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Won’t Get Fooled Again by USSC Proposed Priorities – Update for July 5, 2018

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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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IT’S DÉJÀ VU ALL OVER AGAIN AT SENTENCING COMMISSION

fool180705Federal inmates who felt like the U.S. Sentencing Commission left them at the altar last April when the much-ballyhooed First Offender proposal disappeared from the amendments list without so much as a squeak ought to be forgiven for thinking the Commission should have released its set of proposed priorities for 2018-19 amendment cycle last week to the tune of the Who’s “Won’t Get Fooled Again.”

The Commission begins each amendment year by proposing priorities, which the public may comment on prior to adoption, either arguing against the proposals or even suggesting other priorities the commentators believe the Commission overlooked. Last year, the nonprofit prison group Prisology carried public participation in the USSC priorities inquiry to a new level, causing a flood of over 80,000 comments proposing that the USSC adopt a newer, kinder sentencing table.

In an action (or perhaps inaction) that spoke volumes about the contempt the Commission has for the agency rule making process, the Commission not only failed to adopt Prisology’s modest proposal  that revisiting the 30-year old sentencing table, it did so without so much as a single comment about having received 90,000 public comments on a single topic. To be sure, the Sentencing Commission, being a judicial-branch agency and not an executive-branch agency, need not comply with the Administrative Procedure Act, but a layperson (and even a lawyer) could be forgiven for asking what the point is of seeking public participation only to ignore it so completely as not even to acknowledge in a footnote that it ever happened?

futility180705One of last year’s priorities that did get adopted related to a proposed reduction in sentence levels to recognize that there are Criminal History I defendants and then there are Criminal History I defendants. Some Crim I people have a misdemeanor history that garners them one point, still little enough to fall in Crim I (the best criminal history category to land in). Other Crim I people may have done hard time, but did it so long ago that their incarceration ended more than 15 years ago. A few Crim I people have a virginal criminal history, never so much as a speeding ticket.

The USSC proposed to reward the virgins with not just the Criminal History I category, but an extra point or two off their Guidelines offense level score. The suggestion, called the First Offender proposal, made the priorities cut, then even the proposed proposed-amendments cut, only to disappear without a trace when the amendments to the 2018 Guidelines were adopted three months ago.

Unsurprisingly, the new priorities make no reference to the late First Offender proposal, either. It has become the Sentencing Commission version of George Orwell’s “unperson”: not only dead, but abolished, with any identifiable reference to it scrubbed from the record.

Nevertheless, if you are among the dozen or so people in America who think that public comment on the USSC’s priorities exercise  will amount to anything more than flatulence in a hurricane, here are the more interesting proposed priorities:

The Commission proposes considering how to reduce costs of incarceration and overcapacity of prisons by

• looking at the structure of the guidelines post-Booker to promote proportionality and reducing sentencing disparities, and to account appropriately for the defendant’s role, culpability, and relevant conduct;

• continuing to work with Congress to implement its recommendations to revise the career offender directive to focus on offenders who have committed at least one “crime of violence” and mandatory minimum penalties (including mandatory stacking of 18 USC 924(c) penalties; and

• considering possible amendments to the commentary of 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) in light of Koons v. United States, study of the operation of 5H1.6 (Family Ties and Responsibilities (Policy Statement)) with respect to the loss of caretaking or financial support of minors; and study of whether 1B1.13 (compassionate release guideline) effectively encourages the BOP Director to file a motion for compassionate release when “extraordinary and compelling reasons” exist.

Public comments are due by August 10, 2018. After that, the Commission will meet August 23 to select its priorities for the coming cycle. Don’t bet on the final list deviating from the proposed list by as much as a jot or a tittle.

But if you want to comment, knock yourselves out.

