Tag Archives: FIRST STEP Act

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

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

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

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

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

Smarter Sentencing Act Back In The Senate Hopper – Update for November 19, 2019

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

SMARTER SENTENCING ACT RE-INTRODUCED IN SENATE
Sen. Mike Lee (R-Utah)
Sen. Mike Lee (R-Utah)

The Smarter Sentencing Act, a bill intended to further reduce drug mandatory minimum sentences, was reintroduced in the Senate last week by Sen. Richard Durbin (D-Illinois) and Mike Lee (R-Utah), both members of the Senate Judiciary Committee. As of the date of this report, we have no bill number to associate with the legislation.

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

A lot of what had been contained in prior versions of the SSA, a bill which has been introduced in every Congress since 2013, was included in the First Step Act. What the current version contains is unclear, because the text of the proposed bill has not yet been released. However, Durbin’s office said “the central remaining sentencing reform in the Lee-Durbin legislation would reduce mandatory minimum penalties for certain nonviolent drug offenses.”

In the last iteration of the bill, S.1933 (115th Congress, 2017-18), the bill proposed an expanded “safety valve” under 18 USC § 3553(f) to allow a court to impose a sentence below the statutory mandatory minimum for an otherwise eligible drug offender who has three or fewer criminal history points. This change was incorporated into the First Step Act. Also, last year’s SSA reduced mandatory minimum sentences for drug offenses specified in 21 USC § 841(b)(1)(A) and (b)(1)(B):

•  from 10 years to 5 years for a first-time high-level offense (e.g., one kilogram or more of heroin),

•  from 20 years to 10 years for a high-level offense after one prior felony drug offense,

•  from life to 25 years for a high-level offense after two or more prior felony drug offenses,

•  from 5 years to 2 years for a first-time low-level offense (e.g., 100 to 999 grams of heroin), and

•  from 10 years to 5 years for a low-level offense after one prior felony drug offense.

The First Step Act incorporated the life-to-25 year and the 20-to-15 year reductions, but not the remainders.

Additionally, last year’s SSA made existing mandatory minimums inapplicable to a defendant who functions a courier; and establishes new, shorter mandatory minimum prison terms for a courier.

The current version of the Smarter Sentencing Act “gives federal judges the authority to conduct individualized reviews to determine the appropriate sentences for certain nonviolent drug offenses,” Durbin said in a press release.

BILL-DOA191120Lee said, “The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses, while enabling nonviolent offenders to return more quickly to their families and communities.”

The bill is cosponsored by ten Democratic senators, including three presidential contenders, making the likelihood it will pass in the Senate virtually zero.

The Justice Roundtable, Durbin, Lee Reintroduce Smarter Sentencing Act (Nov. 16)

– Thomas L. Root

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

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

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

First Step Touted While Good-Time Adjustments Languish – Update for October 29, 2019

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

FIRST STEP: TRUMP FIDDLES WHILE BOP BURNS

angrytrump191003President Donald Trump touted the First Step Act in a speech last Friday at the 2019 Second Step Presidential Justice Forum in South Carolina, talking about how the Act helped African Americans by releasing thousands of non-violent offenders to gain early release from federal prison.

“In America, you’re innocent until proven guilty and we don’t have investigations in search of that crime,” he said while accepting an award at historically black Benedict College for his role in passage of First Step.  “Justice, fairness and due process are core tenets of our democracy. These are timeless principles I will faithfully uphold as president.”

Much of what was said at the conference was overshadowed by Democratic presidential hopeful Sen. Kamala Harris (D-California), who refused to attend the conference because Trump was included on the list of speakers. Harris, whose record as a take-no-prisoners prosecutor has caused some to be skeptical of her 11th-hour conversion to the cause of criminal justice, flip-flopped on the boycott threat and agreed to show after all, after winning a window-dressing removal of one of the sponsors for its sin of giving an award to Trump.

