Tag Archives: sentencing commission

Compassionate Release Numbers Show Gross Disparities – Update for May 17, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COMPASSIONATE RELEASE AIN’T WHAT IT USED TO BE

funwithnumbers170511A Sentencing Commission report issued last week chronicled a slow but consistent slide in the rate of compassionate release motions being granted by district courts, even while highlighting how inconsistencies among federal courts are resulting in gross sentence disparities.

The First Step Act granted the right to prisoners to file their own motions for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). For the 30 years prior to that, only the Bureau of Prisons was permitted to file on behalf of the prisoner, and – unsurprisingly – the BOP was greatly disinclined to ask any court to let any of its wards go home early.

In the year following First Step’s passage, around 450 compassionate release motions were filed. But in April 2020, with onset of the COVID-19 pandemic, the numbers skyrocketed. Nearly as many compassionate release motions were filed in April 2020 (436) as in all of the 15 prior months. By July 2020, over 1,500 a month were being submitted.

Everyone was scared. But as COVID became more common, the monthly numbers declined. In September 2020, 1,363 were filed, with 19% granted. A year later (September 2021), 456 motions were filed with 11% granted.

The report highlights striking variations in grant rates among the 94 federal districts. Oregon repudiates its nickname of The Land of Hard Cases, remaining the best place, statistically, to file. Of 144 motions, 63% have been granted. The back of the pack includes Western North Carolina (only 3.4% of 534 granted), Eastern Texas (2.0% of 349 granted) and Southern Georgia (2.0% of 248 granted). The average grant rate since the First Step Act permitted the filing of compassionate release motions by inmates themselves is 17.2% out of 3,867 motions.

oregon220517Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that “the District of Maryland — with a total of 211 sentencing reduction motions granted (though “only” a grant rate of 32.7% with 646 motions) — granted more of these motions than all the courts of the Fifth Circuit!” The 5th Circuit has the lower grant rate (9.3% of the 2,197 total brought) of all the circuits.

Not surprisingly, the longer one has been in prison, the better the chances for compassionate release. People with sentences over 20 years had a 26.2% grant rate, compared to a 3.8% grant rate for people with a sentence of 24 months or fewer. But here’s a strange inversion: people with lowest criminal history had a 30.0% grant rate, while those with a moderate history only had a 12% grant rate. But inmates with the worst history had a grant rate of 29.2%, almost as good as those with no prior convictions.

But the most beneficial information in the Report is the list of reasons that compassionate release motions were denied. Courts found that 18 USC § 3553(a) sentencing factors and the need to protect the public required denial in 33.1% of all compassionate release motions. Behind that were the movants’ failure to show they were at risk from COVID factors or a serious medical condition (26.4%), followed by failure to exhaust administrative remedies (17.9%). These amounted to nine out of ten reasons for denial (the courts failed to list reasons in 10% of the cases).

dice161221If it provides no other benefit, the Report suggests that compassionate release – far from being the relief First Step Act intended – has become an enormous geographical crapshoot, and a driver of sentence disparity.

US Sentencing Commission, Compassionate Release Data Report – Fiscal Years 2020 to 2021 (May 8, 2022)

Sentencing Law and Policy, US Sentencing Commission releases latest detailed “Compassionate Release Data Report” (May 9, 2022)

– Thomas L. Root

President Packs USSC With Some Good Picks – Update for May 12, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SENTENCING COMMISSION DROUGHT IS LIFTING

noquorum191016President Biden yesterday nominated a bipartisan slate of seven candidates to serve as commissioners on the U.S. Sentencing Commission. If confirmed, the nominees will revitalize the USSC, giving it its first quorum in almost four years.

The list includes U.S. District Judge Carlton W. Reeves (Southern District of Mississippi). If confirmed by the Senate, he will be the first black jurist to chair the 33-year-old commission’s history.

By statute, the Commission must be bipartisan and consist of at least three federal judges and no more than four members of each political party.

