Tag Archives: sentencing commission

Keep on Gunnin’ – Update for July 11, 2019

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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.

GUN AND RE-GUN

gunknot181009The Sentencing Commission does not have enough members for a quorum, so it cannot adopt any Guidelines changes. It still has a busy staff, however, and keeps grinding out studies.

At the end of June, the Commission issued a study of about 3,500 federal firearms offenders, reporting that

•   Gun offenders commit new crimes at a higher rate than non-gun offenders, with 68% being arrested for a new crime during the eight years following release, compared to 46% of non-gun offenders, with higher percentages in every age and criminal history group;

• Gun defendants re-offend more quickly than non-gun defendants. The median time from release to the first new crime was 17 months, compared to 22 months for non-gun people; and

•   More gun offenders were rearrested for serious crimes than non-gun offenders, with assault was the most serious new charge for 29%, followed by drug trafficking (14%) and public order crimes (12%). Of the non-gun offenders, assault was the most common new charge for 22%, followed by 19% for public order crimes and 11% for drug trafficking;

United States Sentencing Commission, Recidivism Among Federal Firearms Offenders (June 27, 2019)

– Thomas L. Root

Keeping Count – Update for May 15, 2019

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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 BY THE NUMBERS

The Sentencing Commission Fiscal Year 2018 Annual Report and Sourcebook came out last week. Besides the obvious (which the Annual Report sort of soft-pedaled, that the Commission lacks a quorum, and thus cannot perform its primary duties), the release contains some interesting numbers taken from 2018’s 69,400 district court sentencings. (All years are fiscal years, running from Oct. 1 to Sept. 30):

• The Feds are busier this year than last. The sentencing caseload increased by 3.7% from 2017, the first increase in caseload since 2011.

numbers180327• It’s not what you did, it’s where you’re from, that matters. Immigration crimes replaced drug offenses as the largest single group of offenses. Immigration cases increased from 30.5% in 2017 to 34.4% in 2018, while drug and firearms prosecutions fell.

• Meth is the drug of choice. Methamphetamine offenses, the most common drug type in the federal system, continued to rise (from 30.8% of all drug offenses in 2016 and 34.6% in 2017 to 39.8% in 2018).

• The Guidelines still rule. 75% of federal offenders were sentenced under the Guidelines Manual in 2018. Of those, 51.0% were sentenced within the defendants’ Guidelines sentencing range, an increase of 1.9 points from 2017. The number of defendants getting downward departures for helping the government remained at 10.1%, the same level as 2017.

U.S. Sentencing Commission, FY 2018 Sourcebook (May 8, 2019)

– Thomas L. Root

The Year of No Guidelines – Update for May 7, 2019

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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.

WHITHER GUIDELINES?

Guidelines red text and magnify glassThe first of May was both International Workers Day (for you Marxists) and Law Day (if you’re a lawyer). For the past 31 years, it has also customarily brought a package of Sentencing Guidelines amendments, each of which is to become effective on the following November 1st (six months hence) unless Congress objects, pursuant to 28 USC 994(p).

Not this year. For the fourth time in 31 years, the Commission will adopt no Guideline amendments to send to Congress. This has only happened before in  1996 and 1999, and more recently in 2017.

The problem is one of politics. The Sentencing Commission was established by Congress in the Sentencing Reform Act of 1984 as a permanent, independent agency within the judicial branch. The seven Commission members are appointed by the President and confirmed by the Senate for six-year terms. Commission members may be reappointed to one additional term, also with the advice and consent of the Senate. Three of the members must be federal judges, and no more than four may belong to the same political party. The Attorney General or his designee and the chair of the United States Parole Commission sit as non-voting members of the Commission.

No matter how important the Commission may be to federal inmates, Washington sees it as a political backwater. Already operating with only five members in 2017, the Commission’s voting membership fell further last year to four. Then, at the end of 2018, the terms of Judge William Pryor of the 11th Circuit and New York University law professor Rachel Barkow expired.

emptyroom190507For the past five months, the Commission has had only two voting members. Two more must be appointed and approved by the Senate just to have the minimum number needed for a meeting. Former Sentencing Commission chairwoman Patti Saris, who is Chief Judge of the U.S. District Court for the District of Massachusetts, complained in a Law360.com article last week, “Today, the United States Sentencing Commission sits without a confirmed chair, or even a quorum of members. This severely impairs the commission’s ability to study further reforms. For example, with only two current commissioners, the commission is unable to pass amendments to make the sentencing guidelines consistent with the statutory provision expanding the “safety valve.” While the research and training activities of the commission continue, the commission needs a quorum.”

Meanwhile, the amendment cycle for 2018 has come and gone without action for the second time in three years. Thank heaven that the Guidelines, after 30 years of development, are perfect in every regard (said no one ever).

Law360.com, The First Step Act Is A Major Step For Sentencing Reform (Apr. 28)

– Thomas L. Root

First Step Act Beneficiaries By The Numbers – Update for January 25, 2019

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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 RELEASES FIRST STEP CHECKLIST, IMPACT STUDY

imageThe Romans had a phrase for it: “Cui bono?” Last week, the U.S. Sentencing Commission tried to answer that question about the First Step Act.

The extra seven days of good time granted by the Act will benefit the most inmates, about 142,500 federal prisoners (79% of the 180,390 federal prison population), excluding only people with life sentences or sentences of less than a year and a day (which are ineligible for good time under 18 USC 3624[b][1]). The earned time credit the Act awards for completing programs that reduce recidivism is in second place. The Commission estimates that it will benefit about 106,000 eligible inmates (about 59% of the population).

