Tag Archives: FIRST STEP Act

Forget I said What I said… – Update for January 13, 2022

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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.

GLAD TO EAT MY WORDS

Victory220113Not more than an hour after I posted the blog below, the Dept of Justice issued a press release announcing that the Bureau of Prison had adopted a final rule for application of its earned-time credit program.

I practiced administrative agency law in Washington, D.C., for a long time, but I never have seen such an agency execute such an astounding about-face on a proposed rule between the Notice of Proposed Rulemaking and final order before.

It’s Christmas Day for inmates. I will take a dive into the new rule for a blog tomorrow.  For now, suffice it to say… wow.

Ignore the following:

BOP EARNED TIME CREDIT MEMO PORTENDS LITIGATION

delay190925The Federal Bureau of Prisons has been stalling full implementation of First Step Act earned time credits for three years now, but the clock runs out in a few days. By then, the BOP is supposed to have the earned-time credit program (which the BOP is calling “Federal Time Credits”) fully implemented.

Under the FTC program, prisoners who successfully complete recidivism reduction programming and productive activities are eligible to earn up to 10 days of FTCs for every 30 days of program participation. Minimum and low-risk inmates will get 15 days. But the list of programs and productive activities is limited, the list of eligible prisoners is even more limited, and the BOP has thus far fought inmates’ efforts to win any credit.

That has resulted in decisions such as an Oregon holding from November that the BOP’s belief that “may delay awarding time credits to inmates that complete qualifying programming until January 15, 2022, is contrary to the statute.”

Forbes magazine last week published portions of an “internal memorandum posted at some prison camps.” The memo said that beginning in January 2022, the Bureau will begin applying FTC under this update. However, while inmates with high and medium PATTERN risk levels may earn FTC, only those with low and minimum levels may actually use them.

The BOP plans to apply the first 365 days of FTC time to early release, with “[a]ny FTC earned beyond that may be applied toward community placement.” The BOP plans to update sentence computations in the next few months, with the Bureau’s Designation and Sentence Computation Center to “prioritize based on those inmates we project to be immediate releases, beginning with inmates in community placement.”

confusion200424Forbes predicts that “far from clarifying things… implementation of [FTC]… will be almost impossible over the near term. This affects multiple levels of the criminal justice system; prisons, halfway houses, home confinement, and supervised release. It is an intricate web of agencies that manage the incarceration and supervision of hundreds of thousands of people in the federal criminal justice system. Thousands will file lawsuits whether they are in prison, halfway houses, home confinement, or supervised release, fighting for their right to a broadly defined, and subject to BOP discretion, FSA credit… This is going to be more complicated than anyone ever imagined.”

The great unsettled question is exactly what constitutes program participation. Inmates were jubilant when First Step passed, because everyone wrongly assumed that if one had an hour-long evening class four days a week for four weeks, he or she would have earned 16 days of programming credit on successful completion. But then the BOP proposed rule – which has not yet been adopted – holding that a day of program participation was equal to eight hours of programming. Under that metric, an hour a day four days a week for four weeks would be worth 16 hours, or two days of programming, not 16 days.

What was as bad, the credits for “productive activities” are capped. Working in UNICOR – the Federal prison industries – has a well-earned reputation for reducing recidivism. But credit for UNICOR work is limited to 500 hours. In other words, if one works in UNICOR for four months at 35 hours a week, he or she has amassed 500 FTC hours, which translates to 62 days, which translates to two months. Two months of FTC credit is worth 30 days off the sentence.

If the inmate works in UNICOR for 10 years (which would be about 17,500 hours), he or she would still get 30 days off his or her sentence. Is the favorable effect of 10 years of productive factory work on recidivism no different than four months? The BOP rule would seem to suggest so.

oddcouple210219As of today, the rulemaking proceeding has not been completed, yet another failure of the BOP to get anything done on time. What’s more, Senator Richard Durbin (D-Illinois), chairman of the Judiciary Committee, and Committee Ranking Member Senator Charles Grassley (R-Iowa) jointly blasted the proposed rule last May, asking the Attorney General to “reevaluate and amend the rule consistent with the statute’s goals of incentivizing and increasing program participation to reduce recidivism. Establishing robust programming and a fair system to earn time credits is critical to meeting the FSA’s goal of reducing recidivism.”

Durbin and Grassley are the fathers of the First Step Act, suggesting that perhaps they know what they meant when they wrote it.

Whether anyone listened has yet to be answered. It’s a cinch that if the BOP’s 8-hour-day rule gets adopted, there will be litigation.