U.S. Sentencing Commission, Proposed Priorities for Amendment Cycle (June 28, 2018)

– Thomas L. Root
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2018 Guideline Amendments… The Rest of the Story – Update for April 17, 2018

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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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2018 GUIDELINE AMENDMENTS HARD ON SYNTHETICS, EASIER ON PROBATION

As we reported last Friday, the U.S. Sentencing Commission killed the First Offender proposal by neglect, never mentioning it during the half-hour meeting last week at which the USSC adopted a slate of new amendments to the Guidelines Manual to be sent to Congress.

khat180417That’s not to say, however, that the Commissioners did nothing. They did vote to update the federal sentencing guidelines to address synthetic drugs. The amendments addressed synthetic cathinone (the active drug in African khat, used in bath salts) and synthetic cannabinoids, including K2. To address fentanyl, the USSC adopted a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (a 50% increase in sentence).

release180417The Commission also adopted a new application note suggesting judges consider alternative sentencing options to prison for “nonviolent first offenders” whose applicable guideline range falls at 8-14 months or less. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. The alternatives include probation, halfway house confinement and house arrest.

The USSC also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes, and adopted a non-exhaustive list of factors that courts may consider in determining whether a prior Indian tribal court conviction warrants an upward departure from the recommended sentencing range.

Nothing in the proposed amendments, which will be effective November 1, 2018, applies to people who have already been sentenced.

U.S. Sentencing Commission, Amendments to the Sentencing Guidelines (Preliminary) (Apr. 12, 2018)

– Thomas L. Root

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Not With a Bang But A Whimper Does ‘First Offender’ Die – Update for April 13, 2018

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SENTENCING COMMISSION DOES NOTHING ON FIRST OFFENDER PROPOSAL

In a half-hour meeting ending yesterday, the U.S. Sentencing Commission promulgated amendments which will become effective on November 1, 2018, unless Congress blocks their effectiveness. As expected, the Commission proposed tough new sentencing guidelines for synthetic drugs like fentanyl. But not as anticipated, the USSC mentioned nothing about its ballyhooed First Offender Proposal.

planethype180413Last year, the Commission proposed a “First Offender” amendment, one that would give additional Guidelines benefit to people with pure criminal records. The USSC proposed that the virgins of the criminal world – people who had no prior convictions – get bonus points for a prior record that’s even better than Crim I.

For prisoners, the proposal has been the most hyped change in the Guidelines since the 2014 drug table amendments, despite the fact that its retroactivity was in doubt. Yet at yesterday’s meeting, without a single mention, the Commission adjourned without acting on the proposal.

As we have reported, if President Trump is successful in get his latest two nominees past the Senate and onto the Commission, retroactivity will enter the dark ages. But judging from yesterday’s nonevent, it looks like things could not get a whole lot worse for the already-sentenced.

U.S. Sentencing Commission, Amendments to Sentencing Guidelines (Preliminary) (April 12, 2018)

– Thomas L. Root LISAStatHeader2small

Sentencing Commission Meets: Nothing New – Update for January 22, 2018

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IT’S A HOT MESS… BUT SENTENCING COMMISSION STILL PLANS TO VOTE ON FIRST OFFENDER PROPOSAL BY MAY 1

The U.S. Sentencing Commission met last Friday, and federal inmates were anxious. Chiefly, the anticipation was due to an email newsletters circulating in the institutions have been predicting adoption of a Guidelines change that will cut sentences.

Virgin180102The change has been dubbed the “first offender proposal.” As the Guidelines are currently employed, the advisory sentencing ranges are set out in a chart. The y-axis of the chart is the Total Offense Level, determined by an assigned base offense level for the crime, along with additions and subtractions for various facts. The x-axis is the defendant’s criminal history.

For example, a guy with a prior state conviction for felony burglary is convicted in federal court for supplying cocaine to two street-level dealers who sold for him. After being indicted, he pleads guilty. The amount of cocaine he moved may set the base level at 26. Because was a manager of two other people, 2 levels get added. But because he pled guilty as soon as he was indicted, 3 levels get subtracted for acceptance of responsibility. His Total Offense Level is 25. The prior felony gets him 3 criminal history points, placing him in Criminal History Category II.

