Tag Archives: FIRST STEP Act

Unintended Consequences for a Meritorious Sentencing Commission Proposal – Update for February 21, 2025

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 NAVARRO CONUNDRUM

Sharp-eyed reader Drew wrote last week to ask about the United States Sentencing Commission’s proposal to change the supervised release guidelines.

supervisedleash181107Supervised release – a term of post-incarceration control over a former prisoner by the US Probation Office during which the ex-inmate can be sent back to prison for violations of a whole list of conditions – is imposed as a part of nearly every sentence, despite the fact that “it is required in fewer than half of federal cases,” according to one federal judge. No one subjected to it especially likes it, which is why many have cheered the Sentencing Commission’s proposal to reduce its usage.

The proposed amendment now being considered would amend USSG § 5D1.1 to remove the requirement that a court reflexively impose a term of supervised release whenever a sentence of imprisonment of more than one year is imposed, so a court would be required to impose supervised release only when required by statute. For cases in which the decision to impose supervised release is discretionary, the court would be directed to impose it “when warranted by an individualized assessment of the need for supervision,” which the court would be expected to explain on the record.

Who could possibly complain about avoiding a term of supervised release, a period of post-incarceration control that, by some accounts, violates one-third of the people subjected to it?

Remember Peter Navarro, once a confidante of first-term President Trump and currently his Senior Counselor for Trade and Manufacturing? Petey suffered hideously as a federal prisoner for four whole months at FCI Miami in between his last and current White House gigs, doing time after being convicted of contempt of Congress.

You’re wondering, of course, who could possibly hold Congress in contempt?  Besides almost all of America, that is? Well, Pete did by refusing to testify before the House January 6th Committee.  He was sentenced to four whole months of incarceration. Last summer, as his endless sentence drew to a close, Pete petitioned his sentencing court for compassionate release under 18 USC § 3582(c)(1)(A), asking not that his sentence be cut but instead that the court add a few days of supervised release.

It was subtraction by addition. Pete wanted a few days of supervised release added to his sentence because of a quirk in the First Step Act. Under the Act, FSA credits – time credits that are earned for successful completion of programming intended to reduce recidivism – can be used for early release or halfway house/home confinement benefits. The Bureau of Prisons credits the initial FSA credits a prisoner earns to decrease the length of his or her sentence by up to a year under 18 USC § 3624(g)(3), but only if the prisoner has had a term of supervised release imposed as part of his sentence.

magahat250221Generally, the supervised release condition has not been a problem for prisoners because courts hand out supervised release like red MAGA caps at a Trump rally. However, a few sentences don’t have supervised release added to the tag end, such as very short ones or cases where an alien will be deported at the end of his term.

That happened to Pete, whose court imposed a four-month prison sentence without any supervised release afterward. This left Pete unable to use any of the 14-odd days of FSA credit he had earned to go home a couple of weeks early.

Pete’s creative legal team filed for the sentence non-reduction under § 3582(c)(1)(A), asking that the sentence be modified to add a little supervised release after Mr. Navarro’s four months in hell ended. The court didn’t bite, holding that the sine qua non of a sentence reduction motion was a request for an actual sentence reduction. Pete had asked for a sentence increase, and that could not be granted.

As a result, Pete barely made it out of his personal Devil’s Island in time to be flown by private jet to the Republican Convention in Milwaukee. (Incidentally, he emerged from prison as a dedicated BOP reformer, but that commitment seems to have waned since he made it back to 1600 Pennsylvania Avenue NW).

The Navarro episode illustrated Drew’s question: If supervised release were to be no longer imposed for many offenses, would that not also hobble a prisoner’s ability to earn the up-to-one-year-off that § 3624(g)(3) offers? Darn right – just ask President Trump’s Special Counselor on Trade and Manufacturing. Is this the USSC sneakily trying to take benefits away from some prisoners? Might the result of the proposed amendment’s adoption be a repeat of year-and-a-day sentences where judges impose a day of supervised release in order to allow defendants the full benefit of their FSA credits?

I suspect the Commission simply has not focused on the effect that its proposal would have on prisoners using FSA credits for shorter sentences under 18 USC § 3624(g)(3). The arcane FSA credit regime is not a matter that’s necessarily in the Sentencing Commission’s wheelhouse. The USSC’s proposal to encourage more judicious imposition of supervised release terms is generally laudable: it conserves US Probation Office resources to be spent on people who really need the post-prison supervision while will improve – rather than limit – rehabilitation for many.

adultsupervision240711(Examples: I had a fellow on supervised release tell me last week that a major trucking firm had been happy to hire him as a long-haul trucker despite his 20 years served for a drug offense until it learned he was still on supervised release. The company told him it could not hire him as long as he was on a US Probation Office tether but to call them the second he was done with supervised release, whereupon they’d be glad to put him in one of their rigs. I had another guy tell me that he couldn’t get life insurance to protect his wife and kids until he was off supervised release. Neither of these limitations helps a former prisoner re-integrate.)

We’ll have to see whether USSC tweaks its proposal to account for the unforeseen Navarro consequence when the final amendment package is adopted in April.

United States Sentencing Commission, Guidelines for United States Courts, 90 FR 8968 (February 4, 2025)

United States v. Thomas, 346 FSupp3d 326 (EDNY 2018)

Order, United States v. Navarro, ECF 176, Case No 22-cr-0200 (DDC, May 15, 2024)

– Thomas L. Root

US District Court Rules Guideline 1B1.13(b)(6) Exceeds Commission Authority – Update for February 7, 2025

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.

