a massive defense spending. The bill bars the federal government and its contractors from asking about the criminal history of a job applicant prior to the extension of a conditional offer of employment.

• The Bureau of Prisons reports that so far, over 2,400 Fair Sentencing Act reductions have been granted (reducing prison time by 14,250 years), 380 elderly offender home confinement placements have been approved, 117 compassionate releases have been granted, and more than 1,700 new volunteers have been OK’d to work in institutions.

• Meanwhile, the BOP reported that Fiscal Year 2018 “cost of incarceration fee” per inmate was about $37,500 a year, which works out to about $102 a day. Multiplying this number by the FSA reduction of 14,250 years of prison time suggests that First Step’s crack retroactivity provision of has saved taxpayers around over $500 million.

• We have yet to see whether the PATTERN risk and needs analysis, proposed by the Dept. of Justice with great fanfare last July, and programming that earns prisoners additional time off sentences and in reentry programs will work as legislators hoped. Early reports have the Bureau of Prisons telling many more prisoners they are ineligible than anticipated by the bill, and warning that program credits may not be awarded for several years. Those reports – mostly from inmates and, while not confirmed, seem consistent across the system – are not encouraging.

money160118• Finally, The Sentencing Project reports that First Step’s authorization of $75 million per year – about $400 per prisoner – “falls far short of what is necessary to address the rehabilitative needs of people in prison. In July, the DOJ released data that dramatically highlighted the deficit in federal prison programming. Among the 223,000 people released from BOP custody from 2009 to 2015, 49% had not completed any programming while in custody and 57% of people in need of drug treatment had received no services.”

Reuters, Congress poised to pass bill lowering barriers to work for ex-offenders (Dec. 17)

Sentencing Project, One Year After the First Step Act: Mixed Outcomes (Dec. 17)

– Thomas L. Root

Another Circuit Finds For Fair Sentencing Act Defendant – Update for December 23, 2019

Leave a comment

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

COMMON SENSE EXTENDS ITS LEAD, WITH THE CURRENT SCORE 3-0

commonsense191223The 5th Circuit last week became the third appellate court to decide that whether a defendant’s pre-2010 crack sentence qualified for reduction under the retroactive Fair Sentencing Act depended on the amount of crack cocaine alleged in the indictment, not the amount found by the court at sentencing.

Andy Jackson was charged with distributing 50 grams or more or crack. But the presentence report (PSR) found him responsible for 402 grams of crack, meaning that he exceeded even the 280-gram threshold for a minimum 10-year sentence contained in the FSA. A defendant qualifies under § 404 of the First Step Act for a reduction only if he or she had a “covered offense.”

The government’s theory was that “what counts as a covered offense necessarily turns on facts specific to the defendant’s offense, not limited to what was charged in the indictment.” In other words, if the jury convicts on a count requiring a showing of 50 or more grams, but the PSR later finds – based on whatever slipshod hearsay-heavy and evidence-light standard the court may have employed at sentencing – that 500 grams were involved, then the defendant doesn’t have a “covered offense,” since the drug quantity as stated in the PSR exceeds even the new 280-gram threshold.

crackpowder191216The 5th Circuit soundly rejected that theory:

That approach doesn’t comport with the ordinary meaning of the statute, however. As stated above, a “covered offense” is “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the FSA… that was committed before August 3, 2010…” Whether a defendant has a “covered offense” under § 404(a) [of the First Step Act] depends only on the statute under which he was convicted. If he was convicted of violating a statute whose penalties were modified by the Fair Sentencing Act, then he meets that aspect of a “covered offense.”

The 4th and 8th Circuits have already reached the same conclusion. No circuit has yet gone the other way.

United States v. Jackson, 2019 U.S. App. LEXIS 37126 (5th Cir., Dec. 16, 2019)

– Thomas L. Root

8th Circuit Says Indictment, Not PSR, Controls Crack Resentencing Eligibility – Update for December 16, 2019

Leave a comment

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

ANOTHER CIRCUIT HOLDS FSA RESENTENCING DEPENDS ON FACTS IN INDICTMENT, NOT IN THE PSR

The tide is slowly turning in favor of defendants for crack cocaine resentencings arising from Fair Sentencing Act (FSA) retroactivity, authorized a year ago (minus five days) in Section 404 of the First Step Act. A few weeks ago, the 4th Circuit held that eligibility for a sentence reduction depended on the amount of crack specified in the indictment, not what the court found at sentencing. Last week, the 8th Circuit reached a similar conclusion where the defendant had been charged with 50 grams of crack, but sentenced for 150 kilos of powder.

