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Sentencing Commission’s Sounds of Silence on Retroactivity – Update for August 9, 2024

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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.

SENTENCING COMMISSION PUTS BRAKES ON RETROACTIVITY

deafeningslience240809In the annals of retroactive U.S. Sentencing Commission guidelines, never has such an ambitious retroactivity agenda yieldzed such… silence.

The USSC is the federal agency responsible for promulgating guidelines for federal judges in imposing criminal sentences. Its proposed amendments to those Guidelines — made in the spring of every year — become part of the Guidelines on November 1 unless Congress steps in to veto some or all of the changes.

A Guidelines change that would reduce a sentencing range does not apply to the sentence of a prisoner who has already been sentenced unless the Commission proposes a change in USSG § 1B1.10, the Guideline governing retroactivity.

Retroactivity doesn’t happen often. In 36 years and over 825 amendments, the USSC has made an amendment retroactive 21 times (under 3% of the time).

retro240506This year, the Commission proposed to make four Guideline changes, in areas of acquitted conduct, gun enhancements, Guidelines calculation where a defendant is convicted of an 18 USC § 922(g) felon-in-possession count, a 21 USC § 841 drug trafficking count , and a separate 18 USC § 924(c) gun conviction; and a change in the drug Guidelines to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that inflate sentencing ranges.

The Commission solicited public comment on the proposed retroactivity and the staff prepared retroactivity impact reports that, among other matters, estimated how many prisoners would be eligible for reduced sentences if retroactivity on each proposal was adopted.

However, at yesterday’s meeting, the Commission tersely declined to vote on the measure. After about 10 minutes of discussion on Commission priorities for the coming year, US District Court Judge Carlton Reeves (SD-MS), chairman of the Commission called for a motion to adopt the retroactivity proposal. His call was met with a deafening silence.

Chairman Reeves was not surprised, the decision to defer retroactivity apparently having been scripted beforehand. He said:

The matter fails for a lack of a motion.

The public tuned in today to hear not only about the commission’s final priorities but also our decision about retroactivity. Our final priorities made clear that we are listening closely to the public’s recommendations about how to do our work. Many have called for the Commission to identify clear principles that will guide its approach to retroactivity. After deep deliberation, we have decided to heed those calls. For that reason, we will not be voting on retroactivity today. Nevertheless, I want to thank all of those who submitted comments and testimony regarding retroactivity for these amendments. Please know that your input has been heard and will continue to be heard as the Commission moves forward.

So what happened?

The best speculation is that the Commission is responding to criticism heaped on it for adopting amended Guideline 1B1.13(b)(6), which permits judges to grant compassionate release where a prisoner’s sentence could not be imposed today because of changes in the law that occurred after the sentence was imposed. Subsection (b)(6) contains a lot of caveats: the prisoner must have served 10 years, the change must have created a substantial disparity between the prisoner’s sentence and current sentences for the same offense, and the inmate’s prison record had better be clean as a whistle.

Nevertheless, after the Commission adopted the amended 1B1.13 containing the new subsection (b)(6), Sen John Kennedy (R-LA), a member of the Judiciary Committee, introduced the Consensus in Sentencing Act (S.4135) to require the Commission to achieve “bipartisan agreement to make major policy changes.” The bill would amend 28 USC § 994(a) to require that amendments to the Guidelines receive five votes from the Commission’s seven voting members.

At the time, Kennedy whined that “[t]he Sentencing Commission for decades strove to achieve bipartisan agreement when adopting amendments to the Sentencing Guidelines. In recent years, the Commission has lost its way and begun forcing through amendments on party-line votes.”

The Commission has seven voting members. No more than four members can belong to the same political party.

Sens Ted Cruz (R-TX), John Cornyn (R-TX), Tom Cotton (R-AR) and Marco Rubio (R-FL) cosponsored S.4135, which is stalled in the Judiciary Committee and has no chance of passage before the 118th Congress expires at the end of the year.

Nevertheless, in June, retired US District Judge John Gleeson, a member of the Commission, met with Kennedy, after which Kennedy said that “Gleeson acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.”
“I look forward to seeing the fruits of this commitment.”

I suspect he just did.

can230407The Commission did not reject retroactivity on the amendments, but its intention to adopt guiding principles for retroactivity pretty much ensures that any decision on making the acquitted conduct and other amendments retroactive has been kicked down the road for a year or better.

