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December 28, 2018

Spotlighting how FIRST STEP Act implementation challenges and uncertainty has already begun

A week ago the FIRST STEP Act was signed into law, and my first post celebrating this achievement stressed the challenging and critical work of implementing the law well.  Today, this new Washington Examiner piece, headlined "Prisoners due for release under First Step Act stuck in limbo," spotlights that implementation difficulties have already begun.  Here are excerpts:

President Trump shortened the sentences of thousands of prisoners by signing the First Step Act days before Christmas.  But one week later, inmates and their frustrated families say they are afraid the gift won’t be delivered in time to hasten release dates.

Silence from the Federal Bureau of Prisons is creating fear that foot-dragging will eat into reductions mandated by Trump's most significant bipartisan policy achievement.  The new law gives many prisoners an extra seven days off their sentences for each year of good behavior, but it's unclear when authorities will make the calculations.

“Literally, my brother has packed his stuff and is waiting for the call,” said Veda Ajamu, whose brother Robert Shipp, 46, has served 25 years of a drug sentence. Shipp had a November 2019 release date, but Ajamu believes he may be going home immediately under the new law, which would shave off about 175 days, potentially making him eligible for a halfway house or home confinement, which is typical at the very end of sentences. “I’m thinking to myself, ‘I don’t know what to do. I’m feeling anxious. I don’t want to be at the wrong place when he calls,’” said Ajamu, who plans to pick up her brother.

“Some families have loved ones who they know would be home tomorrow,” said Kevin Ring, president of Families Against Mandatory Minimums and a former executive director for the conservative Republican Study Committee. “People are very concerned about when this is going to get done. Congress has passed this. It's in effect."

Advocates estimate that 4,000 federal prisoners will be released almost immediately under the good-time expansion. A smaller number can petition courts for old crack cocaine sentences to be reduced.

For Craig Steven Houston, 48, the good-behavior change alone could mean 210 days off a 30-year crack cocaine sentence. He had an August release date, but the law means he could get out in just 22 days, on Jan. 19., according to his family. “We want to be prepared and know what's going on,” said Steve Henderson, who was raised with Houston and considers him a brother.

Concerned families are calling the Bureau of Prisons’ Designations and Sentence Computation Center, which calculates sentences. But some say calls haven’t been answered. “When you have an infraction in prison, when they take the time away from you, they calculate it immediately... the next day it is gone,” Henderson said. “You have people across the country who are supposed to be home. All of a sudden DSCC isn't answering their phones.”

It’s unclear what effect the ongoing partial government shutdown is having. Bureau of Prisons spokespeople did not respond to multiple requests for clarification this week. Part of the delay may be explained by lack of implementation guidance. "We are currently reviewing the new legislation to determine implementation guidance for BOP and other DOJ components," said Justice Department spokesman Wyn Hornbuckle. Hornbuckle noted that more than 80 percent of the department workforce is working through the government shutdown, which began hours after Trump signed the First Step Act.

December 28, 2018 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

"Predictions of Dangerousness in Sentencing: Déjà Vu All Over Again"

The title of this post is the title of this new paper authored by Michael Tonry no available via SSRN. Here is its abstract:

Predictions of dangerousness are more often wrong than right, use information they shouldn’t, and disproportionately damage minority offenders.  Forty years ago, two-thirds of people predicted to be violent were not.  For every two “true positives,” there were four “false positives.”  Contemporary technology is little better: at best, three false positives for every two true positives.  The best-informed specialists say that accuracy topped out a decade ago; further improvement is unlikely. 

All prediction instruments use ethically unjustifiable information.  Most include variables such as youth and gender that are as unjust as race or eye color would be.  No one can justly be blamed for being blue-eyed, young, male, or dark-skinned.  All prediction instruments incorporate socioeconomic status variables that cause black, other minority, and disadvantaged offenders to be treated more harshly than white and privileged offenders.  All use criminal history variables that are inflated for black and other minority offenders by deliberate and implicit bias, racially disparate practices, profiling, and drug law enforcement that targets minority individuals and neighborhoods.

