Tag Archives: FIRST STEP Act

ACLU Questions Implementation of First Step – Update for April 24, 2019

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

ADVOCACY GROUPS BLAST DOJ/BOP FIRST STEP ACT PLANNING AND IMPLEMENTATION

An Apr. 12 letter to the Dept. of Justice from the American Civil Liberties Union, writing on behalf of 10 other advocacy groups, blasted DOJ’s selection of the Hudson Institute as host of the Independent Review Committee, which is tasked with developing the First Step Act’s risk assessment system.

risk160627The IRC is to propose a risk assessment system for use in the enabling the Bureau of Prison’s programming to reduce recidivism, for which inmates will receive extra good time that can be used to cut sentences and award additional halfway house or home confinement. The First Step Act requires that the risk assessment system be in place by July 19, but DOJ is already two months behind.

The ACLU letter complained that while the Act required that a non-partisan non-profit host organization with expertise in the study and development of risk and needs assessment tools be picked, “the Hudson Institute is… a politically conservative think tank, whose research and analysis promotes global security, freedom and prosperity…” and “there is no evidence on its website, in the form of research publications or otherwise, which remotely suggests the organization has any expertise or experience in the study and development of risk and needs assessment systems.”

The letter also warned that neither the current BOP security classification system nor the U.S. Probation Office post-conviction risk assessment protocol should be adopted as a substitute for the Act’s risk assessment system, because neither was “designed to identify specific criminogenic needs and heavily relies on static factors that classify many people who do not go on to reoffend as high risk.”

Not the right halfway house - but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP's transitional housing mandates.
Not the right halfway house – but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP’s transitional housing mandates.

Finally, the letter noted that since 2017, BOP has made substantial cuts in rehabilitative programming, staff, and halfway houses. “There are 25,000 people in federal prison waiting to be placed in prison work programs, at least 15,000 people waiting for education and vocational training, and at least 5,000 people are awaiting drug abuse treatment,” the letter said. “There is nowhere near enough programming to help prisoners succeed in their communities upon release and thereby reduce recidivism overall. We therefore urge BOP to begin rebuilding rehabilitative services now.”

ACLU, Letter to David B. Muhlhausen (Apr. 12)

– Thomas L. Root

Justice Dept. Picks First Step Foe to Spearhead Recidivism Risk Standard Adoption – Update for April 15, 2019

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

HAS DOJ SENT THE FOX TO GUARD THE HENHOUSE?

As we observed last Tuesday, the Dept. of Justice has announced that it had appointed the Hudson Institute, a right-of-center think tank best known for its national security work, to design a risk-assessment tool that must be in place before prisoners can receive earned-time credit for completing BOP programs designed to reduce recidivism.

bog190312

The appointment, required by the First Step Act to be in place by Jan. 21, was only 78 days late.

First Step requires that a prisoner’s risk of recidivism (different from security and custody levels) be assessed before he or she starts programming. The risk can go up or down, depending on the inmate’s progress. The lower a prisoner’s risk, the more credit that can be earned.

However, the Act does not specify how a person’s recidivism risk level should be calculated. Instead, it instructs the attorney general to consult with an “independent review committee” to design the system.

DOJ said that Hudson Institute will host the independent review committee. Hudson has the discretion to appoint committee members, who will work to advise on the shape of the final risk-adjustment tool.

henhouse180307Some lawmakers from both parties who backed First Step Act expressed concern late last week at Hudson’s appointment. “I’m a little bit worried that we just let a fox in the chicken coop here,” Sen. Richard Durbin (D-Illinois) said during a confirmation hearing last week. “This… think tank… published an article entitled, ‘Why Trump Should Oppose Criminal-Justice Reform…’ [and has] now been chosen by the Department of Justice and Trump administration to be part of this so-called independent review system.”

Sen. Mike Lee (R-Utah) described the institute as an “opponent of the First Step Act… I don’t see a lot of good faith in implementing this law right now,” Lee said. “And it’s become increasingly clear to me in the last few days that some Department of Justice officials at least don’t like the First Step Act, and they seem not to care that Congress passed this law and that President Trump signed this into law.”

The Hudson Institute, founded in 1961, is known for its work on national security and foreign policy, though it also focuses on economics and domestic policy. For the First Step Act, it has announced six committee members so far who will develop the risk assessment program, one of whom is Hudson’s chief operating officer, John Walters.