Forbes, Implementation of The Criminal Justice Reform Law, First Step Act, Will Likely End Up In Court (January 5, 2022)

Cazares v. Hendrix, Case No 3:20-cv-02019, 2021 U.S. Dist. LEXIS 240776 (D. Ore., November 9, 2021)

Press release, Durbin, Grassley Press DOJ to Strengthen First Step Act Rule on Earned Time Credits to Incentivize Rehabilitation (May 5, 2021)

– Thomas L. Root

It’s Halftime for the 117th Congress, and Criminal Justice Reform Has Been Held Scoreless – Update for January 3, 2022

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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.

WELL, 2021 WAS KIND OF DISAPPOINTING…

NYDTypwrtr220103We all had high hopes for criminal justice reform when President Biden took the White House, and the Democrats won control of the House and Senate. The year 2021 was widely seen as the end of a dark era and the beginning of a brighter one. As Reason magazine said last week, it wasn’t just the close of just any year. It was the end of 2020.

Over the last 12 months, politicians h some steps to advance justice reform. But as is the case with so many New Year’s expectations, quite a bit also stayed the same.

Since Biden’s inauguration, criminal justice reform has taken a back seat to his more prominent initiatives, last March’s American Rescue Plan, the Infrastructure Investment and Jobs Act in November, and the now seemingly-dead Build Back Better social-spending blowout.

Biden did issue an executive order canceling contracts with private prison operators, a nice change for the 14,000 people in those joints. And his Dept, of Justice finally reinterpreted the CARES Act to let people on home confinement stay there. He has promised clemency reform. But the real work is to be done in Congress, w has yet to progress.

If you stayed awake in high school, you recall that every Congress lasts two years. Any bill introduced in the 117th Congress – which began in January 2021 – will stick around until the 117th expires a year from today. That means that the reform bills now in front of Congress still have a chance.

On New Year’s Day, the San Francisco Chronicle called for a targeted bill to abolish mandatory minimums, said, “The good news is that criminal justice reform can be accomplished with relatively limited expenditures — compared to, for example, Build Back Better’s sweeping expansion of the social safety net. That gives it a fighting chance of passing in today’s barely Democrat-controlled Congress.”

marijuana-dc211104

A couple of bills before Congress would reduce but not eliminate mandatory minimums: the EQUAL Act (lowers minimums for crack to equal those of powder) has passed the House but hasn’t yet cleared committee in the Senate; the MORE Act (decriminalizes marijuana retroactively) has been approved by a House committee but has not been passed by the House or Senate; the First Step Implementation Act (makes First Step mandatory minimum reductions retroactive) and the Smarter Sentencing Act (reduces mandatory minimum penalties for certain nonviolent drug offenses only) have not even cleared committee in either the House or Senate.

While the House also passed the MORE Act to decriminalize marijuana, the measure has been dead on arrival in the Senate, where Senate Majority Leader Chuck Schumer (D-New York) announced plans to draft his own version of the bill. The Schumer bill has been released as a working draft but has yet to be formally introduced.

In the House, Republican Rep. Nancy Mace (South Carolina) introduced the first GOP-sponsored bill in Congress to legalize marijuana, hinting that there may be openness to a bipartisan solution in the future. If the Democrats fail to take advantage of the political opportunity in front of them, Forbes said last week, they risk ceding this issue to the Republicans if and when they take back control of Congress, possibly as soon as next year.

When the SAFE Banking Act, a marijuana bill, passed the House last year, it got 106 Republican votes, demonstrating that the GOP can deliver votes on cannabis legislation. But the MORE Act that passed the House in the last Congress – the one with criminal retroactivity – received only five Republican votes. The current MORE Act has collected only one Republican co-sponsor.

cotton181219The problem is that most bills spend months in committee with no movement, or they pass in the House only to the Senate before dying out. And with mid-terms putting all of the House and a third of Senate up for re-election in November and crime rates shooting up, getting legislators on board for criminal justice reform is going to be more challenging.

And then there are demagogues like Sen. Tom Cotton (R-Arkansas). Last week, he wrote in Real Clear Politics:

Unfortunately, soft-on-crime policies have been, at times, a bipartisan problem. In 2018, Republicans passed the pro-criminal First Step Act. That deeply flawed legislation reduced sentences for crack dealers and granted early release to some child predators, carjackers, gang members, and bank robbers. Ironically, this jailbreak bill even provided early release for those who helped prisoners break out of jail. This misguided push by Republicans to win applause from liberals strengthened the hand of radicals like George Soros. In a political environment where the parties compete for who can be more pro-criminal, the Democrats will always win.

People like Cotton make even common-sense federal criminal justice reform a hard sell.