Sentencing Commission Public Hearing (Video) (August 8, 2024)

Sentencing Commission, Final Priorities for Amendment Cycle (August 8, 2024)

S.4135, Consensus in Sentencing Act

Sen John Kennedy, Kennedy introduces bill to restore bipartisan decision-making at Sentencing Commission (April 7, 2024)

Sen John Kennedy, Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines (June 3, 2024)

– Thomas L. Root

The “Hollowayers” Work To Produce Another Hit – Update for April 5, 2024

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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.

‘HOLLOWAY PROJECT’ BATTLES DOJ ON COMPASSIONATE RELEASE

honeymooner240405Longer ago than I care to recall (I was not yet in kindergarten), Jackie Gleason rocketed to fame as one of the creators and star of “The Honeymooners.” Now, about seven decades later, John Gleeson is the star of his own production – no comedy here – leading what may soon bear a dramatic fight to peel away what he calls the injustice of “stacked” mandatory federal prison sentences.

I was saddened to see Judge Gleeson give up his lifetime appointment on the federal bench eight years ago for white-shoe Wall Street law firm Debevoise & Plimpton. I could hardly blame him: D&P reportedly started him at well above minimum wage (even California minimum wage). But I selfishly wanted him to stay on as an Eastern District of New York judge for no other reason than his cerebral and compassionate approach to federal sentencing. I figured that Debevoise probably didn’t do a lot of court-appointed federal defense work, and we thus had probably seen the last of Judge Gleeson’s fresh and intelligent approach to sentencing.

What did I know? Eight years later, Judge Gleeson not only sits on the U.S. Sentencing Commission, he’s leading a D&P Initiative that could soon face off with the Department of Justice at the Supreme Court.

gleesonB160314Bloomberg Law reports that Judge Gleeson is the driving force behind “The Holloway Project,” a pro bono program that represents prisoners convicted of multiple 18 USC § 924(c) offenses prior to the passage of the First Step Act. The Project’s goal is to reduce the sentences for clients they believe have been rehabilitated after decades in prison.

The project is named for Francois Holloway, who Gleeson himself sentenced to 57 years in a robbery/gun case but later reduced by convincing the U.S. Attorney for EDNY at the time, Loretta Lynch, not to get in the way.

(Parenthetically, the Holloway resentencing spawned a cottage industry of low-brow post-conviction consultants who were hawking “Holloway motions” to prisoners. I heard from a lot of people asking how to file Holloway motions, only to be disappointed when I told them that all they had to do was get the U.S. Attorney and their judge to agree that they should be let out. The universal response: “The prosecutor will never agree to that!”   No kidding. It was hardly Judge Gleeson’s fault that bottom-feeders tried to bilk inmate families on the basis of the Judge’s extraordinary effort on Francois’s behalf, but the Holloway case  was a true Black Swan.)

blackswan170206Back to today: As a Sentencing Commission member, Judge Gleeson championed the adoption of USSG § 1B1.13(b)(6), a subsection of the new Guidelines policy statement on sentence reduction motions (commonly if inaccurately called “compassionate release” motions). which defines overly long sentences where the law has changed as an extraordinary and compelling basis for an 18 USC § 3582(c)(1) sentence reduction. Subsection (b)(6) defines when a nonretroactive change in the law that would reduce a current sentence dramatically if it were retroactive could constitute an “extraordinary and compelling” reason for a sentence reduction under 18 USC § 3582(c)(1)(A).

Subsection (b)(6) is important to compassionate release for the same reason all of USSG § 1B1.13(b)(6) is important. Section 3582(c)(1)(A) authorizes a judge to grant a sentence reduction when three conditions are met:

•  the reduction must be for “extraordinary and compelling reasons.”

•  the reduction must be consistent with applicable Sentencing Commission policy statements.

•  the reduction must be “consistent” (whatever that means) with the sentencing factors of 18 USC § 3553(a).

When Congress enacted § 3582 as part of the Sentence Reform Act of 1984, it stipulated that rehabilitation alone was not an extraordinary and compelling reason for a sentence reduction. As for what might be, Congress did not say. Instead, it delegated to the Sentencing Commission the authority and duty to define exactly what situations constitute “extraordinary and compelling reasons” under the statute.