For someone with a Total Offense Level of 25 and Crim History II, Guidelines sentencing table sets an advisory sentencing range of 63-78 months.

senttable180122A few years ago, the Sentencing Commission noted that while some people had led exemplary lives up to their federal indictment, others fell in Criminal History I despite the fact they had some prior brushes with the law. A guy with a misdemeanor possession of drugs, for example, may have gotten 30 days suspended, and thus scored only one criminal history point, which kept him as Crim History I. Another guy may have done five years for a felony, getting out of prison in 2000. Because his prior bit ended more than 15 years ago, it no longer counted in the Guidelines criminal history score.

The Commission considered whether to modify the Criminal History guidelines to account for the difference between a virgin and someone who fell into Criminal History I more by luck than by conduct. It thus floated a proposal to reward the virginal defendant with a reduction in Total Offense Level. The proposal, made in December 2016, went nowhere, primarily because everything that was proposed then went nowhere: an unusually large number of USSC commissioner terms expired in December 2016, and due to Obama leaving and Trump arriving, no one got appointed to replace them right away. Without a quorum, nothing could happen.

By April 2017, the Commission was back to fighting strength, but too late to adopt proposed changes by May 1st. The USSC statute makes that date magic, because Sentencing Commission amendments must languish in front of Congress for six months (to give legislators a chance to veto any they don’t like) before becoming effective on November 1st. So the Commission decided to skip a 2017 Amendment cycle altogether.

indecision180122In August, the Commission refloated the proposed amendments that were orphaned the previous January. The Commissioners are still trying to figure out whether the first offender proposal should reward any defendant with zero criminal history points, or whether it should only reward defendants who are truly tyros, having a lifetime history of no convictions. The USSC is also undecided whether to reward first offenders with a one- or a two-level reduction.

There is one additional wrinkle: A change in the Guidelines, as a rule, only affects people who have not yet been sentenced. If it is to affect any of the 183,000-odd federal prisoners who are already doing time, the USSC must first declare it retroactive. Retroactivity is never a done deal. Instead, it depends on a lot of factors, some objective (such as whether retroactive motions for sentence reduction would clog the courts) and some subjective (such as whether fundamental fairness requires retroactivity).

That has not prevented a couple of outside businesses that take inmate money in exchange for “paralegal” services to trumpet that inmates need to hire them right now to assist in First Offender motions for reduction. This is despite the fact that (1) no one knows for sure whether the first offender proposal will in the USSC’s final 2018 amendment package sent to Congress; (2) no one knows for sure to whom and to what extent any first offender proposal would apply; and (3) no one knows whether the first offender proposal will ever be made retroactive. It is not all that comforting that the last change to the criminal history Guidelines, to eliminate a point previously added if the new offense was recent to a prior probation or prison term, was not made retroactive. But none of this deters hopemongers on the outside from collecting money from inmates and their families.

When the Sentencing Commission announced several weeks ago that last Friday’s meeting would include a “possible vote to publish proposed guideline amendments and issues for comment,” many thought that the vote would be to decide on which of the options in the first offender proposal to advance. Instead, the Commission advanced a synthetic-drug guideline, made changes in an immigration offense guideline, and voted on unspecified “technical amendments.” There was not a word on anything else.

bureaucracy180122Shortly after the meeting, however, the Commission clarified its rather opaque procedures. In a press release, the USSC noted toward the bottom of the page that “[t]oday’s proposals join other proposed amendments published in August 2017 that were held over from the previous amendment cycle. (Read “holdover” proposals”.)  The Commission is expected to vote on the full slate of proposed amendments during the current amendment year ending May 1, 2018.”

So the Commission meant only to add to the holdover amendments it published last August, when the latest iteration of the “first offender proposal” was promulgated. Still, they could have said that at some point in their 17-minute meeting. But apparently, the first offender proposal may still be on track, and may still be in the package to be voted on by May 1.

We’re not just one-issue voters, complaining about the Commission’s failure to explain that the first offender proposal was still in the package lurching toward May 1. Ohio State University law professor and sentence guru Doug Berman noted last Friday in his sentencing blog that “my own cursory understanding of all these proposals suggests to me that the holdover proposal addressing first offenders and alternatives to incarceration may be the only very consequential proposed amendment potentially in the works….”