Reason, In 2021, Qualified Immunity Reform Died a Slow, Painful Death (December 30, 2021)

Forbes, The Least Eventful Year for Marijuana (December 31, 2021)

San Francisco Chronicle, Biden’s agenda is stuck. It doesn’t have to be that way with criminal justice reform (January 1, 2022)

S. 79: EQUAL Act

H.R. 3617, MORE Act

S. 1013: Smarter Sentencing Act of 2021

S. 1014: First Step Implementation Act of 2021

Brookings Institution, The numbers for drug reform in Congress don’t add up (December 22, 2021)

Real Clear Politics, Recall, Remove & Replace Every Last Soros Prosecutor (December 20, 2021)

– Thomas L. Root

Biden Pardons Turkeys But No Prisoners – Update for November 22, 2021

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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.

BIDEN ISSUES FIRST PARDONS… NO HUMANS MAKE THE LIST

turkey211122There was no shortage of complaints from criminal justice reform advocates last Friday as President Biden “pardoned” two turkeys with the rather vegan names of “Peanut Butter” and “Jelly” in a White House ceremony.

“Peanut Butter and Jelly were selected based on their temperament, appearance, and, I suspect, vaccination status,” Biden said. “Yes, instead of getting basted, these two turkeys are getting boosted.”

But when a reporter asked whether he would be pardoning “any people in addition to turkeys,” Biden treated the question as a joke. “You need a pardon?” the president quipped. He didn’t reply to a follow-up question about marijuana prisoners as he walked away from assembled journalists.

turkeyb161123The turkeys may not get roasted, but the President isn’t so lucky. Law professor and clemency expert Mark Osler wrote in the Minneapolis Star-Tribune that “those of us who work in the field of clemency are left with a bitter taste in our mouths. Biden’s pardon of those turkeys represents the first time he has shown any interest at all in clemency. The problem isn’t just that Biden isn’t granting any clemency, it’s that he isn’t denying any, either. Following the lead of his predecessor, former President Donald Trump, Biden is just letting requests sit.”

Osler cited the 18,000 pending clemency petitions – 16,000 more than when Obama took office – and the danger CARES Act people may be sent back to prison when the pandemic ends, as “two genuine crises unfolding in federal clemency.”

A few days earlier, Interrogating Justice complained that

President Joe Biden campaigned heavily on justice reform, including with the federal Bureau of Prisons. He acted swiftly after his inauguration by terminating private prisons that housed federal inmates. However, since then, there has been virtually nothing. Various justice-reform groups have called out the president for his apparent lack of action. Points of frustration start with the increased population of federal prisons, the BOP’s inept handling of the pandemic, the failure to apply First Step Act time credits and most recently the question of granting clemency to all prisoners who are at home confinement under the CARES Act. And these are just a few of the many issues that plague the BOP.

turkeyprison161114The Minneapolis Post argued that “

While campaigning for president last year, however, Biden promised sweeping changes to the criminal justice system. And Biden could not have been more clear that he was committed to reform — promising, “as president” to “strengthen America’s commitment to justice and reform our criminal justice system. Then Biden got elected. And he’s been busy with other things…”

The Hill called it Biden’s “do-nothing” approach to clemency, which

he seems to have delegated entirely to the DOJ… Most of the Democratic candidates for president endorsed this change because the DOJ had proven itself incapable of handling clemency impartially and efficiently for decades… So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War? The only apparent answer is that Biden does not want to look like he is interfering with DOJ. But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.

New York Times, Boosted, Not Basted: Biden Pardons 2 Turkeys in Thanksgiving Tradition (November 19, 2021)

New York Post, Biden laughs off question about clemency for humans before pardoning turkeys (November 19, 2021)

Minneapolis Star-Tribune, When it Comes to Human Pardons, Thanks for Nothing (November 19, 2021)

Interrogating Justice, The Biden Administration Has Gone Quiet on Justice Reform at the BOP (November 15, 2021)

Minneapolis Post, When will Biden make good on his promise to reform criminal justice? (November 15, 2021)

The Hill, Biden can’t let Trump’s DOJ legacy stifle reform (November 17, 2021)

 Thomas L. Root

Freaky Friday – Update for November 12, 2021

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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.

NEWS OF THE WEIRD

What’s Done is Done: In the 1st Circuit, Junito Melendez was denied a First Step Act § 404 sentence reduction under the Fair Sentencing Act (FSA). Junito finished his prison sentence in 2007 and got off supervised release three years later. Unfortunately, after ten years as a free man, he is now facing a new drug conspiracy charge.

goingback211112Therein lies the problem. Junito was released from his prior 109-month sentence within 15 years of the current conspiracy charge, so he faces a mandatory 10-year minimum sentence under 21 USC § 841(b)(1)(B). But if the prior sentence were to be changed consistent with the FSA, his release date would have been much earlier, and it would thus have fallen well more than 15 years before the current case. Had that been the case, he’d be facing no mandatory minimum now.

