We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
WE’RE SHOCKED! SENTENCING COMMISSION STUDY FINDINGS FEDERAL SENTENCING IS UNFAIR
While 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.
The 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.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TURNING A BREEZE INTO A HOPEMONGERING HURRICANE
The 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.
Then 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.
Enter 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.
But 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?
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE SEVEN PERCENT SOLUTION
When 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.
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.
At 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.
It 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.”
“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).
“Not as efficient or organized?” The same could be said of a train wreck.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
… 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?
Prisology 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.”
To 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.
Second, 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.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
HANG ‘EM HIGH HUDSON
The United States Sentencing Commission, a 7-member judicial agency charged with writing and amending the federal sentencing guidelines faced a manpower crisis earlier this year, as only two voting members remained. The Senate increased that number to the minimum needed for a quorum by approving two Obama holdover nominations in March.
Attorney General Jefferson Beauregard Sessions III
Enter everyone’s favorite compassionate conservative, Attorney General Jefferson Beauregard Sessions III. Sessions yesterday urged the White House to nominate federal judge and ex-prosecutor Henry E. Hudson to the Commission. Judge Hudson, who as a prosecutor was nicknamed “Hang ’Um High” Henry Hudson and said he lived to put people in jail, earned fame as a prosecutor for railroading a developmentally disabled man into prison for a rape he didn’t commit. Hudson’s successor exonerated the man when inconsistencies in the case led detectives to pursue other leads, ultimately linking a serial killer to the murder. Faced with the evidence that he had convicted the wrong guy, Hudson wrote in his memoirs, “I certainly wish him the best, and regret what happened. However, I offer no apologies.”
At the same time, Sessions is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders. In public comments filed with the Sentencing Commission on July 31, the Dept. of Justice asked it to preserve mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.
DOJ also encouraged the Commission to abandon the categorical approach (Mathis v. United States) for determining which state crimes are crimes of violence supporting much higher sentencing ranges for “career offenders.” The Department complains that the “categorical approach,” which requires courts to “focus solely on whether the elements of the crime of conviction sufficiently match the elements of a generic version of the crime,” focuses on the abstract elements of the statute “and largely ignores the conduct that the defendant actually committed. This approach has resulted in some repeat violent offenders… receiving a sentencing range that is lower than their conduct and criminal history warrant. The categorical approach also consumes an inordinate amount of time for trial court judges, appellate court judges, probation officers, prosecutors, and defense attorneys.”
DOJ argues that “the time has come to abandon the categorical approach in those cases involving the enumerated felonies clause. The Department would be pleased to work with the Commission to develop a workable and fair approach that focuses less on formalism and more on the defendant’s conduct.”
Of course it would. And Judge Henry “Hang ‘Em High” Hudson is just the kind of commissioner with whom DOJ would like to work.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
READ ‘EM AND WEEP
Everyone 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 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’ssentencing 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.
• 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.
• 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%.
Judge 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.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
2014 GUIDELINE CHANGE CUT 30,000 DRUG SENTENCES
Back in the good old days, when the Executive Branch pretended to care about rational federal sentencing policies (and we’re not saying that the prior inhabitant of the White House really did, other than to the extent he could use sentence reform to burnish his legacy) the U.S. Sentencing Commission adopted an amendment to the federal sentencing guidelines that reduced by two the offense levels assigned to drug quantities. The 2014 change reduced defendant’s sentencing ranges accordingly.
Unlike most changes in the Guidelines, the Sentencing Commission made the 2-level reduction retroactive to people already sentenced. Retroactivity under the Guidelines is not an automatic thing: a defendant must petition his or her sentencing court under 18 USC 3582(c)(2) for a sentence reduction pursuant to the retroactive Guideline. If eligible, an inmate still must convince the court that a reduction of his or her sentence ought to be awarded. Sentencing courts have wide discretion as to what to do with a sentence reduction motion, and district court decisions are nearly bulletproof.
