Tag Archives: FIRST STEP Act

You Can’t Imagine What Never Was in Sec. 404 Resentencing, 10th Says – Update for July 1, 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.

COULDA, WOULDA, SHOULDA

JCoulda210701ason Broadway got caught with 488 grams of crack in 2007. He was indicted for having more than 50 grams (which triggered a 10-year statutory minimum under 21 USC § 841(b)(1)(A)) and admitted to the full 48 grams in a plea deal. He got 262 months under the then-applicable Guidelines.

As you recall, the Fair Sentencing Act of 2010 reduced the disparity between crack and powder from a 100:1 ratio to 18:1, making the difference in sentences imposed based on the amount of drug at issue much less. But it was not until the First Step Act passed in 2018 that the Fair Sentencing Act changes could be applied retroactively to people like Jason, who had been sentenced prior to 2010.

Jason applied for a sentence reduction under First Step Section 404, arguing that his statutory mandatory minimum sentence had been reduced by the Fair Sentencing Act. But the district court turned him down, pointing out the government could have indicted him for 488 grams but did not, and he probably would have admitted to all those drugs anyway, and a jury should have convicted him if he had gone to trial (which he did not), and because Jason was a career offender, his Guideline max of “life” would not have changed.

Jason was denied on a “coulda, woulda, shoulda” analysis.

Last week, the 10th Circuit reversed. The Circuit that for the district judge to reach his conclusion, he had to assume that if the Fair Sentencing Act had been in effect, Jason would have been indicted for more than 280 grams (the new cutoff for the 10-year minimum sentence), and if he had been indicted for more than 280 grams he would have pled to it, and if he had pled to it he would not have made a sentencing objection to the 488 grams the government said he had possessed.

lookback210701“To impose a reduced sentence as if the Fair Sentencing Act were in effect at the time the offense was committed is inherently backward-looking,” the 10th held, “but it should not require the amount of speculation necessitated by looking to a defendant’s underlying conduct, even if stipulated. Courts are not time machines which can alter the past and see how a case would have played out had the Fair Sentencing Act been in effect. We doubt Congress would have imposed such a futile role for us.”

Thus, the Circuit ruled, the District Court had to consider the statutory minimum attached to the offense of conviction (more than 50 grams) – not what could have been but never was – and should calculate Jason’s corrected Guidelines range after the passage of the Fair Sentencing Act before considering whether the sentencing factors of 18 USC § 3553(a) argued against a reduction.

United States v. Broadway, Case No. 20-1034, 2021 U.S.App. LEXIS 18506 (10th Cir., June 22, 2021)

– Thomas L. Root

SCOTUS to Congress: ‘Say What You Mean’ – Update for June 21, 2021

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TERRY V. UNITED STATES: ‘OH, THAT’S BAD! NO, THAT’S GOOD…’

If you remember Sam the Sham and the Pharaohs, you probably have a Medicare card in your wallet. After “Wooly Bully,” Sam and band – traveling around in a 1952 packard hearse – recorded a few other hits, the last of which was the rather confusing 1973 balled “Oh That’s Good, No That’s Bad.”

samsham210618The plot – such as it is – had Sam describing a series of events in his love life, each one sounding either like a victory that was actually a defeat or a defeat that was actually a victory. Such could be the story of this week’s Supreme Court decision in Terry v. United States, in which the petitioner – sentenced for a crack offense prior to the 2010 Fair Sentencing Act – argued that his 21 USC 841(b))(1)(C) sentence was covered by Section 404 of the First Step Act, and that he was thus entitled to be resentenced.

A quick review: drug sentences are imposed under 21 USC 841(b)(1). The worst sentences – based on quantity of drugs involved – are imposed by § 841(b)(1)(A). Lesser quantities are punished by § 841(b)(1)(B). If the indictment does not specify any minimum quantity of drugs sold, the sentence is imposed by § 841(b)(1)(C). Not surprisingly, the (b)(1)(A) sentences are the harshest, starting at a mandatory minimum of 10 years and increasing based on the number of prior drug and violent crimes committed or other factors (such as if a drug user died from drugs you provided).

Before 2010, crack cocaine was assessed for sentencing purposes at 100 times the weight of powder. That meant that 10 grams of crack (about two teaspoons) was sentenced as if it were 2.2 lbs (a kilo) of powder cocaine. The ratio was Congress’s knee-jerk reaction to the early 90s belief that crack was a powerful scourge destroying our inner cities. Of course, the fact that it was mostly sold in the inner cities led to most of the defendants who were hammered by incredibly long sentences were black.

crack-coke200804

The Fair Sentencing Act recognized the disparate impact of the 100:1 ratio by reducing it to a mere 18:1 (proponents wanted a 1:1 ratio, but compromised to gain enough Senate support for passage). The FSA modified the amounts of crack needed to trigger the mandatory minimums in § 841(b)(1)(A) and (b)(1)(B) accordingly. Where a mere 5 grams (one teaspoon) of crack would buy a defendant a minimum five years, now that mandatory sentence required 28 grams. The prior 50-gram minimum for a (b)(1)(A) sentence became 280 grams.