The 1st Circuit turned him down, holding that the word “release” in 21 USC § 802(57), which defines a “serious drug felony,” focuses on the “historical facts of a defendant’s sentence when determining whether § 802(57)‘s definition is met.” Regardless of what a different, shorter sentence might have yielded, the historical fact is that Junito was released in 2007. What’s more, the Circuit said, “Congress used the phrase ‘serious drug felony’ in the statute, signaling its intent for the backward-looking language of § 802(57)… to apply to the 10-year mandatory minimum.”

There just ain’t no shortening a sentence that’s already completely in the past tense.

I Should Have Been Watching Him While He Was Watching Me: Jason Sheppard, on supervised release after a drug sentence, discovered that his girlfriend had developed a cozy “personal relationship” with his probation officer, one Jeff Sciarrino. That’s one way to keep tabs on your supervisee, we suppose.

[Read the salacious details here]

Needless to say, the discovery did not enhance Jason’s relationship with his girlfriend. They broke up over her cheatin’ heart.

breakingup211112In his grief, Jason moved for early termination of supervised release under 18 USC § 3583(e), arguing that the breakup “was negatively impacting his rehabilitation, thereby undermining any utility in continued supervision.” Jason made the rather obvious claim to the district court that “the probation officer was never concerned with [his] rehabilitation and appears to use his position for his own personal interests.”

The district court denied Jason’s motion, and last week the 3rd Circuit agreed. It held the District Court acted within its discretion to conclude that  Probation Officer Sciarrino’s amorous misconduct “has little to do with whether Sheppard should continue under the supervision of a different officer.”

The Circuit criticized the District Court, however, for holding that the PO’s misconduct “actually undermines” Jason’s motion for early termination, because the upset may interfere with Jason’s mental health treatment.” The Circuit said, “the District Court’s order includes an inference that Sheppard is responsible not only for his own conduct, but also must shoulder any and all negative repercussions from the misconduct of his probation officer. This inference is improper… when evaluating a motion for early termination, a district court, particularly in the absence of holding an evidentiary hearing, may not impute a probation officer’s alleged improper actions to a defendant serving a term of supervised release, so as to justify continued (or additional) rehabilitative oversight.”

Nevertheless, the Court was not very happy with the U.S. Probation Office:

A probation officer’s communications of such a “personal” nature with an assigned defendant’s significant other are not only entirely inappropriate and unprofessional, but they also undermine the primary objective of supervised release – i.e., “to facilitate the integration of offenders back into the community rather than to punish them.” It also challenges the role of probation officers as trusted government officials who, in performing their duties, are “supposed to have in mind the welfare of the probationer…” In Sheppard’s case, his probation officer implicated Sheppard’s personal life in his own — and to such a degree that, according to Sheppard, it caused him to break up with his live-in girlfriend, with whom he considered to be in a “lifelong commitment.” If this is not the antithesis to assisting Sheppard in transitioning back into the community, and having his “welfare” in mind, we do not know what is.
supervisedleash181107In all candor, I am constrained to note that even when Probation Officers act appropriately, they provide little benefit to supervisees beyond what Probation Officer Lothario provided to Jason. Supervised release is largely a snare for the unwary supervisee, with a sorry record of violating about one of three post-release folks entrusted to the Probation Office’s care.

United States v. Melendez, Case No 20-1575, 2021 U.S.App. LEXIS 31858 (1st Cir., October 22, 2021)

United States v. Sheppard, Case No 20-3088, 2021 U.S.App. LEXIS 32722 (3d Cir., November 3, 2021)

– Thomas L. Root

Hey, Bud, Look What the House Judiciary Committee Lit Up – Update for October 8, 2021

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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.

BUT WAIT, THERE’S MORE…

marijuanahell190918We reported last Friday on the House passage of the EQUAL Act. In our glee over the potential redress of the racially disparate crack-to-powder laws, we overlooked the House Judiciary Committee’s approval of the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, H.R. 3617, on a 26-15 vote.

All Democrats on the Committee supported the bill while all but two Republicans opposed it.

Among other measures, the bill removes marijuana from the Controlled Substances Act, changes that “are retroactive and shall apply to any offense committed, case pending, conviction entered, and, in the case of a juvenile, any offense committed, case pending, or adjudication of juvenile delinquency entered before, on, or after the date of enactment of this Act.”