Walters once wrote that it was a “great urban myth” that the country was imprisoning too many people for drug possession and that the 100:1 crack-to-powder cocaine disparity was merely a “perceived,” not a real, racial injustice. In 2015, Walters wrote that the concept of “mass incarceration” was a myth, and that “the great majority of federal prisoners appear to be incarcerated because they were, properly, adjudged guilty and justly sentenced.”

release160523The New York Times reported last Tuesday that First Step’s retroactive application of the 2010 Fair Sentencing Act has already “prompt[ed] 800 sentencing reductions already, according to the Justice Department. Of that group, nearly 650 inmates have been released from prison. Another 22 inmates have received sentencing reductions under a compassionate release program that is part of the law.” It reported last Saturday that since First Step was passed, 10 prisoners of 23 that have so far been deemed eligible have been released under the First Step’s Elderly Offender Home Detention (EOHD) program.

Testifying last Tuesday before the Appropriations Subcommittee of the House Committee on Commerce, Justice, Science, and Related Agencies, Attorney General William Barr promised “to robustly fund and diligently implement [First Step] at the Department.”

If you want to know where the real headwinds to First Step will come from, look no further that last Saturday’s Times. It’s one thing to support criminal justice reform in the abstract. But when it comes to individuals, the Gray Lady makes it clear that her anti-felon “lock-’em-up” biases are every bit as finely honed as Sen. Tom Cotton’s ever were.

unforgivenfelon190415The newspaper breathlessly reported on one inmate released under EOHD: “The First Step Act offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities. But one person who benefited from the law was Hassan Nemazee, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.” The Times reported that “Mr. Nemazee was charged in 2009 with orchestrating a scheme that defrauded banks of nearly $300 million,” and it complained that home detention “feels a lot like freedom.”

Once the media start picking at the offenses for which inmates who benefit from First Step were convicted, public outrage will not be far behind.

Washington Free Beacon, “DOJ Taps Conservative Think Tank to Help Implement FIRST STEP Act” (Apr. 8)

Mother Jones, Trump Keeps Celebrating Prison Reform. His Administration’s Latest Move Could Sabotage It (Apr. 11)

New York Times, Justice Dept. Works on Applying Sentencing Law as Critics Point to Delays (Apr. 8)

New York Times, He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul (Apr. 13)

– Thomas L. Root

After Partying Last Week, First Step Finally Gets Down to Business – Update for April 9, 2019

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 CELEBRATED, BUT WORRIES OVER IMPLEMENTATION REMAIN

Amid questions by some critics about the Administration’s support for the First Step Act, the Dept. of Justice’s National Institute of Justice (NIJ) yesterday announced the selection of the Hudson Institute to host the Independent Review Committee mandated by the Act to develop and implement risk and needs assessment tools and evidence-based recidivism reduction programs for the Bureau of Prisons.

firststepB180814“The Department of Justice is committed to implementing the First Step Act,” a DOJ press release quoted Attorney General William Barr as saying. “The Independent Review Committee plays an important role in that effort by assisting in the development of a new risk and needs assessment system and improvements to our recidivism reduction programming.”

NIJ also announced that it is contracting with outside researchers, including Grant Duwe, Ph.D., Zachary Hamilton Ph.D., and Angela Hawken Ph.D., for  consultation on the DOJ’s development of the risk and needs assessment system under the Act.  Dr. Duwe is the Director of Research for the Minnesota Department of Corrections, and an expert on the development of recidivism risk assessment systems. Dr. Hamilton is an Associate Professor of Criminal Justice and Criminology and the Director of the Washington State Institute for Criminal Justice, and focuses on treatment matching through risk and needs assessment systems. Dr. Hawken is a Professor of Public Policy at the New York University Marron Institute, and is the founder and director of New York University’s Litmus/BetaGov program, which assists in the development and validation of data-driven policies.

The announcement comes on the heels of last week’s White House  “First Step Act Celebration,” which was intended to bring attention to a rare piece of bipartisan legislation President Trump passed last year, and which he plans to highlight on the campaign trail. He also announced plans for a “Second Step Act,” focused on easing employment barriers for formerly incarcerated people.

“We are proving we’re a nation that believes in redemption,” Trump said, describing the “second step” legislation as featuring a $88 million funding request for prisoner social reentry programs. “The ‘Second Step Act’ will be focused on successful reentry and reduced unemployment for Americans with past criminal records, and that’s what we’re starting right away.”

“As president, I pledged to work with both parties for the good of the whole nation,” Mr. Trump said at the East Room gathering, pointing to the legislation as an example of bipartisan work that he said was “so important to me.”

But even as they danced at the White House, several observers expressed skepticism that the now-passed bill will enjoy the Administration’s full support.

money160118The Administration’s budget, released last month, listed only $14 million to pay for the First Step Act’s programs. The law specifically asked for $75 million a year for five years, beginning in 2019. The Office of Management and Budget, however, noted that the bill passed after the budget had already been finalized, and that the White House intended to revisit First Step Act funding.

