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Four Years After First Step Passes, USSC to Roll Out Draft Compassionate Release Policy – Update for January 12, 2023

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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 TO PUBLISH FIRST DRAFT PROPOSED GUIDELINES AMENDMENTS TODAY

USSC170511The U.S. Sentencing Commission will adopt its first set of draft proposed amendments to the Federal Sentencing Guidelines in five years when it meets today.

The Commission’s meeting, which starts at 1 p.m. Eastern time,  will be live-streamed.

Last October, the Commission announced that its top priority is amending USSG § 1B1.13, the policy statement on compassionate release.

The compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), requires judges to only grant compassionate releases that are “consistent with applicable policy statements issued by the Sentencing Commission.” However, § 1B1.13 was written when only the BOP could bring compassionate release motions. The compassionate release statute was changed by the First Step Act, passed four years ago at the same time the Sentencing Commission lost its quorum,

Most (but not all) Circuits have since ruled that § 1B1.13 was written for a compassionate release regime that no longer exists and thus is not binding on district courts until it is amended.

Other changes that may be issued in draft form include changes in the drug Guideline (USSG § 2D1.1) due to First Step’s lowering of mandatory drug minimums, resolving circuit conflicts over whether the government may withhold a motion for a third acceptance of responsibility point because a defendant had moved to suppress evidence before entering a guilty plea, and amendments to the Guidelines career offender chapter that would provide an alternative to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense.”

The draft the Commission will issue Thursday will be open for public comment for a period of time, and then a slate of proposed amendments will be adopted by May 1.  Under 28 U.S.C. § 994(p), the proposed amendments become effective November 1st unless Congress blocks them.

U.S. Sentencing Commission, Public Meeting – January 12, 2023 (January 3, 2023)

US Sentencing Commission, Commission Sets Policy Priorities (October 28, 2023)

– Thomas L. Root

Sentencing Commission Rolls Up Its Sleeves – Update for November 3, 2022

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

USSC SETS GUIDELINE AMENDMENT PRIORITIES

The U.S. Sentencing Commission held its first meeting in 46 months last Friday, voting in a 20-minute session to adopt priorities for the Guidelines amendment cycle that ends Nov 1, 2023.

USSC170511The USSC lost its quorum due to term expirations of multiple members in December 2018, just as the First Step Act was signed into law. That meant the commission was unable to revise the Guidelines just as First Step changes required modifications that would have prevented conflicting judicial interpretations, especially in the application of 18 USC § 3582(c)(1)(A) sentence reduction motions, commonly called “compassionate release” motions.

The compassionate release statute requires judges to consult USSG § 1B1.13, Guidelines policy on granting compassionate releases, but § 1B1.13 was written for a time when only the Bureau of Prisons could bring compassionate release motions. Most but not all Circuits have ruled that § 1B1.13 is not binding on district courts until it is amended, but the 11th has ruled that it is binding, the 8th has studiously avoided deciding the question, and others – such as the  3rd, 6th and 7th – have held that district judges cannot consider First Step Act changes in sentencing law that would result in much lower sentences when deciding compassionate release motions.

U.S. District Judge Carlton Reeves (S.D. Mississippi), chairman of the Commission, said implementing the First Step Act through revisions to the federal sentencing guidelines would be the USSC’s “top focus.”

Other changes in the Guidelines, such as to the drug tables, could result from First Step’s lowering of drug mandatory minimums.

responsibility221103Additional priorities for the coming year include resolving circuit conflicts over whether the government may withhold a motion for a third acceptance-of-responsibility point just because a defendant moved to suppress evidence before pleading guilty and whether an offense must involve a substance actually controlled by the Controlled Substances Act to qualify as a “controlled substance offense,”

The USSC will also consider amendments to the Guidelines career offender chapter that would provide an alternative to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense.

First Step also made changes to the “safety valve,” which relieves certain drug trafficking offenders from statutory mandatory minimum penalties, by expanding eligibility to some defendants with more than one criminal history point. A USSC press release says the Commission “intends to issue amendments to § 5C1.2 to recognize the revised statutory criteria and consider changes to the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.”

marijuana220412The only addition to the Commission’s previously-published list of proposed priorities that came out of the meeting was consideration of possible amendments on whether, and to what extent, people’s criminal history for marijuana possession can be used against them in sentencing.

The cannabis item was added and adopted after President Joe Biden issued a mass marijuana pardon proclamation.