During the hour-long address, Trump called on several people who had been released from prison under the First Step Act to the stage to offer testimonials.

Many of Trump’s Democratic presidential rivals spoke over the weekend, and took turns slamming Trump. Sen. Cory Booker, D-New Jersey, argued, “The fact of the matter is Donald Trump was given an award for the 10 seconds it took him to sign a bill into law that contradicts every one of his instincts and history of promoting racist criminal justice policies.”

I’m no Trump fan, but Sen. Booker needs to be fact-checked on this assertion.

All was not bliss for implementation of First Step last week. Filter magazine, launched in September 2018 to advocate for rational and compassionate approaches to drug use, drug policy and human rights, blasted the Bureau of Prisons for its “incompetent” application of the star-crossed additional 7 days-a-year good time.

Citing long-time prisoners who would be camp-eligible if they were granted the additional good time to which they are entitled, Filter said that due to “a potential failure, attributable to administrative inadequacy, to apply a much-anticipated reform to… federal prisoners until over a year after it was supposed to be implemented in July 2019.

screwup191028

Filter reported that as of September 16th, the Designation and Sentence Computation Center “had made First Step Act updates only for incarcerated people with previously projected release dates that fell before October 2020.” The magazine quoted a response to an August 22 administrative remedy request for recalculation filed by an anonymous inmate, in which the BOP gave no clear date for when the inmate could expect an updated GCT calculation, only explaining their prioritization of projected release dates and stating that “there may be some variance in the speed with each DSCC team completes the recalculations for the inmates assigned to them.” The BOP said “this process may take up to a year.”

A BOP official told Filter that implementing the change in good time is “complex” due to the “various federal statutes and BOP policy” with which recalculations must be “carried out in accordance.”

The BOP’s information technology systems are “dinosaurs,” Kara Gotsch, the director of strategic initiatives for The Sentencing Project, told Filter, citing explanations she’s heard from BOP staffers. Gotsch said that even this description “is generous,” adding that “it’s like they don’t have the right kind of computer” to perform the recalculations in time.

The BOP denied this claim, calling Gotsch’s explanation “speculation based on hearsay,” and added that “the computers and technology utilized by our staff are not outdated and incompetent. They use commercially-available and fully-supported technology.

Speculation it may be, but the BOP has known since last Christmas it would have to recalculate inmate good time. It’s failure to get the process in place, which would require  the use of a simple formula that any high school math geek could write with a Texas Instruments nine-buck calculator, is equally explainable as institutional arrogance or institutional incompetence.

The Columbia, South Carolina, State, Trump’s Columbia visit wraps with praise of HBCUs and reform, peaceful demonstrations (Oct. 26)

Filter, The Consequences of an Incompetent First Step Act Rollout (Oct. 15)

– Thomas L. Root

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

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

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

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

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

Too Many Questions, Too Few Commissioners – Update for October 16, 2019

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

DENIAL HIGHLIGHTS JUDICIAL SPLIT ON COMPASSIONATE RELEASE

compassion160208A key provision of the First Step Act allows federal courts to reduce sentences under the so-called compassionate release statutory provisions of 18 USC § 3582(c)(1)(A)(i) – which establishes an ‘extraordinary and compelling” reason standard – without needing a motion from the Bureau of Prisons. Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that “if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.”

A decision last week in the Southern District of Iowa denying Les Brown compassionate release illustrates the conundrum. Under 28 USC § 994(t), the Sentencing Commission is directed to define “the criteria to be applied and a list of specific extraordinary and compelling examples” for grant of § 3582(c)(1)(A)(i) motions. The Commission defined four examples, one medical, one due to age, one due to family circumstances, and one catch-all (that “there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)).”

