Tag Archives: FIRST STEP Act

Concepcion’s Concept: Discretion on Resentencing is Presumed – Update for June 29, 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.

DOES CONCEPCION HOLD LESSONS FOR COMPASSIONATE RELEASE?

The Supreme Court ruled on the final two criminal cases of the term on Monday (although there are six more October Term 2021 cases yet to be decided before the end of the week).

crack-coke200804Back in 2009, Carlos Concepcion pled guilty to distributing at least five grams of crack cocaine, and was sentenced to 228 months in prison. The following year, Congress passed the Fair Sentencing Act, which brought crack sentences more in line with powder cocaine sentences, down from a 100:1 ratio to an 18:1 ratio.

But the Fair Sentencing Act was not retroactive, so people sentenced before it was passed – like Carlos – could not benefit from it. Only when the First Step Act (FSA) passed in 2018 were the benefits of the Fair Sentencing Act extended to the Carlos Concepcions of the world.

Under FSA § 404, Carlos was entitled to apply to his sentencing court for resentencing at a lower level. Like most inmates – whose resources are only sufficient to pay for some telephone calls home and a few items in the commissary – Carlos could not afford a lawyer, so he filed pro se.

careeroffender22062Complicating Carlos’s case was the fact that under the advisory Sentencing Guidelines, he was deemed to be a career offender. Career offender status, a label that is easily applied to people who have hardly spent their lives as a criminal, sends a defendant’s minimum sentencing range guideline into low earth orbit. Carlos’s range was no exception. Under the statute, Carlos faced a minimum 5-year sentence, but his advisory sentencing range as a Guidelines career offender started at 17½ years.

The government argued that Carlos’s Guidelines sentencing range did not change despite the fact that the Fair Sentencing Act lowered his minimum sentence to zero, because the career offender guidelines were not based on drug amount or statutory minimum sentences. Carlos responded that he should no longer be considered a career offender because one of his prior convictions was vacated and his prison record showed evidence of rehabilitation through his participation in drug and vocational programs, spiritual growth, and a solid reentry plan.

Carlos’s sentencing judge sided with the government, holding that because Carlos’s sentencing range remained the same, Carlos could not rely on the Fair Sentencing Act for a lower sentence.

Last Monday, the Supreme Court ruled in favor of Carlos. Justice Sonia Sotomayor, writing for a 5-4 majority, said that “Federal courts historically have exercised… broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”

discretion220629Congress did nothing in the First Step Act to “contravene this well-established sentencing practice,” Sotomayor said. “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, argues that the Concepcion ruling has an impact well outside the seemingly limited FSA Sec. 404 resentencing. “Specifically,” he wrote, “I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.

Berman noted:

There is a deep circuit split about whether non-retroactive changes in sentencing law may constitute “extraordinary and compelling reasons” for compassionate release. Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute ‘extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise. And yet, this language from the Supreme Court’s opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained…

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution….

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much…. Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

Berman argues that the Supreme Court’s language about a sentencing judge’s broad discretion “when considering a sentence modification is directly relevant to federal judges’ consideration of so-called compassionate release motions.”

compassion160124There is nothing in 18 USC § 3582(c)(1)(A)(i) (the statute on sentence reductions, generally if inaccurately known as “compassionate releases”) that in any way limits a judge in what he or she may consider in fashioning a lower sentence, or for that matter, in deciding whether to impose a lower sentence at all. That should be game, set and match for the issue of the limits of a court’s discretion on deciding a compassionate release motion.

One interesting twist: the Sentencing Commission will soon be reconstituted, and it seems clear that the new commissioners consider rewriting U.S.S.G. § 1B1.13 – the Guidelines policy statement on compassionate releases – as job one. If a rewritten § 1B1.13 limits a sentencing court’s discretion in granting or denying a compassionate release motion, would such a limitation be one “set forth by Congress in a statute or by the Constitution?” Sentencing Guidelines must be submitted to Congress, but go into effect unless the Senate otherwise directs. And the compassionate release statute requires a sentencing judge to ensure that any sentence reduction “is consistent with applicable policy statements issued by the Sentencing Commission.”

But that’s a question for another time (specifically, after a new § 1B1.13 goes into effect, which probably will not be before November 2023. For now, movants for compassionate release would do well to apply Prof. Berman’s broad interpretation of Concepcion’s holding.

