Tag Archives: prisology

Sentencing Commission Releases Sobering Mandatory Minimum Report – Update for July 12, 2017

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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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READ ‘EM AND WEEP

mandatory170612Everyone appreciates on a visceral level how badly Congressional meddling in sentencing – in the form of statutorily-imposed mandatory minimum sentences – has loaded the BOP with inmates serving harsh sentences and skewed any attempt by the United States Sentencing Commission to impose a rational system. Thanks to a USSC report issued yesterday, everyone’s understanding of mandatory minimum sentence havoc can be intellectual as well.

The USSC study, An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017 Overview), examines the application of mandatory minimum sentences and the impact of those penalties on the federal prison population.”

The 89-page report is a bonanza of data on mandatory minimums. Perhaps most significant to us is the fact that over half (55.7%) of federal inmates at the end of last fiscal year were serving time for offenses carrying mandatory minimum sentences. Recall that one of our criticisms of Prisology’s sentencing table reform was that so many inmates – perhaps 150,000 – would be eligible for a sentence reduction were the table made retroactive that the courts would be overwhelmed. This likely flood of sentence reduction motions would probably cause the Commission to refuse retroactivity.

The Report’s number suggests that even if the table were amended and made to apply retroactively, only about 83,000 inmates would be eligible for a sentence reduction under 18 USC 3582(c)(2). That number is still high, but much more manageable than our original estimate. While we still have substantial doubts that the Prisology proposal will go anywhere, we acknowledge that the sheer volume of eligible inmates is less than half of what we anticipated, tipping the probability scale more in Prisology’s favor.

keynes170712Other interesting facts gleaned from the Report:

•   The average sentence length for inmates serving mandatory minimum sentences convicted was 110 months, nearly four times the 28-month average sentence for inmates without a mandatory minimum.

•   Over one-third (38.7%) of inmates convicted of a mandatory minimum offense received relief from the mandatory minimum at sentencing, a decrease from 46.7% six years before.

mandatorywhere170712•   Fewer that 10% of defendants in Vermont, West Virginia, New Mexico and Arizona were convicted of mandatory minimum offenses. But in middle Illinois, southern Indiana, western Kentucky, eastern Tennessee, and northern and middle Florida, between 40% and 50% of defendants were hit with mandatory minimums.

• While drug and gun mandatory minimum sentence convictions have stayed level or dropped since 2002, child porn and sexual offense mandatory minimums have skyrocketed from fewer than 5% of all defendants charged with those offenses to 60%.

mandatorywhenJudge William H. Pryor, Jr., Acting Chair of the Commission, said in a press release that “when Congress created the Commission, Congress empowered it to serve ‘as a clearinghouse and information center’ about federal sentencing and to assist Congress, the federal courts, and federal departments in the development of sound sentencing policies… The Commission has published this report to fulfill that Congressional mandate.”

In a 2011 report, the Commission urged Congress to moderate drug, firearm and sex/porn mandatory minimums. Since that time, Congress has proposed adding several new mandatory minimums, but thus far has ameliorated nothing.

U.S. Sentencing Commission, An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (July 11, 2017)

– Thomas L. Root

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Rethinking Prisology’s “Hail Mary” – Update for July 11, 2017

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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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“RE-PRISE” OLOGY

Last week, we reviewed (and roundly criticized) the nonprofit Prisology for its current effort to convince the United States Sentencing Commission to adopt a new, kinder and gentler sentencing table (Chapter 5A of the Guidelines).

trump170717We questioned the efficacy of an online letter-signing campaign, arguing that – unlike the 2014 drug quantity 2-level reduction – there is no consensus for changing the Table right now, and indeed a Justice Department led by Jefferson Beauregard Sessions III, would likely be quite hostile to the effort. We pointed out that even if such a change were to be effected, the likelihood of a new Sentencing Table being made retroactive was less likely than Trump giving up Twitter. We feared that the effort would provide false hope to inmates, and wondered whether Prisology might be pumping up its contacts list by soliciting the names, addresses, emails and phone numbers of people signing its online petition.