The bill still has to be approved by the House, as well as facing an uphill fight in the evenly-divided Senate. There is no timeline for full House or Senate action.

crackpowder160606Meanwhile, Sen. Richard Durbin (D-IL), Chairman of the Judiciary Committee, Sen. Charles Grassley (R-IA), and others last week introduced the Terry Technical Correction Act, which clarifies that individuals convicted of the lowest level crack offenses before the Fair Sentencing Act passed can apply for its retroactive application under Section 404 of the First Step Act. The same bill was introduced simultaneously in the House by bipartisan cosponsors led by Rep. Jerrold Nadler (D-NY) and Rep. Sheila Jackson-Lee (D-TX).

The bill seeks to amend the text of First Step Section 404 to make people sentenced for crack offenses prior to the passage of the Fair Sentencing Act eligible for sentence reductions even where they were sentenced under 21 USC 841(b))(1)(C), which has no mandatory minimum sentence, thereby undoing the Supreme Court’s Terry v. United States decision of last June. The bill has not yet been scheduled for a committee hearing.

House Judiciary Committee, Chairman Nadler Statement for the Markup of H.R. 3617, the MORE Act of 2021 (September 30, 2021)

H.R. 3617, MORE Act of 2021

Press Release, Senators Introduce Legislation to Correct Scotus Ruling on Retroactivity of Crack Cocaine Sentencing Reform (October 1, 2021)

House Judiciary Committee, Bipartisan Judiciary Committee Members Introduce Legislation to Clarify Retroactivity of Crack Cocaine Sentencing Reform (October 1, 2021)

– Thomas L. Root

Happy New Year! – Update for October 4, 2021

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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.

WE’RE BA-A-A-CK…

happynewyear211004… the nine Supreme Court justices will say this morning, the first Monday in October and the first day of the Court’s new year. The high court begins its new term – which lasts until June 30, 2022 but is known as “October Term 2021” – with hearing arguments on one federal criminal issue and granting review to another.

First, the grant of certiorari. Last week at its annual “long conference,” where the Court disposed of over 1,200 petitions seeking review of lower court decisions, the Supremes granted review to a First Step Act case. Back when Congress passed the Fair Sentencing Act of 2010 to reduce the disparity crack and powder cocaine sentences, it did not make the Fair Sentencing Act retroactive to the thousands of crack sentences already imposed.

In Section 404 of the 2018 First Step Act, Congress granted retroactivity at the discretion of the defendant’s sentencing judge, but did not specify any standards for the judge to apply in deciding whether to reduce a sentence. The question raised in Concepcion v. United States is whether, when a court is deciding whether to resentence a defendant under the Fair Sentencing Act, the court must or may consider intervening developments (such as prison record or rehabilitation efforts), or whether such developments only come into play (if at all) only after courts conclude that a sentence reduction is appropriate.

FSAsplit190826

The 3rd, 4th, 10th, and DC circuits have held that district courts must consider all subsequent facts, and not just the changes to statutory penalties, when conducting Fair Sentencing Act resentencings. But in the 1st, 2nd, 6th, 7th and 8th circuits are only required to adopt the revised statutory maximum and minimum sentences for crack cocaine spelled out in the Fair Sentencing Act. In the 5th, 9th, and 11th circuits, district courts are prohibited from considering any intervening case law or updated sentencing guidelines, and are not required to consider any post-sentencing facts during resentencings.

Don’t expect a decision before June 2022.

Now, for today’s argument. The Supreme Court will begin its term hearing argument in Wooden v United States. Defendant Wooden broke into a storage facility and stole from 10 separate storage units many years ago. When he was found in possession of a gun years later, the district court sentenced him under the Armed Career Criminal Act to 15 years, because it found that he committed three violent offenses – the breaking into the 10 storage units – “on occasions different from one another.” The Court of Appeals agreed, arguing that the crimes were committed on separate “occasions” because “Wooden could not be in two (let alone ten) of [the storage units] at once.”

BettyWhiteACCA180503This has long been the worst aspect of the ACCA, itself as well-meaning but lousy law. A number of circuits hold that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously.” Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.

The Supreme Court will resolve the Circuit split. A decision is expected early next year, and – if the Court agrees defendant Wooden, a number of people serving ACCA sentences may be filing 28 USC § 2255 or 28 USC § 2241 petitions seeking reduced sentences.

Wooden v. United States, Case No. 20-5279 (Supreme Ct., argued Oct 4, 2021)

Concepcion v. United States, Case No. 20-1650 (Supreme Ct., certiorari granted Sep 30, 2021)

Law360, Supreme Court Will Seek To Solve Crack Resentencing Puzzle (September 30, 2021)

SCOTUSBlog.com, What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer. (October 1, 2021)

– Thomas L. Root

Police Reform Goes Down; EQUAL Act May Be Next – Update for September 27, 2021

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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.