WHAT CONGRESS HAS ORDAINED, LET NO SENTENCING COMMISSION PUT ASUNDER

exceedsauthority250207Compassionate release took it on the chin again in the 11th Circuit this week, as a Southern District of Florida district court ruled yesterday in a lengthy opinion that the United States Sentencing Commission lacked the authority to rule that a nonretroactive change in the law could provide a basis to reduce the length of a grossly over-length sentence that was proper when imposed but would be improper under current law.

A little background: Under 18 USC § 3582(c)(1), a federal prisoner is entitled to ask the sentencing court to reduce his or her sentence. An inmate seeking such a reduction (commonly if imprecisely known as “compassionate release”) must show that “extraordinary and compelling” reasons exist for grant of the reduction. What constitutes an “extraordinary and compelling” reason is defined in the first instance by United States Sentencing Commission.

(The prisoner also must show that the reduction being sought takes into consideration (whatever that means) the sentencing factors of 18 USC § 3553(a), but we can discuss that issue another day).

When the Sentencing Commission adopted a new policy statement on sentence reduction motions 15 months ago, it provided a laundry list of circumstances that qualify in Guideline § 1B1.13(b). The most contentious item on the list is Item (b)(6), a provision that a “change in the law” can sometimes provide a basis for a reduction.

stash171031Gilberto Chineag was sentenced to life in prison after being ensnared in a “stash house sting” some 25 years ago. Two prior state drug convictions – which Gil possessed – were all that were required under 21 USC § 841(b)(1)(A) to require the court to lock Gil away for the rest of his natural life.

A quarter century later or so, Gil asked his court to reduce his sentence to time served, arguing that the First Step Act’s (FSA’s) change in § 841(b)(1)(A) left his sentence at 21 to 27 years instead of life and thus qualified under Guideline 1B1.13(b)(6) as an extraordinary and compelling reason for a sentence reduction. In a 40-page opinion issued yesterday, Judge Rodolfo Ruiz II disagreed, holding that the Sentencing Commission lacked the power to declare that a change in the law that Congress did not make retroactive could ever be an “extraordinary and compelling” reason under § 3582(c)(1)(A) for a sentence reduction.

While Congress never exactly denied the Sentencing Commission the right to rely on a change in the law as an “extraordinary and compelling” reason, it did say in the FSA that the amendments to § 841(b)(1)(A) “shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” Judge Ruiz reasonably read this provision as excluding application to offenses like Gil’s that had been sentenced years before the FSA was adopted.

Judge Ruiz held adoption of 1B1.13(b)(6)

exceeds the scope of the Commission’s delegated authority in allowing courts to consider expressly nonretroactive changes in law, like section 401(a) of the FSA, as ‘extraordinary and compelling reasons’ for a sentence reduction… The Court does not doubt the well-intentioned policy rationale that led the Commission to promulgate this Policy Statement. And the Court recognizes the hard work undertaken by the Commission to cabin the terms of section 1B1.13(b)(6)… A court may consider a change in law only if (1) the defendant has served at least ten years of their sentence; (2) there would be a “gross disparity” between the sentence being served and the sentence likely to be imposed after the change in law came into effect; and (3) individualized circumstances demand it. This clearly evinces a good-faith effort on the Commission’s part to narrowly tailor the class of defendants who would be eligible for a sentence reduction. But a textual good policy cannot overcome clear text. If a statute, like section 401(a) of the First Step Act, is clearly nonretroactive, it cannot be rendered retroactive by simply adding the label “extraordinary and compelling.

finalityisexplained250207The court observed that “Congress did not vitiate prior law or cast doubt on the thousands of lawful, final sentences that had been previously established pursuant to § 841(b)(1)(A),” but rather only concluded that the policy underlying high mandatory minimum sentences in to § 841(b)(1)(A) should be reduced. “The Court presumes that Congress says what it means and means what it says,” Judge Ruiz wrote, “And if Congress explicitly chooses to make a statute nonretroactive, it would be truly abnormal and extraordinary—in every sense of the word—for a court to poke around that statute to find imaginary exceptions.”

This decision is only a district court opinion, not binding on any other court. But its detail and scholarship – as well as other court’s opinions as to the efficacy of Guideline 1B1.13(b)(6) – suggest that this issue will not be settled short of the Supreme Court.

Ohio State University law professor Doug Berman, writing yesterday in his Sentencing Law and Policy blog, questioned Judge Ruiz’s conclusion that Congress did not intend that the Commission let nonretroactive sentencing law changes sometimes trigger review of a harsh sentence. He wrote that “[i]t makes perfect sentence to me that Congress would conclude, when passing major sentencing reductions in the First Step Act, that it ought not give thousands of defendants an unlimited, complete, broad legal right to retroactive sentence reductions (which in many cases might require plenary resentencings), but still would want the expert sentencing agency to set the terms of possible case-by-case sentence reductions attentive to the significant statutory changes it had just enacted.”

United States v. Chineag, Case No. 1:01-cr-607 (S.D. Fla. February 6, 2025)

Sentencing Law and Policy, Notable lengthy new district court opinion rules US Sentencing Commission lacked authority to authorize sentence reduction based in part on “changes in law” (February 6, 2025)

– Thomas L. Root

Biden Drug Clemencies Were Sloppy, DOJ and Courts Say – Update for February 5, 2025

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.

BIDEN DRUG COMMUTATIONS ANGER DOJ PARDON ATTORNEY

On his final Friday in office, President Joe Biden commuted the sentences of nearly 2,500 inmates serving lengthy prison terms, saying he wanted to return people serving disproportionately long sentences for nonviolent drug offenses to their communities.