At the same time, the FSA was made to be prospective only (not retroactive) to secure enough Republican votes to pass.

Eight years later, First Step § 404 corrected the non-retroactivity, making anyone who, before August 2010, had “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010.” As of last month, over 3,700 prisoners have won reduced sentences from application of First Step § 404.

teaspoon210618That brings us to the strange case of Taharick Terry. in 2008, Tarahrick, then in his early 20s, was arrested in Florida for carrying just under 4 grams of crack cocaine. He was sentenced under 21 U.S.C. § 841(b)(1)(C), which carried no mandatory minimum, because the crack he possessed didn’t make the then-applicable § (b)(1)(B) 5-year mandatory minimum. But while he had no statutory minimum, he did have enough priors to qualify as a “career offender” under the Sentencing Guidelines. As a “career offender,” Taharick was hammered with a maximum Criminal History Category and offense level, yielding a 188-month sentence.

Taharick applied for § 404 relief, but his district judge turned him down. Taharick’s offense did not carry a “statutory penalt[y] which were modified by section 2 or 3 of the Fair Sentencing Act of 2010.” Before the FSA, the mandatory minimum for a § (b)(1)(C) was zero. After the FSA, it remained zero. Therefore, the district court ruled, Taharick was not entitled to use § 404 for resentencing.

badgood210618Just as briefs on Terry were due in the Supreme Court last March, the Biden Justice Department surprised the Supreme Court by announcing that it would no longer defend the district court’s holding that Taharick could not get resentenced under § 404. The Supremes had to scramble, quickly appointing a private lawyer to argue the government’s former position. Dozens of amicus briefs arguing for Taharick’s relief – including one by Senators Richard Durbin, Charles Grassley, Cory Booker, and Mike Lee – opposed the district court’s narrow reading of the statute.

Sam the Sham might have crooned, “Oh, that’s good!”  After all of that, how could Taharick possibly lose? 

This is how: Earlier this week, the Supremes ruled 9-0 that the statute says what it says. The Court held that the language under which Taharick was sentenced was not modified by the sentencing-reform statutes. Although the change to levels above (b)(1)(C) would suggest that the punishment of lower amounts of drugs should also be read differently, the low-level provisions were not “modified.” The district court read it exactly the way Congress wrote it. And that was that.

Sam might croon, “Oh, that’s bad.”

But the decision was fascinating because of the Justices’ dueling histories of the law. Justice Clarence Thomas, who wrote the opinion, presented one that noted how even Black leaders were in favor of harsh crack laws when the 100:1 ratio was enacted. Concurring Justice Sonia Sotomayor focused more on the unfulfilled social-program support that was to be the carrot that came with the 100:1 stick.

Justices arguing racial justice? “Oh, that’s good.”

mob210618If you believe popular media coverage of the Terry decision – which I think was preordained by a common-sense reading of § 404 – you would conclude that the decision was a social disaster wrought by racist Justices. “Supreme Court ruling on crack sentences ‘a shocking loss,’ drug reform advocates say,” NBC howled. “SCOTUS deals a gutting blow to federal criminal justice reform,” The Week moaned. Even Reuters signaled its disapproval that the chary Supreme Court did not elect to help out defendants (as though it were a legislature and not a court): “U.S. Supreme Court declines to expand crack cocaine reforms.”

But the Terry decision’s unanimity suggests that nonpartisan judging rather than motivated interpretations underlay the decision. If Congress meant to reach (b)(1)(C) cases, it should say what it means. It did not do so. Lousy draftsmanship? Perhaps just the rush to get First Step passed in the final hours of the 115th Congress? Those were hectic times. The logical inference is that Congress failed. And that’s bad.

But maybe the Terry decision’s good. Already, commentators are arguing that Terry should spur Congress to get down to passing significant criminal justice reform. The Supremes handed the Biden Administration a “humiliating loss” after the DOJ’s 11th-hour flip-flop. Sens. Durbin and Grassley cannot be happy that their position was summarily rejected. Reps. Cori Bush (D-Mo.) and Bonnie Watson Coleman (D-N.J.) announced this week that they will introduce the Drug Policy Reform Act, which would decriminalize all drugs, expunge existing records and allow for re-sentencing, and invest in health-centered measures to take on drug addiction.

victorydefeat210618If Taharick Terry had won, the victory would have little impact. He gets out of prison in three months anyway. Most (b)(1)(C) crack cases from before 2010 benefitted from two 2-level retroactive reductions approved by the Sentencing Commission in 2011 and 2014. Most (b)(1)(C) defendants – even career offenders like Taharick, who could not get any 2-level reduction – have completed their sentences by now. And Terry would have had no effect on any sentences imposed after August 2010.