Back before the turn of the millennium, Maurice McDonald was charged with distributing more than 50 grams of crack, and convicted of distributing about 57 grams of cocaine base. When Maurice committed the offense in 1999, the statutory penalty for 57 grams of crack was 10 years to life in prison. He was sentenced to life in prison, but that was cut to 30 years in a prior Guidelines 2-level reduction. After First Step made the FSA retroactive, the statutory range for Maurice’s conviction fell to 5 to 40 years.

crackpowder191216

But the district court denied Maurice’s sentence reduction motion, because his 360 month-to-life Guidelines sentencing rang was based on the presentence report’s having found him responsible for distributing more than 150 kilos of powder cocaine. Because his sentence was driven by the 330 lbs. of powder described in the PSR, the district judge reasoned, Maurice was not eligible for a reduction under the retroactive FSA.

The 8th Circuit disagreed. Instead, it held, Maurice’s offense of conviction  is a “covered offense” under First Step Act Sec. 404 because (1) it is a violation of a federal statute specifying crack cocain; (2) the statutory penalties for that statute were modified by the FSA; and (3) the offense was committed before August 3, 2010. Consequently, Maurice was eligible for a sentence reduction on his count of conviction.

crackpowder160606The 8th wrote, “It is true, as the district court noted, that McDonald’s base offense level under the Sentencing Guidelines was based on more than 150 kilograms of powder cocaine, not cocaine base. But this Guidelines calculation does not change the fact that he was convicted… for distributing cocaine base in violation of 21 USC 841(b)(1)(A)(iii). The First Step Act applies to offenses, not conduct… and it is McDonald’s statute of conviction that determines his eligibility for relief.”

The Circuit explained that a district court considering a motion for reduced crack sentence under the First Step Act “proceeds in two steps. First, the court must decide whether the defendant is eligible for relief under Sec. 404. Second, if the defendant is eligible, the court must decide, in its discretion, whether to grant a reduction. That the court might properly deny relief at the discretionary second step does not remedy any error in determining ineligibility at the first step.”

lawnotjustice190213In a recent Southern District of Texas case, a district court denied a defendant a First Step Sec. 404 sentence reduction because of the weight of the crack found in the PSR, rather than what was alleged in the indictment. The defendant moved for reconsideration, explaining in detail that the weight of authority nationwide is trending in the direction of holding that it is the indictment, not the PSR, that governs eligibility for a sentence reduction.

Remarkably, the district court conceded the point, holding that “in the interest of justice and a spirit of ‘judicial comity’, the Court follows the majority of courts that have addressed this issue, determining that the eligibility under Sec. 404(a) turns on the offense not the defendant’s conduct. Therefore, the defendant’s motion for reconsideration is granted, finding that he is eligible for a reduced sentence under the Fair Sentencing Act.”

United States v. McDonald, 2019 U.S. App. LEXIS 36661 (8th Cir. Dec. 11, 2019)

United States v. Steptoe, Case No. 4:02-CR-688 (SD Tex., Nov. 6, 2019)

– Thomas L. Root

4th Circuit Drops Two Huge Pro-Defendant First Step/Fair Sentencing Act Opinions – Update for November 25, 2019

Leave a comment

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

The ever-surprising Fourth Circuit last week handed down two blockbuster opinions on application of the retroactive Fair Sentencing Act of 2010. For those of you new to this blog, the Fair Sentencing Act changed the 100-to-1 ratio of crack to powder cocaine, dropping it to a more (but not completely rational) 18-to-1 ratio. That dramatically affected the sentences of people in federal prison for crack (94% of whom are black), but the change only applied to people who had not yet been sentenced. Those already in prison would continue to languish under the oppressive (and now discredited) sentences.