The Commission’s priorities only guide what it will be working on for the Nov 2023 amendment cycle. Expect amendment proposals by late January, followed by a public comment period, and final amendments by May 1. After that, the Senate has 6 months to reject any of the amendments (a very rare occurrence). Amendments not rejected will become effective Nov 1, 2023.

Reuters, Newly-reconstituted U.S. sentencing panel finalizes reform priorities (October 28, 2022)

US Sentencing Commission, Final Priorities for Amendment Cycle (October 5, 2022)

US Sentencing Commission, Commission Sets Policy Priorities (October 28, 2022)

Marijuana Moment, Federal Commission Considers Changes To How Past Marijuana Convictions Can Affect Sentencing For New Crimes (October 28, 2022)

– Thomas L. Root

Sentencing Commission’s Back, And It Has Its Priorities – Update for October 4, 2022

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

SENTENCING COMMISSION PRIORITIES TO FOCUS ON COMPASSIONATE RELEASE, ACQUITTED CONDUCT GUIDELINE CHANGES

USSC170511Last week, the newly-reconstituted U.S. Sentencing Commission issued tentative policy priorities for the 2022-2023 amendment year. Unsurprisingly, amending the compassionate release Guideline is at the top of the list.

Most circuits have held that USSG § 1B1.13, the policy statement that once controlled compassionate releases, does not apply to inmate-filed motions. Just as the First Step Act – which first permitted inmates to file their own compassionate release motions – was passed, the Sentencing Commission lost its quorum and could not amend anything.

The announcement last week only proposes that the USSC should examine 1B1.13 and the other priorities. It does not propose what changes, if any, will be made. The Commission will issue detailed tentative amendments for public comment early next year. Final amendments will issue by May 1. Any amendment that is not voted down by the Senate (and a down-vote hardly ever happens) becomes effecting November 1, 2013, about 13 months from now.

guns200304The USSC also proposed to focus on changing firearms penalties under USSG § 2K2.1 in light of a new gun control law that created higher penalties for straw purchasers, felon-in-possession and other gun crimes; changing criminal history guidelines in light of studies on recidivism and difficulties applying the career offender provision, considering prohibiting the use of acquitted conduct in sentencing, changing the guidelines to permit more non-prison sentences for non-violent first offenders, and studying simplifying the guidelines while promoting the statutory purposes of sentencing.

Sentencing Commission, Notice of Proposed 2022-2023 Priorities (September 29, 2022)

– Thomas L. Root

Musings on a Slow Month – Update for July 26, 2022

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

THE GOOD, THE BAD, AND THE WEIRD

summertime220725In the only good news to come from Washington so far this sleepy July, Senate Democrats have introduced a bill to decriminalize marijuana at the federal level this week, although the legislation faces long odds in the evenly divided chamber.

Majority Leader Charles Schumer (D-NY) worked with Sen Cory Booker (D-NJ) and Ron Wyden (D-OR) on the measure. The senators circulated a draft of the bill last year and made tweaks after feedback from Senate committees.

The Cannabis Administration and Opportunity Act (S.4591) would remove marijuana from the list of drugs covered by the Controlled Substances Act. States, however, can still maintain and create prohibitions on producing and distributing marijuana.

marijuana160818The CAOA is the Senate’s answer to the MORE Act (H.R. 3617), passed in the House last spring on a 220-204 vote. Like the MORE Act, the CAOA will require all federal non-violent marijuana-related convictions and arrests be expunged within a year. Some lawmakers on both sides of the aisle have criticized Schumer for trying to push through a broad cannabis reform bill at the expense of a marijuana banking bill that has greater bipartisan support.

The bad is that the EQUAL Act (S.79), which passed the House (361-66) last September, remains stalled in the Senate. The Act, which would equalize sentences for crack and powder cocaine (and offer retroactivity to anyone serving a crack offense now) has well over 60 votes in the Senate. The Senate Majority Leader – the guy who schedules votes on bills – is a cosponsor. So what’s the holdup?

In a long article on a crack cocaine defendant who finally got compassionate release, the Mississippi Free Press last week reported, “FAMM President Ring told the Mississippi Free Press more about what he sees as the senators’ political calculations. ‘The problem is that lawmakers are scared that if this bill comes up, Republicans will be allowed to offer amendments to it because that’s usually how the process works,’ he said.