U.S. Sentencing Commission, USSC Proposes Amendments (Jan. 19, 2018)

– Thomas L. Root

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Sentencing Commission Readying Amendment Package – Update for January 9, 2018

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USSC SETS “POSSIBLE VOTE” ON GUIDELINE AMENDMENTS

USSC170511The U.S. Sentencing Commission has scheduled a public meeting for Friday, January 19, 2018 at 10:30 a.m. The agenda includes no substantive items other than a report from the chair and what the USSC terms a “possible vote to publish proposed guideline amendments and issues for comment.”

The “possible vote” could be to finalize a package of proposed amendments for public comment prior to recommending the package to Congress by May 1. Once sent to Congress, the amendments would become effective November 1, 2018, unless Congress blocked them.

Of primary interest to many inmates is the “first offender” proposal, which would give people who lack any prior criminal history points a reduction of 1 to 2 levels. The idea, which the USSC floated a year ago, has not yet been firmed up as to who would qualify for the reduction and how great the reduction might be. If the measure becomes an amendment to the Guidelines, it would not be retroactive to already-sentenced inmates unless the USSC decides in a separate proceeding to do so.

snakeoil180109The possibility that a “first offender” proposal may be adopted and may someday be retroactive has already spawned a cottage industry of the usual “hopemongers” trying to sell inmates “analyses” of their cases, to determine whether they would be eligible for a sentence reduction under 18 USC 3582(c)(2). Inasmuch as the Sentencing Commission does not itself know to whom the “first offender” proposal will fit, or whether it will ever apply to people already convicted, there would seem to be a little alchemy (or perhaps old-time snake oil) involved.

The USSC meeting will be streamed live over the Internet.

U.S. Sentencing Commission, USSC Schedules Public Meeting for January 19, 2018

– Thomas L. Root

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Hope Springs Eternal in the New Year – Update for January 2, 2018

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WILL 2018 BE THE YEAR FOR SENTENCING REFORM?

Some commentators are predicting that 2018 will be a breakout year for criminal justice reform.

rocket-312767The conservative Washington Examiner said last week that “meaningful bipartisan legislation is poised for success in 2018.” The paper cited the Sentencing Reform and Corrections Act, the CORRECTIONS Act, and the Mens Rea Reform Act – all currently in front of the Senate Judiciary Committee – as demonstrating a bipartisan desire to see reform enacted In the House, Rep. Doug Collins, R-Georgia, introduced the Prison Reform and Redemption Act last July.

“We remain focused on comprehensive reform of the criminal justice system,” Mark Holden, senior vice president and general counsel at Koch Industries, told the paper. “It remains to be seen what Congress will be amenable to doing. However, both Speaker [Paul] Ryan and Senators Cornyn, Grassley, Lee and [Illinois Sen. Dick] Durbin have shown that they hope to pursue reforms in the coming year.” Holden and Koch Industries have been prime movers behind sentencing reform for several years. “Given the seemingly strong support for prison reform and re-entry reform,” he said, “this may be a starting point for criminal justice reform in 2018 which will hopefully lead to other reforms as well,” he said.

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

Rep. Collins’ bill would require Attorney General Jefferson Beauregard Sessions III to develop a risk and needs assessment system for criminals, while giving them incentives to lower their risk of recidivism. “Last year we saw both sides of the aisle and both ends of Pennsylvania Avenue hone in on prison reform as a way to strengthen the justice system,” the Examiner quoted Collins as saying. “In 2018, I think we’re going to see even more lawmakers come together to push forward where we have consensus, and the Prison Reform and Redemption Act captures a big part of those shared priorities at the federal level.”

Holden and Collins both were part of a bipartisan roundtable meeting on federal prison reform at the White House in September, convened by President Trump’s son-in-law, Jared Kushner.