The First Step Act, passed eight years later, finally extended retroactivity to the Fair Sentencing Act. Finally, people sentenced before August 2010 – the effective date of the Fair Sentencing Act – could get a break. But the devil has been in the details. Last week, the 4th Circuit delivered a reason some federal prisoners might be extra thankful this Thanksgiving season.

THE 4TH CIRCUIT GOES UNITARIAN

One of the perks of writing this newsletter (besides long hours over the weekend and no pay) is that I get to be wrong so often.

After the First Step Act made the Fair Sentencing Act (FSA) retroactive, a lot of people serving supervised release (SR) violations after finishing crack sentences wondered whether they could get their crack sentences reduced even though they had already been served. It seemed to me that the law said “Hell, no”.

Last week, the 4th Circuit said, “Hell, yes.”

Bobby Venable, who was serving an SR violation sentence, filed an FSA sentence reduction motion applicable to his prior crack sentence. Bobby claimed he would no longer face a statutory minimum 10-year term of imprisonment, and he wanted to be resentenced to 63 months. Bobby claimed this sentence would allow the Bureau of Prisons to credit him for overserved time, to be applied to his current term of imprisonment for revocation of supervised release.

The district court summarily denied his motion, holding that because Bobby “has finished his term of incarceration and is currently in custody following revocation of his supervised release[,] no reduction is authorized.”

unitary191125No court of appeals has yet considered whether a defendant on SR can get an FSA reduction for a sentence already served, but the 4th Circuit decided that “the plain language of the relevant statutes and the unitary theory of sentencing” permitted Bobby a reduction. The Circuit said that because Bobby’s original offense was for crack cocaine, “so long as he is serving any part of his sentence for that offense, he is eligible for a reduction. His offense (possession of 12.1 grams of cocaine base) was originally classified as a Class B felony, but under the Fair Sentencing Act’s provisions, it is now classified as a Class C felony. This reclassification corresponds with a lower range of statutory penalties.”

Relying on yet another Johnson case, this one Johnson v United States, a 2000 Supreme Court decision, the 4th “adopted a unitary sentence framework… stating that treating custodial and supervised release terms as components of one unified sentence appropriately recognizes the interdependent relationship between incarceration and supervised release.” The Circuit said Bobby’s “revocation sentence is a component of his underlying original sentence for the drug conviction.” Thus, Bobby “is still serving his sentence for a “covered offense” for purposes of the First Step Act. Thus, the district court had the authority to consider his motion for a sentence reduction, just as if he were still serving the original custodial sentence.”

United States v. Venable, 2019 U.S. App. LEXIS (4th Cir. Nov. 20, 2019)

STATUTORY CHARGE, NOT THE PSR FINDING, COUNT FOR FSA

FSA resentencings have bogged down recently over the issue of what amount of crack should count for resentencing purposes.

Comparativecrack190425

The issue is a simple one: a defendant was charged with distribution of “50 or more grams of cocaine base,” which carries a 10-year sentence. But at sentencing, the presentence report prepared by the U.S. Probation Office goes wild (usually based on the prosecutor’s say-so), and finds the defendant was involved with 1.2 kilos of crack.

When the defendant, twenty years later, goes for resentencing, the district court denies the motion because the 1.2 kilos would still carry a 10-year mandatory minimum under the post-FSA law.

We’ve been waiting for the issue of which one counts – the indictment accusation or the sentencing finding – and last week, we got our first circuit ruling… and it’s a good one.

Ten years ago, Dan Wirsing was charged with possession with intent to distribute more than 5 grams of crack. He struck a plea deal with the government in which he admitted that the crack amount was 60 grams, and he got 188 months.

When Dan filed for a reduced sentence under the newly-retroactive FSA, his district court denied him for being ineligible, because the amount he admitted to – 60 grams – had the same statutory sentence now that 5 grams had before the FSA. Because there was no change in the punishment, the district court said, Dan had nothing coming under the FSA.