Last Sunday, the Wall Street Journal reported that only 258 of those receiving commutations, about 10% of the total, had been recommended by Dept of Justice Pardon Attorney Elizabeth Oyer.

oyer250205Biden’s list included “individuals with violent backgrounds who otherwise wouldn’t meet the department’s standards for recommendation for receipt of clemency,” according to a January 18th internal DOJ email written by Oyer to dismayed and angry DOJ colleagues. “While I am a strong believer in the possibility of second chances through clemency, the process by which yesterday’s action was carried out was not what we had hoped and advocated for,” Oyer wrote in the email – labeled “confidential and law enforcement sensitive” – that was leaked to the Wall Street Journal. She added: “I understand that some of the clemency grants are very upsetting.”

The Journal reported that the 2,490 names were compiled by a team of about a half-dozen lawyers from the White House Counsel’s Office, offenders selected primarily because they had been sentenced for trafficking in crack cocaine rather than powder cocaine. Federal law considers one gram of crack to equal 18 grams of powder – despite the fact that the stoichiometry for conversion of powder to crack is about 1.12:1 – and that 18:1 ratio was a reduction from a 100:1 powder-to-crack ratio that existed prior to the Fair Sentencing Act being passed in 2010.

crack-coke200804The effect of the legislatively imposed ratio has been that prior to 2010, crack sentences were about two-thirds longer than powder sentences (when adjusted for other factors). The Fair Sentencing Act, while ameliorating the disparity, neither reached the 1:1 ratio some critics sought nor retroactively corrected sentences already imposed when it was passed. Not until the First Step Act was passed in 2018 was a mechanism established that permitted people serving time for crack offenses to seek retroactive application. While the Sentencing Commission has not reported how many retroactive application requests were granted, courts granted a 2014 Guidelines 2-level retroactive amendment to only about 55% of the people applying for it.

Biden wanted to make a splash on his way out of office, perhaps to help erase his history as the architect of the Violent Crime Control and Law Enforcement Act of 1994. He directed his White House team to rule out individuals at high risk for recidivism and people who had used a gun in connection with their drug crimes “or engaged in other egregious conduct including the selling of drugs near a school,” according to the Journal.

Oyer’s email said that the DOJ’s input was minimal. “This action was not carried out in consultation with the Office of the Pardon Attorney and there was little coordination with the Department,” she wrote. She said the White House included commutation for people who DOJ specifically rejected while omitting hundreds of people who DOJ recommended.

A perfect example: In a highly unusual decision from US District Court Judge Gary Brown last week, the Eastern District of New York jurist ordered one of the defendants whose sentence was commuted in the January 17th order to be brought before the court when he is released next month to have his conditions of supervised release thoroughly repeated to him.

badboy200219Carl Andrews, according to the courts that have heard his cases, was a bad dude. When brought up on the charges for which he is now doing time, Carl already had 17 prior convictions for assault, larceny, resisting arrest, criminal contempt and drug possession, In his current case, he was first charged with “sex trafficking by force, fraud or coercion” and only later had crack distribution counts added.

The Court noted that if Carl had been “convicted of the sex trafficking charges, he would have faced a fifteen-year mandatory minimum. The Government, however, was willing to accept the sentence imposed—approximately nine and a half years—in satisfaction of all charges, even though the sex trafficking charges appeared readily provable. Thus, Mr. Andrews received a sentence lower than that required by current law.”

violent160620Judge Brown’s court had found previously that Carl “used his access to crack cocaine to exploit one victim’s addiction to further profiteer from prostitution activities,” a determination that the Second Circuit upheld on appeal. Judge Brown wrote, “Additionally, the victim credibly testified that, on multiple occasions, the defendant threatened violence to ensure her continued participation in the defendant’s exploitation. Moreover, he used other coercive techniques, including, as [a] judge in the Southern District noted, ‘exploit[ing] her addiction and poverty and emotional fragility to induce her to sell her body for profit’. Thus, the charges and evidence against this defendant involved far more than non-violent drug violations.”

Judge Brown clearly found Biden’s grant of clemency to Carl inexplicable:

While history may judge the wisdom of these actions, this Court may not. However, this case, and others like it, spotlight the problems that invariably arise when a president’s unreviewable pardon authority is deployed impetuously, resulting in careless execution of the president’s directives.

In this matter—involving sex trafficking, narcotics distribution and perjury—the grant of executive clemency seems inconsistent with its purported rational[e]. This Court must abide by this action, while exercising its responsibility regarding the vestige of the sentence imposed, i.e., oversight of the defendant during a four-year period of supervised release.

*     *     *

Given this record, it is hard to classify the defendant as a “deserving individual…” Certainly, the traditionally rigorous review process would have revealed these facts, and even an abbreviated procedure would have counseled against the exercise of the former President’s pardon authority in this case—and others like it.”

angryjudge190822Judge Brown believes that “in light of the commutation of his sentence, the defendant should be reacquainted with the conditions of supervised release.” One would like to be a fly on the wall in that courtroom when Carl is hauled in front of Judge Brown next month for an ear full of what the Judge thinks of his release after fewer than five years in prison on a 9-½ year sentence.

Wall Street Journal: Biden Commutations Angered His Own Justice Department (February 2, 2025)

United States v. Andrews, Case No. 20-CR-546, 2025 U.S. Dist. LEXIS 15067 (E.D.N.Y. Jan. 28, 2025)

– Thomas L. Root

New DOJ Sheriff Vows To Clean Up Bureau of Prisons – Update for January 16, 2025

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.