Guideline 1B1.13 is the Commission’s response, listing by my count 17 situations that are extraordinary and compelling. Of focus to Judge Gleeson’s team is USSG § 1B1.13(b)(6), which says

Unusually Long Sentence.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.

Before the new 1B1.13 was adopted last year, some Circuits ruled that judges – who remain free to consider other factors as being “extraordinary and compelling” – could consider changes in the law as a basis for compassionate release. Others flatly refused to approve such bases for compassionate release. When the Circuit split reached the Supreme Court a year ago, the DOJ urged SCOTUS to wait to consider the issue until the USSC adopted its new policy statement as Congress required.

Now that the Commission has adopted new rules, DOJ is arguing in multiple cases that the Commission exceeded its authority by making the change.

“What [DOJ] said very early on is that their nationwide litigation position was that they are objecting to this provision as an overstep from the Sentencing Commission,” said University of Chicago law professor Erica Zunkel.

A February Northern District of Georgia court decision complained the DOJ had “contradicted itself” by arguing that the Commission doesn’t have the power to answer questions it once urged the Commission to answer:

The DOJ has previously argued that courts should refrain from addressing the retroactivity question because “it should be addressed first by the Commission.” The Commission has now addressed the issue. How can the Commission have the authority to address the question but exceed that authority by addressing the question? This argument lacks merit.

The issue is currently before other district and appeals courts. Gleeson and others expect it will reach the Supreme Court.

moonalice240405When it does, expect Debevoise to be there. Unfortunately, Judge Gleeson himself will not be: as a member of the Sentencing Commission, he will recuse himself from participating in a case arguing the Commission’s authority.

To the moon, DOJ! To the moon!

Bloomberg Law, Debevoise, DOJ Sentencing Reform Clash Could Hit Supreme Court (March 21, 2024)

United States v. Allen, Case No. 1:09-cr-320, 2024 U.S.Dist. LEXIS 28049 (NDGa, February 12, 2024)

– Thomas L. Root

Is DOJ Gunning for New Compassionate Release Guideline? Some Suspect So – Update for October 23, 2023

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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.

RUMORS: WILL DEPT OF JUSTICE GO AFTER NEW COMPASSIONATE RELEASE GUIDELINE?

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that he has “heard talk that, notwithstanding the text of § 994(t), the Justice Department is planning to contest the new [compassionate release] guideline once it becomes effective on November 1.”

rumor231023Prof Berman does not cite his sources, but his credentials as among the premier federal sentencing law experts in the nation suggest that his report should be taken seriously. The Dept of Justice was adamantly opposed to the new USSG § 1B1.13(b)(6) – which directs that if a defendant has served at least 10 years of an unusually long sentence, a change in the law (other than a non-retroactive Guideline amendment) “may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.” In fact, subsection (b)(6) was the cause of the Sentencing Commission’s extended debate and 4-3 vote split on approving 1B1.13.

Any DOJ litigation attack on 1B1.13 makes little sense. Congress has decreed in 28 USC 994(t) that the Sentencing Commission “shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” What’s more, Congress has built a veto mechanism into the Guidelines, giving legislators 180 days to reject what the USSC does before it becomes effective. It would be tough to argue that § 994(t) and the fact that Congress let the new 1B1.13 go into effect didn’t mean that any DOJ effort to convince a court to invalidate the new Guideline is doomed to failure.

The rumor may be stoked by a USA Today article last week that warned that “new Sentencing Commission guidelines will give [prisoners] a chance for compassionate release. But DOJ threatens to stand in the way.” The authors wrote that

mercy161107[t]he Sentencing Commission’s commonsense expansion of compassionate release makes us hopeful that our federal criminal system can carve out a little space for redemption, mercy and a recognition that we don’t always get it right the first time around. Unfortunately, even with the promise of and need for the commission’s new guidance, the future of compassionate release is uncertain. The Department of Justice has objected to the commission’s recognition that legal changes resulting in an unjust sentence can qualify as an extraordinary and compelling reason justifying relief.

The article cites the DOJ’s spirited opposition to what became 1B1.13(b)(6) – the “change in the law” provision” – of the compassionate release Guideline. But nothing in the DOJ’s opposition comments, which it was perfectly entitled to file, suggests that the government will try to get the amendment set aside judicially.