The Sentencing Commission released a report Tuesday on the fallout from the 2014 2-level reduction. Slightly more than 46,000 people applied for the reduction, of whom a few more than 30,000 receive sentence cuts, for a 66% grant rate. Like Meatloaf said, “Two outta three ain’t bad.”
Actually the odds for defendants were even better than that: 24% of the people who applied were not even eligible for the reduction, for reasons ranging from not having been sentenced under the drug guidelines to being locked in place by statutory mandatory minimum sentence. Only 8% of the 46,000 were denied on the merits (although due to sloppy district court records, the number could have been as high as 13%).
The average sentence was cut from 144 to 119 months, a 17% reduction. Of those receiving sentence reductions, 32% were convicted for methamphetamines, 28% for powder cocaine, 20% for crack, 9% for pot and 7% for heroin. The racial and ethnic distribution was 30% white, 33% black, and 41% Hispanic. Curiously enough, the defendant’s criminal history seemed to have no effect on likelihood of receiving a sentence cut, with novices and pros alike getting cuts at about the same rate.
Defendants were better off in Chicago than they were in sunny California. The 7th Circuit gave the largest sentence cuts, 33 months off on the average (20% of the original sentence). The 9th Circuit was the stingiest, giving an average cut of 20 months (16% of the sentence).
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 TO SKIP 2017 AMENDMENTS
Just a shade more than 200 years ago, a combination of solar, geologic and atmospheric factors resulted in the summer months of 1816 bringing snow to New England in June, lake ice to Pennsylvania in July and August, and frozen corn in September fields. Historians call it “The Year Without a Summer.”
We’re experiencing a regulatory version of that phenomenon this year. Last December, some hopes ran high for the United States Sentencing Commission’s 2017 agenda, with some ambitious proposals in the pipeline for the 2017 amendment cycle. We were not quite so sanguine, but even we foresaw some changes on several sentencing fronts.
And then, the bottom fell out.
The terms of Chief Judge Patti B. Saris, Judge Charles R. Breyer and Dabney L. Friedrich, all expired. Because the Commission has to have at least four voting for a quorum, the commissioners who were left – Circuit Judge William H. Pryor, Jr. and Commissioner Rachel E. Barkow – could not conduct any business.
The nominations of Judges Breyer and Reeves were stalled last Congress. In January, outgoing President Obama renominated them. The Senate finally approved two new members on March 21st.
By statute, the Commission is required to submit any amendments to the guidelines to Congress by May 1st for a 180-day congressional review period. Because we did not have a voting quorum for almost three months, there simply is not enough time for us to schedule a public hearing on the proposed amendments, digest the public comment, deliberate, and hold a public vote by the statutory deadline. Therefore, this year we will not promulgate any amendments to the guidelines.
In its 29-year history, the Commission has missed issuing amendments in only twice, in 1996 and 1999.
As for the draft amendments considered last December, Judge Pryor optimistically says that the Commission’s “data analysis, legal research, and public comment on these proposed amendments should provide us a sound basis for considering guideline amendments as early as possible during the next amendment cycle.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
Thus far this legislative year, as we’ve noted, there has been a dearth of criminal justice reform legislation introduced in Congress. A report released yesterday by the Brennan Center for Justice at New York University may hint at why.
On the subject of sentence reform, the Report notes that in January 2017, Sen. Charles Grassley (R-Iowa), chair of the Senate Justice Committee, and House Speaker Paul Ryan (R-Wisconsin) committed to reintroduce some version of the failed SRCA. However, the Report says, both Ryan and Grassley “are rumored to be waiting for the administration to announce its position before moving forward.”
Rumors flew in March, when President Trump’s son-in-law and advisor Jared Kushner met with Grassley and Sen. Dick Durbin (D-Illinois) – the top-ranking Democrat on the Committee, to discuss sentencing and reentry legislation. Kushner, whose father did federal time for white-collar offenses, has more reason than most to favor federal sentencing reform, and reports say that he does.