NO GOOD NEWS ON CRIMINAL JUSTICE REFORM

good-bad-news-400pxDemocratic and Republican negotiators in the Senate last Wednesday called off talks aimed at overhauling police tactics and accountability, with the lawmakers unable to reach a compromise in the wake of nationwide protests sparked by the killings of Black Americans by law-enforcement officers.

Sen. Cory Booker (D-NJ) said, “In the end we couldn’t do it, if you just take some of those issues of transparency, professional standards and accountability, we couldn’t get there.”

The implications for criminal justice reform are significant. If the two parties can’t get together on reforms most everyone believes are needed, other reform measures could be stillborn. Last week, Sen Charles Grassley (R-Iowa) – one of the two sponsors of the First Step Act – said that the EQUAL Act, which will reduce penalties for crack to match those for powder cocaine, doesn’t have enough support in the Senate to pass. Attempting to eliminate the disparity, Grassley said last week, would jeopardize the likelihood he and Sen. Richard Durbin (D-Illinois) can get the 60 votes needed to bring the justice reform bills to the floor. Among Republican colleagues, it’s a non-starter, he said.

compromise180614“Does that mean that there’s not some possibility for compromise? I would be open to that, but I’m going to have to get enough Republicans to go along to make sure we don’t scuttle the other good provisions we have,” Grassley said.

Although optimistic about prospects for his justice reforms, such as the First Step Implementation Act and the COVID-19 Safer Detention Act, Grassley acknowledged the looming challenge is “dealing with all the other things that are on the agenda right now and have been all year.” He anticipates Democratic Senate Majority Leader Chuck Schumer (D-NY) will give Durbin and him time to debate and pass their package this fall. “But with the progress of negotiations and floor time and all the other stuff that’s in the news more often than this is, I think it could be delayed into 2022,” Grassley said.

Grassley’s realistic appraisal is in stark contrast to the hopeful tone in yesterday’s New York Daily News. William Underwood, whose life sentence was cut by compassionate release and who now works with The Sentencing Project, wrote that while “bipartisanship on Capitol Hill is in short supply these days, these bills can pass the Senate with broad support from both parties. Passing these two bills would acknowledge that each and every one of us, when given the opportunity, can be better than the worst thing we have ever done.”

marijuana160818One piece of hopeful news came last week with the House of Representatives passing the National Defense Authorization Act. Tucked into that bill were provisions of the SAFE Banking Act, which would protect banks by prohibiting regulatory actions to keep them from servicing legitimate marijuana businesses. Passage suggests that action to normalize the sale and use of marijuana may continue, and lead to retroactive changes in federal criminal pot laws.

Wall Street Journal, Bipartisan Police-Overhaul Talks End With No Deal (September 22, 2021)

Sioux City Journal, Grassley skeptical of GOP support for cocaine penalty reforms (September 20, 2021)

Marketwatch, House includes cannabis banking measure in defense bill (September 22, 2021)

New York Daily News, Bend Open the Prison Bars (September 26, 2021)

– Thomas L. Root

Nothing Extraordinary about a 312-Year Robbery Sentence, 3rd Circuit Says – Update for September 8, 2021

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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 LARGELY UGLY COMPASSIONATE RELEASE DECISION FROM THE THIRD CIRCUIT

guns200304The 3rd Circuit last week joined eight other federal circuits in holding that an inmate-filed compassionate release motion is not limited by the Sentencing Guidelines § 1B1.13 policy statement. That was the good news, the only good news.

Eric Andrews is serving a 312-year sentence for a string of armed robberies, with almost all of that time due to stacked 18 USC § 924(c) convictions. If he had been sentenced after passage of the First Step Act, his § 924(c) sentences would have amounted to 91 years, still impressive but possibly a survivable sentence. But because the First Step changes were not retroactive, Rick’s only course was to file a compassionate release motion under 18 USC § 3582(c)(1)(A)(i) arguing that his excessive sentence length and the First Step Act changes were the “extraordinary and compelling reasons” supporting grant of the motion.

The district court denied Rick, and last week, the 3rd Circuit agreed.

The appeals court held that “the duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance… Considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties.”