The USA Today article argued that

the commission’s ‘unusually long sentences’ provision is good policy. Far from a get-out-of-jail-free card, as some have suggested, it is instead a narrow recognition that a sentence imposed decades ago may, upon review today, be longer than necessary. The provision applies in limited instances where, among other things, the person has served at least 10 years in prison and there is a ‘gross disparity’ between their sentence and the one likely to be imposed today. Even then, an individual still must demonstrate that they will not pose a danger to the community and that their individualized circumstances weigh in favor of a sentence reduction….

Bottom line: I doubt that DOJ plans any omnibus attack on 1B1.13(b)(6). Rather, I suspect that the USA Today authors are extrapolating from the Department’s negative comments during the Guidelines amendment process.  Nevertheless, no one’s gone broke yet betting that the DOJ will not be both creative and vigorous in fighting to keep people locked up in order to honor a draconian but lawful sentence.

If Professor Berman seems a little alarmist to you, recall Sen. Barry Goldwater’s famous observation that “extremism in the defense of liberty is no vice. Moderation in the pursuit of justice is no virtue.” For now, I stand with the Professor.

gleesonB160314In other Sentencing Commission news, President Joe Biden last week nominated current federal judge Claria Boom Horn (who sits in both the Eastern and Western Districts of Kentucky) and retired federal judge John Gleeson to full 6-year terms on the Commission. Both of them – who were filling one-year interim terms on the USSC – are intelligent and thoughtful commissioners. I see Judge Gleeson – author of what came to be known as the “Holloway motion” when he used his legal and persuasive authority to correct a grossly unjust sentence – to be a little better rounded on sentencing policy.

That being said, one only has to remember former Commissioner Judge Danny Reeves, Bill Otis and Judge Henry Hudson to realize that the weakest commissioner on the USSC now (and I do not mean to imply that the weakest commission is either Judge Horn or Judge Gleeson) stands far above the ones President Trump favored but was unsuccessful in placing on the Commission.

Sentencing Law and Policy, Urging the Justice Department to respect the US Sentencing Commission’s new guidelines for compassionate release (October 18, 2023)

USA Today, First Step Act advanced prison reform, but hundreds are still serving unjust sentences (October 18, 2023)

White House, President Biden Names Fortieth Round of Judicial Nominees and Announces Nominees for U.S. Attorney, U.S. Marshal, and the U.S. Sentencing Commission (October 18, 2023)

– Thomas L. Root

Criminal History Guidelines Going Retro By Narrowest of Margins – Update for August 25, 2023

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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.

SENTENCING COMMISSION CLIFFHANGER SENDS CRIMINAL HISTORY CHANGES RETROACTIVE

reeves230706Sentencing Commission meetings – and admittedly, we don’t have many in our sample, because the USSC was moribund for the five years ending last August – are usually yawners. Chairman Carlton Reeves likes to talk and loves polite consensus. No one on the Commission is a bomb-thrower, and every the most vigorous policy disputes are cloaked in courtesy. Everyone – even the ex officio Dept of Justice member Jonathan J. Wroblewski – gets a turn at the mic.

That’s partly why yesterday’s meeting was so surprising.

The Commission approved the first retroactive application of a Guideline change in nine years, deciding that Amendment 821 – which lowers criminal history scores in some cases – should apply to people already sentenced. It also adopted policy priorities for the 2024 amendment cycle that include maybe amending how the guidelines treat acquitted conduct and assessing whether Bureau of Prisons practices are effective in meeting the purposes of sentencing.

Zero is Hero:  Right now, someone with zero or one criminal history point (a minor misdemeanor) is scored a Criminal History Category I. This rating provides the lowest sentencing range for any given Guidelines offense level. The Commission has adopted a new ”zero-point” Guidelines amendment, which added Section 4C1.1 to the Guidelines. The new section will grant people with zero criminal history points who meet a long list of other conditions (such as no guns or violence, no sex offenses) a 2-level reduction in their Guidelines offense level. The practical effect will be that the person’s advisory sentencing range will drop two levels (such as from Level 30 (97-121 months) to Level 28 (78-97 months).