Yesterday, we got a call from Brandon Sample, president of Prisology and a well-known federal post-conviction attorney. Our conversation was extended and cordial. While Brandon did not convince us that Prisology’s effort was not just tilting at windmills, and while we did not convince him that our Eeyore-like pessimism was justified, we thought much of what he said was worth recounting. Thus, today’s Reprise on Prisology.

eeyorelisa170711We suggested last week that Prisology was taking an outsized piece of credit for the Sentencing Commission’s 2014 2-level reduction, when in fact it was more likely that the much larger Families Against Mandatory Minimums – which also claimed a leadership role in convincing the Commission to drop the drug levels – had pulled the laboring oar. Brandon disagreed, reporting to us that Prisology came early to that party, delivering “tens of thousands” letters in support of the reduction to the Commission. He said that FAMM’s 2014 efforts on the 2-level reduction were surprisingly minimal, and its after-the-fact claim that it had been out front on it was exaggerated.

We have no reason to doubt Brandon’s explanation, and several reasons to accept it.  We heard from one inmate reader who recalled the 2014 campaign vividly:

As a person who was around and ‘in the trenches’ behind bars when the drugs minus two amendment cycle was happening I can state that FAMM’s letter writing campaign was only a 3rd of what Prisology’s was.  FAMM had people mailing letters directly to the sentencing commission, and if memory serves they provided a template.  Prisology, on the other hand, had people mailing a template letter (similar to what they have now) directly to Prisology so that they could deliver them in a lump sum (more impactful) to the sentencing commission.  They ended up delivering right around 50,000 letters. Double what ever FAMM could have.

sizzle170711What both Brandon and our reader described reminds us of a phenomenon we have observed several times over FAMM’s 27-year history. FAMM started at a kitchen table: now, it is big. Some 70,000-supporters big. FAMM has a nice budget, paid staff, and a PR machine. This is fine, exactly what a nonprofit Washington-based advocacy group should have.  With size can come institutional bias, tunnel vision on issues, and all too often an instinct for self-preservation that makes the organization too quick to adopt a not-invented-here philosophy and a disdain for any other group working in the same arena. People are like that: organizations are like that, too.  At times, we have thought FAMM cared more about the sizzle than it did the steak.

We also suggested that Prisology had seemed to be dormant since 2014. Brandon admitted that the group was not grinding out press releases during that time, so that a review of the website might make it seem so. Part of that problem results from Prisology lacking the well-tuned and professional media shop that larger organizations (such as FAMM) keep humming with self-adulatory releases.

However, Brandon argues, press releases or not, Prisology remained active after 2014, spearheading among other things Freedom of Information Act litigation against the Bureau of Prisons (something of which we were aware) and maintaining a focus on the Sentencing Commission and congressional initiatives during the period. He makes a good point. Maybe our reviewing Prisology’s website for news releases was not the best metric. Judging an organization’s activity by counting the number of press releases may be sort of like judging the quality of a college football program by the quality of the band. You would be right some of the time – USC, Ohio State, Michigan, Alabama and Auburn all have large, lavish marching bands. But the best bands in the nation also include Tennessee, Ohio University (the Bobcats) and perennial Big 10 doormat Purdue. Like the statisticians say, there just ain’t any correlation.

purdue170711We also talked to Brandon about the D.C. Circuit debacle on the Prisology FOIA suit last spring. We said at the time we could not figure out how the organization could have made such a rookie mistake on standing. Brandon explained Prisology’s strategy, based on the principle that if an agency is by law supposed to make something available in the public reading room, you shouldn’t have to ask for it as a condition of filing suit. It’s not what we would have suggested, Article III standing seeming to us to be a somewhat different issue than whether FOIA should make you ask for something that ought to be available without asking. But for the same reason Strickland v. Washington holds that lawyers’ strategic choices are largely immune from ineffective assistance of counsel claims, we defer to Prisology’s strategic choice.

Brandon says that Prisology is not done, and it intends to make another run at compelling the BOP to honor its FOIA obligations. It always bothered us that Wile E. Coyote would only try something once, fail at it, and then – instead of tweaking the technique – move on to something completely different. Fortunately, Prisology is no Wile E. Coyote. We think the FOIA issue Prisology raised has merit, and needs to be heard.

