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July 21, 2014

How many of nearly 50,000 federal prisoners need a lawyer to help with drug sentence reduction efforts? How many will get a lawyer?

The questions in the title of this post are my first "practical aftermath" questions in the wake of the US Sentencing Commission's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive (basics here).  As hard-core federal sentencing fans likely already know, most lower federal courts have ruled that federal prisoners do not have a Sixth Amendment right to counsel applicable at the sentence modification proceedings judges must conduct to implement reduced retroactive sentencing guidelines.  Consequently, none of the nearly 50,000 federal drug offense prisoners who may soon become eligible for a reduced sentence have any right to legal assistance in seeking this reduced sentence.

Fortunately for many federal prisoners seeking to benefit from previous guideline reductions, many federal public defender offices have traditionally made considerable efforts to provide representation to those seeking reduced sentences.  But even the broadest guideline reductions applied retroactively in the past (which were crack guideline reductions) applied only to less than 1/3 of the number of federal prisoners now potentially eligible for reductions under the new reduced drug guidelines.  I suspect that pubic defenders are unlikely to be able to provide significant legal help to a significant number of drug offenders who will be seeking modified sentences under the new reduced drug guidelines.

I raise this point not only to highlight the legal services need created by the USSC's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive, but also to wonder aloud whether lawyers who have been gearing up to help with clemency applications might be now usefully "detailed" to help with retroactive application of reduced drug sentences.  In contrast to clemency petitions, in which legal arguments are somewhat less important than equitable claims, the proper application of new reduced drug offense guidelines can involve various legal issues that may really need to be addressed by sophisticated legal professionals.

Some recent related posts on reduced drug guideline retroactivity:

July 21, 2014 at 09:43 AM | Permalink


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During the earlier modification waves either the FPD or CJA counsel were appointed routinely in my district (MDNC). Most of the cases I handled were not very time-consuming.

Posted by: Bryan Gates | Jul 21, 2014 11:43:36 AM

The Federal Defenders and CJA counsel in the district of sentencing are fully prepared to handle the retroactive drugs minus two cases, as we handled the retroactive reductions in the crack guidelines. You should also know that lawyers trained in the clemency process will have a lot to learn to address the criteria announced by DOJ, will not be trained in 3582(c)(2) proceedings, and would not be appointed from out of district in any event.

Posted by: Amy Baron-Evans and Denise Barrett | Jul 21, 2014 12:07:35 PM

When I was at the staff atty's office in the Fourth, it appeared that all of the district courts appointed counsel for the last wave of 3582(c) filings.

Posted by: Gray Proctor | Jul 21, 2014 12:41:33 PM

Im thinking most will have their case manager file the motion or paper work for them and go with a public defender.

Will this result in getting the 2 level drop they should get?

What if they got a drop from crack or owi in career offender (making them not a career offender). Think they will get the full 2 levels or will it be half a loaf.

Posted by: Midwestguy | Jul 21, 2014 12:57:56 PM

I write, from FAMM to highlight the response from Amy and Denise. The Federal Public and Community Defenders and CJA counsel are in the best position to represent prisoners in 3582 proceedings because they are substantive federal criminal law experts and because they have been through two rounds of retroactivity. They will bring the hard-earned practical and procedural experience gained from those rounds to bear on the current task. To suggest otherwise is puzzling in light of the terrific job defenders and appointed counsel did and in light of the fact that there is no evidence whatsoever that defenders are not up to the current job. From a Clemency Project 2014 perspective (I serve on the steering committee) I can say that the Project has its hands full recruiting and training lawyers to screen and represent the thousands of applicants seeking pro bono counsel in clemency petitions. We have made a commitment to the prisoners who asked for our help to do what we can to help them. We cannot put that job on hold on speculation about capacity when gifted and competent FD and CJA counsel stand ready to represent prisoners in 3582 proceedings.

Posted by: Mary Price | Jul 21, 2014 2:06:16 PM

What is the path for filing a motion. Im guessing a case manager could file for the?

What are the steps to get a federal public defender assigned. When it comes time, the absence of an atty triggers the assignment of a public defender?

Posted by: MidwestGuy | Jul 21, 2014 2:21:49 PM

What would think Supremacy Claus from this piece.

Posted by: visitor | Jul 21, 2014 2:25:21 PM

Amy, Denise and Mary: I am not seeking to suggest that the Federal Public and Community Defenders or CJA counsel are not up to the job, but I do mean to suggest that the huge number of potentially eligible defendants need all the (compensated and/or volunteer) help they can get. For starters, I am glad to hear that the normal practice is for CJA appointment if/when the FPDs lack the person-power needed to handle all cases in a district. But given my own sense that most public defender offices are already underfunded and overworked, I do not think I am saying anything controversial when suggesting another 50,000 cases to process will not be simply a walk in the park for existing lawyers.

Again, my suggestion is not that the efforts of Federal Public and Community Defenders and CJA counsel are supplanted, but rather than perhaps compensated and/or volunteer lawyers could help work up case files with mitigating factors to make the areguments by FPDs and CJA folks that much easier and more forceful. The point of this post is to assert that it is now time for "all hands on deck" to help effectively implement the new retroactive guidelines. In a perfect world, Congress might even allocate some extra funding to make sure this is done effectively and efficiently. But, sadly, and sentence that includes "Congress" and "perfect world" may now be something of an oxymoron.....