Biden’s planned nominees include three active judges and four attorneys. Of those nominees, two have experience as public defenders. Nominees also include

• Laura Mate, a former assistant federal public defender in the Western District of Washington, serves as Sentencing Resource Counsel for the Federal Public and Community Defenders in Arizona;

• Judge Luis Felipe Restrepo, appointed by President Obama to serve on the US Court of Appeals for the Third Circuit and a former assistant federal public defender in the Eastern District of Pennsylvania;

• Claire McCusker Murray, formerly principal deputy associate attorney general in the Dept. of Justice during the Trump Administration;

• Judge Claria Horn Boom, appointed by President Trump to the U.S. District Courts for both the Eastern and Western Districts of Kentucky;

• Former U.S. District Judge John Gleeson (EDNY), a partner at Debevoise and Plimpton LLP, who enjoys close to rock-star status as a forward-thinking sentence reformer;

• Candice Wong, Assistant United States Attorney and Chief of the Violence Reduction and Trafficking Offenses Section in the United States Attorney’s Office for the District of Columbia.

USSC170511The Sentencing Commission has lacked a full slate of commissioners for the entirety of the Trump Administration, and has not had a quorum since the First Step Act passed in December 2018. That is why no guideline has been amended since the November 2018 amendments went into force.

Trump nominated four commissioners in August 2020, two of whom – Judges Restrepo and Boom – were renominated yesterday. Their nominations expired when the Senate did not act on them prior to the end of the 116th Congress in January 2021.

The Commission has a stack of work waiting for its attention, chief among the issues being compassionate release. Last November, the sole remaining member of the Commission at the time, Senior Judge Charles Breyer (N.D. Cal.) complained to Reuters that the lack of quorum meant the Commission could not provide guidance on how to implement compassionate release, creating a “vacuum” in which judges inconsistently decide whether inmates under the measure can secure a sentence reduction under 18 USC § 3582(c)(1)(A)(i) amid the COVID-19 pandemic.

“Some people were granted compassionate release for reasons that other judges found insufficient,” he said. “There was no standard. That’s a problem when you try to implement a policy on a nationwide basis.” The Commission’s outdated Guideline 1B1.13, ignored by most circuits but used as a bludgeon by others, was perhaps the primary mischief-maker, but with no quorum, the USSC has been powerless to fix things.

Don’t expect immediate miracles. The Commission normally works on a 12-month cycle, with proposed topics for amendments to the Sentencing Guidelines issued late in the year, followed by the actual amendments early in the following year, and a final slate of amendments by May 1. Under the law, the amendments take effect on November 1, unless Congress votes to veto one or all of them.

This means that the most anyone can hope for would be amendments to take effect on November 1, 2023.

progress220512Still, the slate of new commissioners would be the most defendant-friendly bunch to ever run the USSC. Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog yesterday, “Because these selections have surely been made in consultation with Senate leadership, I am reasonably hopeful that hearings and a confirmation of these nominees could proceed swiftly. (But that may be wishful thinking, as was my thinking that these needed nominees would come a lot sooner.) There is lots of work ahead for these nominees (and lots of blog posts to follow about them and their likely agenda), but for now I will be content with just a ‘Huzzah!’”

He’s right.  Its progress, however slow in coming.

Bloomberg Law, Biden Names Seven to Restock US Sentencing Commission (May 11, 2022)

The White House, President Biden Nominates Bipartisan Slate for the United States Sentencing Commission (May 11, 2022)

The White House, President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts (August 12, 2021)

Reuters, U.S. sentencing panel’s last member Breyer urges Biden to revive commission (November 11, 2021)

Sentencing Law and Policy, Prez Biden finally announces a full slate of nominees to the US Sentencing Commission (May 11, 2022)

– Thomas L. Root

So Who Ties Ted Cruz’s Shoes? – Update for March 30, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THREE TAKEAWAYS FROM THE JUDGE JACKSON HEARING

shoelaces220330Judge Ketanji Brown Jackson endured hours listening to stupidity spoken by power at last week’s Senate Judiciary Committee hearing on her nomination to a Supreme Court seat.

But for federal prisoners, there are three takeaways worth remembering:

First, the Republicans intend to pound on the Democrats in this year’s mid-term elections as being soft on crime.