Ensuring that First Step is adequately funded is crucial to its effectiveness, said Nancy La Vigne of the Urban Institute. “We always recognized that without proper funding, the First Step Act is really nothing more than window dressing,” she said.

Mr. Trump said that “my administration intends to fully fund and implement this historic law.”  On Apr. 2, the White House announced Trump will ask Congress for $147 million to implement First Step, far above the $14 million in the original budget.

risky-business-4fea6b87b70a6First Step requires development of a risk and needs assessment tool to assess inmates and determine what types of programs reduce recidivism and the incentives they would receive. The Dept. of Justice missed the Jan. 21 deadline for forming the committee tasked with developing the risk assessment standard, instead starting the committee formation process only yesterday. The Crime Report said last Monday, “It’s not clear whether the government will meet the July deadline for developing the system.”

Kevin Ring, president of Families Against Mandatory Minimums, says there hasn’t been much clarity from the administration on the status of these measures.

“All the timelines were ambitious, so it’s not surprising that they haven’t met them all,” Ring said. “It’s just it seems to be a bit of a black box. We don’t know what’s taking so long.”

The New York Times today observed that

Putting the law into practice quickly became complicated. The government partly shut down one day after Congress passed the bill and sent it to President Trump to sign into law, and many of the Justice Department employees who would have worked to fulfill it went on furlough. The shutdown, the longest in history, lasted through the end of January.

That has given law enforcement officials just over two months to start carrying out a complicated piece of legislation, a senior Justice Department official said in defending their pace… The criminal justice overhaul was also passed during intense tumult at the top of the Justice Department, which oversees the Bureau of Prisons and would be responsible for carrying out much of the new legislation.

The New York Times, Justice Dept. Works on Applying Sentencing Law as Critics Point to Delays (Apr. 9)

Hudson Institute, Hudson Institute To Host First Step Act’s Independent Review Committee (Apr. 8)

Washington Examiner, Trump announces Second Step Act to help ex-prisoners find work (Apr. 1)

The Crime Report, As White House Celebrates First Step Act, Inmate Risk-Assessment Tool Lags (Apr. 1)

The New York Times, Trump Celebrates Criminal Justice Overhaul Amid Doubts It Will Be Fully Funded (Apr. 1)

NPR, 3 Months Into New Criminal Justice Law, Success For Some And Snafus For Others (Apr. 1)

– Thomas L. Root

Will First Step Let the Holloway Black Swan Swim Again? – Update for March 26, 2019

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

A REMARKABLE ORDER, A “HOLLOWAY” EASTER EGG

A fascinating order from Judge David Larimer in the Western District of New York is focusing attention on an overlooked section of the First Step Act.

hammer160509First, the order: thirteen years ago, Chad Marks took a drug count and two 18 USC 924(c) counts to trial. Had he pled guilty like his co-defendants, he would be home now. But he rolled the dice and lost, and Judge Larimer was forced by statute to hammer him with 40 years, a mandatory minimum of 10 for the drugs, 5 for the first 924(c) and 25 for the second 924(c)

Over 13 years, the Judge said in his Order, Chad has gained a college degree and completed over 100 programs. Now Chad has asked the judge to ask the U.S. Attorney to agree to let the judge vacate one of the 924(c) convictions, which would cut Chad to 15 years and get him immediate release. The Judge’s Order, citing Chad’s “extraordinary accomplishments,” asks the Government to “carefully consider exercising his discretion to agree to an order vacating one of Marks’ two Section 924(c) convictions. This would eliminate the mandatory 25-year term that is now contrary to the present provisions of the statute. Congress has now recognized the injustice of ‘stacking’.”

blackswan170206You may remember the Holloway decision of a few years ago, where EDNY Judge Gleeson convinced the U.S. Attorney to consent to an otherwise unauthorized court order cutting an inmate’s sentence, because of the inmate’s prison accomplishments and the harshness of the mandatory minimums. I wrote about it at the time, referring to the decision as a “black swan” and calling out some hopemongers who were trying to fleece inmates of money to prepare their own “Holloway” motions. Holloway had a cold fusion problem: it was elegant, even beautiful, but it was not replicable. Instead, a Holloway motion would only work when the court and the U.S. Attorney agreed to ignore the strict procedural rules against granting the remedy the inmate sought.

Holloway was a grand conspiracy among the players – defendant, judge and prosecutor – to let the defendant out of prison. I praised its wisdom and creativity, even while lamenting that it would hardly work anywhere else in the nation, where jurists like Judge Gleeson, U.S. Attorneys like Loretta Lynch, and defendants like Francois Holloway were not in the same courtroom at the same time.