But the Terry loss – in an era of racial justice reckoning – is coming to be seen as a wake-up call for Congress to get serious on criminal justice reform. The Supreme Court will not clean up the mess Congress made in the drug war. It will not clean up poorly-drafted First Step language. That’s up to Congress, and maybe now, Congress knows it.

“Oh, that’s good.”

Terry v United States, Case No. 20-5904, 2021 U.S. LEXIS 3111 (June 14, 2021)

US Sentencing Commission, First Step Act of 2018 Resentencing Provisions Retroactivity Data Report (May 2021)

NBC, Supreme Court ruling on crack sentences ‘a shocking loss,’ drug reform advocates say (June 15)

The Week, SCOTUS deals a gutting blow to federal criminal justice reform (June 14)

Reuters, U.S. Supreme Court declines to expand crack cocaine reforms (June 14)

– Thomas L. Root

Judicial Odds and Ends – Update for June 3, 2021

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AN ANNIVERSARY OF A MYSTERIOUS DEATH… AND A COUPLE OF CASE SHORTS

odetobilliejoe210603We have a couple of notable decisions from last week for this, the traditional day we all commemorate the untimely death by suicide of Billie Joe McAllister, the 1967 first-person ballad sung by Bobbie Gentry. As Bobbie began the song, “It was the third of June, just  sleepy, dusty delta day…”

As The Independent reported in 2017, the reason for Billie Joe’s mythical death remains a mystery: “Fifty years on we’re no wiser as to why Billie Joe did what he did and in the context of the song and Gentry’s intentions, that’s just as it should be.”

Let’s try to demystify some gleanings from last week’s federal appellate decisions:

The Eighth Joins the Party: The 8th Circuit joined other circuits that have ruled on this issue, holding last week that two brothers whose cases involved the distribution of both crack and powder were eligible for the retroactive Fair Sentencing Act reduction authorized by the First Step Act, despite the fact that the powder cocaine in their cases was such that the Fair Sentencing Act did not lower their Guidelines ranges.

The Circuit ruled that Sec 404(a) of the First Step Act says that covered offenses are those whose penalties “were modified by section 2 or 3 of the Fair Sentencing Act.” Their crack penalties were reduced, even if the brothers “ultimately would be subject to the same statutory sentencing range as a consequence of” the powder cocaine. Thus, the sentencing judge now had to decide whether they should be granted a lower sentence.

The Eleventh Goes Its Own Way (Again): A week or so ago, I reported on United States v. Lopez, a 9th Circuit case that interpreted the First Step Act to dramatically expand the application of the drug offense safety valve set out in 18 USC § 3553(f).

goyourownway210603The 11th Circuit (who else) has helpfully provided an opinion going absolutely the opposite direction. Julian Garcon got the safety valve when sentenced for cocaine distribution, because he didn’t meet all three subsections of the law required to be disqualified. The government appealed, arguing that the word “and” in the statute really meant “or.”

Who would be twisted enough to think that? The 11th Circuit, that’s who. The panel held that “based on the text and structure of § 3553(f)(1), the “and” is disjunctive. Accordingly, we vacate the sentence and remand for resentencing…”

Ohio State University law prof Doug Berman said last week in his Sentencing Law and Policy blog that the case “produced a crisp circuit split on the proper interpretation of a key provision of the First Step Act on a matter that impacts many hundreds of federal drug cases every month… It is surely only a matter of time before other circuits weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.”

United States v. Spencer, Case No 19-2685, 2021 U.S. App. LEXIS 15862 (8th Cir, May 27, 2021)

United States v. Garcon, Case No 19-14650, 2021 U.S. App. LEXIS 14683 (11th Cir, May 18, 2021)

Sentencing Law and Policy, In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision (May 27)

– Thomas L. Root

Senate Judiciary Committee: A Win, A Tie and A Rain Delay – Update for May 28, 2021

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AN ONLY PARTLY SATISFYING DAY AT THE JUDICIARY COMMITTEE

The Senate Judiciary Committee considered three criminal justice reform bills yesterday, with results that were a little heartening, a little disheartening.
heartening210528The Committee approved the COVID-19 Safer Detention Act, S.312, 14-8. The bill now goes to the full Senate. The vote came despite the strenuous objections of Sen. Tom Cotton (R-Arkansas), who claimed that the bill would let dangerous criminals out on the street to violently accost fair maidens (or that’s how he sounded). Cotton didn’t cotton to approving something with “COVID-19” in the title, when BOP Director Michael Carvajal assured the Committee last month that by May 15th, every BOP inmate that wanted the vaccine would have received it.

That the BOP did not meet its deadline two weeks ago had little meaning. In fact, at 23 facilities – including some camps – fewer than 300 inmates had gotten the vaccine as of May 14. FPC Alderson, according to BOP records, had only 57 inmates vaccinated. While it’s possible that fewer than 10% of Alderson’s 622 inmates (all female) agreed to take the vaccine, but that’s pretty unlikely.

cotton171226Cotton tried to amend the bill so that it would apply only to inmates who had not been vaccinated for medical reasons approved by the BOP. That amendment failed.