The Brennan Report says, “Trump’s personal positions on such bills are unknown. It remains to be seen whether any advice from Kushner and backing by conservative reform advocates will influence the President. Some conservatives support expanding reentry services, and modest sentencing reductions for low-level offenders. The Trump Administration could take a similar stance, backing modest prison reform in Congress while continuing to pursue aggressive new prosecution strategies.”
Attorney General Jeffrey Sessions
Elsewhere in the Report, the Brennan Center predicts that “recommendations for more punitive immigration, drug, and policing actions” will flow from the Administration over the next few months. It notes that a crime task force established by Attorney General Jeffrey Sessions is scheduled to deliver its first report by July 27. The Center foresees the task force calling for “a rescission of Obama-era memos on prosecutorial discretion, which helped decrease the federal prison population, and diverted low-level drug offenders away from incarceration.”
We watched with some glee a year ago when the U.S. Sentencing Commission horse-shedded the BOP over that agency’s chary use of compassionate release. It was fun while it lasted, but it didn’t last very long.
“Compassionate release,” a provision enshrined in 18 USC § 3582(c)(1), was enacted by Congress in the Sentencing Reform Act of 1984. Besides replacing the prior sentencing regime with the Guidelines, the Act strictly limited the ability of federal courts to revisit sentences once they became final (that is, the time for appellate review expired). Parole was eliminated, with sentences to be served fully (with an allowance of about 14% for good conduct in prison).
One safety valve crafted into the Act by Congress was to give courts the ability to modify or terminate sentences if prisoners were able to show “extraordinary and compelling” reasons justifying early release. Congress tasked the Sentencing Commission with the job of identifying the criteria to be used in determining whether a reason was “extraordinary and compelling.” The statute delegated BOP with the task of identifying prisoners who met these criteria. The idea was that the BOP would identify who qualified, and then petition the district court for grant of compassionate release. The district judge would make the final determination.
The entire process was considered by Congress to be an act of grace. Inmates have no right to petition the court directly under 18 USC 3582(c)(1). They may not seek judicial review of a BOP refusal to recommend release. They may not appeal a district court’s denial of compassionate release. This means the power to free a prisoner is placed in the hands of the jailer whose job it is to keep him locked up, who incidentally is represented by the prosecutor – the US Attorney – whose job it is to lock up federal criminal offenders.
So how does the system work? We’ll let the numbers speak. In 2015, out of about 205,000 federal inmates, the BOP found extraordinary and compelling circumstances justifying compassionate release only 62 times. That works out to 0.03% (or about 3 prisoners out of every 10,000). Those odds stink. It’s hard to believe that so few prisoners qualify for compassionate release.
The BOP’s stinginess has drawn fire from the Sentencing Commission. At the April 2016 hearing we noted above, commissioners complained that the BOP had adopted its own definition of “extraordinary and compelling.” The criteria the Commission adopted directed the BOP to confine itself to determining if a prisoner meets the criteria the Sentencing Commission adopted, and – if so – bringing a motion for reduction in sentence to the district court.
BOP’s management of compassionate release is no different than a district judge deciding that she would adopt her own definition of “career offender,” no matter what the Sentencing Commission might say in Chapter 4B of the Guidelines.
In an article published this week by Learn Liberty, Mary Price – general counsel to Families Against Mandatory Minimums – cited cases where even the most slam-dunk compassionate release cases took over a year for the BOP to process. She noted that the BOP was hurting itself as well as the affected inmates: compassionate release of elderly and infirm inmates makes economic as well as social sense, and saves the BOP from caring for the most expensive and least dangerous of its inmates.