Concepcion v. United States, Case No 20-1650, 2022 U.S. LEXIS 3070 (June 27, 2022)

ABA Journal, In unusual lineup, SCOTUS rules for pro se prisoner who sought lower sentence under First Step Act (June 27, 2022)

Sentencing Law and Policy, SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors (June 27, 2022)

– Thomas L. Root

Supreme Court’s Final Days Include Criminal Decisions – Update for June 20, 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.

BIG CRIMINAL DECISIONS STILL PENDING WITH ONLY TWO WEEKS OF SCOTUS TERM LEFT

The Supreme Court held two opinion days last week, but the most-watched criminal cases – United States v. Taylor, Concepcion v. United States and Ruan v. United States – remain among the 18 opinions yet to be issued before the Court’s term ends on June 30.

scotus161130Most people expect the two “big” cases, New York State Rifle & Pistol Assn v. Bruen (a 2nd Amendment case) and Dobbs v. Jackson Women’s Health Organization (the possibly-leaked abortion decision) to happen on the last day. But Taylor, which concerns whether an attempted offense that would be a “crime of violence” for application of 18 U.S.C. § 924(c) – the mandatory consecutive sentence for using a gun – is a “crime of violence” if it is only attempted but not completed – has been hanging around for six months since its December argument. Concepcion, which concerns proper resentencing considerations in First Step Section 404(b) resentencing, and Ruan, which considers physician liability under 21 USC 841(a), was argued in the Court’s February sitting.

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that “the standard and ready explanation, of course, for why decisions in Taylor and Conception may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions. And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the “standard” ideological lines.”

rules201202The only case of interest to defendants last week was Kemp v. United States. In that case, petitioner Dexter Kemp filed a 28 USC 2255 motion in 2015. The District Court dismissed the motion as untimely, and Dix did not appeal. But three years later, he sought to reopen his 2255 under Federal Rule of Civil Procedure 60(b)(1) and (6), rules which permit a court to reopen an otherwise final judgment if certain conditions are met. A 60(b)(1) motion has to allege that a mistake was made, and must be filed within a year, Relief under Rule 60(b)(6) for any other just reason can be filed at any time, but is available only when the other grounds for relief specified in the Rule don’t apply.

Dex was right that the District Court had goofed on dismissing his § 2255 motion as untimely. In a just world, his § 2255 should be reopened, and that would be that. But in the real world, it’s not that easy.

The Supreme Court held that a judge’s error of law is a “mistake” within the meaning of Rule 60(b)(1), meaning that Dex’s motion fit under Rule 60(b)(1). Subject to the Rule’s one-year limitations period, Dex’s motion was late and had to be dismissed as untimely.

Sentencing Law and Policy, Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases? (June 13, 2022)

Kemp v. United States, Case No. 21-5726, 2022 U.S. LEXIS 2835 (June 13, 2022)

– Thomas L. Root

ETC FUBAR at BOP, As New Director Search Finally Over – Update for June 16, 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.

BOP: DON’T CALL US, WE’LL CALL YOU ON EARNED TIME CREDIT CALCULATION

If there is a common refrain in emails coming into this Newsletter in the past several months, it is that inmates are not getting their earned-time-credit calculations from their Unit Teams.

don'tcallus220616A recap: The First Step Act authorized the award of credits to inmates who successfully complete programs that have been found to reduce recidivism. The acronym-crazy government calls them “EBRRs,” that is, “evidence-based recidivism reduction” programs. Inmates could receive “earned time credits” (ETCs) that will reduce their prison time up to a year, grant them more halfway house or home  confinement, and even get them more phone time and commissary.

(Confusingly, the government called ETCs “FTCs” for awhile – “federal time credits” – but seems to have settled on the preferred terminology now).

Inmates are classified using a system called PATTERN according to their likelihood of recidivism.  As they complete programs, age, and behave, their PATTERN score decreases, increasing the number of ETCs they may receive.

So all is roses in the BOP. Inmates are happily earning ETCs, the staff is contentedly helping prisoners forsake their prior evil ways…

FUBAR220616Right. In fact, implementation of ETCs (and awarding time off) is becime a FUBAR.

Last week, Walter Pavlo reported in Forbes on an internal BOP memo acknowledging the frustration:

Institutions are likely getting a lot of calls from outside family members and/or questions from the inmates themselves. We ask that you refrain from referring inmates or their family members to the DSCC or Central Office. As we move toward a fully automated auto-calculation process for the calculating and awarding of FTCs, neither the DSCC nor the Corrections Programs Branch are directly involved in the process.