Last week, the 4th Circuit reversed. The First Step Act provides that a sentencing court “may… impose a reduced sentence as if sections 2 and 3 of the FSA were in effect at the time the covered offense was committed.” A “covered offense” is “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the FSA that was committed before August 3, 2010.”

onething191125It does not matter, the 4th says, what Dan pled to or what the presentence report found or what the district court held at sentencing was the amount of crack involved in the offense. All that matter is that “the covered offense” was changed by the FSA, the 4th Circuit said, and the “covered offense” is what the indictment alleged, nothing more.

Other circuits will weigh in on this, no doubt, but the 4th’s unanimous and well-reasoned 22-page decision is bound to get a lot of deference when other courts decide the issue.

United States v. Wirsing, 2019 U.S. App. LEXIS (4th Cir. Nov. 20, 2019)

– Thomas L. Root

District Court Cuts Life Sentence for Crack – Update for November 21, 2019

Leave a comment

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

DISTRICT COURT CUTS LIFE SENTENCE FOR CRACK CCE

It has been a difficult ten months for some people seeking reduced sentences under the Fair Sentencing Act. DOJ says that 1,987 people have gotten sentence cuts, but as I noted last week, the government has dug in its heels on many more movants, arguing in many FSA cases that crack prisoners should be dinged with every gram of drug and Guideline enhancement imagined by the presentence report.

That’s why a recent district court FSA decision from the Northern District of New York to reduce a defendant’s life sentence to time served is so heartening.

life161207In 1997, Tommy Walker was convicted of a continuing criminal enterprise and drug conspiracy, and sentenced to life based on a mandatory minimum sentence imposed because the CCE involved more than 300 times the “5 grams or more” quantity of cocaine base penalized in 21 USC 841(b)(1)(B). However, as the court out it, “if the Fair Sentencing Act had been in effect at the time, the quantity of cocaine base penalized in 21 USC 841(b)(1)(B) would have been 28 grams or more,” meaning that to get a life sentence, Tommy would have had to be involved with 8.4 kilograms, far more than the 1.5 kg found in the presentence report.

That did not matter, the government said, because the Sentencing Guidelines enhancements that would have been applied under current law if the mandatory minimum life sentence did not apply put Tommy in the 360-life guidelines sentencing range, so the life sentence should stand.

The court rejected the government analysis, noting that one of the enhancements – maintaining a premises for drug distribution – did not exist when Tommy was sentenced, and anyway, the fact about maintaining a premises “was not an element of the charged crimes and did not affect Defendant’s original sentence, and therefore, he would have had little reason to contest it.”

It helped that Tommy had served more than the minimum sentence under his 292-360 month range, was 62 years old, and had “completed his GED, taken extensive educational courses, and excelled at jobs including electrician, law library clerk, and hospital companion, earning strong endorsements from various prison officials. He has also served as a mentor to other prisoners, who have submitted testimonials on his behalf. In short, Defendant has used his time in custody to better himself and help others.”

rehab160812The district court held that in Tommy’s case, “a reduced sentence is consistent with the purposes of the First Step Act and Congress’s intent to remedy the disproportionate impact of the statutory penalties applied to crack cocaine offenses prior to 2010, and to eliminate the disparity between Defendant and those sentenced thereafter.” The district court sentenced him to 340 months, which was time served, a sentence that reflected “the severity of the crimes committed by Defendant, while recognizing his efforts at rehabilitation.”

Don’t underestimate the power of a good disciplinary record and programming.

Memorandum Opinion and Order, United States v. Walker, Case No. 95-CR-101(NDNY, Oct. 25, 2019)

– Thomas L. Root

DOJ Works to Undermine Fair Sentencing Act in Name of ‘Fairness’ – Update for November 12, 2019

Leave a comment

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

THIS COMES AS NO SURPRISE

strict191112The Department of Justice is interpreting the First Step Act in a way that keeps more inmates serving crack sentences behind bars longer, even as President Trump touts his administration’s role in passage of First Step, the law that made crack-cocaine sentence relief available to pre-Fair Sentencing Act defendants.

The Washington Post report last week confirmed what most people already know (and what Reuters reported several months ago), that DOJ is arguing that a defendant’s sentence length, when resentenced under the Fair Sentencing Act, should be based on the amount of crack cocaine that his or her Presentence Report found the defendant actually possessed or trafficked, rather than the amount stated in the indictment and which the jury found or the defendant pled. The Post reported that federal prosecutors have made the argument in hundreds of cases.