Senate GOP leaders said in February that they’d scrutinize Jackson’s role as a former public defender, member of the Sentencing Commission, and as a district judge. But with an increase in crime making headlines this year, the Republican strategy ultimately crystallized around painting Jackson as soft on crime.

At one point, Senator Tom Cotton (R-Ark) blasted Jackson for granting compassionate release to a crack defendant who’d been hammered by a mandatory minimum. Senators Ted Cruz (R-TX) and Josh Hawley (R-MO) both accused Jackson of “a pattern of letting child pornography offenders off the hook for their appalling crimes, both as a judge and as a policymaker,” citing seven cases where, as Hawley put it, “Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors requested.”

bullshit220330It was all crap, of course. Judiciary Committee Chairman Richard Durbin (D-IL) pointed out that ABC News, CNN, and The Washington Post have defended Jackson’s sentencing read as being mainstream. Andrew McCarthy, a former federal prosecutor, writing in the conservative National Review, called Hawley’s claims “meritless to the point of demagoguery… Judge Jackson’s views on this matter are not only mainstream; they are correct in my view. Contrary to Hawley’s suggestion… she appears to have followed the guidelines, at the low end of the sentencing range, as most judges do.”

The “Republicans have rhetorically abandoned those reformist ways and instead have returned to their tough-on-crime roots to attack her credentials for the high court,” the Washington Post said. “Far from the party that followed Grassley, and President Donald Trump, into a new approach to crime, this week’s hearings signal a GOP that is ready to return to the days of Willie Horton.”

For anyone interested in significant criminal justice reform from this Congress, that’s bad news.

Second, Jackson has the credentials and background to be a worthy successor to Justice Breyer, whose seat she is taking. Breyer was one of the Guidelines’ creators, and was the Supreme Court’s dean of criminal sentencing. Jackson has more time as a district court judge (over 8 years) than Justice Sonia Sotomayor (6 years). None of the other seven Justices was served a day on the trial bench.  And no one on the Supreme Court other than Jackson was ever a public defender, although at least two of them are former prosecutors. On top of that, Jackson was a staff attorney for the Sentencing Commission and later one of the five commissioners, the only one at the Supreme Court to have such experience.

She responded to attacks on her below-Guidelines child porn sentences in a way that provides a glimpse into her sentencing philosophy:

pervert160728“Congress has decided what it is that a judge has to do in this and any other case when they sentence,” she said. “That statute doesn’t say look only at the guidelines and stop. That statute doesn’t say impose the highest possible penalty for this sickening and egregious crime… [Instead] the statute says [to] calculate the guidelines but also look at various aspects of this offense and impose a sentence that is ‘sufficient but not greater than necessary to promote the purposes of punishment’.”

Third, the child pornography mandatory minimums and Guidelines ranges – especially in non-contact cases – are absurdly high.

In a 2014 case involving a defendant who was caught with 1,500 child pornography images on his computer, Northern District of Ohio federal Judge James Gwin, asked the jurors what they thought an appropriate sentence would be. They recommended a prison term of 14 months – far shorter than the 5-year mandatory minimum, the 20 years demanded by prosecutors, and the 27 years recommended by the Guidelines. Taking the jurors’ view to heart, Gwin sentenced the defendant to the 5-year mandatory minimum.

Reason magazine reported that Northern District of Iowa federal Judge Mark W. Bennett “likewise found that jurors did not agree with the sentences that Hawley believes are self-evidently appropriate. ‘Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,’ Bennett told The Marshall Project’s Eli Hager in 2015, ‘every time – even here, in one of the most conservative parts of Iowa… – they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that’s baloney’.”

Former federal prosecutor McCarthy agreed: “But other than the fact that Congress wanted to look as though it was being tough on porn, there’s no good reason for the mandatory minimum in question — and it’s unjust in many instances.”

Jackson made a similar argument. “As it currently stands, the way that the law is written, the way that Congress has directed the Sentencing Commission, appears to be not consistent with how these crimes are committed, and therefore there is extreme disparity.”