Now the problem: The USSC has not updated its definition since the First Step Act passed. Instead, its policy statement still simply guides the Bureau of Prisons (which has traditionally been very resistant to an Sentencing Commission guidance). The new procedure mandated by the First Step Act calls for new guidance, but the Commission remains mute.

noquorum191016Sadly, there’s a reason for the USSC’s quiescence. The Commission cannot amend its policy statement because the agency lost its quorum last December, about two weeks before First Step passed, and it is still two commissioners short of a quorum. The Trump Administration apparently sees the Commission as a backwater for which no urgency exists in nominating replacement commissioners. For the foreseeable future, the Commission remains impotent, and the compassionate release policy cannot not be updated.

Some district courts have concluded this means the Commission lacks any applicable policy statement dictating when a judge can grant compassionate release. These courts have decided that this means the district judge can consider anything — or at least anything the BOP could have considered (whether it did or not) — when assessing a defendant’s motion.

But others have held that First Step merely lets them grant a motion for compassionate release if the BOP Director could have done the same under the guidelines and the old Program Statement. These courts hold that judges may not stray beyond the four bases listed in USSG §1B1.13.

Sentencestack170404Last week’s ruling by Senior Judge Robert Pratt is a thoughtful opinion about compassionate release, issued in response to defendant Les Brown’s motion to reduce his 510-month sentence. That sentence was pumped up by a 300-month second 18 USC §924(c) sentence, one that could no longer be imposed since passage of the First Step Act. While Judge Pratt finds that “much about Defendant’s situation is extraordinary and compelling,” he concluded “the Court cannot exercise its discretion to grant release at this time.”

The Judge calculated that even if First Step let him retroactively reduce the second § 924(c) sentence from 300 months to 60 months (which the Act doe not permit), Les would still face a total of 210 months in prison. As of now, he has served only 167 months, “a long stretch by any measure, and perhaps more than appropriate for Defendant’s crimes. Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an ‘extraordinary and compelling reason’ for compassionate release.”

Judge Pratt suggested that Les could come back at 210 months to make his argument. For what it’s worth, I believe that by then, Congress will have revisited the issue and made the § 924(c) sentencing change retroactive, just as it did with the Fair Sentencing Act’s changes to crack minimums.

Prof. Berman complained that “Judge Pratt refuses to use the legal tool available to him to reduce Brown’s sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.” He is correct. However, until higher courts resolve the conundrum of the missing USSC guidance (or the Commission regains a quorum, and fixes the statement on its own), the present confusion is going to work to the detriment of a lot of inmates.

United States v. Brown, 2019 U.S. Dist. LEXIS 175424 (SD Iowa Oct. 8, 2019)

– Thomas L. Root

Congress Bought the Gun. Now How About Some Ammo? – Update for September 17, 2019

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

MORE FIRST STEP MONEY NEEDED, GROUPS SAY

More funds are needed to implement the First Step Act, a coalition of 14 criminal justice reform organizations told the Senate Appropriations Committee last week, as the Committee begins consideration of the Dept. of Justice budget for the next fiscal year that begins on October 1.

money160118Reformers want the Bureau of Prisons to get the full $75 million annual appropriation that was authorized in the law. DOJ has asked for much less First Step Act money, and so far has not formally asked congressional appropriators to raise the total, Inimai Chettiar of the Justice Action Network (JAN), one of the groups that is pressuring for a higher allocation, told The Crime Report.

“We cannot leave it to the Department of Justice to reallocate existing funds to implement these reforms — spreading thin the already limited resources within the Bureau of Prisons,” the groups told Sen. Jerry Moran (R-Kansas) and Sen. Jeanne Shaheen (D-New Hampshire), the chairman and ranking member of the subcommittee overseeing DOJ spending.

In a separate letter, JAN expressed concern about the proposed DOJ risk assessment tool, called PATTERN, which is currently in final review. PATTERN includes a number of “static and dynamic risk factors” to assess a prisoner’s risk of recidivism. JAN complained that the system has too few dynamic factors, which will make it harder for inmates to make changes that will lower their risk factors.