The distinction is crucial. The amount of crack specified in the indictment must be proven by the government to a jury. The presentence report, on the other hand, is a loosey-goosey collection of the prosecution’s version of the offense and all of the collected but unsubstantiated law enforcement gossip about the defendant that makes him or her look even worse than reality does. The standard of proof is low, the procedures amorphous, and the judge all too willing to not decide evidentiary disputes because they simply do not matter to the court in the sentencing process.

looseygoosey191112As a result, while a defendant may have been found guilty of the offense in the indictment, for instance, distribution of more than 50 grams of crack, the presentence report may cite “reliable sources” who say the defendant possessed maybe a gram a week for two years. The presentence report does some simple addition, and a total of 730 grams results.

The Post said DOJ was even seeking to reincarcerate some people already released under the retroactive FSA. One targeted former inmate was Gregory Allen, who appeared at a White House event in April to celebrate passage of the law. President Trump even called Greg to the microphone.

Before the White House event, prosecutors had lost their bid to keep Allen behind bars. Even as the President asked Greg to speak, the government was appealing its loss. DOJ dropped its appeal about two weeks after Greg’s appearance.

A DOJ spokesman defended the department’s First Step interpretation in an interview with the Post. He said DOJ’s position was justified because prosecutors in years past didn’t need to prove large amounts of drugs to obtain long prison sentences. Under today’s sentencing regime, prosecutors would likely charge the offenders with having larger drug quantities, DOJ hypothesizes. “The government’s position is that the text of the statute requires courts to look at the quantity of crack that was part of the actual crime,” the spokesman argued. “This is a fairness issue.”

Judges have rejected the DOJ interpretation in a majority of cases reviewed by the Post. But at least five federal judges have agreed with the DOJ interpretation, and others have withheld judgment until appeals courts decide the issue.

In the weeks after the bill became law, many AUSAs allowed inmate petitions for early release to go unchallenged. Then, at the direction of the DOJ, prosecutors began to reverse course, court records show. In March, AUSA Jennifer Bockhorst of ND WVa asked federal judges to place a hold on more than two dozen applications for relief, some of which she had not previously opposed. She wrote that she expected to oppose at least some of those applications based on new guidance from the Justice Department.

Some of the people who helped write the legislation also disagree, including Brett Tolman, a former US attorney in Utah. He notes that the First Step text does not explicitly instruct courts to consider the actual amount of crack an offender allegedly had. “This is not a faithful implementation of this part of the First Step Act,” Tolman told the Post. “At some point, they figured out a way to come back and argue that it wouldn’t apply to as many people.”

Rep. Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, accused DOJ at a congressional hearing last month of “trying to sabotage” the law by interpreting it in this way.

Attorney General Barr has reportedly worried that early releases of inmates under the law will increase crime. Anonymous officials told the Post that Barr is concerned the administration will be blamed if crime increases.

A great example of the kind of blame the AG hoped to duck is illustrated by the person of Rhode Island defendant Joel Francisco, released earlier under First Step this year after 14 years into a life sentence for selling crack. We previously reported he was on the run after being charged with a murder. He has since been arrested, and last week, CNN made his crime a national story.

Also last week, a routine resentencing in Connecticut made national headlines, when Joel Soto’s 17-year sentence was cut to time served, under the lurid headine, “‘Joe Crack’ asks for reduced sentence in drug case.”

“More than 4,700 inmates have been released from prison under the law since its signing late last year,” CNN reported, “and federal officials believe Francisco is the first among them to be accused of murder. While an outlier, his case is raising questions and resurfacing concerns from detractors of the legislation.”

“cotton190502This case is upsetting but it’s not a surprise,” said Sen. Tom Cotton (R-Arkansas), one of First Step’s biggest critics on Capitol Hill. “Letting violent felons out of prison early as the First Step Act did leads to more crime and more victims.”