But First Step may have changed all of that, in a way Congress probably neither noticed or intended. Everyone knows that the Act changed compassionate release to let a prisoner take his or her request under 18 USC 3582(c)(1) to court if the Federal Bureau of Prisons either turns it down or (as happens more often) fails to act on it within 30 days. But what went unnoticed in all the talk about dying inmates is this: there is more than one way to get a sentence modified under 3582(c)(1).

easteregg190326In computer software and media, an Easter egg is an intentional inside joke, hidden message or image, or feature hidden in a program. The Easter egg in compassionate release is subsection 3582(c)(1)(A)(i) permits sentence reduction for any “extraordinary and compelling” reason, not just illness. Traditionally, inmates have been referred by the BOP for acts of heroism. I knew of one UNICOR worker referred under (c)(1)(A)(i) who save the life of his BOP staff supervisor when the man collapsed of a heart attack. But “compelling and extraordinary” has hardly ever been used, because the BOP had to propose it to the court, and the BOP did not care to do so.

That has changed. As Ohio State law professor Doug Berman noted last week in his Sentencing Law and Policy blog when writing about the Chad Marks’ case, “I [use] the term “extraordinary and compelling” in this post because I do not think the federal judge here has to rely on the U.S. Attorney to do justice in this case now that the First Step Act has changed the process around judicial consideration of sentence modifications under 18 USC 3582(c)(1)(A)(i)… [The] Act now provides that an inmate can bring a request to “modify a term of imprisonment” directly to a sentencing court (rather than needing a motion made by the Bureau of Prison) based on the claim that “extraordinary and compelling reasons warrant such a reduction.” This is what gets described often as the “compassionate release” provision of federal law, and most generally assume that it is only applicable to sick and dying prisoners. But, ever the textualist, I am eager to highlight to everyone that Congress only formally requires a judge to find “extraordinary and compelling reasons warrant such a reduction.” As I read this new Marks Order, I think Judge Larimer has already essentially made such a finding.”

falsehope170510I know of one inmate who already is using his case history and BOP record in asking a court for a (c)(1)(A)(i) sentence modification. I do not think, generally speaking, such a motion will work unless the judge already is unhappy with the length of a mandatory sentence. But that will hardly stop the shadier “paralegal” shops from trying to sell people Holloway motions upgraded to (c)(1)(A)(i)s.

Order, United States v. Marks, Case No. 03-CR-6033 (WDNY Mar 14, 2019)

Sentencing Law and Policy, Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case (Mar 19)

– Thomas L. Root

Playing the BOP for “Dopes” – Update for March 19, 2019

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

THREE CONSULTANTS INDICTED FOR ADVISING CLIENTS TO SCAM RDAP

Nothing new here: cheating to get into the Bureau of Prison’s Residential Drug Abuse Program and qualifying for 12 months off one’s federal prison sentence is as old as… well, as old as the RDAP program itself.

RhHqJ3fIt used to be easy. I knew a guy who had friends pose as substance abuse counselors in letters to the BOP in order to get him in to RDAP, back a decade ago.

A year ago, Queens, New York, lawyer Scott “Mighty Whitey” Brettschneider was charged federally with ginning up fake letters to get a client into RDAP (and later, with more serious offenses).  Now, three Michigan residents from an outfit called RDAP Consultants have been accused of telling clients over the past six years to falsely inform BOP officials that they had drug and alcohol problems, of showing them how to fake withdrawal symptoms, and of teaching them how to fraudulently obtain medication to treat withdrawal symptoms in order to show prescriptions to qualify for the program. The defendants allegedly advised clients to begin drinking alcohol daily before going to prison and to show up drunk.

The indictments were handed up at the end of January, but the story only broke last week.

The case has put a spotlight on the world of prison consulting, in which some ex-convicts and former prison employees charge thousands of dollars for their inside knowledge to help people prepare for life behind bars. Some consultants say there has been wrongdoing in the industry for decades, including encouraging clients to scam their way into the rehab program.

“It’s an unregulated industry, so something like this hopefully brings some attention to it,” said Dan Wise, a former inmate who completed the RDAP program and now runs Federal Prison Time Consulting in Spokane, Washington.

cheating190319The small industry now is “totally the Wild West,” Jack Donson, a retired BOP employee and president of My Federal Prison Consultants told AP.

Ohio State University law professor Doug Berman argued last week in his Sentencing Law and Policy blog that the indictments are a symptom of a larger problem:

“Federal prisoners have historically had precious few means to seek to earn reductions in their sentences. Thankfully, the First Step Act is a significant step toward treating this disease, as it provides an elaborate set of mechanisms for allow some prisoners to earn reductions through other rehabilitative efforts. But, critically, the First Step Act has a number of problematic exclusions and restrictions on which prisoners can earn reductions AND there is reason to worry that poor implementation of the First Step could lead to privileged prisoners again being better able to access programming and reduction that should be made properly available to as many prisoners as possible.”