Not everyone is hopeful. Kara Gotsch, manager of the Sentencing Project’s federal advocacy work, said she sees the chances for sentencing reform as slight, and expressed concern over changes being made at the Dept. of Justice. “Areas to watch are how Sessions’ harsher charging and sentencing policies take effect now that more Trump-appointed U.S. attorneys are being installed,” she said. On the other hand, “the U.S. Sentencing Commission is poised to issue new guideline amendments related to alternatives to incarceration which would expand eligibility for federal dependents to receive a non-incarceration sentence.”

Virgin180102Also on the horizon is a Sentencing Commission proposal floated last year to adopt a “first offender” provision that would reduce the Guidelines score of people with no prior offenses. The Commission has not adopted the proposal yet, and has not yet settled on whether the reduction would be one level or two, and whether to qualify, a first offender would just need a criminal history score of zero, or whether he or she would need a prior record that was absolutely clean. Likewise, the Commission has not hinted whether a first offender proposal would be retroactive. Nevertheless, the possibility of a beneficial Guidelines change makes 2018 look more promising than the prior year.

Looming over sentencing reform, however, is the opioid crisis. Republican senators such as Rob Portman from Ohio and Democrats like Elizabeth Warren from Massachusetts are making the case that opioid addiction should not be criminalized. The Washington Spectator said last week that “before in our nation’s history had we seen such a vocal and powerful bipartisan push among politicians to make sure that drug addiction, at least addiction to some drugs, is treated like the public health crisis it always was… Even when the Republican attempt to overhaul Obamacare failed this summer, bipartisan calls to protect opioid addicts didn’t die out. Again, this is a good thing as it suggests that even in the Trump White House, there might remain the possibility of at least some criminal justice reform. But protecting some is hardly protecting all, or even most, of the people who suffer the consequences of criminalizing addiction in this country. Indeed, those very same politicians who continue to clamor for a different approach to opioid addiction are now insisting that we must start “beefing up other tough-on-crime laws” for everyone else.”

got-skepticismEver cautious and thoughtful, Ohio State University law professor Doug Berman expressed skepticism in his review at his Sentencing Law and Policy blog: “As is my general tendency, I am hopeful but not optimistic about the prospects for federal statutory sentencing reform during a pivotal election year. If other possible ‘easier’ legislative priorities get completed (or falter), I could see at least some modest reforms making it through the legislative process. But inertia can be a potent political and practical force in this setting, especially in an election year, so I am not holding my breath.”

Washington Examiner, Criminal justice reform poised to take off in 2018 (Dec. 30, 2017)

Washington Spectator, Opioid Concerns Supplant Hopes for Broader Reform (Dec. 26, 2017)

– Thomas L. Root
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Dog Bites Man – Federal Sentencing Said to Be Racially Tinged – Update for November 16, 2017

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WE’RE SHOCKED! SENTENCING COMMISSION STUDY FINDINGS FEDERAL SENTENCING IS UNFAIR

blackprisoner171116While this hardly comes as much of a comfort to you if you’re already serving one, a United States Sentencing Commission report issued last week found that, statistically speaking, your sentence is longer if you’re black than if you’re white, or if you’re a male instead of a female.

The report compares sentences handed down to similarly situated people between October 2011 and September 2016. Its key findings are

• black males continue to catch sentences that are 19% longer than those imposed on white males. The average black male sentence of about 92 months in 2007 has fallen to about 75 months, mostly because of changes in crack cocaine sentencing ranges, while white male sentences have risen slightly from 58 to 64 months. But when the data are adjusted for the effect of the Fair Sentencing Act, the gap between black and white sentences is unchanged since 2007.

• sentence departures and variances given for reasons other than assistance to the government are the principal culprits. During the period, black males were 21% less likely than whites to get a downward departure or variance, and when they did get one, their sentences were still 17% longer on the average. When the courts sentenced within the sentencing range, black male sentences were still 8% longer than those of whites.

• violence did account for any of the demographic differences in sentencing. Violent black male sentences were on average 20% longer than violent white male sentences.

• females received shorter sentences than males during the period, unchanged from every year since 2003. White and Hispanic women received 26% shorter sentences than males, and black women got 21% shorter sentences. These rates suggest while there is a racial sentencing disparity for women, its smaller than for men.