Forbes said the memo directed institutions to give inmates and their family members a “canned response” asking “for their patience” during the implementation of an automated credit calculation system:

While all eligible inmates are able to earn credits, the Agency is prioritizing those inmates who are within 24 months of their Statutory Release date and eligible to both earn and apply Federal Time Credits. The Agency is in the final stages of development and testing of an auto-calculation app, and once finalized all eligible inmates will have their records updated and the Federal Time applied consistently with the Federal Rules language.

Late breaking news: The BOP has finally found someone who will admit to being considered for the director’s slot, replacing Michael Carvajal (whom Sen. Richard Durbin [D-IL] wants to usher into retirement as quickly as possible). 

Could MIke Carvajal finally be leaving the building?
Could MIke Carvajal finally be leaving the building?

The Oregon Capital Chronicle reported yesterday that Colette Peters, director of Oregon’s prison system, confirmed to the paper that she is a finalist for the BOP Director’s job.

She has been director of the Oregon Department of Corrections since 2012, where she is in charge of  4,400 employees and 12,124 prisoners.

As director of the Oregon prison system, she changed the agency’s reference to “inmates.” Oregon’s prisoners became “adults in custody.”

Forbes, As Biden Touts Action On First Step Act, Federal Prisoners Await Action From Bureau Of Prisons (June 4, 2022)

Oregon Capital Chronicle, Oregon’s prison director a finalist to lead federal prison system (June 15, 2022)

– Thomas L. Root

Supremes Burning Midnight Oil To Finish Term – Update for June 8, 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.

SUPREME COURT FACES HISTORIC BACKLOG IN FINAL MONTH OF TERM

The Supreme Court – waiting until the bitter end to do the largest share of its work in more than 70 years – has scheduled a rare second opinion day for today.

scotus161130At 10 am, the Court will issue one or more opinions. It still has a lot to choose from.

The court is scheduled to hand down 30 more opinions, 48% of its expected total in argued cases, as its 2021-22 term ends in slightly more than three weeks. While most people are awaiting rulings that could hold that abortion is not a constitutional right but carrying a concealed gun is, there are five decisions of particular interest to federal inmates and defendants:

• Concepcion v. United States, Case No. 20-1650. Issue: Whether, when deciding if it should “impose a reduced sentence” under Section 404(b) of the First Step Act (Fair Sentencing Act retroactivity), a district court must – or even may – consider intervening legal and factual developments.

• Ruan v. United States, Case No. 20-1410. Issue: Whether a physician charged with prescribing controlled substances outside the usual course of professional practice may be convicted under 21 USC § 841(a)(1) without regard to whether, in good faith, he or she “reasonably believed” or “subjectively intended” that the prescriptions fall within that course of professional practice.

• United States v. Taylor, Case No. 20-1459: Whether 18 USC § 924(c)’s “crime of violence” definition excludes attempted Hobbs Act robbery (which could end up excluding all attempted crimes of violence from being predicates for § 924(c) offenses).

• Egbert v. Boule, Case No. 21-147: Whether one can sue a federal officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims.

• Kemp v. United States, Case No. 21-5726: Whether F.R.Civ.P. 60(b)(1) authorizes relief based on a district court’s error of law.

scotussplit190627The Supreme Court typically announces opinions on Monday, but as June progresses, more second opinion days like today are likely.

Supreme Court Faces Historic Case Backlog as Fractious Term Comes to an End (June 1)

The New York Times, We preview the five biggest rulings expected from the Supreme Court in the next few weeks (June 8, 2022)

– Thomas L. Root

Earned Time Credits Just Got Easier to Spend – Update for June 7, 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.

PATTERN CHANGES MAKE MANY MORE ELIGIBLE FOR CREDITS

In April, the Dept of Justice told Congress that it would roll out a new version of the PATTERN recidivism risk measurement system in May, one that contained adjustments it said would improve accuracy and possibly benefit up to 33,000 federal prisoners.

Nothing has been publicly announced since, although a lot of inmates have reported that their categories were changing while their PATTERN point scores were not. A hard-to-find report by the Attorney General I obtained last week confirmed that while no scoring categories have changed in the revised PATTERN system – known as PATTERN 1.3 – the cut points did.

PATTERNsheet220131Cut points are crucial, being the level at which an inmate’s recidivism rating changes from “minimum” to “low,” from “low” to “medium,” and from “medium” to “high.” Because the First Step Act generally does not let anyone with a “medium” or higher risk level cash in earned time credits (ETCs), a prisoner’s level can make a difference of up to a year on sentence length, and enhanced home confinement or halfway house.