Mr. Monopoly“Poor implementation” may be right. When the White House released budget priorities for 2020 last week, only $14 million was explicitly listed to finance First Step’s programs. It’s unclear if additional funding could come from savings that could result from the early release of eligible prisoners under the measure or from reducing expenses elsewhere within the Dept. of Justice, as some advocates for the programs hope. The White House did not respond to questions.

A.M. New York, Queens defense lawyer Scott Brettschneider charged with making false statements (Mar. 26. 2018)

Associated Press, Show up drunk: Indictments spotlight prison rehab scams
(Mar. 11, 2019)

Sentencing Law and Policy, New indictment exposes underbelly of federal RDAP program … and provides still more reason to be thankful for passage of FIRST STEP Act (Mar. 15)

The Marshall Project, First Step Act Comes Up Short in Trump’s 2020 Budget (Mar. 12)

– Thomas L. Root

FSA Resentencings Reflect District Court Confusion – Update for March 11, 2019

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

FAIR SENTENCING ACT RESENTENCINGS ALL OVER THE MAP

As prisoners who were sentenced for crack offenses before the August 2010 effectiveness of the Fair Sentencing Act (FSA) are discovering, district courts are all over the map in interpreting the First Step Act provisions that make the FSA retroactive.

crackpowder160606Here’s one problem: A number of prisoners seeking retroactive FSA application were sentenced under the mandatory pre-United States v. Booker guidelines. Are their guidelines still mandatory on resentencing?

And another: Virtually all of the eligible defendants have indictments that specified “5 grams or more” or “50 grams or more” of crack – the standard for mandatory minimums before FSA – but had judges finding at sentencing that the amount of crack in their cases was much higher, such as “400 grams or more.” Before the Supreme Court’s 2013 Alleyne v, United States decision, a Presentence Report finding of 400 grams would subject the defendant to a 10-to-life sentence no matter what the indictment said. Alleyne said that the facts supporting a mandatory minimum sentence had to be found by a jury beyond a reasonable doubt or admitted by the defendant. So what amount of crack should drive their new sentence, 50 or 400?

The issue district courts are grappling with is whether an FSA resentencing has to pretend that Booker and Alleyne were never decided, or whether a new FSA sentence has to be constitutional under all of those decisions handed down since the defendant was first sentenced.

Three district court decisions in the last week or so make it clear that those questions are still up in the air. In United States v. Glore, the government argued that because a defendant who was charged with 5 grams or more had been found in his PSR to have had 46 grams, he was not eligible for a sentence reduction under the retroactive FSA, because the 46 grams still required a 5-year minimum sentence under the FSA’s 28-gram threshold. The government said Alleyne should not apply, because it was decided well after the original sentence was imposed.

badjudge160502Citing United States v. Fleurival, the district court rejected the government argument, holding that “the government has the prerogative to argue that even if a defendant is eligible for a First Step reduction, the court should decline to exercise the broad discretion given it by the First Step Act, and refuse to reduce a defendant’s sentence. But its argument that a defendant is not eligible because the sentencing court might have elected to calculate his statutory penalties in a way that now is unlawful, and back then would have been illogical, is unpersuasive.”

Meanwhile, in United States v. Newton, a Virginia district court ruled that although the defendant was originally sentenced under pre-Booker mandatory guidelines, his new sentence under the retroactive FSA should be decided under advisory guidelines and the sentencing factors in 18 USC 3553(a). The government, comparing the FSA resentencing to an 18 USC 3582(c)(2) sentence reduction, argued that Dillon v. United States made it a limited resentencing, and the court had to pretend that the law on the day of the original sentencing remained the law at resentencing.

The district court rejected this argument, noting that the Sentencing Commission said in January that while courts would have to settle whether the FSA resentencing was subject to Dillon, district judges should nevertheless “consider the guidelines and policy statements, along with other 3553(a) factors, during the resentencing.”

In a New York case last week, United States v. Davis, the government argued the defendant was not eligible for relief under the First Step Act because his actual offense conduct involved over 1.5 kilos of crack, which even under the FSA would trigger a 10-life sentence under 21 USC 841(b)(1)(A). The government hypothesized that if the current FSA had been in place when Mr. Davis committed his crime, his indictment would have alleged “280 grams or more of cocaine base” instead of “50 grams or more,” and thus still would have triggered the higher  841(b)(1)(A) penalties.

release160523The court rejected the government’s argument out of hand, holding that “it is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.” The defendant won his release.