An amendment that was approved, however, struck the bill’s proposed age reduction from 60 to 50. As amended, an elderly offender still must be 60, but he or she need only serve two-thirds of the statutory sentence (the total sentence minus good conduct time). It also adds judicial review for denial of elderly offender home detention, cuts the period for administrative exhaustion for compassionate release. Finally, during the pandemic, any defendant considered to be at a higher risk for severe illness from COVID–19, including because the defendant is 60 years of age or older or has an underlying medical condition, would by definition “an extraordinary and compelling reason” under 18 USC 3582(c)(1)(A)(i) for compassionate release.

Committee Chair Sen. Richard Durbin, D-Ill., who sponsored the proposed legislation, told the committee before the bill’s passage that the pandemic has shown that the BOP can’t be trusted to identify and release prisoners who are vulnerable to the coronavirus.

fail200526“The Bureau of Prisons failed,” Durbin said, noting that nearly 31,000 inmates requested compassionate release during the pandemic and the Bureau of Prisons approved only 36, fewer requests than it approved in 2019, before the pandemic. Durbin said that 35 federal inmates died while waiting for the BOP to rule on their requests.

The Committee began debating the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S. 601). That bill would prohibit judges from considering conduct underlying an acquitted count in sentencing. Predictably, Cotton opposed that as well, but concerns were also expressed by Sen. John Cornyn (R-Texas) and Sheldon Whitehouse (D-Rhode Island).

Cornyn said that judges should be allowed to consider acquitted offenses in some cases, giving the example of a sexual offender who has repeatedly abused a victim and has some charges dropped because they are based on abuse that happened too long ago to be prosecuted. He apparently did not distinguish between dropped charges and charges a jury refused to convict on.

“There are circumstances that would endure to the benefit of a guilty criminal defendant and violate the rights of crime victims to be heard as provided by law,” Cornyn said.

Whitehouse, a former prosecutor, argued that judges should not have their hands tied at sentencing because some technical reason prevented conviction for conduct that clearly occurred. Sen. Amy Klobuchar (D-Minnesota), another former prosecutor, supported the measure.

Durbin decided to hold further consideration on S.601 to incorporate amendments.

disheartening210528The Committee adjourned for a Senate roll-call vote, and thus did not start discussing the First Step Implementation Act of 2021 (S. 1014), the star of the day’s hearing. This is the most consequential of pending bills, one which would grant judges the option to apply the 18 USC 3553(f) safety valve to a larger number of drug offenders and – most significant – make the reductions in mandatory minimums for drug and gun offenses granted in § 401 and 403 of the First Step Act retroactive.

The Committee should be taking up the First Step Implementation Act of 2021 soon. That is heartening.

Senate Committee on the Judiciary, Executive Business Meeting (May 27)

– Thomas L. Root

Dog Bites Man: Judge Says NYC BOP Facilities Run By Morons – Update for May 14, 2021

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JUDGE SAYS “DISGUSTING, INHUMAN” BOP NYC FACILITIES ARE RUN BY MORONS

moron210514A senior Federal judge who navigated her Manhattan-based court through the pandemic denounced conditions at MDC Brooklyn and MCC New York as “disgusting” and “inhuman” during the sentencing last month of a woman who spent months in solitary confinement after contracting COVID-19.

US District Court Judge Colleen McMahon said in a transcript just obtained by the Washington Post that the facilities are “run by morons.” During the sentencing, McMahon castigated the BOP, saying the agency’s ineptitude and failure to “do anything meaningful” at the MCC in Manhattan and MDC Brooklyn amounted to the “single thing in the five years that I was chief judge of this court that made me the craziest.”

“It is the finding of this court that the conditions to which the defendant was subjected are as disgusting, inhuman as anything I’ve heard about any Colombian prison,” McMahon said on the record, “but more so because we’re supposed to be better than that.”

The BOP responded in a statement that it “takes seriously our duty to protect the individuals entrusted in our custody, as well as maintain the safety of correctional staff and the community.”

plague200406Meanwhile, The Trentonian reported last week that FCI Fort Dix set as COVID-19 record for the worst outbreaks of any federal facility. New Jersey US Senators Bob Menendez and Cory Booker, both Democrats, called on the BOP last month to “prioritize the vaccination program” at FCI Fort Dix. More than 70% of the 2,800 prisoners at Fort Dix have tested positive for COVID-19 since the pandemic began. As of last week, 52% of Fort Dix inmates have been vaccinated.

Also last week, the Legislative Committee of the Federal Public and Community Defenders wrote a 16-page letter to Senate Judiciary Chairman Richard Durbin (D-Illinois) and Ranking Member Charles Grassley (R-Iowa) asking for Congressional action to reform the BOP in areas as varied as inmate healthcare to compassionate release to First Step Act programming credits.