It is now harder for a male to be a PATTERN “minimum” – the former cut point of “8 or less” fell to a new cut point of “5 or less” – although the female “minimum” cut point rose from “5 or less” to “7 or less.” But the big change is from “low” to “medium.”

The former male cut point between “low” and “medium” rose from 30 to 39. The women’s “low to medium” cut point jumped from 31 to 38. The former “medium to high” cut point went from 44 to 55 for males and 31 to 53 for females.

Under the old PATTERN, 40% of males were “minimum” or “low.” Under PATTERN 1.3, that number jumped to 68%. Female “minimums” and “lows” increased from 78% to 86%. The PATTERN 1.3 changes made 33,070 more inmates eligible to use their ETCs.

cutpoints220607PATTERN is still criticized by some commentators for being insufficiently dynamic, meaning that too much of what goes into scores – like age and criminal history – cannot be changed despite a prisoner’s best efforts. The DOJ report asserted that “PATTERN 1.3 displays dynamic validity… Across the four gender/recidivism tools examined, approximately 25 to 35% of individuals had a lower [risk] designation during their last assessment compared to their first, and between 3 and 5% had a higher risk designation.” The DOJ position suggests that category changes in future PATTERN amendments are unlikely.

PATTERN 1.3 is a welcome change, but real problems with the First Step Act earned time credits remain. Writing in Forbes last week, Walter Pavlo reported that “according to insiders at the BOP, prisoners and former executive staff with connections to the current state of the BOP as it relates to the FSA, there is ‘mass confusion at every institution,”’ and that the Designation and Sentence Computation Center, the entity ultimately responsible for calculating sentence duration, is backed up and the programming is not in place for FSA. The result is that thousands of prisoners are incarcerated beyond their legal release date.”

bureaucrat200421Pavlo wrote that “BOP staff who have no official program statement to work from are spreading misinformation to prisoners. Many prisoners are being told that they do not qualify for FSA credits for a variety of reasons, [and] many those reasons are just not true. As a result, prisoners are not only confused but have no place to go to get clarification. Now, some are going to Court.”

DOJ, First Step Act Annual Report – April 2022

Forbes, First Step Act Inaction Keeps Federal Inmates In Prison (May 30, 2022)

– Thomas L. Root

Balancing Accounts For Unused ETC Credits – Update for June 2, 2022

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DYER STRAITS

Three and a half years ago, the First Step Act became law amid great fanfare. One of the many provisions that held great promise for all concerned was the incentive-based programming scheme, that would let federal inmates earn credits that reduced their sentences for successful completion of programs designed to address their needs.

Such a program would reduce recidivism by ex-felons, thus benefitting both them and society.

mismanagement210419Trust the Federal Bureau of Prisons to turn a high-minded program into a furball. The BOP required almost two years to propose detailed rules for the implementation of the “earned time credit” program, rules which – by the way – were draconian in their application and reasonably calculated to strangle the ETC program before it began.

It took another 14 months (and a new Administration) for the BOP to finally adopt the rules, which rules – mercifully enough – did an about-face from what was proposed. But those rules, which among other things retroactively credited inmates with credit back to the day the First Step Act passed, created a whole new raft of problems.

Problems for people like Doug Dyer.  Doug was on CARES Act home confinement in December 2021 when he filed a petition for habeas corpus, demanding immediate release due to the application of First Step Act earned-time credits to which he claimed entitlement. The BOP had not yet adopted the new rules, and predictably, told the judge that Doug had nothing coming.

nothingcoming181018But a month after Doug’s filing the BOP adopted the final ETC rules. Doug (and thousands of other inmates) were credited with 540 ETC days. The same day the rules were adopted, the BOP granted Doug immediate release from home confinement (51 days before his normal release date). The government then moved to dismiss the habeas corpus as being moot, because Doug had gotten what he wanted.

Doug opposed the government’s motion, arguing that because only he could only use 51 days of credit out of the 540 he was awarded, he should get to use the balance to reduce his supervised release time.

The district court agreed, reducing his supervised release by 489 days. The court ruled “the relevant statutory provision provides that ‘[t]ime credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in… supervised release’. 18 U.S.C. § 3632(d)(4)(C). Therefore, the unambiguous, mandatory language of the statute provides that earned-time credits may be applied to a term of supervised release.”

So Doug got a year and a half off his supervised release time (about half of what he was to serve).