But the foregoing views are not universally shared. Last week, a Florida district court held in United States v. Potts that a defendant who had been charged only with a “detectable amount” of crack, which carried no mandatory minimum, was nevertheless subject to a 10-year minimum sentence because his presentence report found he was responsible for 125 grams. The district court concluded that First Step’s provision making the FSA retroactive does not “expressly provide for a full or plenary resentencing or for a reconsideration of original sentencing determinations.” Instead, “although Defendant is eligible for a reduced sentence under Fair Sentencing Act, he is not entitled to a full resentencing, and all other determinations made at the time of his sentencing must remain unchanged.” The court cited United States v. Delaney and United States v. Kamber, but neither of those decisions hold that an FSA resentencing is limited like a 3582(c)(2) resentencing.

There is going to be a lot of litigation before the parameters of the FSA resentencing are firmly and finally set.

United States v. Davis, 2019 U.S. Dist. LEXIS 36348 (W.D.N.Y. Mar 6, 2019)
 

United States v. Delaney, 2019 U.S. Dist. LEXIS 28792 (W.D.Va. Feb. 22, 2019)

United States v. Fleurival, 2019 U.S. Dist. LEXIS 20057 (W.D.Va. Feb. 6, 2019)

United States v. Glore, 2019 U.S. Dist. LEXIS 35838 (E.D.Wis. Mar. 6, 2019)

United States v. Kamber, 2019 U.S. Dist. LEXIS 15691 (S.D.Ill. Jan. 31, 2019)

United States v. Newton, 2019 U.S. Dist. LEXIS 33356 (W.D.Va. Mar. 1, 2019)

United States v. Potts, 2019 U.S. Dist. LEXIS 35386 (S.D.Fla. Mar. 6, 2019)

– Thomas L. Root

So What’s The Second Step? – Update for March 6, 2019

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, SECOND STEP – CRIMINAL JUSTICE REFORM STILL DEBATED

Psychology professor Keith Humphreys wrote in the Washington Post last week that even after the First Step Act, the Feds still imprison seven times as many inmates as in 1980.

Postgraphic190307Critics complained that First Step would leave the nation “overwhelmed with violent crime.” But Humphreys asked why the federal government should imprison anyone at all. “In reality,” he wrote, “virtually every murder, rape, assault and battery is charged under state law and results in imprisonment at the state or local level. The federal prison system holds only 1.8% of U.S. inmates serving time for violent crimes… It is implausible that the number of and deserved sentence length for such offenses are seven times greater than they were before the federal prison population exploded.”

Noting that the federal criminal code has exploded with white-collar crimes, carjacking, DVD piracy, and street-corner drug dealing ¬– all offenses that states punish as well – Humphreys suggests that “the extremely broad coalition that supported the First Step Act can reasonably aim higher in its next round of proposed reform, returning the federal prison system to its traditional role as an important – but small – part of the U.S. correctional system.”

softoncrime190307Meanwhile, the ultra-progressive Socialist Worker last week complained that First Step “is more of a tip toe than a first step. But… no matter how ineffective, First Step is a sign of changing times. It wasn’t too long ago that any politician who favored prison reform would be labeled as ‘soft on crime’. First Step reflects a lessening of the tough-on-crime rhetoric…”

It is virtually impossible to count the number of people benefitting from the retroactive Fair Sentencing Act Sec. 404 of the First Step Act) but last week The Providence Journal reported that “so far, 14 Rhode Islanders convicted under stiff mandatory-sentencing laws have gained early release under the newly enacted federal law called the First Step Act…”

Washington Post, The new criminal justice law will modestly shrink prison populations. Should we go further? (Feb. 25)

Socialist Worker, Is First Step a Step Forward? (Feb. 25)

Providence Journal, ‘First Step’ toward freedom for R.I. drug offenders (Mar. 2)

– Thomas L. Root

No One Much Cares About the ‘Seven Days’ Debacle – Update for February 25, 2019

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

BAD NEWS, GOOD NEWS

fishbicycle190225The bad news: We have already reported in detail on the error in the First Step Act that accidentally tied the effective date for the additional seven-days-a-year good-conduct time for federal inmates to the effectiveness of the earned-time credits, a pairing that makes as much sense at relating a fish to a bicycle.

Although there has been a hue and cry from all of the usual advocate-suspects, no one has owned up to the blunder, let alone taken steps to fix it.

I’m not often right, but I predicted a month ago that Congress would be uninterested in doing anything to correct the sloppy drafting. This is because Congress, as an institution, addresses a problem once, happily concludes that the problem is all fixed, and then moves on to the next problem. Criminal justice and prison reform got their moment in the sun with passage of First Step. It will be a long time before Congress comes back to the issue. That is all the more true here, because the drafting gaffe will remedy itself in July, when the seven-day credits take effect.  Some prisoners who should be home now will surely suffer, but that’s hardly an effect that will fire the imagination of Congress, especially the Senate leadership. 