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Ohio State law professor Doug Berman wrote in his Sentencing Law and Policy blog that he has been “quite disappointed by what seemed to me to be a general failure by all of Senators on both sides of the aisle to engage thoughtfully with the deep challenges and profound humanity in any and all sentencing determinations… Critically, in federal child pornography cases, the basic facts are rarely routine, the applicable statutory law is rarely clear, and the applicable guidelines are the very opposite of helpful. In the child pornography setting, applicable statutory law is quite messy – e.g., what is the real difference between child pornography “possession” and “receipt”, how should USSC policy statements be considered here – and the applicable guidelines are widely regarded as badly broken. Those legal realities mean federal sentencing takes on extra layers of challenge in child pornography cases… But, if anything, the senators’ questions highlight Congress’ failures in erecting the sentencing structure that federal judges across the country, including Judge Jackson, operate within. Once the confirmation process is over, the Senate should fix the very system that they criticize judges for following.”

Even Judiciary Committee Chairman Durbin agrees. Last Wednesday, he said Congress was partly to blame for the outdated guidelines. “We have failed in responding to the changing circumstances,” he said, noting that at least 15 years had passed since the body reviewed the child pornography guidelines. “We should be doing our job here.”

Bloomberg Law, Crime Focus at Jackson Hearing Most Intense Since Marshall (March 23, 2022)

Sentencing Law and Policy, In praise of the continued sentencing sensibility of the National Review’s Andrew McCarthy (March 24, 2022)

Washington Post, Republicans, after years of pushing for softer criminal sentences, return to the party’s law-and-order posture in Jackson’s confirmation hearing (March 23, 2022)

Baltimore Sun, Senators questioning of Judge Jackson’s sentencing history during Supreme Court confirmation hearings reveals their own failures (March 25, 2022)

National Review, Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography (March 20, 2022)

Reason, Josh Hawley Absurdly Suggests That Ketanji Brown Jackson Has a Soft Spot for ‘Child Predators’ (March 18, 2022)

Wall Street Journal, Ketanji Brown Jackson Hearings Shine Spotlight on Child Pornography Law (March 25, 2022)

– Thomas L. Root

‘Compassionate Release’ is as Arbitrary as it Seems, Sentencing Commission Suggests – Update for March 14, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COMPASSIONATE RELEASE STATS ALL OVER THE MAP, SENTENCING COMMISSION REPORTS

shocked191024Everyone was shocked, shocked, I tell you, when the US Sentencing Commission reported last week that compassionate release since the passage of the First Step Act in December 2018 through the end of FY 2020 (September 30, 2020, has been largely a geographical crapshoot.

The 1st Circuit (Maine, New Hampshire, Rhode Island and Massachusetts) had the highest compassionate release grant rate at 47.5%, while the 5th Circuit (Texas, Mississippi and Louisiana) was lowest at 13.7%. Second place for compassion went to the 9th at 37.3% with honorable mention to the 7th at 36.6%. The bottom dwellers included the 11th at 19.5% and 8th at 21.3% (although in fairness, no other Circuit came close to the 5th Circuit’s dismal approval rate).

Within all of the circuits, the best places to win compassionate release were Rhode Island (25 compassionate release motions granted out of 32 filed, or 78.1%), Connecticut (49 of 68 granted, for 72.1%), and Oregon (39 of 55 granted, for 70.9%). At the other end of the scale, South Dakota (0 out of 16, for 0.0%), Western District of North Carolina (3 of 172, for 1.7%), and Southern District of West Virginia (1 out of 40, or 2.5%), were the worst places to be.

(I have excluded districts where fewer than 10 motions were filed from this: otherwise, Puerto Rico was the best place, with 8 out of 9 granted (88.9%)).

The national average for compassionate release grants during the 2-year period was 25.7%. Courts granted 1,805 requests in fiscal year 2020 and 145 requests in FY 2019.