“Although the Biden Administration has taken significant steps to beat back COVID-19 in the community,” the letter said, “individuals in BOP custody remain at high risk. Over a year into the pandemic, they are subject to harsh and restrictive conditions of confinement and lack adequate access to medical care, mental health services, and programming. The improvements to programming promised by the First Step Act  generally stand unfulfilled.”

Most significant was criticism of BOP healthcare that went beyond the pandemic: “Dr. Homer Venters, a physician and epidemiologist who has inspected several BOP facilities to assess their COVID-19 response, identified a “disturbing lack of access to care when a new medical problem is encountered” and is concerned that “[w]ithout a fundamental shift in how BOP approaches… health services, people in BOP custody will continue to suffer from preventable illness and death, including the inevitable and subsequent infectious disease outbreaks.”

COVIDvaccine201221The letter also took aim at the high vaccine refusal rate by BOP staff (currently 50.5% refused), staffing shortages, and the BOP’s poor record on granting compassionate release.

The letter complains that the BOP’s proposed rule on awarding earned time credit “impermissibly restricts an individual’s ability to earn time credits, makes it too easy to lose those credits, and unduly excludes broad categories from the earned time credit system. In short, these provisions kneecap the FSA’s incentive structure and make it less likely individuals will participate in programs and activities to reduce recidivism and increase public safety.” The letter notes that if a prisoner programmed 40 hours a week, it would take more time to earn a year’s credit than the length of the average federal sentence.

The Trentonian, Ft Dix FCI has largest total COVID-19 cases among U.S. federal prisons (May 4, 2021)

Federal Public and Community Defenders, Letter to Sens Durbin and Grassley (May 4, 2021)

Washington Post, Judge says ‘morons’ run New York’s federal jails, denounces ‘inhuman’ conditions (May 7, 2021)

– Thomas L. Root

Odd Couple Beat Up on Prison Head – Update for April 20, 2021

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SENATORS UNHAPPY OVER FIRST STEP IMPLEMENTATIONS

oddcouple210219Last Thursday’s Senate Judiciary Committee Oversight hearing opened with Committee chair Richard Durbin (D-Illinois) and Ranking Member Charles Grassley (R-Iowa) both blasting the BOP not just for its failures in placing inmates in home confinement, but for the PATTERN recidivism tool – which Durbin called “deeply flawed” – and for what they see as BOP slow-walking implementation of First Step Act programming.

Durbin complained that PATTERN contained “stunning racial disparity in inmate classification, and that the BOP’s proposed rule for awarding earned time credit – which requires 240 actual hours of programs for one month’s credit – “severely limits the ability to earn these credits, and that undermines participation.”

“Our prison system at the federal level is failing,” Durbin said in his opening remarks, “failing to fulfill its fundamental purpose, the rehabilitation of incarcerated individuals.”

Grassley said he was “disheartened with the lackluster implementation of the First Step Act. “The DOJ and Bureau of Prisons are implementing the First Step Act as if they want it to fail. I hope this is not true but actions speak louder than words.”

BOP Director Michael Carvajal said that COVID had hampered full rollout of the programming inmates could complete for earned credits that reduced their sentences, but Grassley responded, “I don’t think that national eFSAsabotage210420mergency can be used as a scapegoat… It seems like the Justice Department and the Bureau of Prisons have failed in this effort… Even if it isn’t so, at some point it becomes a perception, and perceptions become a reality.”

Carvajal told the Committee that about 50% of the 125,000 inmates reviewed were eligible to take programming for earned time credits. He told the Committee that last year, “even through COVID, we had over 25,000 inmates complete a program for time credit.”

This was a surprising admission, in my view. In litigation, the BOP has argued that its obligation to implement the evidence-based reduction programs and award Earned Time credits will not take effect until January 2022. That position – already rejected by several courts – seems to be undercut by Carvajal’s statement to lawmakers that 25,000 inmates got some ETC credit during 2020.

Senate Judiciary Committee, Oversight of the Bureau of Prisons (April 15, 2021)

Goodman v. Ortiz, Case No 20-7582, 2020 US Dist LEXIS 153874 (DNJ Aug 25, 2020)

– Thomas L. Root

Patience, People, on Criminal Justice Reform – Update for April 8, 2021

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WHEN WILL BIDEN TACKLE CRIMINAL JUSTICE REFORM?

The most common question I have gotten from inmates since January is when Congress will pass criminal justice reform. It brings to mind the old variation on the serenity prayer: “Lord, grant me patience… and I want it NOW.”

Reform200819But patience is what everyone needs. There’s the infrastructure, the racial reckoning, and now the gun control push (which will probably prevent a minuscule number of gun crimes, but looks all shiny and robust). I am convinced we will get to criminal justice reform, but it will take a bit.