The retroactive Fair Sentencing Act provision of the First Step Act only touches about 2,660 inmates, but it has an outsized effect on racial disparity: 90% of whom are black.

elderly180517The elderly offender home detention program expanded by the Act has 1,880 inmates who are currently eligible (the right age, right offenses and right amount of time served). Of course, the EOHD program, unlike the other First Step programs, will see an influx of additional inmates who reach the right age and service of sentence.

The Commission also issued an 8-page fact sheet answering questions about implementing the sentencing portions of First Step. In it, the USSC notes that First Step requires no changes in the Guidelines (which is a good thing because the 7-member Commission is down to only two voting members, leaving it unable to approve any new Guidelines until the Senate approves additional commissioners).

USSC, Sentence and Prison Impact Estimate Summary (Jan. 18)

USSC, ESP Insider Express: First Step Act (Jan. 18)

– Thomas L. Root

Pounding Pervs: Sentencing Commission Looks at Mandatory Sentences for Sex Offenses – Update for January 11, 2019

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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 RELEASES STUDY ON MANDATORY MINIMUMS IN SEX CRIMES

The US Sentencing Commission issued a report last week examining the application of mandatory minimum penalties specific to federal sex offenses.

perv160201Relying on 2016 data, the 81-page report analyzes the two types of federal sex offenses with mandatory minimum penalties, sexual abuse and child pornography (CP) as well their impact on the Federal Bureau of Prisons population. Among its findings:

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• Two out of three sex offenders receive a mandatory minimum sentence, and half of those sentences are for at least 15 years incarceration.

• Sex offenders convicted comprised only 4.2% of federal defendants sentenced in 2016, but sex offenses accounted for 19.4% of offenses carrying a mandatory minimum penalties.

• Between 2011 and 2016, sex offenses, however, increased in number and as a percentage of the federal docket, and sex offenders were more frequently convicted of an offense carrying a mandatory minimum penalty.

• Sex offenders are demographically different than offenders convicted of other offenses carrying mandatory minimum penalties. Native Americans are a larger percentage of sex abuse offenders than of any other offense carrying a mandatory minimum penalty. White offenders constituted over 80% of offenders convicted of a CP offense (80.9%). The average age for all CP offenders was 42, five years older than the average age for federal offenders convicted of any other mandatory minimum penalty.

• While there is little distinction between CP receipt possession offenses, the average sentence for receipt offense defendants, which carries a five-year mandatory minimum, is 30 months longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory

US Sentencing Commission, Mandatory Minimum Penalties for Federal Sex Offenses (Jan. 2, 2019)

– Thomas L. Root

More of the Same Ol’ Same Ol’ at the Sentencing Commission – Update for August 28, 2018

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SENTENCING COMMISSION ANNOUNCES PRIORITIES FOR COMING YEAR

The U.S. Sentencing Commission last week approved a list of policy priorities for the coming year, including a multi-year examination of the “differences in sentencing practices that have emerged across districts, within districts, and, in some cases, within courthouses under the advisory guidelines system.”

In light of the Supreme Court’s decision in Koons v. United States, the Commission will also consider application issues related to the calculation of retroactive sentence reductions for certain offenders convicted of mandatory minimum penalties.

newsun180828For the third consecutive year, the Commission also set as a priority the adoption of a uniform definition of “crime of violence.”  The Dept. of Justice has raised several application issues that have arisen since the Commission’s 2016 amendment, including the meaning of “robbery” and “extortion.”  The Commission will also consider possible amendments to Guideline § 4B1.2 (the “career offender” guideline) to allow courts to consider the actual conduct of the defendant in determining whether an offense is a crime of violence or a controlled substance offense.

The USSC will also continue to study recidivism among federal offenders as well as the use of mandatory minimum penalties in the federal system.

Over the past two years, the Commission released eight reports on those topics. Despite the net effect of the prior reports (being zero), the Commission plans an additional recidivism report this coming year, as well as reports on the use of mandatory minimums in cases involving identity theft and sex offenses.

U.S. Sentencing Commission, Final Priorities for Amendment Cycle Ending May 1, 2019 (Aug. 22, 2018)

– Thomas L. Root

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Women Behind (Federal) Bars – Update for July 10, 2018

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SENTENCING COMMISSION DISCOVERS WOMEN ARE LOCKED UP, TOO


womenprison180711The Sentencing Commission issued one of its regular “Quick Facts” reports last week on women in federal custody. The “quick facts” series, started five years ago as a way to give the USSC’s short-attention-span readers (which includes most of Congress) “basic facts about a single area of federal crime in an easy-to-read, two-page format,” are issued several times a year. This is the first report focusing on women in federal custody.

The report notes that for the period Oct. 2016 through Sept. 2017:

• Women made up 13.1% of federal prisoners, a slight decrease from 2013, when they were 13.3% of offenders;

• 68.0% of female federal prisoners were Criminal History Category I when sentenced;

• women used weapons less frequently (6.1% of cases) than do men (10.1%);

• 76.9% of convicted women were sentenced to imprisonment, less than the 93.8% rate for men

•  women offenders were sentenced within the guideline range 36.6% of the time, compared to 49.8% of the time for men; and

•   the average sentence for women was 28 months in 2017, compared to 27 months in 2013.

U.S. Sentencing Commission, Women in the Federal Offender Population (July 3, 2018)

– Thomas L. Root

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

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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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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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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