AG NOMINEE COMMITS TO CORRECT CORRECTIONS

sheriff170802During Attorney General nominee Pam Bondi’s otherwise predictable Senate Judiciary Committee hearing yesterday – where Republicans lobbed softball questions and Democrats demonized President-elect Donald Trump – it was noteworthy that in her brief opening statement she devoted several paragraphs to the Federal Bureau of Prisons.

“Making America safe again also requires reducing recidivism,” Bondi’s statement asserted. “We must fix the Bureau of Prisons and follow through on the promise of the First Step Act by building new halfway houses. The Bureau has suffered from years of mismanagement, lack of funding, and low morale. Federal corrections officers serve in challenging conditions on minimal pay and need more support. Our prison system can and will do better.”

She noted Trump’s “leadership on criminal justice reform” in securing passage of the First Step Act during his last Administration, a piece of legislation with which the President-elect has had a love-hate relationship ever since. Her statement argued that First Step “demonstrates what is possible when a President is unafraid to do things that have been deemed ‘too difficult’ and to reach across the aisle to bring about real solutions. Like the President, I believe we are on the ‘cusp of a New Golden age’ where the Department of Justice can and will do better.”

Further First Step Act success requires reducing how many prisoners commit another offense after they are released, she said. She vowed to reverse the “years of mismanagement, lack of funding and low morale” that plagues the BOP.

Bondi told the Committee, “We have to fix the Bureau of Prisons, and I am looking on both sides of the aisle.”

If Bondi convinces the incoming President that further implementation of First Step can burnish his image, he is likely to support efforts to expand halfway house resources and clean up BOP. This is a President who can be mercurial on criminal justice. Just last weekend, Representative Anna Paulina Luna (R-FL) told Fox News that Trump was “absolutely… supportive” about her set of bills that could have child sexual predators facing the death penalty and would even sign “an executive order levying the death penalty for pedophilia-related crimes but that it would likely be impossible to accomplish that way.”

death200330One can only hope that the incoming President’s grasp of the federal system of governance is sufficient to understand that he cannot change criminal penalties at the stroke of a pen.

Writing in Forbes a week ago, Walter Pavlo noted that Trump’s “hallmark criminal justice reform law, The First Step Act, is still struggling to gain traction. The BOP has accomplished much under Director Peters to implement the program but there are still problems. There is insufficient halfway house and many case managers, the primary BOP employees implementing the program, remain confused over the exact interpretation of the law.”

Opening Statement, Pam Bondi, Nominee for Attorney General of the United States (January 15, 2025)

Washington Times, Pam Bondi, AG nominee, says she will ‘fix’ the Bureau of Prisons (January 15, 2025)

Roll Call, Pam Bondi tells Senate panel she would end ‘partisanship’ at DOJ (January 15, 2025)

Forbes, How Trump Can Shake Up The Bureau Of Prisons (January 6, 2025)

Fox News, Pedophiles could see death penalty under new House GOP bill: ‘Taken off the streets permanently’ (January 14, 2025)

– Thomas L. Root

A Fortnight of Clemencies? – Update for January 14, 2025

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.

BIDEN’S LAST WEEK (AND TRUMP’S FIRST ONE)

imouttahere250114Although time grows short, the White House has not yet walked back Biden’s promise to issue additional pardons and commutations before he leaves the White House for the last time.

Last week, Truthout.org called on Biden to include in his clemency announcement people serving life sentences under Sentencing Guidelines that have been changed (but the changes not being retroactive). Truthout said, “According to the Sentencing Project, ‘one in seven people in U.S. prisons is serving a life sentence, either life without parole, life with parole or virtual life (50 years or more), totaling 203,865 people’ as of 2021. This is the highest number of people in history — a 66% increase since 2003, the first time the census was taken. Many of these people facing ‘death by incarceration’ were sentenced under guidelines that are no longer used.”

Writing in Forbes, Walter Pavlo last week suggested that consistent with Trump’s desire to trim federal spending, he could double down on First Step Act implementation. Pavlo said, “Trump will likely be frustrated that more has not been done on the First Step Act since his first term in office… The purpose of the First Step Act was to put more minimum-security offenders back home sooner but that has not occurred to the level it could. More prisoners in the community means less reliance on aging facilities that Congress seems unwilling to fund to bring up to acceptable standards.”

creditsign181227Pavlo suggested increased Bureau of Prisons’ use of for-profit halfway houses, besides the network of nonprofit halfway bouses now relied on, and updating the BOP’s security and custody classification system to no longer exclude noncitizens and non-contact sex offenses from camps. As well, he said that the Trump Administration urge Congress to broaden FSA credits to include some of the 68 categories of offenses now prohibited from credits, including some sex offenses, some terrorism charges, threats against government officials and 18 USC § 924(c) gun charges.

Finally, he proposed expanding RDAP eligibility to include those without documented prearrest drug and alcohol use.

Pavlo argued, “The BOP’s challenges are unlikely to be solved through increased funding alone. Instead, the focus should be on fully implementing existing programs like the First Step Act and RDAP, revising outdated policies that hinder efficiency and working with Congress to make targeted legislative adjustments.”

All of this is so, but as a Federal News Network reporter noted a few weeks ago, “I don’t think [the BOP] is high on the Trump team’s agenda, but [it] is a deeply distressed agency.”