And more: Law professor Nora V. Demleitner, editor of the Federal Sentencing Reporter, complained last week in The Hill that new Attorney General William Barr is no reformer. “Congress should have demanded an attorney general committed to decreasing the federal prison population, improving re-entry, and limiting prison sentences for minor offenders… an attorney general committed to the spirit of the [First Step] Act. Instead it settled for someone who will interpret it as narrowly as possible and implement it grudgingly.”

retro160110The Good News: Speaking last week at a crime symposium, Koch Industries general counsel Mark Holden identified three priorities for the next federal prison reform legislation. Holden, who was point man for Koch Industries’ backing of First Step, said that congress first should apply First Step’s sentencing changes retroactively – the 18 USC 924(c) destacking provision, the reductions in mandatory minimums under the drug trafficking statute, and “safety valve” qualifications.

In addition, Holden called on Congress to codify the Supreme Court’s Brady v. Maryland ruling requiring prosecutors share all of the information that they have about the alleged crime with the accused at the outset the case, and to adopt a clearer and more stringent mens rea rule. Also, he urged the Trump administration to reform the executive clemency process and then to apply it to “create second chances for people who wouldn’t necessarily qualify for relief under the First Step Act.”

Meanwhile, a push is on to again make Pell Grants available for prisoners. Complaints that hard-work Americans were paying for criminals to go to college cauaed Congress to prohibit issuing prisoners Pell Grants, which provide students with financial need aid for college. Without Pells, the number of prison college programs plummeted from 772 to just eight by 1997.

In 2015, the US Dept of Education started a pilot program, allowing some colleges to use Pells to increase access to college courses in prison.

education180509Last week, a conservative magazine called on Congress to expand Pell grants to prisoners nationwide. “Such programming brings gains for both prisoners and public safety,” the American Conservative said, “rebuilds families, is fiscally prudent, and acknowledges the individual dignity of those in prison.”

It may happen. There has been bipartisan support for legislation to reinstate Pells for prisoners. Sen. Lamar Alexander (R-Tennessee), chairman of the Senate Education and Labor Committee, has hinted the change may be part of reauthorizing the Higher Education Act. “Most prisoners, sooner or later, are released from prison, and no one is helped when they do not have the skills to find a job,” Alexander said last year. “Making Pell Grants available to them in the right circumstances is a good idea.”

The Hill, Barr confirmation reveals shallowness of congressional commitment to justice reform (Feb. 19)

The Crime Report, The First Step Act: It’s Only a ‘First Step’ (Feb. 18)

American Conservative, Sending Our Prisoners to College (Feb. 21)

The Intercept, How The Federal Government Undermines Prison Education (Feb. 18)

– Thomas L. Root

Unintended Consequences – Does First Step Act Open Up 8th Amendment Argument? – Update for February 18, 2019

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

DOES FIRST STEP OPEN WINDOW FOR 8TH AMENDMENT CLAIM ON HARSH GUN SENTENCES?

Ohio State University law professor Doug Berman asked this interesting question in a post on his Sentencing Law and Policy blog last week.

Prof. Berman noted that First Step Act Sec. 403, “described as a ‘clarification of Section 924(c),’ eliminates the required “stacking” of 25-year mandatory minimums for multiple 924(c) counts at the same time… Sadly, Congress did not make Section 403 of the First Step Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.”

Sentencestack170404In 2010, Wendell Rivera–Ruperto was paid by undercover FBI informants to serve as “armed security” at six fake drug deals, and received a 162-year sentence, of which 130 years were for his six stacked 924(c) convictions. In a 1st Circuit decision last year, Wendell was denied rehearing en banc despite one judge’s complaint that courts “have no choice but to approve mandatory ‘forever’ sentences… so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was [so] serious…” The dissenting judge hoped for Supreme Court review.

SCOTUS has incorporated a proportionality analysis into the cruel and unusual punishment analysis required in capital cases. In Harmelin v. Michigan, the defendant asked the Court to extend the reach of that analysis to noncapital cases such as his life sentence for 650 grams of cocaine. Five Justices agreed that Harmelin’s sentence was not unconstitutionally cruel and unusual, but six Justices agreed that the Cruel and Unusual Punishment Clause bore some kind of proportionality analysis. Among those six, three supported a proportionality principle that deferred to legislative judgments, while three others supported a more searching proportionality analysis that would have struck down the mandatory life sentence.

cruel190218This Friday, the Justices will consider whether to review the case. “Notably, and not surprisingly,” Prof. Berman wrote, “the feds now say in opposition to cert that passage of the First Step Act reduces the important of the case: ‘future defendants in petitioner’s position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance’.” But “the fact that the 8th Amendment is supposed to take guidance from an ‘evolving standards of decency’ and be responsive to a ‘national consensus’ against a sentence, I strongly believe the enactment of the First Step Act primarily operates to make Wendell Rivera–Ruperto’s constitutional claim even more substantively potent.”