Thanks to all for the input and engagement on this important front.

Posted by: Doug B. | Jul 21, 2014 8:42:44 PM

Thank you, visitor. The points are self evident to all earthlings, but never mentioned by the lawyers here, never. I know they are not stupid. Their non-disclosures make them deniers.

In 95% of cases, the adjudicated charge to which retroactivity applies is fictitious. It is a made up lesser charge so the lazy lawyer does not have to prove anything at trial. So why not have extensive hearings about defenses, exceptions to the defenses, and exceptions to the exceptions? They are fictitious anyway.

Make complicated, incomprehensible rules so one needs a translator to use one's own chattel, a law.

Generate massive make work jobs, where government workers, shuffle slowly, to the coffee maker, and have a meeting. Then maybe meet a client or 2.

The evidence is that having a public defender does not result in a better outcome even in a complex criminal trial than defending oneself. They bring no value, are worthless, and are merely messengers for the prosecutors, urging innocent people to take deals so they may return to coffee and Facebook. One thing these lawyers will never, ever do? Attack the prosecutor or the judge. They are all friends, getting together after a case and toasting the stupidity of the public. Of course, their jobs come from the prosecutor, not from the client. And that is where their real loyalties lay. They are government agents, pretending to represent the indigent defendant. Professional duty, professional pride, loyalty to our constitution, all out the window.

Posted by: Supremacy Claus | Jul 21, 2014 11:10:38 PM

Supremacy, as off the reservation as your posts reads, its pretty much on target.

But you left out the rent seeking clause and maybe bottom feeders and parasitic.

In your dislike for the feds, I have to laugh. Cause deep down most know you probably are right.

Shuffling to the coffee maker, seeing a client or 2. Their loyalties are to the prosecutors, all are buddies hired by the government.

Will never attack the prosecutor or the judge.. Pretty good SC.

We maybe arenot citing good cases here, but are telling it like it really is.

Posted by: MidwestGuy | Jul 22, 2014 7:48:00 AM

Midwest: Obviously not a lawyer.

All lawyers have seen the above points, repeatedly. None may utter a word about them. All public defenders and prosecutors are at will employees, not civil service. They may lose their jobs for no reason, or even an unlawful reason. If they resist, the hierarchy crushes them, no matter how smart, powerful, rich. The hierarchy cannot be resisted. If the public is oppressed, the lawyer is doubly so, and the ordinary ""street" judge is triply so.

The eradication of this hierarchy will benefit lawyers and judges far more than the public. Not only will all social pathologies end, but the lawyer profession will become productive (with the rule of law as essential a utility product as water and electricity), wealthy and esteemed.

Posted by: Supremacy Claus | Jul 22, 2014 9:37:39 AM

Porf. Berman.

Name a mitigating factor.

Every single one is an aggravating factor, making the defendant more dangerous.

The adjudicated charges are 95% fictitious. The mitigating factors are 100% fictitious. Introducing additional "noise" into the system is not a good idea.

Posted by: Supremacy Claus | Jul 22, 2014 9:45:09 AM

S.C. You ask Prof. Berman to "name a mitigating factor." To see the names of 171 of such factors, see my publication "171 Easy Mitigating Factors."

Posted by: Michael R. Levine | Jul 23, 2014 6:44:50 AM

There is an unfortunate typo in the 3rd line of your second paragraph.

Posted by: DefenderPerson | Jul 28, 2014 6:10:37 PM

How does an inmate file a motion for the 2 point reduction?

Posted by: Tiffany | Dec 3, 2014 9:21:54 AM

Hello. I have a brother who is an inmate in the federal prison system. I would like to know how to get this motion filed for him.

Posted by: Tiffany | Dec 3, 2014 9:24:44 AM

You can't file a motion on the 2pt reduction. Your name is automatically on the list if you are eligible

Posted by: Albert | Jan 10, 2015 12:13:45 PM

I want to know is this release for Federal prison in south Carolina that only have drugs charges what if the defendant never had a case before and this is his 1st time being arrested and he did most of his time already but still sitting in jail wat happens then am trying to find out cause my fiance is in Edge field south Carolina. so am trying to see if he comes home this year. Thank you Miss Blue

Posted by: Teresa. Blue | Jan 27, 2015 1:10:40 PM

I have a son who is a federal inmate he has served the biggest portion of his sentence. His out date for half way house was 12/2015 anyway. He filed a 3582 with Federal Clerks office Southern WV District on November 1, 2014. He was told since he served most of his sentence anyway he would probably be granted the reduction going to halfway house before November 2015. All said and done and have been told the motion has been on judges desk since January 15, 2015 should hear something any day. I have checked status twice and told two different things, that he would probably get a letter in 2-4 weeks from January 15, 2015 then transferred from one office to another to another who said they can only say it is the judges hands. That's fine but it's like we have no support, no answers, I know these are offenders and have been in this for the long haul but it is frustrating we cannot get a public defender, or maybe we could but it wouldn't happen until his out date comes by anyway, I wonder if anyone else falls under these circumstances have heard anything or if they truly are being handled differently than the ones who are not eligible for early out until after November 2015 any info is greatly appreciated. I have tried on my own but to no avail.

Posted by: Sharon N | Mar 10, 2015 8:17:23 PM

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