Conservative columnist Cal Thomas last week argued that some of the targets of Trump’s desire to save money “are familiar, but one that is never mentioned is the amount of money that could be saved by releasing or not incarcerating nonviolent offenders in the first place… That prison reform has not been on a top 10 list of issues for Republicans is no reason it can’t be added now. Saving money and redeeming a system that no longer benefits the incarcerated or the public is a winning issue.”

Last week, Fox News contributor Jessica Jackson wrote that in 2018, “Trump signed the First Step Act into law, delivering long-overdue reforms that both political parties had failed to achieve at the federal level for decades. It was a landmark moment… Now, as Trump returns to the White House, he has a historic opportunity to finish what he started. Two key reforms he could champion — modernizing federal supervision and expanding second chances — offer a chance to cement his legacy as the leader who transformed America’s approach to justice.”

trumpimback250114However, as of right now, the only criminal justice promise Trump has made is to promise to grant clemency to some or all of the 1,580 people charged or convicted of crimes arising from the January 6, 2021, riot on Capitol Hill.

Truthout.org, Biden Should Go Beyond Commutations for Death Row and Commute Life Sentences Too (January 8, 2025)

Forbes, How Trump Can Shake Up the Bureau of Prisons (January 6, 2025)

Federal News Network, Countdown to Trump II, and what to expect (December 26, 2024)

Washington Times, Prison and sentencing reform: Saving money in an overlooked place (January 6, 2025)

Fox News, Trump defied the odds to win a criminal justice victory in his first term. Could he do it again? (January 6, 2025)

Washington Post, The fate of nearly 1,600 Jan. 6 defendants depends on Donald Trump (January 6, 2025)

– Thomas L. Root

Home Confinement Authority Gathers Dust – Update for November 8, 2024

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.

HOME CONFINEMENT AUTHORITY AS ‘SHELFWARE’

shelfware241108ABack in the days of the dinosaurs, when computer programs came on CD-ROMs or (even more antediluvian), on stacks of mini-floppies, many of us were familiar with the concept of “shelfware.”

Writing in Forbes last week, Walter Pavlo reminded us that the Federal Bureau of Prisons has its own version of “shelfware,” a provision in 18 USC § 3624(g)(3) that lets prisoners spend their First Step Act credits – days earned for successful completion of programming under 18 USC § 3632 – on sentence reduction, halfway house or home confinement.

When a prisoner has earned enough FSA credits to where his or her remaining sentence equals the number of FSA credits earned, § 3624(g) requires that the BOP use those credits for one or more of the three options provided. The BOP’s practice is to first apply credits to sentence reduction: up to 365 credits can be used to reduce a sentence by a like number of days. The BOP has been diligent about this, and prisoners have been able to watch their sentences shorten on a monthly basis as FSA credits are earned.

Once the sentence reduction has been maxed out at 365 days, the balance of the credits is to be applied to additional halfway house or home confinement. Pavlo points out that “[t]he First Step Act gives the BOP a lot of discretion to place prisoners in the least restrictive, and least costly, confinement.” While the BOP has sole discretion to decide what that confinement will be, but it must be one of the two.

nobrainer241108A BOP decision to use its home confinement authority should be a no-brainer: The halfway houses are filled, causing prisoners to be denied the use of their credits despite their absolute statutory right to them. Home confinement, however, lacks the space limitations (at least not to the same degree).

Unsurprisingly, the BOP has left it home confinement authority on the shelf. As Pavlo observes, the BOP’s “interpretation of the First Step Act at every turn has been to minimize the use of the law to return prisoners to society sooner. The BOP has the law behind it to move thousands more prisoners into the community and to home confinement, if it only had the will to do so.”

Trust the BOP to mismanage things. Pavlo notes that

[p]risoners with 18 months of First Step Act toward prerelease custody should be sent directly to home confinement but they are languishing in halfway houses using resources they do not need. Other prisoners who are not First Step Act eligible and who have longer prison terms, are being passed over for placement in halfway houses in favor of those on First Step Act. The costs are now higher because a prisoner is staying in a higher security prison because there is no halfway house and a minimum security prisoner is stuck in a halfway house when they could be at home.

What he does not mention is that other prisoners entitled by law to the benefit of FSA credits they have earned are being denied halfway house placement because the places are full, in part with prisoners the BOP could move to home confinement.

The BOP could save money, too. When halfway houses monitor people on home confinement, it charges the BOP about half the cost of keeping them in halfway houses. According to the BOP, an inmate in home confinement cost an average of $55.26 per day as of 2020 —less than half the cost of an inmate in secure custody.

Moneyburn170208President-elect Donald Trump, as one of his plethora of promises made during the campaign, said he would slash federal spending. His disdain for anything related to the DOJ is well known. In a November 7 Forbes article, Pavlo said, “[L]ook for an unhappy Trump look for more ways to cut costs at the BOP. In 2018 when Trump made the cuts the BOP’s budget was $7.1 billion. The BOP has asked for $8.6 billion in FY2025 and another $3 billion to bring its facilities up to date. Spending at these levels is simply not going to happen.”

The BOP is required to let prisoners spend their FSA credits. It may be compelled by circumstances and budget to push FSA credit users, especially those who are minimum security and recidivism risk, to home confinement. Even now, doing so would make good sense, which leads commentators like Pavlo to wonder why the agency hasn’t done so.

Forbes, Bureau of Prisons Could Do More To Send People Home, Why Aren’t They? (October 30, 2024)

Dept of Justice, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 88 FR 19830 (April 4, 2023)

Forbes, The Bureau Of Prisons Under A Trump Administration (November 7, 2024)

– Thomas L. Root

3rd Circuit ‘Lopers’ the Sentencing Commission – Update for November 4, 2024

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.