• non-citizens got longer sentences than similarly situated citizens, but education didn’t make a difference.

guy171116The 2003 PROTECT Act (which defendants generally disliked) drove the racial disparity down to 6%, but after United States v. Booker – which made the Guidelines advisory – the difference between black and white male sentences increased by 10%. The pronounced disparity between white and non-white offenders may be partially attributable to the lack of a strict, rational sentencing scheme. When judges use their discretion, implicit racial and gender biases may show.

US Sentencing Commission, Demographic Differences in Sentencing: An Update to the 2012 Booker Report (Nov. 13, 2017)

– Thomas L. Root

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Hurricane Buncombe Strikes Federal Prisons – Update for Monday, September 11, 2017

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TURNING A BREEZE INTO A HOPEMONGERING HURRICANE

Buncombe170911The hopemongers are at it again. Several inmates readers have written to us about an email newsletter they received during the past couple of weeks, from a Chicago-area group talking about something it calls the “First Offender initiative.”

Under the Sentencing Guidelines, someone with zero or one criminal history point is considered to have a Criminal History of I. It’s a good place to be: Criminal History I people are on the left-hand column of the Sentencing Table, and get the lowest sentencing ranges.

Yet, there are some Criminal History I folks who have prior offenses that have timed out (and are not counted) or even a point for some recent misdemeanor. Others are as pure as Mother Teresa. Last December, the USSC proposed an amendment for 2017 to give the Mother Teresas of the federal criminal world a break. It floated the idea of a reduction in offense level for those folks, and asked for public comment.

teresa170911Then the USSC ran out of members, as terms expired and too few were left for a quorum. The Senate finally approved two new members in late March, but by then, it was too late for any 2017 amendments. So this November 1, 2017, there will be no Guidelines changes.

A few weeks ago, the USSC re-issued the same proposals it had announced last December, including the proposal for a break for some Crim History I people. The Commission wants public comment on the idea, including on whether it should go with a 1- or a 2-level reduction, and whether to be eligible, a defendant just needs zero criminal history points or a completely clean record for his or her entire life up to that point.

No one knows whether the USSC will decide this should become an amendment. If it does, no one knows which options it will go with. Even if the Commission adopts it next April as a proposed amendment, it will not go into effect until November 2018.

If it does become effective, it will not be retroactive at that time. Retroactivity will require a whole new notice-and-comment process (and six-month waiting period). For the Guidelines change to benefit anyone currently locked up, retroactivity has to be approved by the USSC and not vetoed by Congress. Think maybe spring 2019 at the earliest.

snwowhite170911Enter the hopemongers. An Illinois outfit we will not name sent an inmate newsletter in the last week or so saying “while the Sentencing Commission works to incorporate final comments into the holdover 2016 changes before they are published in the Federal Register, and the 180-day countdown begins, there is plenty of time to study those individuals who appear initially to qualify for this retroactive First Offender relief…” The newsletter urges people to get an “individualized analysis of their case so that it can be incorporated into a petition for relief.”

So what’s wrong with this nonsense? Plenty. First, these are not final comments; they are a complete do-over. Comments are due in October and reply comments in November. The USSC has given no indication it intends to start the 180-day clock until next April, for effectiveness in November 2018, as usual.

Second, no one yet knows who will be eligible and what the eligible will be eligible for. That makes it pretty hard to “study those individuals who appear initially to qualify…”

Third, calling it a “retroactive First Offender relief” is an utter falsehood. The USSC has not even suggested, let alone said, anything that would lead people to believe that this amendment – even if adopted – will be retroactive.

snakeoil170911But the hopemongers’ primary purpose is to get prisoners and their families to pay money for a bogus “individualized analysis.” Guess there’s nothing wrong with turning a slight breeze of a hope into a get-out-of-prison hurricane is all right: after all, the targets are just inmates, and they deserve any misfortune that befalls them, right?