41475-Forever-Is-A-Long-TimeLikewise, the 3rd ruled, a nonretroactive change to mandatory minimums “cannot be a basis for compassionate release. In passing the First Step Act, Congress specifically decided that the changes to the 924(c) mandatory minimums would not apply to people who had already been sentenced.” Applying rules of statutory construction to the First Step Act, the Circuit said, “we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release. Such an interpretation would sow conflict within the statute… We join the 6th and 7th Circuits in reaching this conclusion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, makes a telling point:

The very first sentence of the Andrews ruling has a Kafka-esque “only in America” quality to it: “Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen.” That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way. Specifically, as described by the panel opinion, the district court decided that “the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law.” Of course, there is no statutory text enacted by Congress that sets forth this “as a matter of law.” But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorical exclusions “as a matter of law” regarding what might qualify as extraordinary and compelling.

noquorum191016The Second, Fourth, Fifth, Ninth and Tenth Circuits have held the contrary to this opinion, which perhaps puts some wind in Thomas Bryant’s pending petition to the Supreme Court for review of the 11th Circuit’s denial of his compassionate release motion. That petition is ripe for decision at the end of this month at the Supreme Court’s “long conference.” Of course, a reconstituted Sentencing Commission could solve this circuit split by rewriting USSG § 1B1.13, but that would require that the Sentencing Commission first be repopulated with new members. President Biden has thus far shown no more interest than did his predecessor in appointing new members. By December, the Commission will have been without a quorum for three years.

United States v. Andrews, Case No 20-2768, 2021 US App LEXIS 26089 (3d Cir. August 30, 2021)

Sentencing Law and Policy, Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A) (August 30, 2021)

– Thomas L. Root

Two Circuits Liberalize Fair Sentencing Act Reductions – Update for August 24, 2021

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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.

TWO FAIR SENTENCING ACT CASES GO FOR THE PRISONERS

Last week saw two unsurprising but welcome Fair Sentencing Act decisions.

In the 11th Circuit, Tony Gonzalez was serving a 51-month supervised release sentence. Originally convicted in 2005, Tony served 76 months for a crack cocaine conviction. Released in 2015, he got tripped up on substance abuse during his supervised release term and was sent back to prison.

addiction210825Tony filed for a Fair Sentencing Act retroactive sentence reduction based on § 404 of the First Step Act. His district court denied him for a couple of reasons, one of which was that he wasn’t currently serving a sentence for crack cocaine, but instead for violating his supervised release.

Last week, the 11th joined the 4th and 6th Circuits “in holding that a sentence imposed upon revocation of supervised release is eligible for a sentence reduction under § 404(b) of the First Step Act when the underlying crime is a covered offense within the meaning of the Act… Thus, the district court had the authority to consider his motion for a sentence reduction just as if he were serving the original custodial sentence. So Mr. Gonzalez is eligible for a sentence reduction under the First Step Act.”

Meanwhile, in the 8th Circuit, Jack Robinson – who was doing life for a crack offense in which he had been tagged for over 2 kilos of crack – had been denied a Fair Sentencing Act reduction by his district court. The district judge ruled that “Robinson would have been subject to the same mandatory life sentence had the Fair Sentencing Act been in effect at the time he committed the covered offense… because the revised version of § 841(b)(1)(A)(iii) provided for a mandatory life sentence if the defendant was convicted for 280 grams or more of crack cocaine and had two or more prior felony drug offense convictions,” and thus reasoned that the court was deprived “of the discretion to reduce Robinson’s sentence under the First Step Act.”

Last week, the 8th Circuit reversed. “This reasoning is contrary to the principle that the First Step Act applies to offenses, not conduct,” the Circuit said, meaning that Jack’s statutory “sentencing range under the First Step Act is dictated by the movant’s offense of conviction, not his relevant underlying conduct… Therefore, Jack’s offense of conviction — not the underlying drug quantity — determines his applicable statutory sentencing range.

life161207At his initial sentencing, Jack faced a mandatory term of life imprisonment because he was convicted and sentenced for conspiracy to distribute at least 50 grams of crack and because he had two prior drug felonies. “Under the Fair Sentencing Act,” the Circuit said, “the statutory sentencing range for his conspiracy to distribute 28 grams or more of crack cocaine, including his prior convictions, is now not less than 10 years and not more than life. Thus, the district court erred as a matter of law when it relied on the sentencing court’s drug quantity finding of 2.35 kilograms of crack cocaine to determine Jack’s applicable statutory sentencing range under the Fair Sentencing Act and the First Step Act.”

United States v. Gonzalez, Case No 19-14381, 2021 U.S.App. LEXIS 24765 (11th Cir., August 19, 2021)

United States v. Robinson, Case No 20-1947, 2021 U.S.App. LEXIS 24603 (8th Cir., August 18, 2021)

– Thomas L. Root

Who Knows What Joe’s Thinking? – Update for August 17, 2021

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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.

