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SIZZLE BUT NO STEAK YET IN WASHINGTON – UPDATE FOR AUGUST 13, 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.

LAST WEEK IN WASHINGTON

oddcouple210219The news website Axios reported last week that Sens. Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa) – the Senate’s criminal-justice reform “odd couple” – “are working to win Senate passage of a big criminal justice reform package this Congress.”

Axios cited approval of three bills by the Senate Judiciary Committee, the COVID-19 Safer Detention Act, the First Step Implementation Act, and the Prohibiting Use of Acquitted Conduct Act as being “three measures, Grassley told Axios, they ‘hope to package along with potentially other proposals to pass the Senate sometime this Congress’.” Durbin separately told Axios in his own statement that he’s “committed to bringing these bills to the Senate floor this Congress.”

Axios predicts the final package also may include a measure for CARES Act confinees who otherwise may be forced to return to prison, a Republican Senate staffer told Axios, as well as the EQUAL Act. One challenge will be the crime spike, Axios said, which has the potential of sapping support from senators afraid of being branded soft on crime.

I like Axios, which is a pretty even-handed service, albeit more of a news aggregator than a news reporter. (Nothing wrong with news aggregators – LISA is largely one itself). But because it’s an aggregator, I am not sure whether Axios’s report represents something new, or is just a survey of what we already know.

caresbear210104In other developments, a coalition of five civil rights groups last week urged the Dept of Justice to reconsider its position on sending back to prison thousands of federal inmates transferred to home confinement during the pandemic, offering a legal analysis they believe would justify keeping them out from behind bars.

They argued that the Trump-era legal memo that concluded BOP is required by law to revoke home confinement for those transferred during the pandemic as soon as the emergency period is over, contending the Office of Legal Counsel memo is based on a flawed interpretation of the CARES Act.

Update: Yesterday, Senators Richard Durbin (D-Illinois) and Cory Booker (D-New Jersey) wrote to President Biden, urging him to act on keeping CARES Act home confinees at home. They suggested, in part, that the Bureau of Prisons could “provide relief for certain individuals through prerelease home confinement, under 18 USC § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 USC § 6054l(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 USC 3582(c)(l)(A). Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.”

So far, the President has resisted by inaction such calls to address the looming home confinement crisis.

Axios, Senate plans barrage on crime (August 1, 2021)

The Hill, Civil rights groups offer DOJ legal strategy on keeping inmates home after pandemic (August 4, 2021)

Letter to Dawn E. Johnsen, Acting Asst Attorney General (August 4, 2021)

The Hill, Top Senate Democrats urge Biden to take immediate action on home confinement program (August 12, 2021)

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

– Thomas L. Root

Ted Fumes, Committee Votes, Prisoners Hope – Update for June 11, 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.

RETROACTIVE FIRST STEP CLOSER TO REALITY

The Senate Judiciary Committee yesterday approved sending the First Step Implementation Act (S.1014) to the full Senate by a 13-9 vote.

retro160110The FSIA extends retroactive treatment to changes in 18 U.S.C. § 924(c) gun charges and 21 USC 841(b)(1) drug penalties made by the First Step Act in 2018. As well, the legislation extends a more lenient definition of prior drug offenses to the lower level penalties of 21 USC § 841(b)(1)(C), (D), and (E).

Additionally, FSIA changes application of the drug offense safety valve (18 USC 3553[f]) to let judges apply safety valve sentences where the court finds that a defendant’s criminal history score overstates the seriousness of a criminal past. The bill also includes extensive changes in the review of juvenile sentences and expungement of records.

A charge of using or carrying a gun during a drug trafficking crime (18 USC § 924(c)) carried a mandatory consecutive sentence of at least five years. If the offense was the second or a successive § 924(c) offense, the minimum sentence was 25 years. The government often would charge multiple § 924(c) counts in a single indictment. So if a defendant carried a gun while selling drugs on Monday, the sentence would be perhaps 36 months for selling the drugs, but an extra 60 months for carrying a gun. If the defendant carried a gun while selling drugs on Tuesday as well, the sentence would be a total of 36 months for selling the drugs on both days, but another 300 months would be added for carrying a gun the second day, for a total sentence of 396 months. If the defendant carried a gun while selling drugs on Wednesday, another 300 months would be added, and so on.