Ring said that votes on amendments unrelated to the bill can be “weaponized by political opponents… As a result, the political calculation has been made to shelve the bill in the Senate.”

crackpowder160606In addition, Dream Corps JUSTICE Policy Director Kandia Milton, in June 23, 2022, letter, indicated that the group is concerned about a competing Senate bill sponsored by Sen Charles Grassley (R-IA) — the SMART Cocaine Sentencing Act, S.4116 – that “maintains a disparity between these two forms of the same drug (2.5-1), lower the mandatory minimum threshold to 400 grams from 500 grams and, worst of all, mandates that the U.S. Attorney must approve all petitions for retroactivity.” Milton wrote. “Our sense of urgency is driven by the reality that if we do not pass [EQUAL] by the August recess, we won’t get another clean shot until after the midterm elections, an unpredictable two-month window at the end of the year,” he added. “We are very close to eliminating the disparity between crack cocaine and powder cocaine, and we recognize there is more work to be done.”

The weird: Two weeks ago, the Senate Judiciary Committee whiffed for a second time on approving the nomination of the seven candidates for the Sentencing Commission. At the beginning of last Thursday’s work session, Durbin said, “We have decided on a bipartisan basis to hold over for a second time the Sentencing Commission nominees while members are in… we’re going to try to find a path for all seven nominees to move together, which I think would be a positive thing and maybe even historic around here.”

The terse statement suggested some substantial pushback on one or more nominations. Laura Mate, who signed a 2014 letter to Congress supporting more reasonable mandatory minimums for sex offenders, and former federal judge John Gleeson, whose criticism of the Guidelines while on the bench was legendary, were both pilloried by several Republicans during their June nomination hearing.

Nevertheless, last week the Committee finally got the job done. It advanced the slate of seven nominees to the floor of the full Senate for its approval, bringing the Commission one step closer to being able to amend the Sentencing Guidelines.

noquorum191016The USSC has been unable to implement the First Step Act or, for that matter, do anything else after losing its quorum just as the bill was enacted in December 2018.

The Senate Judiciary Committee voted to send to the full Senate four Democrat and three Republican candidates nominated by President Joe Biden to revitalize the Commission.

Committee chairman Durbin told the Committee that while he had reservations about some nominees, it was important to move them forward as a group to “enable the commission to get back to doing its work.” He said, “[T]he Sentencing Commission has not had a quorum for three years. With no quorum, the Commission—created in 1984 and tasked by Congress to promote transparency and consistency in sentencing—has been unable to update the sentencing guidelines to provide guidance to judges. Today, we make an important step to rectify the situation… [and] enable the Commission to get back to its work.”

Cannabis Administration and Opportunity Act (S.4591)

Seeking Alpha, Senate Democrats-backed marijuana legalization bill coming next week (July 14, 2022)

Bloomberg, Pot Gets Senate’s Attention in Long-Shot Decriminalization Bill (July 14, 2022)

Politico, Schumer’s legal weed bill is finally here (July 21, 2022)

KYFR, North Dakota lawmakers, advocates push for equal sentencing in federal cocaine and crack crimes (July 12, 2022)

Senate Judiciary Hearing (July 14, 2022)

Mississippi Free Press, ‘Model Inmate’: Father Finally Has Crack Sentence Reduced as U.S. Senate Shelves Reform Bill (July 22, 2022)

Independentcloud.com, Cannabis Bill Senate: US Democrats Demand Senate Pass Its Own Marijuana Banking Bill (July 21, 2022)

Reuters, US Senate committee advances nominees to restock sentencing panel (July 21, 2022)

Sen Richard Durbin, Judiciary Committee Advances Ten Nominees, Including Two Judicial Nominees, Seven Sentencing Commission Nominees, And An Assistant Attorney General (July 21, 2022)

– Thomas L. Root

USSC Channels Captain Obvious on Recidivism – Update for June 24, 2022

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

FUN WITH NUMBERS

funwithnumbers170511While it awaits the approval of the slate of new members, the United States Sentencing Commission remains busy. With a staff of lawyers, actuaries and policy wonks, the USSC continues to crank out studies that provide some pretty useful data for those seeking to make a point with their sentencing judges.

This week, the USSC issued a seventh recidivism study, this one an examination of the relationship between the length of incarceration and recidivism. Two years ago, the USSC issued a report on federal offenders released in 2005, finding that people receiving sentences of more than 60 months were less likely to recidivate compared to people receiving shorter sentences.

The new study replicates the previous study, which in itself is useful as a check on the accuracy of the prior results. Focused on over 32,000 people released in 2010, the USSC studied whether incarceration has a deterrent effect, a criminogenic effect, or no effect at all.