Justice Kennedy’s retirement last summer creates a window of opportunity for advocates to urge overturning (or cutting back) Harmelin’s 8th Amendment precedent. “Thus,” Berman said, “I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.” Grant of cert in this case, which Berman calls “potentially the biggest non-capital Eighth Amendment case in a generation,” might open other stacking cases to 8th Amendment review.

Sentencing Law and Policy, Doesn’t the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto? (Feb. 10)

Rivera-Ruperto v. United States, Case No. 18-5384 (Supreme Ct.)

– Thomas L. Root

News of the (Good) Weird – Update for February 11, 2019

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

SOME RUMORS ARE STRANGE ENOUGH TO BE TRUE
Did you hear about Mark getting released by his judge?
Did you hear about Mark getting released by his judge?

I hear from a lot of people, and unfortunately, most of what I hear is rumor. So I was skeptical last Friday when a guy at FCI Big Springs reported a friend of his had just gotten released on his recalculated 54 days of good time.

You should remember that in the First Step Act, Congress clarified its intent from 30 years ago that federal inmates receive 54 days of good-conduct time per year. Previously, the provision was so poorly written that the Bureau of Prisons read it to mean that after 365 days, a prisoner would get an award of 54 days. What Congress meant was that 311 days of good conduct, an inmate would be awarded 54 days (which would make a year).

What’s the difference?  Seven days a year, which the First Step Act made retroactive to the beginning of the current  sentence.  I talked to one inmate at the end of his 23-year sentence who is in line to get an additional five months off. Instead of being home for Thanksgiving, he’ll be there for July 4th.

Or he would have been. But in correcting its prior screw-up, Congress committed a new one: the effective date for the seven days additional good time was placed in the wrong section of First Step (Section 102(b)(1)(A), along with the earned-time credits). Congress intended that the earned-time credits become effective only after giving the Attorney General time to adopt a risk assessment algorithm. But it neither intended nor saw a need to delay application of the additional seven days, which the BOP can apply to inmates’ sentences with the push of a button.

Screwup190212Despite its intent, Congress goofed, so that instead of taking effect when the First Step Act was signed, the additional good time will not be effective until July 19, 2019. This has made a mess of halfway house and release dates for a lot of people whose date would have moved by weeks or months. Just last week, Mother Jones reported that “4,000 prisoners who hoped to be out for the holidays remain stuck behind bars waiting for answers.”

So when I heard on Friday that federal prisoner Mark J. Walker had been given his extra good time and immediately released by a Federal District of Oregon judge, I doubted it.

It happened.

There is a lot of story to this case, such as what drove Mark’s public defender to file the motion, that I just do not know. But file the PD did, delivering to the Court a 14-page petition for writ of habeas corpus on Jan. 25 that argued the only rational interpretation of the First Step Act was that the Sec. 102(b)(2) 210-day delay applied only to the new extra time credit and not to the seven days additional good time. Plus, the PD argued, delaying the effectiveness of the extra seven days violated due process by being arbitrary and capricious, and Mark’s immediate release was necessary to avoid irreparable harm.

The argument is creatively, innovatively weird. The government’s response, on the other hand, was just plain weird. The AUSA chose to ignore Mark’s substantive arguments, instead opposing the petition solely on the ground that the Oregon court lacked jurisdiction, and that Mark should have filed in the Northern District of Texas, where he was confined.

release161117Last Thursday, an Oregon federal district court ruled that “given the Government’s failure to address the merits… and the equities of the situation” it would grant “the relief requested… without a final determination of the merits of the legal issues raised by Defendant.” Senior US District Judge Ralph R. Beistline ordered the BOP to recalculate Mark’s sentence and to release him “without delay if the recalculation confirms that the Defendant’s term of imprisonment has expired.” Mark was released the same day.

By its terms, the decision is not intended to rule on the merits, and as a district court order, it lacks precedential value, but it is a creative and audacious filing that let Mark go free two months before he otherwise would have.

Order, United States v. Walker, Case No. 3:10-cr-00298 (D.Oregon, Feb. 7, 2019)

Mother Jones, Trump’s One Real Bipartisan Win Is Already Turning Into a Mess (Feb. 5)

– Thomas L. Root