Age, original sentence length, and the amount of time already served emerged as the central factors affecting likelihood of a compassionate release grant.

usscgraph220314By contrast, an offender’s race, criminal history category, and offense of conviction generally appeared to have little impact on the likelihood of a compassionate release grant. Still, it is interesting that the offenses most likely to get compassionate release were immigration (50% of compassionate release motions granted), administration of justice (42% granted) and bribery/corruption (37.8%). The offenses with the worst odds were stalking/harassing (12.5%), sexual abuse (13.2%) and kidnapping (13.8%). Someone with a murder conviction was more likely to win compassionate release (19%) than one with a child pornography count (17.6%).

On average, prisoners granted relief had served 80 months and at least half of their sentences. The success rate was 57%for prisoners who had been sentenced to a year or less, 20% for prisoners with sentences between 120 and 240 months, and 30% for those who had been sentenced to 20 years or more. The average compassionate release sentence reduction was 59 months (42.6% of the original sentence).

The pandemic led to a surge in motions from prisoners who worried that they might die from COVID-19 contracted in the crowded conditions of their confinement. Courts received more than 7,000 motions – 96% of which were filed by prisoners – and granted a quarter of them. Judges cited COVID-19 risks in granting compassionate release 72% of the time.

The study makes clear that how federal courts apply 18 USC 3582(c)(1)(A)(i) varies greatly, “underscoring the need to restore the U.S. Sentencing Commission,” Law360 said. “President Joe Biden, after a year in office, has yet to nominate new commissioners, keeping a potentially key player in justice reform on the sidelines.”

Individuals aged 75 or older, who make up a smaller portion of prison populations, were granted compassionate release at the highest rate — more than 60%. Courts granted compassionate release at the lowest rate — less than 20%— to people under the age of 45, according to the report. The most common reason for denying relief was failure to demonstrate an “extraordinary and compelling” reason (two-thirds of denials). Failure to exhaust administrative remedies, cited in a third of cases, was the next most common reason.

Notably, “danger to the public” was cited less than a quarter of the time, “which makes you wonder about the public safety rationale for keeping most of these prisoners behind bars,” Reason magazine said. ‘The ages of many federal prisoners cast further doubt on that rationale, since recidivism declines sharply with age.”

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The number of compassionate releases in 2020 was anomalously high because of the pandemic. “After the study period ended,” the USSC notes, “the number of offenders granted compassionate release substantially decreased.” Yet the 1,805 people who were granted compassionate release in 2020 represented just 1% of the federal prison population. Congress, which sets federal penalties, and President Joe Biden, who has the power to free any prisoner whose punishment he deems unjust and promised to “broadly use” that power but has not used it at all yet, might want to consider the possibility that there is room for a bit more compassion.

Law360, Compassionate Release Grants Vary Without Advisory Board (March 10, 2022)

Reason, Compassionate Releases of Federal Prisoners Surged During the Pandemic (March 11, 2022)

US Sentencing Commission, Compassionate Release – The Impact of the First Step Act and COVID-19 Pandemic (March 10, 2022)

Reuters, Conservative U.S. judicial regions less apt to grant inmates compassionate release -commission report (March 10, 2022)

– Thomas L. Root

Clemency: No One Here But Us Turkeys – Update for December 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.

CLEMENCY CRITICISM RISES AS CHRISTMAS APPROACHES

Business Insider noted last week that “at this point in his presidency, Joe Biden has pardoned just two sentient beings: Peanut Butter and Jelly, 40-pound turkeys from Jasper, Indiana.”

turkey211122Not that prior presidents have done much better. Trump, by contrast, had pardoned three at this point in his presidency: two turkeys and one former sheriff. Clinton, Obama, and George W. Bush all waited until at least their second year in office before granting clemency to a human being.

That’s not because Biden can’t find candidates. About 17,000 petitions are pending, 2,000 of which have been filed in the past year.

Last week, Kevin Ring of FAMM, Sakira Cook of the Leadership Conference on Civil and Human Rights, and others met with White House staff to turn up the pressure. The meeting appears to have been frustrating for Ring. During an NPR roundtable last week on criminal justice reform, he noted that Biden has thus far even resisted clemency for CARES Act detainees. “To me, it’s a bellwether,” Ring said. “Because if the administration won’t address this and address it immediately, I don’t know what hope we can have that other things are going to get done.”