A “criminogenic” effect would mean that incarceration is likely to cause recidivism rather than deter it.

obvious191031The findings may seem self-evident to many, but in the real world, even Captain Obvious sometimes needs validation. The study found that people sentenced to less than 60 months were neither more nor less likely to be recidivists as a result of their incarceration. But folks sentenced to more than 60 months but less than 120 months were 18% less likely to commit a new offense after release than similar people receiving shorter sentences. For people who served more than 120 months, the likelihood of recidivism was even less, 29% lower compared to offenders receiving shorter sentences.

The National Institute for Justice has previously noted that “policymakers and practitioners believe that increasing the severity of the prison experience enhances the ‘chastening’ effect, thereby making individuals convicted of an offense less likely to commit crimes in the future.” Only nine years ago, criminologist Daniel S. Nagin wrote, “Scientists have found no evidence for the chastening effect… Studies show that for most individuals convicted of a crime, short to moderate prison sentences may be a deterrent but longer prison terms produce only a limited deterrent effect…”

recividists160314The two USSC studies, however, suggest the opposite. To be sure, the difference in recidivism reduction begins to flatten – a 60-120 month sentence gets you an 18% reduction while 120-plus only adds 11 points more. Still, the gain from 18%to 29% could be convincing to a court deciding that someone – especially with a prior record – would benefit from over a decade on ice to cure him or her of criminal predispositions.

U.S. Sentencing Commission, Length of Incarceration And Recidivism (June 20, 2022)

Sentencing Law and Policy, US Sentencing Commission releases another report on “Length of Incarceration and Recidivism” (June 21, 2022)

National Institute for Justice, Five Things About Deterrence (June 5, 2016)

Nagin, Daniel S., Deterrence in the Twenty-First Century (Crime and Justice in America: 1975-2025), M. Tonry, ed, Chicago, Ilinois: University of Chicago Press (2013)

– Thomas L. Root

Batting Cleanup for LISA… – Update for June 17, 2022

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wahoo220617We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, we’re cleaning up the week with some odds and ends left over from the week before…

Judiciary Committee Grills Sentencing Committee Nominees: President Biden’s seven nominees to the U.S. Sentencing Commission promised at a Senate hearing last week to prioritize implementing the First Step Act by amending the Guidelines, something the Commission had been unable to do since losing its quorum just as the 2018 law passed.

U.S. District Judge Carlton Reeves (S.D. Miss), nominated to be chairman of the USSC, told the Judiciary Committee that the Commission would also address what he called “troubling” divisions that emerged among courts on sentencing issues during the years it lacked a quorum.

Four Democrat and three Republican picks have been nominated to join the seven-member commission.

Senior U.S. District Judge Charles Breyer (N.D. Cal.), the lone remaining member of USSC, has complained that the Commission’s inability to update its compassionate release policy (USSC § 1B1.13) in light of First Step has resulted in inconsistent decisions across the nation on compassionate release amid the COVID-19 pandemic.

“Today, we take an important step to remedy that problem,” said Judiciary Committee chairman Sen Richard Durbin (D-IL).

Sen Marsha Blackburn (R-TN) jumped on one Democratic nominee, former U.S. District Judge John Gleeson. Gleeson, one of the most thoughtful and creative sentencing judges during his time on the E.D.N.Y. bench, has been a critic of mandatory minimum drug sentences.

“How can you possibly say that more lenient sentencing and reduced penalties for convicted criminals is the answer to our crime problems?” Blackburn complained. Gleeson, now a partner at a Wall Street law firm, responded that as a judge he tried only to show the impact mandatory sentences have on “the individualized sentencing that our system contemplates.”

pissfire220617Meanwhile, former federal defender Laura Mate, a director of the Federal Defenders’ Sentencing Resource Counsel Project, refused demands by Sen Josh Hawley (R-MO) to renounce a detailed 61-page letter to the Sentencing Commission she had co-signed in 2013. The letter had criticized mandatory minimums, especially for some child pornography offenses, with a detailed, well-reasoned argument.

Mate was pilloried by at least one YouTuber for politely dodging Hawley’s question, but given what I know of the good Senator from the Show-Me State, I would resist agreeing with him that the sun rises in the east, because he would end our exchange accusing me of causing dawn to arrive too early.