Other lawmakers who supported the bill called the incident a tragedy, but hoped that it wouldn’t stand in the way of more progress. “If you’re looking at reforming the criminal justice system you cannot pick an individual criminal act to then raise the question as to whether or not you do reforms to the system,” said Rep. Karen Bass (D-California), a member of the House Judiciary Committee and the chair of the Congressional Black Caucus.

None of this should surprise anyone. Despite the First Step Act rhetoric, The New York Times reported last week that despite bipartisan calls to treat drug addiction as a public health issue rather than as a crime — and despite the legalization of marijuana in more states — arrests for drugs increased again last year. Such arrests have increased 15% since Trump took office.

Washington Post, Crack cocaine quantities at issue as DOJ opposes some early releases under First Step Act (Nov. 7)

ABA Journal, Crack cocaine quantities at issue as DOJ opposes some early releases under First Step Act (Nov. 8)

CNN, He was one of the first prisoners released under Trump’s criminal justice reform law. Now he’s accused of murder (Nov. 9)

Newport News, Virginia, Daily Press, ‘Joe Crack’ asks for reduced sentence in drug case (Nov. 2)

The New York Times, Is the ‘War on Drugs’ Over? Arrest Statistics Say No (Nov. 5)

– Thomas L. Root

House Subcommittee Holds Oversight Hearing on First Step, and Tales Abound – Update for October 21, 2019

Leave a comment

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

A TALE OF TWO BOPs

twocities191022At a House of Representatives Subcommittee on Crime, Terrorism and Homeland Security oversight hearing last Thursday on implementation of the First Step Act, it seemed at times that legislators were hearing about two different Bureaus of Prisons. One was staffed by dedicated professionals who were rapidly “developing guidance and policies to ensure appropriate implementation” of First Step. The other BOP was cutting halfway house, providing inadequate programs and “acting in ways that result in lengthier and less productive terms of incarceration despite the obvious will of Congress.”

Dr. Kathleen Hawk Sawyer, the veteran BOP hand brought back from retirement to take over the agency 12 weeks ago in the wake of the Jeffrey Epstein suicide fiasco, told the subcommittee that sentence reductions under the newly-retroactive Fair Sentencing Act has resulted in over 2,000 orders for release, with the release thus far of over 1,500 of those inmates. She told the Subcommittee that BOP “staff also immediately began the challenge of re-programming our Good Conduct Time (GCT) sentence computations to reflect the change. As a result, on July 19, 2019, when the GCT change took effect commensurate with the Attorney General’s release of the Risk and Needs Assessment System, the Bureau executed timely releases of over 3,000 inmates.”

This will come as surprising news to the thousands of people whose sentences have not yet had the revised GCT computations applied to their sentences.

She also reported that since First Step was signed into law, 95 inmates have received compassionate release (although she did not specify how many releasees were recommended by the BOP). She said the BOP has approved 328 inmates for the Elderly Offender Home Detention program, with 242 already on home detention and the balance awaiting placement.

wereonit191022Sawyer Hawk urged the Subcommittee to fund and approve expanded UNICOR purchasing approval, authorizing more agencies, nonprofits and governments to buy UNICOR products. She said UNICOR employment has fallen from 20,000 several decades ago to 11,000 now, but that expansion of the pool of eligible buyers in the First Step Act assured that the number of UNICOR inmate employees would increase.

Sawyer Hawk implied that UNICOR, GED, literacy and drug programs would be among the programs for which earned-time credit was given once the PATTERN risk and needs assessment system was implemented. Apparently, the independent review committee that developed PATTERN also “selected programs to designate as evidence-based recidivism-reduction programs and productive activities,” according to Review Committee member John P. Walters, but neither he nor any other government witness identified what the programs would be.

Sawyer Hawk testified that training of BOP staff is underway for application of PATTERN as well as a yet-undefined system of assessing an inmate’s needs for programming. The suggestion is that BOP staff will select the programs that an inmate can take for earned-time credit according to the individual needs of the inmate for such programming. Sawyer-Hawk said, “The Bureau already has in place a robust Needs Assessment system, and we are working with experts in the field and research consultants to further enhance it.”

