Tag Archives: famm

EQUAL Act Rises, Phoenix-Like, In New Congress – Update for January 30, 2023

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.

EQUAL ACT COMING AROUND AGAIN

People are still asking about the status of various criminal justice bills that have been pending in Congress for the past few years. So let’s review some high school government class notes…

Every Congress lasts two years, beginning in the January of an odd year and ending at the end of the next year (and even year). The last Congress was the 117th Congress since the adoption of the U.S. Constitution. The one that started on January 3, 2023, is the 118th Congress.

phoenix230130Any bill that was pending but not passed when the last Congress ended died on January 2. This included the EQUAL Act, a bill that would have equalized the penalties for crack and powder cocaine. EQUAL passed the House last session, but while declaring its support for the measure, Senate leadership (and I’m talking about Sen. Charles Schumer [D-NY], Senate majority leader) inexplicably failed to bring EQUAL to a vote.

So the EQUAL Act – like marijuana reform, 18 USC 924(c) retroactivity, expungement, and every other criminal justice issue before Congress – now must start over. No new EQUAL Act has yet been introduced in either the House or Senate, but last week, talk of crack-powder equality rose like a phoenix from the ashes of the 117th Congress. FAMM and 20 other criminal justice reform groups wrote to Senate Judiciary Committee Chairman Richard Durbin (D-IL) and the new Ranking Member of the Committee, Sen. Lindsey Graham (R-SC), urging them to have the Committee schedule a markup for the measure as soon as it is introduced (whenever that is).

The letter said

Last Congress, the EQUAL Act was one of only a few pieces of legislation to enjoy clear bipartisan support. The House of Representatives passed the bill in September 2021 with an overwhelmingly bipartisan vote of 361-66. The Senate version of the bill enjoyed the support of more than 60 senators, but never received a vote in committee or on the floor. To ensure this strong bipartisan bill reaches President Biden’s desk, we urge you and your committee to begin work on this urgent piece of legislation immediately.

Signers of the letter included criminal justice rights groups from the left and right, as well as a gallimaufry of organizations including Americans for Tax Reform, the National Association of Criminal Defense Lawyers, Association of Prosecuting Attorneys, the Major Cities Chiefs Association, and the NBA’s National Basketball Social Justice Coalition.

canoe230130

In his Sentencing Law and Policy blog, Ohio State University law professor Douglas Berman wrote last week that “notably, but not surprisingly, this letter to Congress makes no mention of the fact that… US Attorney General Garland released last month new federal charging guidelines that includ[ed] instructions to federal prosecutors to treat crack like powder cocaine at sentencing. Though these new charging guidelines do not have the legal force of statutory reform, they might readily lead members of Congress to see less urgency in advancing reform or even to be more resistan[t] to reform as we saw late last year. Fingers crossed that EQUAL can gather momentum again and actually finally eliminate the pernicious and unjustified crack/powder disparity once and for all.”

FAMM, Coalition of law enforcement, justice reform, and civil rights organizations urge Congress to pass the EQUAL Act (January 26, 2023)

FAMM, Letter to Senate Judiciary Committee Chairman (January 26, 2023)

Sentencing Law and Policy, New year and new Congress brings a new effort to advance new EQUAL Act (January 26, 2023)

– Thomas L. Root

A Couple of Short Takes – Update for May 19, 2022

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.

TIME ENOUGH FOR A QUICKIE…

Quickie #1 – FAMM Lobbies for Compassionate Release for Dublin Victims: In a letter sent last week to Deputy Attorney General Lisa Monaco, FAMM President Kevin Ring asked the Dept of Justice to recommend compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) to female Bureau of Prisons inmates who suffered sexual assault at hands of FCI Dublin corrections officials and officials.

compassion210903The letter notes that the BOP has statutory authority under U.S.S.G. §1B1.13 to identify “’other reasons,’ that alone or in combination with recognized criteria merit compassionate release. Sexual assault by BOP personnel of incarcerated women is an exceptional abuse of trust. The trauma resulting from such victimization is without doubt an extraordinary and compelling reason justifying consideration for compassionate release.”

FAMM, Letter to Lisa Monaco (May 9, 2022)


supervisedrevoked181106Quickie # 2 – Supervised Release Violations as Double Punishment: In a first comprehensive analysis of “criminal violations” and supervised release – cases where people violate their supervision by committing new crimes – Penn State law professor Jacob Schuman argues that revocation for criminal conduct inflicts unfair double punishment and erodes constitutional rights. When defendants on supervised release commit new crimes, he writes, prosecution without revocation is a better and fairer way to punish them.