Republican USSC nominees include Claire McCusker Murray, a Justice Department official during the Trump era; Candice Wong, a federal prosecutor in Washington, D.C., and U.S. District Judge Claria Horn Boom of Kentucky.

The hearing suggests that the Senate will act soon on restoring a functional Sentencing Commission. However, as Ohio State University law professor Doug Berman observed in his Sentencing Law and Policy blog, “it is still unclear exactly when there will be a committee vote and then a full Senate vote on these nominees. I am hopeful these votes might take place this summer, but I should know better than to make any predictions about the pace of work by Congress.”

Senate Judiciary Committee, Hearing (June 8, 2022)

Reuters, Biden’s sentencing panel noms vow to implement criminal justice reform law (June 8, 2022)

Sentencing Law and Policy, Senate conducts hearing for nominees for US Sentencing Commission (June 8, 2022)

Federal Defenders, Letter to Sentencing Commission (July 15, 2013)

rockingchair220617Last Week Makes Mike Long for Retirement:  BOP Director Carvajal is probably giddy at the prospect that his replacement is finally waiting in the wings. 

Besides the USP Thomson investigation being announced last week, the BOP suffered some embarrassing press last week:

•  A Miami TV station reported on a CO’s claim that drones were being used to smuggle contraband into FDC Miami;

•  A Colorado paper reported that the BOP was paying $300,000 in damages to an ADX Florence inmate with Type 1 diabetes who alleged in a lawsuit that he had been denied adequate amounts of insulin;

•  A San Francisco area TV station reported that a former FCI Dublin inmate – who early on told BOP authorities about what has turned into a major sex abuse scandal featuring the arrest of a former warden and four other staffers – says she was punished in retaliation for calling out the staff abuse. “I will never tell another inmate that they should go to report anything to anyone higher up,” the former prisoner told KTVU. “Because all that’s going to happen is it’s going to make their life worse.”; and

•  A former correctional officer at the Federal Medical Center in Lexington, Kentucky, was sentenced to more than 11 years after pleading guilty to sexual abuse of inmates.

Finally, in February, Carvajal told a Congressional committee that the “common criticism” that the BOP is understaffed was a “narrative [that] is routinely misrepresented without reference to the factual data.” Two weeks ago, he told BOP staff in an agency-wide memo that “staffing levels are currently trending downward nationwide.”

Last week, Government Executive reported that the declines have happened in the last four months and that the employees who have quit cite “lack of training and lack of connection to the institution as reasons for their leaving the bureau within the first few years of service.”

Mike must be thinking that the old rocking chair is looking pretty good right now.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

WTVJ, Inmates Attempted to Smuggle Contraband Using Drones, Correctional Officer Says (June 8, 2022)

Colorado Sun, Bureau of Prisons to pay $300,000 to settle lawsuit after diabetic prisoner was allegedly deprived of insulin at Supermax facility (June 7, 2022)

KTVU, Woman who reported Dublin prison sexual abuse claims she was target of retaliation (June 10, 2022)

Government Executive, Federal Prisons Are Losing Staff. The Bureau’s Director Would Like to Fix That By October (June 6, 2022)

– Thomas L. Root

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

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

SENTENCING COMMISSION DROUGHT IS LIFTING

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

COMPASSIONATE RELEASE STATS ALL OVER THE MAP, SENTENCING COMMISSION REPORTS

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

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

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

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

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

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

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

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

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

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

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

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

compassion160124

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

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

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

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

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

– Thomas L. Root

A Sentencing Commission Phoenix? – Update for April 7, 2021

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

SENTENCING COMMISSION REVIVAL NEAR?

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

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

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

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

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

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

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

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

– Thomas L. Root

Drug and 924(c) Sentence Reduction, Retroactivity Bills Introduced – Update for March 29, 2021

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

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TWO BILLS CUTTING MANDATORY MINIMUMS, PROPOSING RETROACTIVITY, INTRODUCED IN SENATE

The important but piecemeal work of criminal justice reform continued last week with two significant bills being introduced in the Senate.

smart210328Sens. Richard Durbin (D-Illinois), Mike Lee (R-Utah), and 11 cosponsors introduced S.1013, the Smarter Sentencing Act of 2021, seeking once again to reform some drug mandatory minimums. At the same time, Durbin and Sen. Charles Grassley (R-Iowa) introduced S.1014, the First Step Implementation Act of 2021.