Walters tried to assuage concerns about PATTERN, telling the Subcommittee that the commission is working on “somewhat substantial” changes aimed in particular at removing possible bias in the tool. He said the contractors who developed the PATTERN system have run 200 additional hours of analysis at the independent review commission’s direction with the hopes of weeding out bias. “Obviously we want the instrument to be valid, but we also want the instrument to capture real differences and not bias,” Walters said.

A much less rosy picture was painted by New York City Federal Defender executive director David E. Patton and Professor Melissa Hamilton. Patton pointed out that current DOJ data show 49% of federal inmates complete no programs, 82% of such inmates receive no technical/vocational courses or UNICOR employment, and 57% of federal inmates needing drug treatment receive none. “Relatedly,” Patton said, “we are deeply troubled that there is still no needs assessment as required under the FSA, and that the BOP does not expect one to even be available for testing until the second quarter of 2020.”

Hamilton complained that PATTERN was being developed in an opaque process, one in which routine requests for release of the underlying data – something the U.S. Sentencing Commission does as a matter of course – and Freedom of Information Act requests have been ignored. The Brennan Center for Justice “requested release of information on the BRAVO/BRAVO-R tools that the DOJ Report indicates are foundations for PATTERN,” Hamilton testified, “yet were rebuffed because of proprietary claims. This initial assertion of secrecy is deeply concerning.”

casemanagers191022Patton also questioned the BOP’s commitment to halfway house placement. The BOP said in a 2017 memorandum that “due to fiscal constraints,” the average length of halfway house stay was “likely to decline to about 120-125 days.” However, Patton asserted, “anecdotal information from prisons indicates that counsellors have been told to limit the amount of prerelease time in reentry centers to even less than 120 days. At one prison, individuals reported seeing a printed sign on the counsellor’s wall reading: ‘We will put you in for a maximum of 90 days of RRC time, but it will most likely be less. Yes we know what the Second Chance Act says’.”

Rep. David Cicilline (D-Rhode Island), pointedly asked Sawyer-Hawk why people close to release whose dates were advanced by the additional 7 days-a-year good time were not having halfway house dates changed accordingly. Sawyer Hawk expressed surprise, saying that this was not happening throughout the system, and she would look into whether it was happening in New England.

Subcommittee’s questions focused primarily on the heating crisis at MDC Brooklyn, the Epstein suicide at MDC New York, BOP staffing levels nationwide and the PATTERN programming. One noteworthy moment came at the beginning of questions from Rep. Hakeem Jeffries (D-New York). He read a statement from the family of Troy Pine, the man Noel Francisco allegedly murdered in Providence, Rhode Island, several weeks ago. Francisco was released early because of the retroactive Fair Sentencing Act, creating a firestorm of criticism over the First Step Act.

Pine’s nephew urged people not to blame Trump or the First Step Act. “Anyone who speaks my uncle’s name, please speak it in a way that will draw people together, and bring help to people in these communities, including human beings who have been locked up for too long,” Jeffries read from the statement.

A Washington Times column on Saturday agreed: “The First Step Act is working. According to the FBI, the violent crime rate is at its second-lowest point since 1991. As previously stated, thousands of people have returned home as a result of First Step, more than 1,700 releases as a result of the crack cocaine/powdered cocaine disparity provision alone. And this case is the first reported incident of a First Step Act recipient re-committing a serious crime.

“But even one tragedy is one too many, and we still have much work to do. Our system is still broken, and we should focus on reforms that offer second chances, but more importantly, keep us safe.”

House of Representatives Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, Oversight Hearing on the Federal Bureau of Prisons and Implementation of the First Step Act (Oct. 17)

Washington Times, First Step Act is working, but the criminal justice system is still broken (Oct. 19)

Providence Journal, Nephew of Providence murder victim: Don’t blame First Step Act (Oct 18)

– Thomas L. Root

A Lesson in Government – Update for October 17, 2019

Leave a comment

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

HOW (AND WHY) OUR LAWS ARE MADE

howlawsmade191018Remember government class in high school? Not so much, huh? Back to school time, boys and girls… Here’s a real-life example of how legislation is written:

In 2010, Congress passed the Fair Sentencing Act, reducing the 100-1 ratio of crack to powder cocaine to 18-1. Under the old regime, a defendant with 1 gram of crack cocaine was deemed to have 100 grams of powder cocaine. Because sentences vary in proportion to the amount of controlled substance possessed, a defendant (almost always black) with a slight amount of crack was punished much more severely than a defendant (usually white) with a slight amount of powder coke.