WHERE THERE’S A ‘WILL’ THERE’S A ‘WON’T’

chevron230508One of our favorite Supreme Court decisions last June was Loper Bright Enterprises v. Raimondo, a case that punched Chevron deference’s ticket by holding that courts don’t have to defer to agencies’ interpretations of federal law as long as those interpretations are reasonable. Instead, Loper Bright held, courts are in the business of figuring out what statutes say, and they should not defer to a bunch of unelected bureaucrats who often have a vested interest in the interpretations they put on the laws the agencies are supposed to administer.

We saw the dark side of Loper Bright last Friday. The day after the 6th Circuit heard oral argument in a case over whether the Sentencing Commission’s guideline, USSG § 1B1.13(b)(6) – that says an extraordinary and compelling reason for a compassionate release may include an overly-long sentence that could not be imposed today because of a change in the law – exceeds the Commission’s authority.

In the First Step Act, Congress reduced the mandatory minimums for some drug offenses and refined 18 USC § 924(c) to provide that the 25-year minimum for a second § 924(c) offense could only be imposed after a prior § 924(c) conviction. Before First Step, if you carried a gun when you sold pot on Monday and then carried it again when you sold pot on Wednesday, you would get maybe 60 months for selling drugs AND a mandatory consecutive 60 months for carrying a gun on Monday AND a mandatory consecutive 300 months for Wednesday’s gun. Your two-day drug selling binge would have netted you 420 months (35 years) in prison.

retro240506For reasons more political than legal, Congress did not make the changes in drug and § 924(c) mandatory minimum sentences retroactive. But in the years since, some judges found that the fact that some people were serving impossibly long sentences that they could not have had imposed on them after First Step passed could constitute an extraordinary and compelling reason for grant of a compassionate release motion. Other Circuits, notably the 3rd, 7th and 11th, ruled that overly long sentences could not serve as extraordinary and compelling reasons for compassionate release because Congress had not made the changes to the laws that dictated those sentences retroactive.

When the Sentencing Commission finally adopted a new Guideline – § 1B1.13 – a year ago, it included as one of the defined extraordinary and compelling reasons for a compassionate release grant a case where a defendant had a disparately long sentence because of a nonretroactive change in the law. The Dept of Justice began a full-throated attack on subsection (b)(6), arguing that because First Step does not make the changes in § 924(c) retroactive, the Commission was exceeding its authority by letting people do an end run around Congress.

A 6th Circuit panel heard oral argument last week in United States v. Bricker, three consolidated cases in which the government is arguing that subsection (b)(6) exceeds the Sentencing Commission’s congressionally delegated authority. The next day, in United States v. Rutherford, a 3rd Circuit panel held that subsection (b)(6) is invalid.

The Rutherford defendant won a compassionate release after 20 years of being locked up on a 42-year sentence for two armed robberies of a doctor’s office. Citing its right under Loper Bright to ignore the Sentencing Commission’s interpretation of the extent of its authority, the Rutherford panel ruled against Mr. Rutherford based on its belief as to “the will of Congress”:

Subsection (b)(6)… as applied to the First Step Act’s modification of § 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner’s eligibility for compassionate release. Congress explicitly made the First Step Act’s change to § 924(c) nonretroactive… [I]t would be inconsistent with [the] pertinent provisions of the First Step Act… to allow the amended version of § 924(c) to be considered in the compassionate release context because Congress specifically decided that the changes to the § 924(c) mandatory minimum sentences would not apply to people who had already been sentenced.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, criticized the 3rd’s decision. “Besides the non-textual nature of divining the “will” of Congress to rule against a defendant, this holding conflates Congress’s nonretroactivity decisions in the First Step Act with its decision, in the very same Act, to expand access to compassionate release and to keep in place the broad parameters of USSC authority to set terms for compassionate release. There is nothing at all “inconsistent” with Congress saying not everyone should automatically retroactively benefit from a particular change in law and the USSC saying that judges can consider a change in law for a select few pursuing another legal remedy.”

forceofwill241104A cardinal canon of statutory construction holds that where the text of a statute is clear, that’s all that matters. But Rutherford holds in essence that what the court thinks Congress “willed” is more important than what the law Congress passed actually says.

A Fifth Circuit panel has already held that subsection (b)(6) is a legitimate exercise of Commission authority. Prof Berman believes it is “inevitable” that the issue will have to be settled by the Supreme Court.

United States v. Rutherford, Case No. 23-1904, 2024 U.S. App. LEXIS 27740 (3d Cir., November 1, 2024)

United States v. Bricker, Case No. 24-3286 (6th Cir., argument held October 31, 2024)

Sentencing Law and Policy, Based on “the will of Congress,” Third Circuit panel adheres to prior ruling limiting ground for compassionate release (November 1, 2024)

United States v. Jean, 108 F.4th 275 (5th Cir., 2024)

– Thomas L. Root

Better Late Than Never, BOP Comes To The FTC Party – Update for October 7, 2024

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.

IT’S ALL CONDITIONAL: BOP ANNOUNCES CHANGES IN FSA CREDIT DATES

One of the recurring problems with the Federal Bureau of Prisons’ reluctant implementation of the First Step Act’s system for granting inmates credit for completion of programs designed to reduce recidivism is this: Prisoners are to earn credits as long as they are in BOP custody – including while in halfway house or home confinement – much like good conduct time credit under 18 USC § 3624(b) – but the agency has up to now adopted no system that would capture those latter FSA time credits (FTCs) and apply them to the benefits to which 18 USC § 3624(g) entitles inmates.

bureaucracy241007Instead, the BOP has been refusing to grant FTCs to people within 18 months of their release. It has been as though your employer decided not to pay you for your last month working for him because figuring out your final checks is just too much effort.  Your bureaucracy in action.