The Smarter Sentencing Act, an updated version of the Smarter Sentencing Act of 2019 (which went nowhere), continues the mandatory minimum adjustments to 21 USC § 841(b), the sentencing section of the drug trafficking statute begun by the First Step Act. First Step adjusted mandatory life in § 841(b)(1)(A) to 25 years, and mandatory 20 years in the same subsection to 15 years. The Smarter Sentencing Act proposes similar adjustments:

(b)(1)(A): The 15-year mandatory minimum for a prior drug offense would drop to 10 years, and the 10-year mandatory minimum floor would drop to 5 years.

(b)(1)(B): The 10-year mandatory minimum for a prior drug offense would drop to 5 years, and the 5-year mandatory minimum floor would drop to 2 years.

Smarter Sentencing would also create a new category of `courier’ for a defendant whose role was limited to transporting or storing drugs or money. The mandatory minimum for a courier under 21 USC § 960, the importation statute, would essentially be cut in half. It would not affect mandatory minimums in 21 USC § 841(b).

Importantly, the bill makes its changes retroactive, enabling people who now have mandatory minimum sentences changed by the bill to ask their judges for a sentence reduction.

mandatory170612Lee and Durbin first introduced the Smarter Sentencing Act in 2013. Several of its provisions made it into the First Step Act, which was enacted into law in 2018, but the changes in mandatory minimums for most drug offenses would not.

“Mandatory minimum penalties have played a large role in the explosion of the U.S. prison population, often leading to sentences that are unfair, fiscally irresponsible, and a threat to public safety,” Sen. Durbin said in a press release. “The First Step Act was a critical move in the right direction, but there is much more work to be done to reform our criminal justice system. I will keep fighting to get this commonsense, bipartisan legislation through the Senate with my colleague, Senator Lee.”

Meanwhile, S.1014 – the First Step Implementation Act – is equally significant. It would extend retroactivity to anyone sentenced for drug or stacked § 924(c) offenses sentenced prior to the 2018 First Step Act and let judges waive criminal history limitations that keep defendants from getting the 18 USC § 3553 safety value.

Additionally, the bill corrects a weird anomaly in the First Step Act that redefined prior drug cases for which a defendant can get an § 851 enhancement (which increases the mandatory minimum where the defendant has certain prior drug convictions) to limit such priors to crimes punishable by more than 10 years for which the defendant was actually sentenced to more than a year. Under the 2018 bill, the change affected people sentenced under §§ 841(b)(1)(A) and (b)(1)(B), but not people sentenced under the lowest level of sentence, § 841(b)(1)(C). S.1014 applies the same “serious drug felony” definition to all three subsections.

The sleeper in S.1014 is that it would let virtually anyone sentenced under § 841(c) prior to the 2018 First Step Act seek a reduction using a procedure a lot like the Fair Sentencing Act retroactivity motions. The sheer number of motions likely to be filed might be enough to give Congress pause on this one.

usscmembers210328The bill also refines a number of Sentencing Commission goals – such as keeping down the prison population and ensuring that Guidelines don’t have adverse racial impacts. All of that would be great, but – as Supreme Court Justice Sotomayor noted last week – “currently, six of the seven voting members’ seats are vacant. The votes of at least four members are required for the Commission to promulgate amendments to the Guidelines.” The Commission has been paralyzed by lack of quorum since December 2018. The Senate has to confirm at least three new members – and none has yet been nominated by President Biden – before the Commission can do anything.

As for the two new bills, introduction hardly means approval. While Ohio State law professor Doug Berman is skeptical of their chances, he notes that “prior iterations of [the Smarter Sentencing Act] got votes in Senate Judiciary Committee from the likes of Ted Cruz and Rand Paul. Moreover, the current chair of the Senate Judiciary Committee is Senator Durbin and the current President campaigned on a platform that included an express promise to work for the passage of legislation to repeal mandatory minimums at the federal level. Given that commitment, Prez Biden should be a vocal supporter of this bill or should oppose it only because it does not go far enough because it merely seeks to ‘reduce mandatory minimum penalties for certain nonviolent drug offenses,’ rather than entirely eliminate them.

Committee on the Judiciary, Durbin, Lee Introduce Smarter Sentencing Act (March 26, 2021)

Congressional Record, Statements On Introduced Bills And Joint Resolutions (S.1013 and S.1014) (March 25, 2021)

Sentencing Law and Policy, Senators Durbin and Grassley re-introduce “Smarter Sentencing Act” to reduce federal drug mandatory minimums (March 26, 2021)

– Thomas L. Root