Still, there are some encouraging signs. First, President Biden’s Dept of Justice followed up on its letter to the Supreme Court a few weeks ago with a brief filed last week in Terry v. United States, arguing that Section 404 of the First Step Act covers low-level crack cocaine offenders sentenced under 21 USC § 841(b)(1)(C), “a dramatic reversal that comes more than three decades after a Biden-crafted bill helped to fuel disproportionately harsh penalties for Black drug offenders,” according to The Hill.

But Biden promised more. During his campaign, he promised to address mandatory minimums. Nkechi Taifa, a Washington-based criminal justice reform advocate, believes that will change soon. Taifa said last week that he has been in touch with the Biden administration. “With respect to drugs,” he said, “it’s only about the weight of drugs and amount of drugs that dictates the time you serve. It doesn’t matter what the judge thinks, doesn’t matter what your characteristics are. Biden has said he’ll do away with it.”

return161227Cynthia Roseberry of the ACLU said on NPR last week that Biden could do a lot with a stroke of a pen, such as reverse the DOJ legal opinion in January that people on CARES Act home confinement had to return to prison when the pandemic ended. Last week, NPR reported, “prisoner rights groups asked Biden and Attorney General Merrick Garland to intervene, citing their comments about the need to reduce the prison population.”

And just today, FAMM – which has been active in urging the Dept. of Justice to reverse the legal opinion – is urging people to call the Attorney General to lobby him to take action.

Biden has proclaimed April a second chance month for people involved in the justice system. Roseberry told NPR she wants to see Biden use his sweeping power to grant clemency during the month.

The Hill, Biden urges leniency for harsh crack sentences fueled by his crime bill (March 31, 2021)

WTVR-TV, When will President Biden address criminal justice reform? (April 1, 2021)

NPR, Criminal Justice Reform Advocates Say They’re Anxious To See More Action From Biden (April 2, 2021)

– Thomas L. Root

Some Reform Advice for Uncle Joe – Update for March 25, 2021

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HOW BIDEN CAN REFORM CRIMINAL JUSTICE

Sometimes, it’s hard to remember the three things my wife wants me to pick up at the local IGA. For that reason, I have empathy for our septuagenarian President trying to wrap his head around the 14 steps that law professors Mark Osler (a clemency expert) and Rachel Barkow (former Sentencing Commission member) proposed last week that he take to reform criminal justice.

henhouse180307Writing in The Appeal, the profs argued (among other things) that “Biden inherits a clemency crisis. There are currently more than 15,000 petitions waiting for an answer, having piled up over the course of the Trump presidency… The current structure bears not one but two fatal flaws: It is overly bureaucratic and is a captive of the deeply conflicted DOJ.” It’s no secret that the fox has been guarding the henhouse – too much of clemency decision-making is embedded in the Department of Justice, the very institution that sought the too-long sentences in the first place and is thus inclined to say no to requests to overturn its initial judgments.

They also called on Biden to reform how the BOP processes sentence reduction motions filed pursuant to 18 USC § 3582(c)(1)(A)(i), the so-called compassionate release motions. “DOJ needs to shift course,” Barkow and Osler said, “particularly during the pandemic. It should identify elderly and infirm people in prison for release — not merely home confinement — and, at a minimum, it should support their release when requested.”

In addition, they argued the Administration should make CARES Act home confinement permanent for those who have been sent there during the pandemic, and that the DOJ commit to programming that allows people in prison to earn time off their sentence after participating in programming. “During the Trump Administration,” they said, “BOP proposed a rule that would block reduction eligibility for far too many people, make it too difficult to earn credits, and far too easy to lose them. While public comment on that proposal closed on January 25, it is not too late for DOJ to shift course and propose a different rule that makes this programming—and therefore release eligibility—as widely available as possible.”

social210325Most significantly, they argued that “flawed compassionate release and First Step Act implementation are emblematic of larger problems at the BOP. Nearly everyone outside of government who deals with the BOP finds it to be dysfunctional; it’s inefficient, overly bureaucratic, and prone to cruelty.” They propose legislation to shift the BOP to the Department of Health and Human Services. “In the end, the work of the BOP is to not only securely detain people but to prepare them for life after incarceration. They are much better at the first task than the second. A shift to a department dominated by social work would help change the culture that produces the BOP’s current problems.”

Along with that, they argued, the BOP needs to do a better job of the basic “blocking and tackling in their field, and that starts with ensuring adequate staffing throughout the system. There needs to be additional resources for mental health needs, and even for basic issues like ensuring there is a state ID for every person in prison when they are released.”