December 28, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

December 27, 2018

More than 40 months after death sentencing, lawyers for Boston bomber Dzhokhar Tsarnaev file their 1000+-page appellate brief with First Circuit

As reported in this local article, headlined "Lawyers: Tsarnaev ‘should not have been tried in Boston’," a very long appellate brief has been filed in a very high-profile federal capital case.  A federal jury handed down Dzhokhar Tsarnaev death sentence way back in May 2015, a full month before Donald Trump had even announced he was running for President.  But now, as Prez Trump heads into the second half of his term, Tsarnaev's team of lawyers has fully briefed his complaints about his trial and sentencing.  Here are the basic details:

Boston Marathon bomber Dzhokhar Tsarnaev’s appellate team presented their oft-delayed opening argument Thursday, urging sparing him a federal execution and allowing him to be retried for the 2013 Patriots Day terror attack that killed an 8-year-old boy and two women.  Their premise is summed up in the opening line: “This case should not have been tried in Boston.

“Forcing this case to trial in a venue still suffering from the bombings was the District Court’s first fundamental error, and it deprived Tsarnaev of an impartial jury and a reliable verdict, in violation of the Fifth, Sixth, and Eighth Amendments,” the brief states.

The partially redacted document filed in the U.S. Court of Appeals for the First Circuit spans 1,124 pages, nearly half of which is the 500-page opening brief alone.

Absent a new trial, Tsarnaev’s team is asking the Appeals Court to reverse his death sentence and order a punishment of life imprisonment.

Tsarnaev, 25, has been in solitary confinement at the federal Supermax prison in Florence, Colo., since his 2015 conviction.  Tsarnaev’s trial attorneys made repeated bids for a change of venue.  His appeal focuses on and echoes several familiar protests raised during his trial, chief among them the argument that he was a pawn of his domineering big brother, Tamerlan Tsarnaev.

Among other things, the public defenders accuse Tsarnaev’s jury forewoman, a restaurant manager his attorneys tried to get removed, of retweeting a social media post calling the University of Massachusetts Dartmouth sophomore a “piece of garbage”  before she received a juror summons, but that she claimed during questioning for her suitability to serve she had not “commented on this case.”  A second juror, a male municipal worker, outright “disobeyed the Court’s instructions,” the brief asserts, by joining a Facebook discussion about the case before he was seated....

Tsarnaev’s appeal blames his 26-year-old brother for his involvement, calling Tamerlan “a killer, an angry and violent man” who “conceived and led this conspiracy.” And but for his influence, “Jahar would never have been on Boylston Street on Marathon Monday.

“Tsarnaev admitted heinous crimes,” the lawyers acknowledge, “but even so — perhaps especially so — this trial demanded scrupulous adherence to the requirements of the Constitution and federal law. Again and again this trial fell short.”

The Tsarnaevs detonated two homemade pressure-cooker bombs packed with shrapnel near the marathon finish line in Copley Square 12 seconds apart on April 15, 2013.  Three spectators were killed — 8-year-old Martin Richard of Dorchester, Krystle Campbell, 29, a restaurant manager from Medford, and Boston University graduate student Lingzi Lu, 23.  More than 260 other people were injured. Sixteen of them lost limbs in the blasts.  Three days later, the brothers shot and killed MIT Police Officer Sean Collier, 27, in his cruiser during an ambush on campus and failed attempt to steal his service weapon.

UPDATE: Thanks to a helpful tweet, I now see that the 500-page brief is available at this link. And there I noticed the final notable section starts this way:

XV. Under The Supreme Court’s Eighth Amendment Jurisprudence, This Court Should Vacate Tsarnaev’s Death Sentences Because He Was Only 19 Years Old At The Time Of The Crimes.

Tsarnaev was just 19 years old when he committed the crimes for which he was sentenced to death. According to now well-established brain science, and increasingly reflected by changing law around the country, the physical development of the brain and related behavioral maturation continues well through the late teens and early 20s. Consistent with the Supreme Court’s Eighth Amendment jurisprudence and a recent resolution adopted by the American Bar Association, this Court should hold that those who commit their crimes as “emerging adults,” when they were under 21 years old, are categorically exempt from the death penalty.