That leaves our concern that Prisology may be using the online petition gambit to build an email and phone list for fundraising. Brandon says no. Despite the fact Prisology has collected untold riches from donors in the past – probably a couple hundred bucks total, Brandon says – he says that none of the information gathered for the Sentencing Commission letters will be used for any purposes other than to file with the Commission. Comparing Prisology’s modest “donate” buttons to FAMM’s neon-light-at-midnight “DONATE TO FAMM” button, we think it’s pretty clear that emptying donors’ wallets is not a primary mission at Prisology.

hailmary170613We still have serious doubts about the likelihood that Prisology’s “Hail Mary” pass on the Sentencing Table will work, and – if it does – that it will ever be retroactive. And we would prefer that the sentencing reform community turn a laser-like focus on an issue likely to be adopted and made retroactive. But while we still caution that people should not be getting hopes up that the Prisology effort will soon deliver lower sentences to just about everyone, we nevertheless salute its effort.

More important, based on Prisology’s promise that the information it collects will not be abused, we think that having family and friends complete the online letter does not harm, and may advance,  sentence reform efforts.

– Thomas L. Root

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Just Because Your Friends Do It Doesn’t Mean It Isn’t Hopemongering – Update for July 5, 2017

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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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BRINGING FORTH A MOUSE

mouse170706From time to time, we rail about hopemongerers, people who traffic on the desperation of federal inmates to make a buck. The people who do this spectrum from those proceeding out of naïve self interest, like the Colorado prison reform group that is really just the families of the co-conspirators in a white-collar fraud, to the genuinely corrupt, like the bunch selling a sentence reduction scam.

(A happy note: Alvin Warrick, aka “Pete Candlewood,” last week got slammed with a 235-month sentence in the Southern District of Florida, while sidekick Colitha Bush got 96 months – we’ll be sure to offer them the Rule 35 Deal of the Century).

But sometimes someone with the most altruistic of motives inadvertently stirs the pot of hope, sending the system into a tizzy for no good reason. And that brings us to our friends at Prisology.org.

Prisology is an on-again off-again prison reform group headed by Brandon Samples, a former federal inmate who is now a practicing attorney. Brandon’s a sharp guy, someone who has been in both seats at the defendant’s table, as a defendant facing a harsh sentence and as counsel working to get his client the best outcome possible.

prisologyL170706Prisology, formed in 2013, became active in about 2014, organizing a letter-writing campaign to the U.S. Sentencing Commission when Amendment 782 – retroactivity of the two-level reduction in drug base offense levels contained in USSG Sec. 2D1.1(c) – was being considered. The organization’s website touts its involvement in the 2014 efforts, claiming that its “monumental effort” in submitting tens of thousands of letters to the Sentencing Commission in support of retroactive application of the 2-level drug reduction “helped prompt change to harsh drug guidelines.” Indeed, in a press release issued in March 2015, Prisology said, “Key to the Sentencing Commission’s unanimous approval of Amendment 782 was its receipt of over 75,000 comments favoring the reform, mostly prompted by an intensive email, letter writing and social media campaign organized by Prisology. This is the first major victory for the barely year-old nonprofit organization dedicated to criminal justice system reform.”

Really? This would certainly be news to Families Against Mandatory Minimums, the 25-year old big gorilla in criminal justice reform. FAMM took credit for generating most of the 65,000 plus letters the Sentencing Commission received, a claim that – given FAMM’s prominence in sentencing reform – is much easier to swallow that Prisology’s assertion that it organized the effort.

rooster170706In all fairness, even if one credits Prisology’s rather far-fetched contention that it ramrodded the 2014 drug reduction retroactivity decision, the organization is pretty much the rooster taking credit for the sun rising. After all, in 2007, the Sentencing Commission reduced the offense levels for drug quantities, and made those changes retroactive in Amendment 706. In 2011, the Sentencing Commission again made reduced crack cocaine offense levels retroactive in Amendments 750 and 759. After those retroactive reductions, the 2014 decision was hardly a seismic event.

Plus, it’s not like the retroactivity decision had any natural predators. The Obama Administration supported it. There was no effort in Congress to thwart it. The Sentencing Commission’s vote on retroactivity was unanimous. And FAMM, a considerably larger advocacy group, was generally credited at the time with generating a vast volume of mail in support of retroactivity.