The Appeal, 14 Steps Biden’s DOJ Can Take Now to Reform America’s Criminal Legal System (March 15, 2021)

– Thomas L. Root

Government Cries ‘Uncle’ on Fair Sentencing Act Retroactivity – Update for March 22, 2021

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A MOST SIGNIFICANT CONCESSION

Last week, the Biden Dept of Justice told the Supreme Court that it would no longer argue that the § 404 of the First Step Act – the provision that made the Fair Sentencing Act of 2010 (FSA) retroactive, thus letting people given draconian sentences prior to that date a chance to bring their prison terms more in line with powder cocaine sentences – did not apply to people who did not fall under a mandatory minimum at their pre-2010 sentencing.

crackpowder191216

At first blush, it sounds rather arcane. Section 404 permitted anyone with a “covered offense” to apply to his or her sentencing judge for a sentence reduction. A “covered offense” is defined in § 404(a) as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010.” The Act lowered the ratio of crack-to-powder from 100:1 – which punished 5 grams of crack as though it were 500 grams (over a pound) of powder – to 18:1. This had the effect of requiring a defendant to have 28 grams of crack (instead of 5 grams) before the five-year mandatory minimum sentence of 21 USC 841(b)(1)(B) would apply, and 28 grams of crack before the 10-year mandatory minimum in 21 USC 841(b)(1)(A) would apply.

Essentially, the drug distribution penalties are hierarchical. The people with the most drug are sentenced under 21 USC 841(b)(1)(A), with penalties starting at 10 years and going up. The people with a lesser amount are punished under 21 USC 841(b)(1)(B), with penalties starting at five years. People convicted of having amounts less than the minimum needed for (b)(1)(B) – which is 28 grams for crack under the FSA – are punished under 21 USC 841(b)(1)(C), where the penalties start at zero.

A number of judicial circuits have ruled on whether a person with a pre-2010 (b)(1)(C) sentence had a “covered offense” under § 404. After all, the reasoning went, the FSA did not change the pre-2010 mandatory minimum, which was zero before the FSA and zero after. Unsurprisingly, the DOJ has fought hammer-and-tong against any (b)(1)(C) defendant getting resentenced under the FSA, and it so far has won in four circuits but lost in three.

crackpowder160606Now for Terry: In Terry v. United States, the Supremes are to weigh in on the issue, whether defendants sentenced for low-level crack-cocaine offenses under (b)(1)(C) before the FSA are eligible for resentencing under First Step. This is important for those defendants, because on resentencing, the courts are not bound to merely adjusting the sentence to reflect the FSA. Instead, they can consider post-sentence conduct and rehabilitation, and vary downward rather freely. Even if this were not so, most of those (b)(1)(C) people are nearing the end of their sentences.

The Trump DOJ consistently took positions to limit § 404 crack retroactivity as much as possible, and argued in Terry that unless a defendant had a mandatory minimum, § 404 did not apply. But in a letter to the Supreme Court last week, the DOJ said that following the change in Administration, it “began a process of reviewing the government’s interpretation of Section 404 of the First Step Act. As a result of that review, the Department of Justice has concluded that petitioner’s conviction is a “covered offense” under Section 404, that petitioner is entitled to request a reduced sentence, and that the court of appeals erred in concluding otherwise.”

The letter was filed on the day the Government’s brief was due. The petitioner filed an immediate response, criticizing DOJ for waiting to the last minute and urging the Court to decide the case without any further delay. DOJ, exhibiting the heart of a bureaucrat, noted,

According to the Federal Bureau of Prisons, petitioner is scheduled to complete the remainder of his term of imprisonment, which he will serve almost entirely on home confinement, on September 22, 2021… Were the case not to be decided before September 22, a question of mootness would arise that would need to be addressed before any decision on the merits.

wrong210322Of course, not a word about Tarahrick Terry, whose paltry 3.9 grams of crack netted him a sentence that – had the district court been told by the government that the FSA applied – would have gotten a reduction which nationally was averaging 26%. In other words, Tarahrick and the kids would have been coloring Easter eggs at home two years ago.

The Supreme Court is unwilling to delay a decision on relief for Tarahrick until it no longer matters. Last Friday, it appointed a lawyer to argue the position abandoned by the government (which is common practice when the government refuses to defend a case). Argument had been set for April. The Court postponed that but still promised a decision by the end of June.

The Terry case has drawn a lot of interest. Senators Richard Durbin, Charles Grassley, Cory Booker, and Mike Lee also filed a joint brief, as have several major think tanks and advocacy organizations spanning the spectrum from the American Civil Liberties Union to the American Conservative Union. Groups of retired federal judges, former federal prosecutors, and defense lawyers, have filed as well. None of the amici favors the government.

hope160620The DOJ confession of error is interesting for another reason more based in policy. It is still too early for any comprehensive Biden criminal justice reform legislation to have been introduced in Congress, but the DOJ letter strongly indicates interest at high levels of the Administration to favor maximizing current statutes to reduce federal sentences. Ohio State University law professor Doug Berman said last week the DOJ letter “is big news that the new Administration is open to a broader application of the First Step Act here, and I am hopeful that this kind of Justice Department new thinking may end up being applied in a whole host of other sentencing settings.”

Such as maybe a legislative push for criminal justice reform, perhaps?