December 27, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

"Hello, FIRST STEP Act! Goodbye, Jeff Sessions! The Year in Criminal Justice Reform"

The title of this post is the headline of this new extended Reason piece authored by Scott Shackford. I recommend the piece in full, and here is how it gets started and its headings:

With the passage of the FIRST STEP Act just before Christmas, 2018 has been a banner year for incremental reforms to our awful criminal justice system. We've seen efforts to reduce levels of incarceration and the harshness of prison sentences, particularly those connected to the drug war; further legalization of marijuana in the states; and efforts to constrain the power of police to seize people's property and money without convicting them. While all this was happening, crime mostly declined in America's largest cities.

But we've also seen increased deliberate efforts to crack down on voluntary sex work by conflating it with forced human trafficking.  And, despite learning from the drug war that harsh mandatory minimum sentences don't reduce the drug trade, lawmakers and prosecutors are yet again pushing for more punishment to fight opioid and fentanyl overdoses.

Here are some highlights (and lowlights) of American criminal justice in 2018:

The FIRST STEP Act passed (finally)....

Marijuana legalization continued apace....

Civil Asset Forfeiture under the microscope....

Attorney General Jeff Sessions shown the door....

The war on sex trafficking leads to online censorship, not safety....

Treating opioid overdose deaths as murders....

Reducing dependence on cash bail....

This strikes me as a pretty good list, though it leaves out some notable state-level developments such as Florida's vote to retrench its expansive approach to felon disenfranchisement and lots of state-level work on reducing collateral consequences.

I welcome reader input on other criminal justice reforms (or just events) from 2018 that they think worth remembering.

December 27, 2018 in Collateral consequences, FIRST STEP Act and its implementation, Marijuana Legalization in the States, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Spotlighting the enduring challenges posed by risk-assessment mechanisms built into FIRST STEP Act

LawProf Brandon Garrett has this important new Slate commentary headlined "The Prison Reform Bill’s Implementation Will Be Tricky; Here’s how to ensure it’s a success." I recommend the piece in full, and here are excerpts:

The First Step Act, the federal prison reform bill that President Donald Trump signed into law on Friday, represents a bipartisan and major effort at making the criminal justice system fairer.  This step will only be a baby step, however, if the engine that drives the entire piece of legislation — risk assessments of federal prisoners’ likelihood to reoffend — is not used carefully and with sound scientific and public oversight.

The statute ... allows federal prisoners, who now number about 180,000, to earn credits toward early release based on rehabilitative programs and their risk of reoffending.  The statute states that an algorithm will be used to score every prisoner as minimum, low, medium, or high risk.  But the legislation does not say how this algorithm will be designed. The Senate’s version of the First Step Act, which refers to “risk” 100 times, calls for a “risk and needs assessment system” to be developed in 210 days, and then made public and administered to every federal prison within the following 180 days.

That may not be nearly enough time to carefully study all of the questions raised by creating such a massive system.  Take as an example the experience in Virginia, which has been hailed as a national model and “leading innovator” by the American Law Institute for using risk assessment to divert low-risk offenders from prison.  Virginia spent several years developing its risk assessment system.  The Virginia Criminal Sentencing Commission carefully obtained public input, scientific evaluations, and pilot studies, before implementing it statewide.

But in a recent series of studies of the effort to divert prisoners in Virginia, John Monahan, Alexander Jakubow, Anne Metz, and I have found that there is wide variation in how courts and judges apply this risk assessment....  People are not algorithms.  The statute’s fairness will hinge on the discretion that prison officials exercise, informed by the scores from a risk assessment but also by their own judgment.  The First Step Act’s success will similarly depend on resources for real rehabilitative programs.  It calls for evidence-based evaluation of such programs, but that research will also take time.

While using an evidence-informed tool can be better than simply leaving everything to prison officials’ discretion, there needs to be more than buy-in by the decision-makers — the right tools need to be used.  Michelle Alexander and others have raised concerns, for example, with risk assessments that rely on information about prior arrests or neighborhood information that can produce stark racial bias.  The Senate’s version of the act speaks to the potential for bias and asks the comptroller general to conduct a review after two years to identify “unwarranted disparities.”  The act also calls for an independent review body that includes researchers who have studied risk assessment and people who have implemented it.  These are important steps.  Involvement of scientists and the public will be needed to consider whether invidious and potentially unconstitutional discrimination results — otherwise, protracted constitutional litigation challenging these risk assessments will be a foregone conclusion.