I generally don’t criticize a good pro-prisoner decision like this one, but Doug’s court is just plain wrong. The Court hung its hat on 18 U.S.C. § 3632(d)(4)(C), which says

Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.

There's nothing like getting your facts straight, Your Honor ...
There’s nothing like getting your facts straight, Your Honor… or the law, for that matter.

The District Court read this to mean that ETCs could be used to reduce the period of incarceration or supervised release. But the remainder of the subsection not only makes it clear that the term “supervised release” is being used as the alternative to “prerelease custody,” and that the subsection is to be read with reference to 18 U.S.C. § 3624(g).

And here’s the problem. Subsection 3624(g)(3) authorizes the Director of the BOP to “transfer the prisoner to begin any such term of supervised release at an earlier date, not to exceed 12 months, based on the application of time credits under section 3632.”  It does not authorize the Director to reduce the term of supervised release at all.

Read in conjunction with § 3624(g)(3), it’s pretty clear that § 3632(d)(4)(C)’s reference to “shall be applied toward time in prerelease custody or supervised release” is intended to mean the three options the BOP has for applying ETC credits: more halfway house or home confinement (the “prerelease custody” option) or release from custody up to 12 months early to begin one’s supervised release.

puzzled171201Given that no statute authorizes the BOP to reduce a prisoner’s supervised release, it’s hard to figure how a district court can grant habeas corpus to in essence demand that the BOP do so.

No matter. Doug’s supervised release was cut in half. But I strongly doubt that this decision will influence any other district court to do the same for the small subset of inmates in Doug’s position.

The opinion has not been picked up by LEXIS.

Order (ECF 16), Dyer v. Fulgam, Case No. 1:21-cv-299 (E.D. Tenn. May 20, 2022)

– Thomas L. Root

PATTERN Changes Coming Next Month – Update for April 26, 2022

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PATTERN AMENDMENTS COULD BENEFIT THOUSANDS

The Dept. of Justice told Congress last week that it will soon roll out a new version of the PATTERN recidivism risk measurement system containing adjustments it says will improve accuracy, possibly benefitting up to 33,000 federal prisoners.

PATTERNsheet220131The modifications, which come after criticism was leveled at PATTERN last January for implicit racial bias, are intended to significantly increase the number of black and Hispanic men in prison who are eligible to take classes or productive activities that will result in them getting earn time credits (ETCs).

DOJ estimated that 36% more black men and 26% more Hispanic men might qualify as minimum or low risk under the change, with smaller increases for black and Hispanic women.

Even with the changes, DOJ admitted in last week’s report, it is still unable to resolve other racial disparities (such as continued overestimating the number of black women compared to white women who will commit new offenses after release).

DOJ told Congress that even after the anticipated release of a modified PATTERN early next month, it would continue to work “to ensure that racial disparities are reduced to the greatest extent possible.” That could be difficult. Most of that disparity, according to Melissa Hamilton, a law professor at the University of Surrey, results from what happens before prison and application of the PATTERN metrics. “When using factors with criminal history, prison discipline and education, the tool is almost inevitably going to have disparities — unless they correct for systemic biases in policing, prosecution, corrections, and education,” she said.

Hamilton told a House oversight committee last January that up to 11% of male and 10% of female inmates have been assigned wrong risk categories due to errors in PATTERN:

• PATTERN was designed to score risk factors at release instead of at the time of assessment. For example, if a 39-year-old man comes in for a 15-year sentence, he has an age risk factor of 21. But PATTERN should assess his age at release (52 years old), which is only 7. The difference is 14 points.

• PATTERN disproportionately predicts higher. Hamilton said, “a choice has been made to design PATTERN to perform far less accurately when predicting those who are at higher risk… placing too many individuals into the higher risk groupings.”

• PATTERN “overpredicts the general risk for African Americans, Hispanic Americans, and Asian Americans, while it underpredicts for Native Americans.”

Hamilton told the Subcommittee in January that “the various errors meant that 37 out of the possible 60 items (almost two-thirds of them) had been incorrectly weighted” in the PATTERN risk assessment. NPR previously reported that “about 14,000 men and women in federal prison… wound up in the wrong risk categories. There were big disparities for people of color.” As well, NPR uncovered sloppy math mistakes and other flaws that put thousands of prisoners in the wrong risk category and treated them differently in part because of their ethnic backgrounds.

recid160321The DOJ’s report to Congress last week puts the best face on PATTERN possible. It said, for example, that “individuals are capable of changing risk scores and levels during confinement. And importantly, these changes relate to recidivism outcomes (i.e., individuals who reduced their risk scores and levels from first to last assessment were generally less likely to recidivate).” Yet the PATTERN scorecard assigns big scores for age and criminal history, scores that either never change or change only with the passage of years. A 21-year-old with one prior felony conviction starts out with a PATTERN score of 38 (a “medium” score). Wrestling that score down by taking programs is not easy.