Sentencestack170404The First Step Act changed the law so that the 300-month additional time would not be added unless a defendant had previously been convicted of a § 924(c) offense. That change would give Tuesday’s defendant a total sentence of 156 months instead of 396 months. However, the First Step Act did not make the change retroactive, leaving people sentenced on December 20, 2018, with 300-month add-on sentences, while those sentenced on December 22, 2018, would only get 60-month additional sentences.

The same retroactivity would apply to changes in the drug mandatory minimum sentences mandated by the First Step Act. The mandatory life sentence under 21 USC § 841(b)(1)(A) for offenses enhanced by prior drug convictions was reduced to 25 years, and the 20-year mandatory minimum in 21 USC § 841(b)(1)(B) for offenses involving lesser drug quantities was cut to 15 years.

The First Step Act included another change. People convicted of drug trafficking under 21 USC § 841 would receive higher sentences if they had prior “felony drug convictions,” even if they had received probation for the offense. First Step substituted “serious drug felony,” which requires that the defendant have served more than a year in prison for the offense. That change has been extended to all punishment sections of § 841(b)(1) and made the changes retroactive.

The Judiciary Committee approved the FSIA to move on to the Senate on a bipartisan vote. All 11 Democrats and three Republicans voted for FSIA, but only after Sen Ted Cruz (R-Texas) argued for three amendments that would have limited judges’ authority to reduce sentences. All three amendments failed, after which Cruz delivered a polemic against Democrats, predicting that FSIA would never pass the Senate because his amendments were rejected. The diatribe was epic, one in which Cruz used the phrase “murderers, rapists and child molesters” as a substitute for prisoners no fewer than ten times.

cruz210611A dramatic moment occurred when, part way through Cruz’s denunciation of more lenient sentences, Committee Chairman Richard Durbin (D-Illinois) interrupted to report that the union representing BOP corrections officers had thrown its support behind FSIA. That would have given more reasonable people reason the reflect on their denunciation of the dangers of letting judges make decisions on reducing sentences. I mean, if the people who spend their careers guarding federal inmates think that a little flexibility and leniency in sentencing is appropriate, maybe a guy who leaves his constituents freezing in the dark while he jets off to Cancun should defer to their judgment.

But reflection and reason are for lesser mortals, not Ted (who has been described by a fellow Republican in terms not normally associated with mortals).

Even if Cruz is wrong, the FSIA and other bills – the COVID-19 Safer Detention Act (S.312), passed by the Committee on May 27, and the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S.601), approved yesterday – have a long way to go. The full Senate and House of Representatives both must pass the measures. There is no schedule for full Congressional action.

First Step Implementation Act of 2021

Senate Judiciary Committee, Hearing (June 10, 2021)

Office of Senator Charles Grassley, Senate Judiciary Committee Advances Two Bipartisan Durbin, Grassley Criminal Justice Bills (June 10, 2021)

– Thomas L. Root

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

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

Drug and 924(c) Sentence Reduction, Retroactivity Bills Introduced – Update for March 29, 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.

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TWO BILLS CUTTING MANDATORY MINIMUMS, PROPOSING RETROACTIVITY, INTRODUCED IN SENATE

The important but piecemeal work of criminal justice reform continued last week with two significant bills being introduced in the Senate.

smart210328Sens. Richard Durbin (D-Illinois), Mike Lee (R-Utah), and 11 cosponsors introduced S.1013, the Smarter Sentencing Act of 2021, seeking once again to reform some drug mandatory minimums. At the same time, Durbin and Sen. Charles Grassley (R-Iowa) introduced S.1014, the First Step Implementation Act of 2021.

The Smarter Sentencing Act, an updated version of the Smarter Sentencing Act of 2019 (which went nowhere), continues the mandatory minimum adjustments to 21 USC § 841(b), the sentencing section of the drug trafficking statute begun by the First Step Act. First Step adjusted mandatory life in § 841(b)(1)(A) to 25 years, and mandatory 20 years in the same subsection to 15 years. The Smarter Sentencing Act proposes similar adjustments:

(b)(1)(A): The 15-year mandatory minimum for a prior drug offense would drop to 10 years, and the 10-year mandatory minimum floor would drop to 5 years.