U.S. Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Aug. 25, 2017)

– Thomas L. Root

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Obama Clemency Initiative Was As Arbitrary As We Thought It Was – Update for September 7, 2017

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THE SEVEN PERCENT SOLUTION

70908When President Obama (remember him?) announced an initiative in 2014 to grant clemency to people serving unduly harsh sentences in the federal prison system, there was a land rush to apply. Ultimately, about 12% of the federal prison submitted applications seeking executive grace.

By the time the dust settled on the morning of The Donald’s inauguration, President O had granted 1,696 of the applications filed. This number, about 7% of all applicants, was dwarfed by the 7,881 applications left stranded when the Obamas fled the coming Trumpocalypse in a Marine helicopter.

Obama leaves town, stranding 7,800 commutation applications.
Obama leaves town, stranding 7,881 commutation applications.

Many of the inmates whose applications were denied complained that racism played a role, favoritism played a role, or simply that the clemency staff was throwing darts at a wall, and granting applications they happened to hit. Last Tuesday, the U.S. Sentencing Commission issued a report on the late great 2014 Clemency Initiative, and what it found suggests that the race-conspiracy people are wrong, but the dart-at-the-wall folks are spot-on.

Initially, the report – entitled “An Analysis of the Implementation of the 2014 Clemency Initiative” – does not especially settle the dark theories, espoused chiefly by white inmates, that President Obama was only interested in pardoning minority inmates. The Bureau of Justice Statistics reports that 53% of all drug inmates are black, and 57% are Hispanic. However, 71% of all clemency recipients were black, 19% were white, and 9% were Hispanic.

The fact that crack cocaine defendants have been 81% black, and that crack sentencing ranges have traditionally been stratospheric, thanks to the previous 100:1 ratio of crack to powder – may account for this. However, it would seem that the people with the most right to complain about being excluded from clemency would be Hispanics.

star170908At the same time, the Report does substantiate the widely-held belief that the Clemency Initiative shut down any chances for commutation of sentences other than drug offenses. The real news, however, is that despite its criteria and processing standards and lofty rhetoric and self-congratulatory righteousness, the Clemency Initiative was as arbitrary as a Star Chamber proceeding.

At the outset, the Department of Justice announced six criteria for clemency. Initially, those were considered to be “processing” criteria, but later morphed into “eligibility” criteria. It turns out they could have been gumdrops or pixie dust, for all of the relevance they had to the process. The standards were that to qualify, a clemency applicant

• would have had to have gotten a lower sentence under   txxxx  h existing law;
• must be a low-level, nonviolent offender;
• must have served at least 10 years;
• must not have a significant criminal history;
• must have had good conduct in prison; and
• must have no history of violence

Deputy Attorney General James Cole made it clear at the outset that “the initiative is open to candidates who meet six criteria” and that “a good number of inmates will not meet the six criteria.”

The Sentencing Commission Report contains good news and bad news. The good news (already known to a lot of people) is that DOJ was just kidding. It turns out that people didn’t have to ring all six bells after all: only 54 of the 1,696 people receiving a commutation met all of the six criteria. Only 5% of the winners met five of the criteria, 35% met four, 38% met three, 19% met two and 3% met only one. Two guys got clemency after going 0-6: they were career criminals, violent, had bad conduct, were high-level drug people and hadn’t yet done 10 years. Sweet for them.

factorschart170908It turns out that 62% commutation recipients had criminal history scores of 3 points or higher, 23% were assigned to the highest Criminal History Category, and 16% were career offenders. Thirty percent had serious misconduct while in prison, and 13% had violent misconduct in prison.

Now the bad news, which was also suspected (if not known) by many people. Examining all the announced Clemency Initiative factors together, the Sentencing Commission report estimated that 2,687 inmates met all six of the Clemency Initiative criteria, yet only 92 of the got clemency. “Therefore,” the Report drily states, “there were 2,595 offenders incarcerated when the Clemency Initiative was announced who appear to have met all the factors for clemency under the Initiative at the end of President Obama’s term in office but who did not obtain relief.”

factorschart170908“The Obama administration’s 2014 clemency initiative helped reduce sentences for thousands of federal defendants at many times an historic rate,” the Marshall Project gushed the other day, “but it still was not as efficient or as organized as it could have been, a new federal report concludes. So many more candidates met the requirements of clemency than were granted it.”