ADMINISTRATION HINTS AT DRUG CLEMENCY (MAYBE)

Biden Press Secretary Jen Psaki started hearts and tongues fluttering last week when she said the Administration was looking at clemency for federal drug offenders.

clemencypitch180716“The president is deeply committed to reducing incarceration and helping people successfully reenter society,” Psaki said in a press briefing. “And he said too many people are incarcerated — too many are black and brown — and he’s therefore exploring multiple avenues to provide relief to certain nonviolent drug offenders, including through the use of his clemency power.”

As a candidate, Biden said in 2019 that he wanted to release “everyone” in prison for marijuana, but Psaki has referred questions on whether he will do so to the Justice Department, saying last April it was “a legal question.”

The New York Post reported that “Psaki’s remark thrilled clemency advocates who have been pushing for Biden to commute prison sentences and issue pardons early in his term, which is uncommon for presidents. Clemency advocate Amy Povah said, “We are elated that President Biden has expressed an interest in using his executive clemency power with an emphasis upon drug cases.”

caresbear210104Meanwhile, other advocates feel frustrated that Biden has done nothing on a matter as small as addressing the status of people on CARES Act home confinement. Last Wednesday, Senators Richard Durbin (D-Illinois) and Cory Booker (D-New Jersey) wrote to President Biden, urging him to act on keeping CARES Act home confinees at home. They suggested, in part, that the Bureau of Prisons could “provide relief for certain individuals through prerelease home confinement, under 18 USC § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 USC 6054l(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 USC § 3582(c)(l)(A). Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.”

Reuters last week reported that the Justice Department had asked an Oregon federal judge on Tuesday to deny a bid by federal inmates to qualify for early release through First Step earned time credits. Prosecutors argued that no programs or activities completed by the inmates qualified for earned time credits.

Reuters said, “The rift could increase pressure on the Justice Department, which is under fire from civil rights advocates for its inaction to prevent BOP from sending thousands of federal inmates back to prison once the pandemic emergency is lifted.”

At issue is a provision from the 2018 First Step Act, which aims to ease harsh sentencing for non-violent offenders and reduce recidivism. The BOP may award 10 or 15 days’ credit for every 30 days of participation in recidivism-reduction or activities such as academic classes or certain prison jobs.

In a November 2020 proposed rule, the BOP defined a day of participation as eight hours and limited the menu of qualifying programs.

recid160321One issue is the BOP’s definition of a day of participation as 8 hours. “The math speaks for itself,” federal defenders wrote in a January 2021 letter to BOP. “It would take 219 weeks, or over 4 years to earn a full year of credit under the BOP’s proposed rule.”

In Tuesday’s case, the lead plaintiff has held prison jobs such as a painter and an HVAC worker and completed courses such as anger management, entrepreneurship, and a residential drug abuse program. But the government argued that none of those programs is on the BOP’s EBRR program list.

“If HVAC work doesn’t qualify, what kinds of jobs do?” asked Magistrate Judge John Acosta, noting the program’s goal of reducing recidivism and facilitating reintegration into society.

“The ones that are identified by the Bureau of Prisons,” AUSA Jared Hager replied, noting the inmates have “not shown entitlement to any credit.” The list of qualifying programs and activities will be updated by Attorney General Merrick Garland, he added.

Similar suits are on file in federal courts throughout the country.

Finally, JDSupra.com reported last week that Senate Majority Leader Chuck Schumer (D-New York) has partnered with Senate Finance Committee Chairman Ron Wyden (D-Oregon) and Sen Booker to draft comprehensive federal cannabis reform legislation, which the sponsors plan to introduce this fall.

marijuanahell190918The measure, called the Cannabis Administration and Opportunity Act (the CAOA), would – among other matters – would require the federal government to expunge any arrest or conviction for a non-violent federal cannabis offense, and allow any person serving a criminal justice sentence for a non-violent federal cannabis offense to move for sentence reduction. After the hearing, the court would be required to expunge each arrest, conviction, or adjudication for a non-violent federal cannabis offense.

The drafting of the bill is in its early stages. The sponsors are actively soliciting comments prior to CAOA’s introduction. Comments may be submitted through September 1, 2021, at Cannabis_Reform@finance.senate.gov.

New York Post, Biden ‘exploring’ clemency for federal drug crimes, Psaki says (August 11, 2021)

Letter from Senators Durbin and Booker to President Biden (August 12, 2021)

Reuters, U.S. Justice Dept clashes with inmates over credits to shave prison time (August 10, 2021)

JDSupra.com, US Senators Seeking Input on Comprehensive Federal Cannabis Reform Legislation (August 11, 2021)

 

– Thomas L. Root