Status Seekers: At the other end of criminal history, the Guidelines have always assigned an extra two points if the current offense was committed while someone was under supervision. Supervision could be probation or parole from a prior offense or supervised release from a prior federal offense. The two points (called “status points”) could be a snare for the unwary. A defendant involved in a conspiracy of several years duration might pick up a DUI offense during the period the conspiracy is going on. Even if the local judge lets him or her off with unsupervised probation, that local conviction would add 2 criminal history points and quite likely land the defendant in a higher criminal history category.

nostatus230825Last April, the Sentencing Commission abolished all status points for people who had fewer than seven accumulated criminal history points driving their criminal history category. For those with seven or more points, only one status point would be added rather than two. In making this change, the USSC determined that status points had little to no relevance in the accurate determination of a criminal history profile.

As it must do whenever it lowers the Guidelines, the Commission last May opened a proceeding to determine whether those changes should benefit people who have already been sentenced as well as those who have yet to be sentenced. This retroactivity proceeding ended with yesterday’s meeting.

Chairman Reeves opened the meeting with a full-throated endorsement of making the criminal history amendments retroactive. Commissioners Luis Restrepo (Judge on the 3rd Circuit Court of Appeals) and Laura Mate (Federal Public Defender) followed him, voicing their support for full retroactivity.

I yawned. It hardly mattered at this point that the Commission’s audio feed was garbled, because retroactivity was up 3-0, and it seemed that victory was a foregone conclusion. A done deal.

But then, Commissioner Claire Murray (a former Assistant Attorney General) delivered an ordered and rational argument against retroactivity, followed by complementary arguments against going retro by Commissioners Candice Wong (US Attorney’s Office for DC) and Claria Horn Boom (US District Judge from both districts of Kentucky). Suddenly, the vote was 3-3, and retroactivity was tottering.

It thus fell to Commissioner John Gleeson (Wall Street lawyer and former federal judge) to decide whether 18,000 or so federal prisoners would be eligible to have their sentences adjusted to what USSC doctrine now believed was appropriate. Judge Gleeson did not disappoint.

gleesonB160314Speaking in quiet, measured tones, Judge Gleeson observed that the opponents of retroactivity complained that the changes made by Amendment 821 “do not remedy a systemic wrong and thus could not rectify a fundamental unfairness in the guidelines manual,” and thus the need for finality and the administrative burden placed on courts by retroactivity meant that the changes should not be made retro. “In my view,” Judge Gleeson said, “it is hard to overstate how wrong that argument is.”

Judge Gleeson highlighted the disproportionate impact the two criminal history guidelines had had on minorities. He said that 43% of the prisoners affected by the retroactive change in status points are black and 20% are Hispanic. About 69% of those benefitting from the zero-point change are Hispanic. Judge Gleeson said that while

“there’s no such thing as fully remedying and racial disparity that’s been built into our criminal justice system for so long… making these amendments retroactive will have a tangible effect for people of color… Overreliance on criminal history can drive pernicious racial disparities in sentencing… we [have] visited fundamental unfairness on thousands of people through guidelines that judges follow… [that] we know from the data are wrong… At the receiving end of these sentences there are three-dimensional human beings.”

Final vote for retroactivity was 4-3.

retro160110The retroactivity order prohibits district courts from granting any change in sentences prior to February 1, 2024. The Commission voted that delay to ensure that people who might be released will have the opportunity to participate in reentry programs and transitional services that will increase the likelihood of successful reentry to society.

The Commission estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

• 11,495 prisoners will have a lower sentencing range due to the status-point change, with a possible sentence reduction of 11.7%, on average.

• 7,272 prisoners will be eligible for a lower sentencing range based upon the “Zero-Point” change, with an average possible sentence reduction of 17.6%.

Eligible prisoners will have to file a motion with their sentencing courts under 18 USC § 3582(c)(2) seeking the reduction. The district court is entitled to grant no more than a reduction to the bottom of the revised sentencing range (with special rules for people who have had departures for assisting the government), and no issues may be considered other than the revised criminal history score. Whether to grant as much a reduction as possible, only part of the possible reduction, or none at all is entirely up to the judge.

US Sentencing Commission, Public Meeting (August 24, 2023)

Sentencing Law and Policy, US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities (August 24, 2023)

– Thomas L. Root