While admitting that some minority groups are “overpredicted,” DOJ nonetheless crowed that the new PATTERN adjustments “show relatively high predictive accuracy across racial and ethnic groups. That is, the risk scores predict recidivism well for white, Black, Hispanic, Native American, and Asian individuals.”

Of course, that’s what DOJ said when PATTERN was first unveiled in July 2019.

NPR said last week that “only low and minimum-risk prisoners are eligible for those programs, so how the Bureau of Prisons assesses risk has major consequences for their lives and their release plans.” In fact, tucked into 18 USC § 3624(g)(1)(B) is a provision that would let a medium or high PATTERN inmate use credits if he or she “has shown through the periodic risk reassessments a demonstrated recidivism risk reduction… during the prisoner’s term of imprisonment.”

bureaucrat200421But the BOP would have to exercise bureaucratic discretion to grant a medium or high PATTERN inmate early release or more halfway house/home confinement. God forbid a bureaucrat would risk such a thing. Given that no one has even talked about this alternative award of credit, the chance that any BOP employee would argue for giving a medium/high inmate the right to case in credits is pretty remote.

DOJ told Congress it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for “public safety.” Instead, the department says it will be shifting the boundaries between other risk levels for its general recidivism algorithm.

In the new report to Congress, DOJ again expressed support for the Senate to advance the EQUAL Act (S.79), legislation that would equalize sentencing penalties for crack and powder cocaine.

NPR, Justice Department works to curb racial bias in deciding who’s released from prison (April 19, 2022)

National Institute of Justice, Predicting Recidivism: Continuing To Improve the Bureau of Prisons’ Risk Assessment Tool, PATTERN (April 19, 2022)

Sentencing Law and Policy Blog, Justice Department tweaking prison PATTERN risk tool “to ensure that racial disparities are reduced to the greatest extent possible” (April 19, 2022)

Legal Information Services Associates, Is PATTERN Dooming First Step Programming? – Update For January 31, 2022

– Thomas L. Root

EQUAL Act But Unequal Reform? – Update for April 21, 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.

EQUAL ACT MAY BE ALL WE GET

Congress was recessed all last week and for part of this one, so no legislative progress was made on the EQUAL Act (S.79), the MORE Act (H.R. 3617), or – for that matter – anything else. But nothing can stop politicians from talking, even during vacations.

crack-coke200804The good news is that all of the talk about EQUAL – which makes crack sentences equal to cocaine powder sentences – suggests it has the support for passage. The only question is when Senate Majority Leader Chuck Schumer (D-NY) will bring it up for a vote. While the Judiciary Committee held a hearing on the crack-cocaine disparity bill last year, it has yet to schedule a markup.

The bad news is everything else. Politico ran an analysis last week reporting that Sens Richard Durbin (D-IL) and Charles Grassley (R-IA), the top Democrat and Republican on the Senate Judiciary Committee, are still talking about a merger of bills such as the First Step Implementation Act (S.1014), the Smarter Sentencing Act (S.1013), and the COVID-19 Safer Detention Act (S. 312) into a single narrow follow-up bill amending the First Step Act, Durbin and Grassley are calling a Second Step Act. 

“But both senior senators acknowledge it’s not a glide path forward,” Politico said, “particularly given the GOP messaging on rising crime ahead of the 2022 midterms — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.”

Jackson was blasted last month by a few Republican senators for being too soft on sentencing child sex abuse and drug offenders. “One of the most important consequences of these confirmation hearings is there are district judges across the country who may have ambitions for elevations,” Sen. Ted Cruz (R-TX), who led the charge against Judge Jackson, told CNN. Any judges looking for future promotions “are going to think twice about letting violent criminals go or giving them a slap on the wrist, rather than following the law and imposing serious sentences for those who have committed serious crimes.”

snake220421[Editor’s note: While it is correct that Cruz has been described by one conservative columnist as being “like a serpent covered in Vaseline” who “treats the American people like two-bit suckers in 10-gallon hats,”  some maintain that there are good snakes in Texas (but Sen. Cruz is not on their list).]