(b)(1)(B): The 10-year mandatory minimum for a prior drug offense would drop to 5 years, and the 5-year mandatory minimum floor would drop to 2 years.

Smarter Sentencing would also create a new category of `courier’ for a defendant whose role was limited to transporting or storing drugs or money. The mandatory minimum for a courier under 21 USC § 960, the importation statute, would essentially be cut in half. It would not affect mandatory minimums in 21 USC § 841(b).

Importantly, the bill makes its changes retroactive, enabling people who now have mandatory minimum sentences changed by the bill to ask their judges for a sentence reduction.

mandatory170612Lee and Durbin first introduced the Smarter Sentencing Act in 2013. Several of its provisions made it into the First Step Act, which was enacted into law in 2018, but the changes in mandatory minimums for most drug offenses would not.

“Mandatory minimum penalties have played a large role in the explosion of the U.S. prison population, often leading to sentences that are unfair, fiscally irresponsible, and a threat to public safety,” Sen. Durbin said in a press release. “The First Step Act was a critical move in the right direction, but there is much more work to be done to reform our criminal justice system. I will keep fighting to get this commonsense, bipartisan legislation through the Senate with my colleague, Senator Lee.”

Meanwhile, S.1014 – the First Step Implementation Act – is equally significant. It would extend retroactivity to anyone sentenced for drug or stacked § 924(c) offenses sentenced prior to the 2018 First Step Act and let judges waive criminal history limitations that keep defendants from getting the 18 USC § 3553 safety value.

Additionally, the bill corrects a weird anomaly in the First Step Act that redefined prior drug cases for which a defendant can get an § 851 enhancement (which increases the mandatory minimum where the defendant has certain prior drug convictions) to limit such priors to crimes punishable by more than 10 years for which the defendant was actually sentenced to more than a year. Under the 2018 bill, the change affected people sentenced under §§ 841(b)(1)(A) and (b)(1)(B), but not people sentenced under the lowest level of sentence, § 841(b)(1)(C). S.1014 applies the same “serious drug felony” definition to all three subsections.

The sleeper in S.1014 is that it would let virtually anyone sentenced under § 841(c) prior to the 2018 First Step Act seek a reduction using a procedure a lot like the Fair Sentencing Act retroactivity motions. The sheer number of motions likely to be filed might be enough to give Congress pause on this one.

usscmembers210328The bill also refines a number of Sentencing Commission goals – such as keeping down the prison population and ensuring that Guidelines don’t have adverse racial impacts. All of that would be great, but – as Supreme Court Justice Sotomayor noted last week – “currently, six of the seven voting members’ seats are vacant. The votes of at least four members are required for the Commission to promulgate amendments to the Guidelines.” The Commission has been paralyzed by lack of quorum since December 2018. The Senate has to confirm at least three new members – and none has yet been nominated by President Biden – before the Commission can do anything.

As for the two new bills, introduction hardly means approval. While Ohio State law professor Doug Berman is skeptical of their chances, he notes that “prior iterations of [the Smarter Sentencing Act] got votes in Senate Judiciary Committee from the likes of Ted Cruz and Rand Paul. Moreover, the current chair of the Senate Judiciary Committee is Senator Durbin and the current President campaigned on a platform that included an express promise to work for the passage of legislation to repeal mandatory minimums at the federal level. Given that commitment, Prez Biden should be a vocal supporter of this bill or should oppose it only because it does not go far enough because it merely seeks to ‘reduce mandatory minimum penalties for certain nonviolent drug offenses,’ rather than entirely eliminate them.

Committee on the Judiciary, Durbin, Lee Introduce Smarter Sentencing Act (March 26, 2021)

Congressional Record, Statements On Introduced Bills And Joint Resolutions (S.1013 and S.1014) (March 25, 2021)

Sentencing Law and Policy, Senators Durbin and Grassley re-introduce “Smarter Sentencing Act” to reduce federal drug mandatory minimums (March 26, 2021)

– Thomas L. Root