Reuters, Biden reverses course in U.S. Supreme Court drug sentencing case (March 15, 2021)

DOJ, Letter to Supreme Court in Case No 20-5904 (March 15, 2021)

Federal Public Defender, Letter to Supreme Court in Case No 20-5904 (March 15, 2021)

Washington Standard, Coalition Calls For Reform Of Drug Laws That Delivered Harsher Prison Sentences By 100–1 Ratio To Minorities For Low-Level Offenses (March 13, 2021)

Sentencing Law and Policy, Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry (March 15, 2021)

– Thomas L. Root

Inmate Wins (Sort of) Earned-Time Suit Against BOP – Update for February 26, 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.

IT LOOKS LIKE A VICTORY, BUT NOT MUCH OF ONE…

slowwalking210226One of the marquee features of the First Step Act is an earned time provision that permits non-excluded federal inmates (and there’s a long list of who’s excluded, from people with gun and violence charges to sex offenders to some kinds of drug dealers) to earn credits that will reduce their sentence lengths or get them more halfway house or home confinement.

The plain terms of First Step said that qualifying programs completed after the Act’s passage would be counted. But ever since First Step passed, the Bureau of Prisons has done its institutional best to slow-walk implementation of the terms.  First, it took nearly every day of the two years it was given by the statute to adopt a recidivism and needs assessment system that would classify inmates according to their risk of recidivism. Then, although the BOP is a system in which virtually no inmate works an 8-hour day, the BOP decided that a day of programming (for purposes of earned-time credits awarded in blocks of 10 or 15 days for every 30 days of programming) should constitute a full eight hours. This meant that an intensive 9- or 10-month drug program that in all devoted 500 hours to the classroom would yield a paltry 62.5 days of programming credit, which would be two 30-day blocks, which would award an inmate 20 to 30 days off a sentence that, on average, would be 10 years long.

jailhouselaw160809The BOP’s latest indignity seems to be an institutional position that none can start earning credit until after January 15, 2022, because the earned-time system is to be phased in over two years, and the two years started January 15, 2020.  Late last summer, an inmate at FCI Fort Dix won a habeas corpus action against the BOP authorizing him to get credit for programs completed since First Step was enacted in 2018. Ever since that decision, Goodman v. Ortiz, was handed down, suing the BOP for earned time credits for completed programs has become a cottage industry at various institutions. In South Dakota (where there isn’t a lot else to do in the winter, even when you aren’t locked down for COVID), there are something like 34 habeas corpus suits pending demanding earned time credit.

The inmate winner in a recent decision from the same judge who wrote Goodman v Ortiz called his victory to my attention last week. It is not quite the triumph one might think it is.

Jeremy Hare filed a habeas action under 28 USC § 2241 against his warden, demanding a shortened sentence or other benefit for having completed programs since the passage of the First Step Act. The government, predictably enough, argued that Jeremy could not get credit for any program completed before January 15, 2020 (although to its credit, the US Attorney was unwilling to adopt the BOP’s position that no credits would be awarded until 2022). But the government did take the untenable position that the First Step Act was not really “enacted” until the BOP said it was, a position the Court dispatched handily:

Enactment means “the action or process of making into law.” ENACTMENT, Black’s Law Dictionary (11th ed. 2019).  The FSA was enacted on December 21, 2018, and nothing in subchapter D indicates a different effective date for the subchapter… Thus, 18 U.S.C. § 3632(d)(4)(B)(i) unambiguously directs that “[a] prisoner may not earn time credits… for an evidence-based recidivism reduction program that the prisoner successfully completed… prior to” December 21, 2018… There is no ambiguity here. As a result, if Petitioner successfully completed an EBRR [Evidence-Based Recidivism Reduction] program or PA [Productive Activity] pursuant to the FSA on or after December 21, 2018, he is entitled to earn Time Credits.

The District Court thus agreed with Jeremy that he was entitled to credit for programs completed after “enactment” of the First Step Act, regardless of how long it may have taken the BOP to actually adopt PATTERN.

humpty210226But that was the high-water mark for Jeremy. The Court ruled that Jeremy could only get credit for programs that addressed needs BOP staff had already identified for him. That could include substance abuse, basic education and whatever else may have been listed in his Program Review by BOP staff. That holding dramatically limited the courses he might otherwise get credit for, because before January 15, 2021, the staff did not routinely make such determinations.

But what really limited the reach of Jeremy’s win was the Court’s conclusion that the BOP calculation that one program day should equal eight full hours of programming was a reasonable one. Jeremy wanted credit for any day on which he might have attended a program, even if that program only lasted an hour. The court found the BOP’s calculation that a “program day” should be 8 hours long was completely reasonable.

The most liberal read of this decision is that inmates might get some credit for programs completed since December 21, 2018, but they will have to jump through plenty of hoops first, and the amount of credit they get may be slight.

Hare v, Ortiz, Case No 20-14093, 2021 US Dist LEXIS 21270 (DNJ Feb 4, 2021)

– Thomas L. Root