Virginia Law Review, Criminal Violations (Feb 15, 2022)

– Thomas L. Root

News Briefs from Capitol Hill – Update for April 7, 2022

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.

CONGRESSIONAL SHORT TAKES…

House OKs Prohibition on Using Acquitted Conduct in Sentencing: Last week, the House passed H.R. 1621, the Prohibiting Punishment of Acquitted Conduct Act of 2021 by an overwhelming 405-12 vote.

Co-sponsor Steve Cohen (D-TN), said, “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

A similar measure introduced by Sens Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.

sliceofpie220407The bill actually does very little. If a federal defendant goes to trial and is acquitted on one or more counts, but is convicted on at least one count, the sentencing judge may nevertheless take into account all of the conduct for which the defendant was acquitted in setting a sentence.  All the judge has to do is conclude that the government proved the defendant committed the acquitted acts by a preponderance of the evidence, a lower standard than the standard for conviction, which is “beyond a reasonable doubt.”

So the legislation will benefit the portion of the 6% who go to trial who are not acquitted of all charges and who are not convicted of all charges.  That’s a pretty small slice. It will not help people whose sentences are affected by charges that the government dismisses or, even more common, accusations of relevant conduct which are never charged to begin with.

And, no, it will not be retroactive. Still, any nudge of sentencing procedure toward sanity is welcome.

H.R. 1621, Prohibiting Punishment of Acquitted Conduct Act of 2021

Steve Cohen, Congressman Cohen Speaks in Favor of and Votes for His Bill Prohibiting the Consideration of Acquitted Conduct in Sentencing (Mar 28)

Sen Hawley Introduces Bill to Slam Judge Jackson and CP Defendants: Who saw this coming?

kittyporn170420In the wake of his criticism of Judge Ketanji Brown Jackson for being soft on child pornography defendants, Sen Josh Hawley (R-MO) has week introduced a bill to require a minimum 5-year sentence on people possessing child pornography and to require judges to sentence within the Guidelines for any child pornography offense.

Rep Ken Buck (R-CO) introduced companion legislation in the House.

A Democratic Party opponent to Hawley said of the bill, “We can count on Senator Hawley to find the lowest common denominator to draw attention to himself. The independent ABA’s review board found this line of questioning to be misleading and multiple fact checkers have debunked the allegations regarding sentencing. Choosing this time to introduce this legislation is purely for attention and designed to appeal to conspiracy.”

S.3951, Protect Act of 2022

H.R. 7263, Protect Act of 2022

Washington Times, GOP introduce bill to beef up child porn sentences after Judge Jackson’s confirmation hearing (March 30, 2022)

KYTV, Springfield, Missouri, Missouri U.S. Sen. Josh Hawley introduces bill over sentences for child porn offenders (April 2, 2022)

crack211102FAMM Issues EQUAL Act Analysis: FAMM released an analysis last week urging the Senate to approve the EQUAL Act reporting that if the bill becomes law, it will reduce sentences for people already serving time for crack offenses by an average of just over six years, cutting 46,500 years off sentences. FAMM estimates that 91% of people benefitting from EQUAL Act are black.

FAMM, The EQUAL Act: Why Congress Must #EndTheDisparity Between Federal Crack & Powder Cocaine Sentences (March 31, 2022)

– Thomas L. Root

Trump (Finally) Rolls Out Sentencing Commission Slate, Albeit Unbalanced One – Update for August 20, 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.

TRUMP FINALLY DECIDES TO NOMINATE NEW SENTENCING COMMISSION MEMBERS, AND FAMM SHOUTS “NOT SO FAST!”

The U.S. Sentencing Commission has lacked a full slate of commissioners for the entirety of Trump Administration, and has not even had a quorum since the First Step Act passed in December 2018. That is why no sentencing guideline has been amended since the November 2018 amendments went into force.

Last week, the White House announced nominees for the vacant Commissioner slots (which persons must be approved by the Senate). They include Judge K. Michael Moore of Florida, to be chairman; Judge Claria Horn Boom of Kentucky; Judge Henry E. Hudson of Virginia; John G. Malcolm, Vice President for the Institute for Constitutional Government and the Director of the Meese Center for Legal & Judicial Studies at the Heritage Foundation; and Judge Luis Felipe Restrepo of Pennsylvania.

HudsonA170811The bad news is that four of the five nominees have been Assistant U.S. Attorneys, and that three of those four are sitting judges as well. The worse news is that Judge Henry Hudson, who has the well-deserved nickname of “Hang-‘em-High Henry,” is one of the nominees. A lonely piece of good news is that Judge Luis Restrepo comes from a public defender background.