Two months ago, however, prisoners’ Sentence Computation forms suddenly included a line for “Conditional Placement Date.”  But nearly as soon as the forms were available, the BOP withdrew the date, claiming an error in calculation. For the last two months, prisoners were denied any documentation of their FSA credit calculations pending further work by the BOP on the subject.

Last Friday, the BOP announced that it will now start calculating three “conditional” dates for inmates. When a prisoner first enters the system, the BOP calculates a release date premised on the inmate earning all of the good conduct time under 18 USC § 3624(b) that he or she could possibly get. Now, the same will be done for FTCs.

The BOP will calculate three dates on a prisoner’s sentence comp sheets:

• FTC Conditional Placement Date: The date when an inmate may be eligible for halfway house or home confinement based on the application of his or her maximum potential FTCs.

• Second Chance Act (SCA) Conditional Placement Date: The date when an inmate may be eligible for release under the SCA, which allows for up to 12 months halfway house placement. SCA eligibility is based on an individualized assessment by BOP staff. Nothing is promised, with SCA placement being anywhere from zero months to a full year.

• Conditional Transition to Community Date: This date is the earliest possible date for transfer from prison to halfway house or home confinement, based on a combination of FTCs and SCA eligibility.

The BOP promises that staff will use these new conditional dates to make release decisions starting 17-19 months before the Conditional Transition to Community Date. The BOP said that “[f]or eligible individuals, this could include recommendations for direct home confinement, bypassing [halfway house] placement where appropriate.”

funwithnumbers170511The BOP warns that “FSA Conditional Release Date is a projected date based on various factors, including continued eligibility for FTCs, participation in programs, and eligibility and appropriateness under SCA.”

Writing in Forbes this past weekend, Walter Pavlo recounted the BOP’s sorry record on FTC implementation, having “been plagued with computer problems to calculate the credits, inconsistent interpretation of the First Step Act and poor communication to the line staff at prisons who are tasked with implementing the programs. The result is that the BOP has held prisoners in institutions longer than necessary and in some cases held them beyond their release date.”

So, hypothetically, someone beginning a 120-month sentence on Jan 1, 2024, would have a good time release date of about July 1, 2032. The first 365 days of FTCs she earned would move that date to July 1, 2031. Between the start of her sentence and July 1, 2031, she would earn 1305 FTCs. After using 365 of those FTCs to reduce her time by a year (under 18 USC § 3624(g)(3)), she would have 940 days left. Those 940 days would let her transition to halfway house or home confinement on about Nov 3, 2028. That date should be her FTC Conditional Placement Date.

Under the Second Chance Act, she could get an additional year in halfway house. That would make her Conditional Transition to Community Date about Nov 3, 2027.

It is close to misfeasance that it has taken the BOP nearly six years from the passage of the First Step Act to finally figure out a system that a kid with an Excel spreadsheet could have accomplished in under an hour. What’s worse is that so many prisoners have been denied their full FTC benefit by an agency hidebound by stasis and contempt for the people entrusted to its custody

beating241007Note that while BOP Director Peters’ kinder, gentler BOP calls inmates “adults in custody,” I do not. When the people locked up in BOP institutions are treated like persons in custody instead of inmates, prisoners, or numbers, I will call them AICs.  For now, the BOP treats them with contempt. Calling them AICs doesn’t change that.

BOP, FBOP Updates to Phone Call Policies and Time Credit System (October 4, 2024)

Forbes, Bureau of Prisons Announces Updates To First Step Act Calculations (October 5, 2024)

– Thomas L. Root

PATTERN System is Close Enough for Government Work – Update for September 5, 2024

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.

PATTERN AIN’T PERFECT, BUT IT’S GOOD ENOUGH

closeenough240905The National Institute of Justice released its 2023 Review and Revalidation of the First Step Act Risk Assessment Tool last week, suggesting that while there remains fine-tuning to be done, no one should expect any changes in how PATTERN is scored or, for that matter, calculated in next year or two.

NIJ said that the PATTERN recidivism risk tool

remains a strong and valid predictor of general and violent recidivism at the one-, two-, and three-year follow-up periods,” measuring changes in PATTERN scores. The study concluded that “comparisons of recidivism rates by risk level category (RLC) and predictive value analyses by risk level grouping also continue to indicate that such risk level designations provide meaningful distinctions of recidivism risk.

The PATTERN scoring matrix assigns points to prisoner age: the older the prisoner, the lower the points. Lower points lead to lower risk categories. Like golf, the lower the score, the better.

PATTERNsheet220131NIJ conceded that while substantial criticism exists that rigid age brackets make it hard for prisoners to make meaningful changes in PATTERN risk categories, “individuals can change their risk scores and levels during confinement beyond mere age effects. Those who reduced their RLC from first to last assessment were shown to have the lowest recidivism rates, followed by those who maintained the same risk level and those with a higher risk level, respectively.”

Likewise, it conceded that “there remains evidence that [PATTERN] predicts differently across [racial] groups, including overprediction of risk of Black, Hispanic, and Asian males and females, relative to White individuals, on the general recidivism tools.”