Far from the only effect, the Jackson hearings have also “dampened the interest in doing what we call the Second Step Act, but we’re still seeing what can be worked out,” Grassley said in a brief interview. He added that if Democrats agree to certain provisions related to law enforcement, “that might make it possible to get something done.”

Meanwhile, Durbin said he’s concerned about a Second Step Act’s prospects for passage, ‘particularly given Republican accusations during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime. The Judiciary chair ranked criminal justice as high on his list of priorities, though he said legislation addressing crime and law enforcement “may be just as challenging as immigration” — a famously tough area of bipartisan compromise on Capitol Hill.

Durbin and Grassley both think a Second Step Act is needed to implement sentencing changes in the First Step law by making them retroactive, midterms are coming up in a little more than 6 months and “campaign-season politics surrounding criminal justice reform threaten broader GOP support. While some lonely voices are calling for passage of such a bill, with Democrats in control of the White House and both houses of Congress, expect a cacophony of Republicans claims that Democrats are to blame for rising crime rates. That should make sentencing changes that much harder, Politico said.

Senate aides on both sides of the aisle warn that EQUAL could still face a challenging path to final passage, including a potentially arduous debate over amendments. Republicans who oppose the bill would almost certainly want to force vulnerable Senate Democrats to take tough amendment votes amid reports of rising violent crime in major cities and the approaching November election. Even Grassley, who is not a co-sponsor but is unapologetically pro-reform, has outlined concerns about whether EQUAL could garner enough Republican support in the Senate to pass.

cotton190502So the climate for criminal justice reform is getting ugly. Once, only Sen Tom Cotton (R-Ark) (who calls First Step Trump’s biggest mistake) demanded longer sentences. Last week, mainstream Newsweek magazine ran an opinion piece claiming that “America, in the year 2022, does not suffer from an over-incarceration problem. On the contrary, we suffer from an under-incarceration problem.” The column called on Congress to end “the jailbreak of slashed sentences and the broader civilizational suicide of the ‘criminal justice reform’.”

Politico, Criminal justice reform faces political buzzsaw as GOP hones its midterm message (April 14, 2022)

Politico, What’s next for criminal justice reform? (April 14, 2022)

CNN, Ambitious trial judges could be wary after GOP attacks on Judge Jackson’s sentencing record (April 11, 2022)

Wichita Eagle, Former U.S. attorney tells how criminal justice could be more just (April 12, 2022)

EQUAL Act (S.79)

First Step Implementation Act (S.1014)

Smarter Sentencing Act (S.1013)

COVID-19 Safer Detention Act (S. 312)

MORE Act, (H.R.3617)

– Thomas L. Root

Details Matter, 10th Circuit Says – Update for April 8, 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.

DISTRICT COURT PUNT BLOCKED BY 10TH CIRCUIT

In 2004, Tony Burris was sentenced to 262 months on a crack cocaine charge, the low end of his Guidelines sentencing range. After the First Step Act was passed, Tony applied for his retroactive Fair Sentencing Act reduced sentence under First Step Section 404.

ghostdope220408The government opposed the motion, arguing that Tony’s Guidelines range remained the same because the calculation should be based on the quantity of crack cocaine attributed to him in the Presentence Report (typically stratospheric) rather than the smaller amount charged in the indictment. Recognizing that the parties raised an issue that had not yet been addressed by the 10th Circuit, the district court declined to resolve it and instead held that it would deny relief to Tony regardless of the correct Guidelines calculation.

Last week, the 10th Circuit reversed, holding that the district court was obligated to calculate Tony’s revised Guidelines range before denying relief on his Section 404 motion. “A defendant’s Guidelines range is the starting point and the initial benchmark of sentencing,” the Circuit ruled, and “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.”

error161022The government argued that any error was harmless because the district court “looked at both proposed Guidelines ranges and concluded that it would deny the motion under either” one. The 10th rejected that contention, holding that while the district court may have said it would deny relief “whatever the result” of the correct Guidelines calculation, “our court has rejected the notion that district courts can insulate sentencing decisions from review by making such statements.” Here, the Circuit held, “the district court’s error, by its very nature, was not harmless; the district court’s exercise of discretion was untethered from the correct calculation of Tony’s revised Guidelines range.

United States v. Burris, Case No. 19-6122, 2022 U.S.App. LEXIS 8363 (10th Cir., Mar 30, 2022)

– Thomas L. Root

Sample-ing a First Circuit Compassionate Release Win – Update for February 21, 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.