How’s that for balance?

hudsonB170811“The administration has put forth a slate that is all white, mostly male, and lacking in diverse experiences or backgrounds,”  Sakira Cook, director of the justice reform program at the Leadership Conference on Civil and Human Rights, told NPR. “It is critically important that the Sentencing Commission reflects the diversity of background, experience, and expertise that would make the work of the Commission most effective. It is also important to note that at least two of the candidates have records or expressed views on sentencing issues that raise serious concerns.”

FAMM (formerly Families Against Mandatory Minimums) wrote to Senate Judiciary Chairman Sen. Lindsey Graham (R-South Carolina), and ranking minority member Sen. Dianne Feinstein (D-California) last week to urge them to refrain from acting on the nominations until next year:

There are less than 20 legislative days before the election. That is not nearly enough time to give nominees to this important agency the thorough examination and consideration they deserve – and that the people who will be subject to the Commission’s decisions deserve.

FAMM noted specifically that one of the Sentencing Commission’s urgent priorities will be to “address a federal prison system that has been overwhelmed by the spread of COVID-19. The deaths to date of 112 federal prisoners and at least one staff member compel serious reflection about various aspects of the federal prison system, including sentence lengths and early release mechanisms, over which the commission has some authority.”

privateprison200820(Note: The BOP hit 120 dead inmates a couple of days ago, being 114 in BOP custody and another six federal prisoners in private prisons. But no one seems want to count the people who are guests of the for-profits. That is perhaps a topic to cover for another day.)

Of course, what FAMM is really saying is that if the Senate waits until January, there may be a new President and a much different slate of commissioner nominees to consider.

The White House, President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts (August 12, 2020)

FAMM, Letter to Sens. Lindsey Graham and Dianne Feinstein (August 14, 2020)

NPR, Concern Mounts Over Possible Trump Picks For Influential Crime Panel (August 19, 2020)

– Thomas L. Root

The Sell Begins For and Against FIRST STEP – Update for October 23, 2018

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.

LISAStatHeader2small

POLITICKING STARTS FOR COMPROMISE FIRST STEP ACT

Although most political news is focused on the mid-term elections in 15 days, drumbeats of support for the Senate to pass the compromise FIRST STEP Act after election day are increasing.

firststep180814A survey released last week shows widespread support for the provisions in FIRST STEP, in sharp contrast to the National Association of Assistant United States Attorneys’ survey we wrote about last week.

A national survey of 1,234 registered voters conducted online between Oct. 11-12 found 82% of respondents approved of specific FIRST STEP provisions. Additionally, 82% supported allowing non-violent offenders to finish their sentences in home confinement in order to ease their integration back into society, and 76% agreed with expanding the number of good-time days. Most important for political pressure purposes, 53% of respondents said that if the Republican-controlled Senate fails to pass FIRST STEP, they will view the Republicans more negatively.

But despite support from a large number of Republicans, conservative groups, and the White House, FIRST STEP faces stiff opposition from the Justice Department and staunch law-and-order conservatives such as Sen. Tom Cotton (R-Arkansas), who especially oppose reductions in mandatory minimums.

sentence181023Fortuitously, HBO aired a documentary last Sunday night (Oct. 21) called The Sentence, which has already been shown at Sundance Film Festival. The Sentence chronicles the aftermath of filmmaker Rudy Valdez sister’s drug conspiracy sentence and the consequences of mandatory-minimum sentencing. Cindy Shank received 15 years for conspiracy charges related to crimes committed by her deceased ex-boyfriend. The film follows the Valdez family’s effort to win Cindy clemency during the last months of the Obama administration.

“Two days after airing the film at Sundance,” Valdez said last week, “a Republican Senator (Mike Lee, R-Utah) reached out to me the say ‘thank you for making this movie’. You know, this is not a party issue, this film is apolitical, both Republicans and Democrats are coming together to fix this broken issue. I’ve been invited to speak many times on Capitol Hill, to share what I know with legislatures, to put a face on the victims, and show the effects of the federal minimum sentencing guidelines. Hopefully, by opening their eyes to the devastating effects of the federal minimum sentencing guidelines, it will help our lawmakers craft even more new legislation that actually gives Federal judges the ability to dole out fair and just punishment, with an emphasis on rehabilitation.”