Writing in Forbes, Walter Pavlo noted that the NIJ study “confirmed that those with minimum PATTERN scores had a recidivism rate after 3 years of 9.2% for men and 7.4% for women. According to the Government Accountability Office, the overall recidivism average for all prisoners released from BOP is 45%, with men with high PATTERN scores having a recidivism rate of 77.5%, according to GAO. That data shows one of the complicated issues about the First Step Act… those who really need to program to turn their lives around have no incentive to participate in needed programming.”

Pavlo wrote that currently, First Step forces the Bureau of Prisons to “spend hundreds of millions of dollars in programming on those prisoners who are less likely to return to prison anyway. Make no mistake, PATTERN is proving to be a good measure of future success or failure after prison. However, most prisoners in the federal system are going to return to society at some point, dollars may be better spent on a population that needs the programming.”

Pavlo also noted last week in another post that the BOP’s Office of Public Affairs recently reported that the average cost of housing minimum security prisoners “approaches the average cost of housing someone at a US penitentiary.”

money160118“Of the BOP’s nearly 160,000 prisoners,” Pavlo wrote, “24,000 of them are minimum security. The BOP’s statement was that the average cost of housing a minimum security prisoner in 2024 is $151.02. The cost of housing someone in a US penitentiary is $164.87 (Lows were $129.72 and Mediums are $122.50). Since there are more minimum security prisoners than high, the total costs of housing minimum security prisoners far exceeds the costs of housing those in high security….”

NIJ, 2023 Review and Revalidation of the First Step Act Risk Assessment Tool (August 25, 2024)

Forbes, Bureau of Prisons PATTERN Score Reveals Lower Recidivism For Campers (August 27, 2024)

Forbes, The High Price of Minimum Security Federal Prisoners (August 25, 2024)

– Thomas L. Root

Some Short Stuff – Update for August 2, 2024

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.

Today, some short reports for easy beach reading…

shorts240802

SUMMERTIME SHORTS

retro160110Sentencing Commission Retroactivity Decision, Priorities For Next Year Set For Aug 8: At a scheduled Aug 8 meeting, the US Sentencing Commission will decide whether four proposed Guidelines changes to become effective in November will be retroactive.

The four changes for which retroactivity is on the table are

• the acquitted conduct amendment;

• a change to § 2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number is “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in § 2K2.4 to permit grouping of an 18 USC § 922(g) gun count with a 21 USC § 841 drug trafficking count where the defendant has a separate 18 USC § 924(c) gun conviction based on drug trafficking.

• a change in § 2D1.1(a) to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that are not necessarily consistent with 21 USC  § 841(b)(1)(A) or (B).

The Commission will also adopt priorities for the coming year.

US Sentencing Commission, Public Meeting, Thursday, August 8, 2024

‘Dirty Dick’s’ Woes Continue: A superseding indictment handed up last week accused former Bureau of Prisons correctional officer Darrell Wayne “Dirty Dick” Smith of sexually abusing more inmates at FCI Dublin.

Last Thursday, a federal grand jury charged Smith with 15 counts of sexual abuse, including a civil rights violation, against five women in their cells and a laundry facility between 2016 and 2021.. Smith, known to detainees as “Dirty Dick,” had previously been indicted of sexually abusing three female inmates.

He is accused by inmates of actively roaming the prison, seeking out victims, and locking women in their cells until they exposed themselves to him.

L.A. Times, Guard at ‘rape club’ prison faces new charges of sexually abusing inmates (July 26, 2024)

DOJ Sides With Prisoners In SCOTUS First Step Case: The Supreme Court has had to appoint private lawyers to argue the other side of a pending case, Hewett v. United States, asking whether the First Step Act requires a resentencing to apply changes in mandatory minimums favorable to defendants.

goodlawyer240802The Dept of Justice has told the high court that “the government agrees that the best reading of Section 403(b) is that Section 403’s amended statutory penalties apply at any sentencing that takes place after the Act’s effective date, including a resentencing.”

In cases where the government agrees with the petitioner, the Supreme Court appoints a lawyer to argue the other side so that the Court’ decision is based on a thorough examination of the issue. In Erlinger v. United States, decided last month, DOJ agreed with the petitioners that juries should decide whether Armed Career Criminal Act predicate crimes occurred on separate occasions, requiring SCOTUS to appoint counsel to argue against the petitioner. The Court appointed a private attorney to argue the side abandoned by the government.

For Hewitt, the Court appointed Michael H. McGinley, Global Co-chair of the Securities and Complex Litigation practice group for mega law firm Dechert LLP, to argue that First Step does not let defendants benefit from more liberal sentencing terms if their original sentence was imposed before the law passed.

Supreme Court, Order (July 26, 2024)


hardtime240801‘Hard’ Federal Time Converts Another One: Peter Navarro, who completed a 4-month federal sentence for contempt of Congress two weeks ago just in time to be whisked to Milwaukee to address the Republican National Convention, said last week that federal law imposes harsher sentences than necessary for drug offenses.

“The standard that we want to have when we think about the criminal justice system, which I’ve been inside of now and I understand this better, there are bad people doing bad things, but there’s good people doing bad things as well,” Navarro said in a TV interview.

Navarro said that the longer people are in prison, the higher the chance that they will commit more crimes because they have “fewer skills” and “get more angry.”

The Trump advisor also said the costs of housing inmates costs about $60,000 a year per inmate, but that placing people on house arrest or in halfway homes reduces the costs by roughly half.

Just the News, Navarro urges U.S. to be ‘smart’ on crime, not ‘soft’ on crime following prison sentence (July 23, 2024)

– Thomas L. Root