NPR noted that the BOP population has increased by about 5,000 since Biden took office.

Progressives in the House of Representatives, unhappy with a clemency system they say is too slow and deferential to prosecutors, last week proposed the creation of an independent panel they hope would depoliticize and expedite pardons.

clemency170206The “FIX Clemency Act,” HR 6234, was introduced last Friday by Rep. Cori Bush (D-Missouri), Vice Chair of the House Judiciary Subcommittee on Crime, Rep. Ayanna Pressley (D-Mass), and Rep. Hakeem Jeffries (D-NY). The bill calls for a nine-person board that would be responsible for reviewing petitions for clemency and issuing recommendations directly to the president. The recommendations would also be made public in an annual report to Congress. At least one member of the panel would be someone who was previously incarcerated.

That might work… if you could convince the President to appoint anyone to it. Last week, Law360 went after Biden for having yet to nominate anyone to the U.S. Sentencing Commission, which is “keeping a potentially key player in justice reform on the sidelines, according to legal experts.”

The article points out that the USSC “hasn’t had a full roster of seven commissioners for nearly half a decade and has lacked the minimum four commissioners needed to pass amendments to its advisory federal sentencing guidelines since the beginning of 2019.” As a result, an agency whose job is to evaluate the criminal justice system’s operations and potentially drive reform has been taken off the field, Law 360 quoted Ohio State University law professor and sentencing expert Doug Berman as saying.

noquorum191016The USSC currently has only one voting member, Senior U.S. District Judge Charles Breyer, who will have to leave next October, regardless of whether anyone has been named to the Commission or not.

During another NPR roundtable last week, NPR reporter Asma Khalid said of criminal justice reform, “You know, I cover the White House. And I will say, I don’t see this as really being an issue at the forefront, at least not from what I’ve heard publicly from them.”

The leadership vacuum is perhaps best reflected in rudderless Congressional action. Last September, the House of Representatives attached the Secure and Fair Enforcement (SAFE) Banking Act to its version of the National Defense Authorization Act. The SAFE Act would shield national banks from federal criminal prosecution when working with state-licensed marijuana businesses, and was widely seen as opening the door to marijuana reform. Last Tuesday, the final NDAA bill text was released without SAFE Banking Act language.

Many would say Biden has not enjoyed a legislative honeymoon, even while owning both houses of Congress. Maybe it’s only a legislative cease-fire, but whatever it is, the 11-month armistice is unlikely to hold for more than another year until Republicans retake at least one chamber. And with Americans’ perception that crime in their local area is getting worse surging over the past year, there will be less interest in criminal justice reform as the mid-terms approach.

Business Insider, Despite promises, Biden has yet to issue a single pardon, leaving reformers depressed and thousands incarcerated (December 8, 2021)

NPR, Criminal justice advocates are pressing the Biden administration for more action (December 9, 2021)

HR 6234, FIX Clemency Act (December 9, 2021)

Press Release, Bush, Pressley, Jeffries Unveil FIX Clemency Act (December 10, 2021)

Law360.com, Biden’s Inaction Keeps Justice Reform Group Sidelined (December 5, 2021)

NPR, No One Has Been Granted Clemency During Biden Administration (December 9, 2021)

Cannabis Wire, SAFE Banking Scrapped from NDAA Despite Major Push (December 8, 2021)

Gallup poll, Local Crime Deemed Worse This Year by Americans (November 10, 2021)

– Thomas L. Root

A (Sentencing) Army of One – Update for November 16, 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.

JUDGE BREYER TELLS BIDEN HE’S LONELY ON THE SENTENCING COMMISSION

Senior District Judge Charles Breyer, who sits on the U.S. District Court for the Northern District of California, is the last man standing.

lastman211116The U.S. Sentencing Commission’s lone remaining member last Thursday called upon President Biden to act now to nominate enough new commissioners to put the Commission back in business so it can help implement the 2018 First Step Act.

“I would be surprised and dismayed if nominees are not sent to the Senate by the early part of next year,” Judge Breyer said in an interview with Reuters.