An op-ed piece in USA Today last week by FAMM president Kevin Ring expanded on The Sentence’s theme of the effect long prison sentences have on inmates’ children. Ring, a former Capitol Hill lobbyist who served a federal sentence, wrote about the effect on his children of his own imprisonment, admitting that “I ended up serving time with people whose unnecessarily long sentences were caused by the laws I helped write.”

sessions180322Meanwhile, different drumbeats continue to sound a death knell for Attorney General Jefferson Beauregard Sessions III. The New York Times published a long story last Friday reporting how “discontent and infighting have taken hold at the Justice Department, in part because Mr. Sessions was so determined to carry out that transformation that he ignored dissent, at times putting the Trump administration on track to lose in court and prompting high-level departures… President Trump has exacerbated the dynamic, they said, by repeatedly attacking Mr. Sessions and the Justice Department in baldly political and personal terms. And he has castigated rank-and-file employees, which career lawyers said further chilled dissent and debate within the department.” Observers say it is almost a certainty that Sessions, a staunch opponent of sentencing reform, will resign after the mid-terms.

Reason.com, Poll Shows Wide Support for Criminal Justice Reform Bill in Congress (Oct. 18, 2018)

The Poll

USA Today, I once wrote mandatory minimum laws. After ties to Abramoff landed me in prison, I know they must end. (Oct. 16, 2018)

The Knockturnal, ‘The Sentence’ Goes to Capitol Hill (Oct. 18, 2018)

The New York Times, Justice Dept. Rank-and-File Tell of Discontent Over Sessions’ Approach (Oct. 19, 2018)

– Thomas L. Root

LISAStatHeader2small

Interest Groups Pressure Congress on Criminal Justice Reform – Update for July 19, 2018

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.

LISAStatHeader2small

INMATE FAMILIES LEAN ON SENATORS FOR PRISON REFORM

About a hundred family members of incarcerated federal inmates met with nearly half of the United States Senate last Wednesday to urge passage of the FIRST STEP Act, the Trump-backed prison reform bill that passed the House in May.

The FIRST STEP Act would expand the training and educational programs, allow eligible inmates to earn time credits they could use for more halfway house or home confinement, widen compassionate release and elderly offender release programs, and force the BOP to honor a 500-mile from home limit on prison selection in most cases.

FIRST STEP has not been voted on in the Senate, and has been opposed by over 70 left-leaning social justice groups that want the bill to include mandatory minimum sentencing reform for non-violent drug offenders.

At a rally held on the Capitol steps last Tuesday hosted by the nonprofit Families Against Mandatory Minimums, family members spoke about their experiences and how the FIRST STEP Act would not only benefit their imprisoned loved ones but would also benefit them as well.

FIRST STEP does not include changes to mandatory-minimum sentencing, but FAMM and other groups argue that federal inmates and their families cannot wait any longer for Congress to fix a broken prison system in hopes of a perfect bill sometime in the future.

“Did you know that the Bureau of Prisons recently confirmed that there are 16,000 people in the federal system awaiting literacy classes?” James Ackerman, CEO of the evangelical prison ministry Prison Fellowship, said during the rally. “It is shameful. We can almost guarantee that somebody is going to have a very difficult time re-entering society from prison if they can’t read.”

As Prison Fellowship has been one of the most active supporters of the FIRST STEP Act, Ackerman asserted that the legislation will order the BOP to implement programs to help inmates with all different kinds of problems.

Under the legislation, prisoners would receive individual assessments to determine what kind of support they need while serving their time — whether it is anger management, addiction rehabilitation, job training, life skills education or financial management training.

“We have been in communication with the White House over the course of the last year,” Ackerman told the rally. “I can confirm for you that the White House, we have been told, is supportive of the FIRST STEP Act. If they get a bill passed, it goes to the White House and we are going to have people coming home.”

Prison Fellowship Senior Vice President Craig DeRoche said the focus is now on Senate Majority Leader Mitch McConnell (R-Kentucky) to put the bill up for a vote. He hopes McConnell will do so before the Senate breaks for the summer.

Although Prison Fellowship supports sentencing reform bills, DeRoche does not think the Sentencing Reform and Corrections Act, supported by Judiciary Committee chairman Charles Grassley (R-Iowa) and Sen. Richard Durbin (D-Illinois) is viable given the current political make-up and the Trump administration’s seeming opposition to sentencing reform.

FAMM apparently agrees. “You can imagine that no one wants mandatory minimums more than a group called Families Against Mandatory Minimums,” FAMM president Kevin Ring said. “But we are also cognizant of the political environment in which we find ourselves. The attorney general doesn’t support sentencing reform. The president doesn’t seem to support sentencing reform. But as the theme of this rally indicates, we can’t wait for any progress just because we can’t get everything. We wish it would include sentencing but we are going to get what we can.”

Townhall, The First Step Act: Bringing Left and Right Together (July 13, 2018)

The Christian Post, Family Members of Inmates Lobby Senators to Pass Prison Fellowship-Backed Reform Bill (July 11, 2018)

– Thomas L. Root

LISAStatHeader2small