The FSA as proposed would have eliminated the disparity altogether, so that the mandatory minimum for a kilo of powder was the same for a kilo of crack. The House passed the bill with a 100-1 ration reduced to 1-1. But when the bill finally passed the Senate, 1-1 has mystically become 18-1. No one could figure out where the 18-1 ratio came from. Careful deliberation? Scientific studies?

sessions170811“We could find no objective proof that crack cocaine was in fact more dangerous than powder cocaine,” said Sen. Richard Durbin (D-Illinois), sponsor of the Senate version of the bill, explaining the rationale behind the original draft. But then-Sen. Jefferson Beauregard Sessions III (R-Alabama) was opposed to changing the ratio at all, believing that the crime rate was falling because more people were being locked away for a long time (as well as thoroughly enjoying the prospect of those dangerous black criminals from the hood being warehoused in federal prisons for decades on end).

The day the bill was to come up for a committee vote, Durbin ran into Sessions at the Senate gym. Durbin recounted, “I said to Jeff, “come on, Jeff. We can’t just stop the conversation and see this bill die in committee.” said Durbin. “If you won’t do this 1-1 deal, what deal will you do?”

Sessions offered lowering 100-to-1 to 25-to-1. Durbin countered, 10-to-1. No dice, Sessions said.

What about 15-to-1?

“I’ll take 18-to-1,” Durbin recalls as Sessions’ response.

“We moved from 100-to-1 to 18-to-1 because of a conversation in the Senate gym, that is literally how it happened,” said Durbin.

violent160620A further lesson, this one on what influences legislators. It does not matter how many success stories arise from people who got out early because of the First Step Act’s retroactivity for crack defendants. The public will be reminded endlessly of the one failure.

Stories last week continued to highlight Joel Francisco, released on a sentence reduction last spring, who is a fugitive after allegedly stabbing a man to death in a Providence, Rhode Island, hookah lounge. The Providence Journal again noted that “the life sentence was reduced to time served under a bipartisan criminal justice reform law signed by President Trump in December.”

The conservative American Thinker was more graphic:

Cmdr. Thomas Verdi, the deputy chief of the Providence Police Department, who was familiar with Francisco, warned federal officials that the ‘crown prince of the Almighty Latin Kings’ gang… had a ‘propensity for violence…” At the news of his release, Verdi expressed his doubts about Francisco’s rehabilitation. He was right. Last Wednesday, Francisco, 41, stabbed 46-year old Troy Pine to death.

It only takes one failure, and a compliant news media, to poison the public on sentencing reform.

An opinion piece in The Hill this week, however, tried to put the Francisco matter in context: 

[I]f Francisco is guilty of this crime, he is the exception not the norm. Thousands of individuals are being released from custody under the First Step Act, and many more who have worked hard to prove their rehabilitation stand to benefit in the months to come. While it’s still too early to assess how many of these individuals will commit a new offense, there has hardly been a widespread spike in crime.  

The criminal justice system is not perfect; there will always be cases where someone returns to crime after re-entering society. The only way to guarantee that this doesn’t happen – the fear-filled, totalitarian way – is to imprison everyone who commits a crime for life. The pragmatic, limited-government way is to continue reforming the criminal justice system until we’ve achieved a balanced measure of accountability and rehabilitation.

Peoria, Illinois, Journal Star, Sen. Dick Durbin recalls how he and Jeff Sessions struck deal on Fair Sentencing Act in Senate gym (Oct. 10, 2019)

Providence Journal, Heartbroken father urges son, accused of fatal Providence stabbing, to turn himself in (Oct. 9, 2019)

American Thinker, Trump-supported early prison release law draws blood (Oct. 10, 2019)

The Hill, Don’t give up on the First Step Act (Oct. 17, 2019)

– Thomas L. Root