JAN called for more “dynamic” factors to be incorporated into PATTERN to assess and effectively monitor changes in prisoners’ risks and needs throughout their sentences.

The Crime Report, Reform Groups Seek More First Step Act Funding (Sept. 12)

– Thomas L. Root

Rethinking Clemency with First Step – Update for September 4, 2019

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

MORE CALLS TO USE THE FIRST STEP ACT TO END-RUN CLEMENCY

hamilton190904Over 11,400 commutation petitions languish at the Justice Dept.’s Office of the Pardon Attorney, record numbers for a clemency system that America’s founding fathers designed to be, in the words of Alexander Hamilton, “as little as possible fettered or embarrassed.”

An article published last week by Law 360 detailed the precipitous decline in use of federal clemency over the past 150 years, and suggested enhanced use of the sentence-reduction procedure changes in the First Step Act.

DOJ involvement in clemency began during the Civil War, because President Lincoln was overwhelmed by personal visits from “crying mothers and wives of disgraced soldiers” pleading for pardons. By 1898, all clemency petitions were routed through DOJ before maybe getting to the White House. Still, until about 50 years ago, presidents generally granted 13% to 40% of petitions.

Since then, the numbers have fallen to the single digits until President Obama. His 2014 clemency initiative was a public relations victory but a bureaucratic disaster, generating more commutation petitions in a year than OPA had received in the previous 24 years combined.

Despite granting over 1,700 commutations, Obama hardly made a dent in the overall prison population, “There could have easily been 20,000 commutations,” former OPA attorney Sam Morison argued. “That would have been about 10% of the prison population. That would have been historic.” But as it is, Obama left office with over 11,350 commutation petitions still pending.

kardashian190904Morison argues that the clemency power “will never function correctly until that Office of the Pardon Attorney is out of the Department of Justice.” While President Trump’s administration has been studying that idea, nothing has come of the White House roundtable group that has been meeting on the proposal for more than a year. Georgetown University law professor Shon Hopwood, noting Trump’s widely publicized pardons and commutations, said many petitioners will inevitably try “going around the system,” but “it shouldn’t require Kim Kardashian’s assistance to get clemency.”

Hopwood instead has been citing the First Step Act’s expansion of compassionate release as a more accessible option. I have been writing about this sleeper of a sentence-reduction provision for six months (see “Will First Step Let the Holloway Black Swan Swim Again?” Update for March 26, 2019). Such releases are traditionally available only to the elderly and terminally ill, but the statute – 18 USC 3582(c)(1)(A)(i) – says nothing about illness as such. Instead, it simply permits sentence reduction based on “an extraordinary and compelling reason.”

Under the First Step Act, a defendant no longer needs approval of the Bureau of Prisons to file a motion for resentencing with his or her sentencing court.

In a forthcoming law review article, Hopwood writes that judges can consider any “extraordinary” reasons for compassionate release without having to wait for BOP approval. Former US Pardon Attorney Margaret Love calls the concept a “hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention. This has obviated the need for the clemency process to take care of the great majority of commutation cases.”

clemencybacklog190904

Hopwood acknowledges that prosecutors are likely to oppose these motions, but said they could provide a safety valve in which the judiciary simultaneously helps alleviate mass incarceration and the OPA’s commutation workload. And, unsurprisingly, DOJ has argued against Hopwood’s interpretation. In a filing last January, the government said the compassionate release statute “is simply not an avenue by which defendant can secure relief from his sentence based on his post-conviction reform… The relief defendant seeks is instead properly addressed in a petition to the executive branch for clemency.”

Lots of luck with that, the authors write. “The odds of getting presidential relief are approaching zero. The office that granted 41% of all pending and newly filed clemency petitions in 1920 is on track to grant less than 0.1% under Trump…”

Law360.com, How Courts Could Ease The White House’s Clemency Backlog (Aug. 25)

Sentencing Law and Policy, Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems (Aug. 26)
– Thomas L. Root