Let’s call it what it is. Despite the proclaimed “six criteria,” nearly 2,600 inmates who were perfect fits were ignored or denied while half of the clemency winners met only one-half or fewer of the standards. Obama Clemency was not a process: it was a crap shoot (unless, of course, you happened to be a trans-sexual darling of the left convicted of espionage against America).

tainwreck170908“Not as efficient or organized?” The same could be said of a train wreck.

U.S. Sentencing Commission, An Analysis of the Implementation of the 2014 Clemency Initiative (Sept. 5, 2017)

– Thomas L. Root

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Sentencing Commission Carefully Reads 90,000 Comments… and Makes No Changes – Update for August 22, 2017

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 … AND BROUGHT FORTH A MOUSE

You recall the flurry of activity in July, as the nonprofit group Prisology encouraged people – inmates, families, friends and advocates – to sign on to comments encouraging the U.S. Sentencing Commission to consider a new Sentencing Table that reduced sentencing ranges across the board?

mouse170822Prisology ended up delivering 62,236 online submissions and an additional 22,000-plus letters supporting its proposal. It delivered over 80,000. In fact, Brandon Sample, president of Prisology, reported to us by email at the end of July that he expected to exceed 90,000 submissions when all was said and done.

Brandon would probably agree with our take that getting the Sentencing Commission to address the Sentencing Table, which has not been amended for other than three minor tweaks in nearly 30 years, is a race that is more of a marathon than a sprint. Still, we thought the Commission might somehow acknowledge the widespread interest in promoting amendment of the Sentencing Table to the Commission’s listed priorities for the coming cycle.

The Sentencing Commission did not. Indeed, one wonders whether it read any of the comments it received. TL;DR, maybe? It’s pretty curious that a side-by-side comparison of the priorities it adopted for the coming amendment cycle shows that they are virtually word-for-word the priorities it originally proposed when it asked for public comment. As Aesop once put it, “The mountain labored mightily, and brought forth a mouse.”

USSC170822To be sure, some of the priorities are promising. Its first goal is to “simplify the guidelines, while promoting proportionality and reducing sentencing disparities, and to account appropriately for the defendant’s role, culpability, and relevant conduct.”

Other priorities include revision of the “career offender” guidelines to “focus on offenders who have committed at least one ‘crime of violence,’ and to adopt a uniform definition of ‘crime of violence’ applicable to the guidelines and other recidivist statutory provisions.” The Commission also hopes to expand the “safety valve” at 18 U.S.C. 3553(f), and to get Congress to eliminate mandatory “stacking” of penalties under 18 U.S.C. 924(c). As well, the Commission wants to “promote effective reentry programs” and perhaps lower guideline ranges for “first offenders.”

All of this is good stuff, but for a couple of provisos. First, the 7-member Sentencing Commission currently only has four members. President Trump and his legal sidekick, Jefferson Beauregard Sessions III, will pick the other three (with one, U.S. District Judge Henry “Hang ‘em High” Hudson as the first choice, as we noted last week). The complexion of the Commission could change drastically in the next few months, and all of the touchy-feely business about actually making the Guidelines fairer and more reasonable could be torpedoed by a 7-member commission with three staunch law-and-order types.

facts170822Second, a lot of what the Commission wants to do – fixing mandatory minimums and expanding the safety valve, for example – will require Congressional action. We have seen how effective Congress can be: last year, the bipartisan sentencing reform legislation died, and this year’s version languishes in committee.

Finally, these priorities are not the same thing as amendments, or even proposed amendments. Something will have to happen to turn intent into action, and then action into retroactivity.

Meanwhile, Prisology finds itself on the beginning mile of a marathon. How it handles the campaign for a more rational sentencing table from here on out will give us an idea of what the organization is made of.

United States Sentencing Commission, Federal Register Notice of Final 2017-2018 Priorities (August 17, 2014)

– Thomas L. Root

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