LET’S GO, BRANDON…

jrhigh220221I’m no fan of the current political meme “Let’s go, Brandon.” I think we can be critical of the incumbent President (or the former President, for that matter) without sounding like a lot of 7th-grade boys sitting in the back of the school bus.

But today, I mean it literally. Vermont-based Federal post-conviction attorney Brandon Sample (who has no connection with this blog other than the fact of his dedication to criminal defense and his skill in winning against sometimes-substantial opposition) swung for the fence on a First Circuit compassionate release appeal. Last week, he hit a walk-off homer.

Brandon’s client, Juan Ruvalcaba, was convicted of a sprawling drug-distribution conspiracy over 15 years ago and sentenced to life in prison. “Life” was the sentence that the 21 U.S.C. § 846 count required at that time because of Juan’s prior drug convictions.

In 2020, Juan asked his court for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of COVID and his medical condition. He also argued that the fact that the mandatory minimum sentence for his drug conviction had been changed by the First Step Act – being dropped from life to 25 years – was an additional extraordinary and compelling reason for a sentence reduction.

henhouse180307A § 3582(c)(1)(A)(i) motion, for those of you who just came in, requires that a moving party show that there is one or more “extraordinary and compelling reason[s]” for a sentence reduction, and that, after considering the sentencing factors of 18 U.S.C. § 3553(a), a reduction is warranted. Time was only the Bureau of Prisons could bring such motions on behalf of inmates – sort of like letting the fox decide which chickens in the henhouse would be released to go “free-range” – but First Step changed that to let inmates file for compassionate release on their own.

The Sentencing Commission has defined what facts may constitute “extraordinary and compelling” reasons in a Policy Statement (USSG §1B1.13). However, because the Commission has been out of business for lack of a quorum since First Step changed the compassionate release statute in December 2018, the Policy Statement is still written as though only the BOP director is doing all of the filing.

Juan’s district court disagreed that the First Step change to his mandatory minimum could be an extraordinary and compelling reason for compassionate release. What’s more, the court held that it was obligated to follow the Sentencing Commission Policy Statement, which did not identify sentence length or a subsequent non-retroactive change in the sentencing statute as elements justifying a sentence reduction.

Brandon took Juan’s appeal to the 1st Circuit, and last week, that court joined a majority of other federal courts of appeal in holding that § 1B1.13 does not apply to prisoner-filed compassionate release motions. What’s more, the 1st Circuit ruled that a district court was free to consider that the prisoner is serving an over-long sentence that would not be mandatory had it been imposed after the First Step Act.

“The text of the current policy statement makes pellucid that it is ‘applicable’ only to motions for compassionate release commenced by the BOP,” the Circuit ruled. “To find the existing policy statement “applicable” to prisoner-initiated motions, we would need to excise the language referring to motions brought by the BOP. That would be major surgery and undertaking it would be well outside our proper interpretive province…. We may not ‘blue pencil’ unambiguous text to divorce it from its context.”

bluepencil220221The appeals court admitted that someday, the Sentencing Commission will be back in business and probably make § 1B1.13 relevant in a First Step world. Then, “district courts addressing such motions not only will be bound by the statutory criteria but also will be required to ensure that their determinations of extraordinary and compelling reasons are consistent with that guidance.” But until then, compassionate release will be interpreted “through the lens of the statutory criteria, subject to review on appeal.”

The 1st Circuit also held that an excessive sentence could be a reason for a sentence reduction, at least where a subsequent but non-retroactive change in the law had lowered a mandatory minimum. “Our view that a district court may consider the FSA’s prospective amendments to sentencing law as part of the ‘extraordinary and compelling’ calculus fits seamlessly with the history and purpose of the compassionate-release statute. In abolishing federal parole, Congress recognized the need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable.”

Such a safety valve should “encompass an individualized review of a defendant’s circumstances and permit a sentence reduction — in the district court’s sound discretion — based on any combination of factors (including unanticipated post-sentencing developments in the law),” the Circuit ruled. Thus, a district court, reviewing a prisoner-initiated motion for compassionate release in the absence of an applicable policy statement, may consider any “complex of circumstances raised by a defendant as forming an extraordinary and compelling reason warranting relief.”

Juan still has to sell his district court on the wisdom of granting any sentence reduction on remand, but – judging from his appellate win – he probably has the lawyer who can do it, if anyone can. Go, Brandon!

United States v. Ruvalcaba, Case No. 21-1064, 2022 U.S.App. LEXIS 4235 (1st Cir., February 15, 2022)

– Thomas L. Root