The U.S.S.C. lost its quorum after the December 2018 meeting, which ironically enough occurred just about a week before First Step was signed into law. Judge Breyer said the lack of quorum meant the Commission could not provide guidance on how to implement the law, creating a “vacuum” in which judges inconsistently decide whether inmates under the measure can secure compassionate release amid the COVID-19 pandemic.

noquorum191016“Some people were granted compassionate release for reasons that other judges found insufficient,” he said. “There was no standard. That’s a problem when you try to implement a policy on a nationwide basis.” The Commission’s outdated Guideline 1B1.13, ignored by most circuits but used as a bludgeon by others, was perhaps the primary mischief-maker, but with no quorum, the U.S.S.C. was powerless to fix things.

Judge Breyer said that was aware that nominees are currently being vetted. The White House had no immediate comment.

Ohio State University law professor Doug Berman has been beating the drums in his Sentencing Law and Policy blog to revitalize the USSC for several years. So far, no one – including the “criminal justice reform” President Biden – has listened.

Reuters, U.S. sentencing panel’s last member Breyer urges Biden to revive commission (November 11, 2021)

Sentencing Law and Policy, Should I give up hoping Prez Biden will soon make long-needed nominations to US Sentencing Commission? (October 24, 2021)

– Thomas L. Root

A Sentencing Commission Phoenix? – Update for April 7, 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.

SENTENCING COMMISSION REVIVAL NEAR?

phoenix210408The seven-member United States Sentencing Commission, which hasn’t had a quorum since 2018 and is now down to one member, may be about to experience a rebirth.

Rollcall reported last week that the Biden administration has solicited lawmakers and criminal justice advocates for guidance on a slate of appointments, a move that could influence congressional efforts of criminal justice reform.

The commission must include three federal judges and no more than four members from any one political party. The Senate must approve the members. The last confirmation vote was four years ago, for Senior U.S. District Judge Charles Breyer (who is the only remaining USSC member).

Sen. Charles E. Grassley (R-Iowa), ranking Republican on the Judiciary Committee, said last week that the Biden administration is working to avoid Senate confirmation problems for its slate of USSC nominees “because both they – the White House – and this senator, and I’m sure a lot of other senators, want to get the commission up and running so it can do its work.”

Breyer said he anticipates that the White House will put forward a slate of six nominees. Until then, he said, “I think we’re in crisis.” The sentencing structure was designed to change over time and be guided by experience, he said. “And it’s an understandable tendency that if the guidelines don’t reflect reality that they’re ignored or given less weight,” Breyer added.

The Commission’s last Guidelines amendments became effective in November 2018.

Rollcall: Help wanted – Revived commission could spark criminal justice changes (March 29, 2021)

Sentencing Law and Policy, Might we be getting closer to (needed) new nominees for the “frozen” US Sentencing Commission? (March 31, 2021)

– 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

Trump (Finally) Rolls Out Sentencing Commission Slate, Albeit Unbalanced One – Update for August 20, 2020

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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.

TRUMP FINALLY DECIDES TO NOMINATE NEW SENTENCING COMMISSION MEMBERS, AND FAMM SHOUTS “NOT SO FAST!”

The U.S. Sentencing Commission has lacked a full slate of commissioners for the entirety of Trump Administration, and has not even had a quorum since the First Step Act passed in December 2018. That is why no sentencing guideline has been amended since the November 2018 amendments went into force.

Last week, the White House announced nominees for the vacant Commissioner slots (which persons must be approved by the Senate). They include Judge K. Michael Moore of Florida, to be chairman; Judge Claria Horn Boom of Kentucky; Judge Henry E. Hudson of Virginia; John G. Malcolm, Vice President for the Institute for Constitutional Government and the Director of the Meese Center for Legal & Judicial Studies at the Heritage Foundation; and Judge Luis Felipe Restrepo of Pennsylvania.

HudsonA170811The bad news is that four of the five nominees have been Assistant U.S. Attorneys, and that three of those four are sitting judges as well. The worse news is that Judge Henry Hudson, who has the well-deserved nickname of “Hang-‘em-High Henry,” is one of the nominees. A lonely piece of good news is that Judge Luis Restrepo comes from a public defender background.