After 2014, Prisology seemed to fall dormant. It posted two press releases in early 2015, one of which was its self-adulation for spearheading the 2014 retroactivity decision. There was one project, Prisology’s Freedom of Information Act lawsuit against the Federal Bureau of Prisons, in which the nonprofit had its hat handed to it by the D.C. Circuit earlier this year. But otherwise… nothing.

prisology170706Until now. A few weeks ago, we heard from a number of inmate readers asking us what was about to happen in the sentence reform world. It seems they had received emails from well-known federal post-conviction attorney Jeremy Gordon – a Prisology board member who was at the helm of the FOIA suit when it foundered on the D.C. Circuit’s shoals – who told them something big was in the works: One wrote

Do you know who Jeremy Gordon is? He’s a federal lawyer that sends out newsletters every week. Any way he said to tune in next week because there’s going to be a big sentencing reform push bigger than the drugs minus 2 and has the potential to affect everyone in federal prison… have you heard anything?

Yes, we have now heard something. After all of the hoopla, Jeremy, Brandon and Prisology last week brought forth a… mouse.

It seems that Prisology has drafted a new sentencing table (Chapter 5A of the Guidelines), which proposes substantially lower sentencing ranges for each step in the chart than those in the current table. It wants to generate 50,000 letters to the Sentencing Commission in an effort to browbeat the agency into adopting the proposal. The organization includes a form on its website that you can complete and submit online, complete (of course) with your name, address, email and phone number.

OK, so what could possibly be wrong with this? To be sure, the Guidelines would benefit from a more rational sentencing range chart. And, as one inmate complained to us, at least this constitutes “doing something” toward sentence reform. Something’s always better than nothing, right?

petition170706We have two – maybe two-and-a-half – complaints with Prisology’s approach. First, the Sentencing Commission’s statutory mandate nowhere mentions vox populi. The Commission is a judicial agency, not a representative democracy, and flooding it with 50,000 online forms, all of which are different names attached to the same message written by Prisology, is not going to sway any bureaucrat. Online petitions do not get read. If the sentencing tables should be rewritten, then a compelling case should be made, one that addresses the sentencing factors of 18 USC 3553(a) and that statutory goals of the Commission. After all, 50,000 online signatures in a country where more than half of Americans believe aliens have visited earth does not really establish much.

Our second complaint is more significant. By trumpeting this online petition so prominently, and billing it to inmates as “bigger than the drugs minus 2,” as our correspondent put it, Prisology has committed the cardinal sin of hopemongering. Let’s say for a moment that the Sentencing Commission really did adopt the new sentencing table. Nothing about that adoption makes the change retroactive. Rather, as with all of the drug reductions, the Commission would have to hold a second proceeding to determine retroactivity.

And there’s the rub. In considering retroactivity, the Commission considers, among other factors, (1) the purpose of the amendment, (2) the magnitude of the change in the guideline range made by the amendment, and (3) the difficulty of applying the amendment retroactively. See USSG Sec. 1B1.10.  In 2010, when the Commission abolished the extra criminal history point assigned for “recency,” that is, when the new crime occurred within two years of getting off parole or supervised release for a prior crime, the Justice Department and the Judicial Conference strongly opposed retroactivity for the “recency” amendment – which would have affected maybe 7,997 prisoners – because of the disruption such a change would have caused the court system. Bowing to those views, the Sentencing Commission turned down the retroactivity proposal.

falsehope170206How likely would the Sentencing Commission be to approve retroactivity for over 150,000 prisoners, so that each could file a petition with his or her judge seeking resentencing at a lower sentencing range?

Finally, our complaint No. 2½: We cannot help sensing that maybe Prisology’s primary purpose in the online petition is to capture data. As Heather Horn wrote in The Atlantic:

It’s the great lie of online organizing: that your voice to Congress or your voice to whomever can make a difference. It can, it should, but not through them. Nearly every organization in Washington is focused on one thing–inventing new and interesting ways to get your email address. And they want your email address so that they can ask you for money.

You don’t need a physical address, phone number and email address to sign an online petition. Congress alone gets over a billion emails annually. No one has time to read them, let alone record the user information. The organization, however, does, and it gains a valuable email, phone and address database from which to solicit funds.

We are left with the disquieting feeling that Prisology may be as interested in bulking up its email list as it is in selling the Sentencing Commission its new Sentencing Table.

Is the Prisology online petition push a scam? We have no opinion on that, but it has clearly raised inmate hopes without foundation and has little chance of having any impact.

The Atlantic, Your Online Petition Is Useless (Aug. 12, 2010)

– Thomas L. Root

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