Ms. Price wrote that
if the BOP is unable or unwilling to treat the compassionate release program as Congress intended, Congress should take steps to ensure that prisoners denied or neglected by the BOP nonetheless get their day in court. Congress can do so by giving prisoners the right to appeal a BOP denial to court or to seek a decision from the BOP in cases… in which delays stretch out over months or even years. Such a right to an appeal will restore to the courts the authority that the BOP has usurped: to determine whether a prisoner meets compassionate release criteria and if so, whether he deserves to be released.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ROACH MOTEL
Besides the obvious fact that society abhors sex crimes against children – including the possession of kiddie porn – one of the rationales for handing out Draconian sentences to defendants convicted of such offenses is that they pose such a danger to the public if they’re roaming free.
Everyone knows that’s true. After all, the Supreme Court itself has recognized that an “frightening and high” percentage of untreated child porn offenders “re-offend” – which is sociologist-speak for “commits the same crime again” – after release. The statistic everyone loves to cite is 80%.
Except it now appears that the statistic is wrong. But like roaches at the Roach Motel, the “alternate fact” has checked into federal jurisprudence, and it shows no sign of checking out.
A New York Times article published last Monday took the State of North Carolina to task for an argument its attorney made during the Supreme Court oral argument the week before in Packingham v. North Carolina. “This court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again,” attorney Robert C. Montgomery told the court during his defense of a state law that bars sex offenders from using social media services.
Attorney Montgomery was literally correct. The Supreme Court observed in a 2003 decision, Smith v. Doe, that the risk that sex offenders will commit new crimes is “frightening and high.” The Times said the holding, in a decision affirming Alaska’s sex offender registration law, has been “exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.”
Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited McKune v. Lile, a decision from the year before, which noted that “[t]he rate of recidivism of untreated offenders has been estimated to be as high as 80 percent.” That decision cited a 1988 Justice Department study entitled A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender, which was a collection of studies by experts in the field. Ironically, most of the recidivism rates cited in the Guide showed slight recidivism rates for sex offenders. One source, however, claimed an 80% re-offense rate, a number that the Guide itself cautioned might be an outlier.
That source was a 1988 article published in the popular trade magazine Psychology Today. The Psychology Today piece simply asserted that “most untreated sex offenders released from prison go on to commit more offenses – indeed, as many as 80% do.” This statistic was not supported by any empirical evidence. In a recent Boston College Law Review article, Dr. Melissa Hamilton (who is both a criminologist and a lawyer) writes, “The Psychology Today authors were therapists in a sex offender treatment program with no apparent academic research credentials or statistical training. Evidently, the authors’ “statistic” was simply based on personal observations from their local treatment program.”
In sum, a principal foundation on which the Supreme Court approved the existence of specialized sex offender policies rested upon virtually no scientific grounds showing that sex offenders are actually at high risk of reoffending. Unfortunately, the Supreme Court’s scientifically dubious guidance on the actual risk of recidivism that sex offenders pose has been unquestionably repeated by almost all other lower courts that have upheld the public safety need for targeted sex offender restrictions.
That may soon change. Pending before the Supreme Court is a petition for writ of certiorari in Doe v. Snyder, the 6th Circuit’s maverick decision to reject the “frightening and high” recidivism canard, in holding that Michigan’s civil sex offender law is unconstitutional. Hamilton argues that “Snyder’s engagement with scientific evidence has the potential to change the jurisprudence surrounding sex offender laws.”
With the Doe v. Snyder certiorari issue to be decided in the next few weeks, the argument against the 80% figure gain traction yesterday with a U.S. Sentencing Commission release of The Past Predicts the Future: Criminal History & Recidivism of Federal Offenders. The study, which is third in a USSC series on the topic, reported that persons convicted of child pornography had a recidivism rate of 37.6%, lower than any other category of offense except economic crimes (which, at 35.9%, was almost indistinguishable). Violent crime offenders, by contrast, reoffended at a 64.1% rate, and drug traffickers at a 50.0% rate.
Benjamin Disraeli (or Mark Twain, no one’s really sure) famously said, “There are three kinds of lies: lies, damned lies, and statistics.” He has a “frightening and high” 80% chance of being right.
While 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 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.