How’s that for balance?

hudsonB170811“The administration has put forth a slate that is all white, mostly male, and lacking in diverse experiences or backgrounds,”  Sakira Cook, director of the justice reform program at the Leadership Conference on Civil and Human Rights, told NPR. “It is critically important that the Sentencing Commission reflects the diversity of background, experience, and expertise that would make the work of the Commission most effective. It is also important to note that at least two of the candidates have records or expressed views on sentencing issues that raise serious concerns.”

FAMM (formerly Families Against Mandatory Minimums) wrote to Senate Judiciary Chairman Sen. Lindsey Graham (R-South Carolina), and ranking minority member Sen. Dianne Feinstein (D-California) last week to urge them to refrain from acting on the nominations until next year:

There are less than 20 legislative days before the election. That is not nearly enough time to give nominees to this important agency the thorough examination and consideration they deserve – and that the people who will be subject to the Commission’s decisions deserve.

FAMM noted specifically that one of the Sentencing Commission’s urgent priorities will be to “address a federal prison system that has been overwhelmed by the spread of COVID-19. The deaths to date of 112 federal prisoners and at least one staff member compel serious reflection about various aspects of the federal prison system, including sentence lengths and early release mechanisms, over which the commission has some authority.”

privateprison200820(Note: The BOP hit 120 dead inmates a couple of days ago, being 114 in BOP custody and another six federal prisoners in private prisons. But no one seems want to count the people who are guests of the for-profits. That is perhaps a topic to cover for another day.)

Of course, what FAMM is really saying is that if the Senate waits until January, there may be a new President and a much different slate of commissioner nominees to consider.

The White House, President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts (August 12, 2020)

FAMM, Letter to Sens. Lindsey Graham and Dianne Feinstein (August 14, 2020)

NPR, Concern Mounts Over Possible Trump Picks For Influential Crime Panel (August 19, 2020)

– Thomas L. Root

Sentencing Commission Redux – Update for June 25, 2020

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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.

TRUMP MAY BE MOVING TO REPOPULATE SENTENCING COMMISSION

USSC170511The U.S. Sentencing Commission, a judicial-branch agency established by the Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 235(b)(3), 98 Stat. 2032 (1984), is responsible for promulgating and amending the Sentencing Guidelines that have profoundly influenced virtually every federal criminal sentence for the past 30 years (and in fact were mandatory from inception until 2005).

But the Commission – which customarily amends the Guidelines annually – has been unable to issue new or amended Guidelines since the end of 2018, because the terms of three of the five USSG members expired at the end of that year. Since then, the President has made one attempt to nominate replacements to the Commission without success. He may be about to try again.

NPR reported last week that the White House has been consulting Capitol Hill and the criminal justice community about four Republican candidates for two of the slots on the Commission, three of them federal judges and the other from the conservative think tank Heritage Foundation.

HudsonA170811Republican candidates include Senior US District Judge Henry Hudson (Eastern District Virginia), a former director of the US Marshals Service known as “Hang ‘Em High Henry” for his work as a local prosecutor. Hudson has a reputation for handing out long sentences. Another is Chief Judge K. Michael Moore (Southern District Florida), also a former director of the Marshals. Eastern District of Kentucky Judge Claria Horn Boom, a favorite of Senate Majority Leader Mitch hudsonB170811McConnell (R-Kentucky), is in the running, as is John Malcolm, director of the Heritage Foundation’s Meese Center for Legal and Judicial Studies and a former AUSA. Malcolm helped then-candidate Trump put together a list of candidates in the event a Supreme Court vacancy opened up. Malcolm has reached out to allies across the political aisle to try to overhaul mandatory minimums.

One of the Commission slots is reserved for a Democrat. The President is proposing 3rd Circuit Appeals Judge L. Felipe Restrepo, a former public defender appointed to the judgeship by President Barack Obama.

NPR, Concerns Mount Over Possible Trump Picks For Influential Crime Panel (June 19)

– Thomas L. Root