Still, there is much that is positive about the bill’s many provisions dealing with risk.  The First Step Act emphasizes not just recidivism but also programs that support rehabilitation.  It is noteworthy that the legislation calls for re-evaluation of prisoners each year so that risk scores are not set in stone. All prisoners are able to reduce their classification.  This should be taken seriously.  The risk of any person may decline dramatically over time simply as a matter of age, as the U.S. Sentencing Commission documented in a study last year.

The statute also makes the attorney general the risk assessor in chief — with input from the independent scientific reviewers — of the risk assessment used on 180,000 prisoners each year.  That scientific input is critical, and it should be solicited from the broader scientific community.  It’s also worth noting that the Department of Justice has recently shut down key science advisory groups; this law hopefully takes an important first step toward bringing science back in.

December 27, 2018 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

December 26, 2018

Another dive into the choppy waters of Miller and Montgomery implementation

I am sure I have posted any number of articles highlighting that implementation of the Eighth Amendment limit of juvenile life without parole sentences has been choppy at best (see here and here and here for a few more examples). The latest iteration of this depressingly evergreen story comes from Mother Jones here under the headline "The Supreme Court Said No More Life Without Parole for Kids. Why Is Antonio Espree One of the Few to Get Out of Prison?".  I recommend this long piece in full, and here is a taste:

As a result of [the Graham and Miller and Montgomery] decisions, the number of states banning life without parole for children in all cases, not just in mandatory sentencing schemes, has quadrupled since 2012. Of the more than 2,600 juvenile lifers in 2016, about 1,700 have been resentenced.

But although Justice Kennedy stated that all but the “rarest of juvenile offenders” should get a shot at parole, some prosecutors continue to argue that many do not deserve this benefit, or that they should serve years longer in prison before they can get out. So far, only 400 juvenile lifers nationwide have been freed.

In part, that’s because the Supreme Court gave states leeway to decide how to review lifers’ cases, leading to inconsistencies across the country. In Pennsylvania, home to the nation’s second-biggest juvenile lifer population, prosecutors are required to “prove beyond a reasonable doubt” that a defendant can never be rehabilitated if they want to deny the option of parole during resentencing; otherwise, the presumption is he should be given a second chance. So far, the state has released more than 150 juvenile lifers, many under the jurisdiction of Philadelphia’s District Attorney Larry Krasner, who campaigned last year on a platform of reducing mass incarceration.

But in Michigan, where 363 juvenile lifers were serving mandatory sentences in 2016, there is no such requirement, and prosecutors have argued that nearly two-thirds of juvenile lifers are those rarest offenders who should be kept in prison for good. “Justice in this country is largely based on where you live,” says Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth, an advocacy group.

Even Henry Montgomery, who won his Supreme Court case, isn’t free. In February, the Louisiana parole board rejected his request for release, arguing that he had not finished enough classes in prison.  His lawyers countered that he hadn’t been given much of a chance: For his first three decades at Louisiana’s notorious Angola prison, lifers like him were prohibited from taking classes. (About a third of juvenile lifers nationally say they have been denied access to prison educational programs.)  When the courses opened up, he was deemed ineligible to complete his GED.  A judge described him as a model inmate, but family members of the sheriff’s deputy he killed testified against him at the parole hearing.  So Montgomery, now 72 years old, was denied.  He’ll have to wait a year to reapply.

December 26, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notable pipeline provisions in FIRST STEP Act in the wake of litigation history surrounding FSA of 2010

Long-time readers surely recall the legal uncertainty that followed the last congressional reduction of severe mandatory sentencing provisions in the Fair Sentencing Act of 2010 with respect to "pipeline" cases, i.e., cases in which offense conduct took place, but a sentence had not yet been imposed, before the enactment of the FSA's new crack sentencing provisions.  This legal uncertainty made it all the way up the Supreme Court in Dorsey v. US, 567 U.S. 260 (2012), and here is how the Court's 5-4 majority explained and resolved the issue:

In 2010, Congress enacted a new statute reducing the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1. Fair Sentencing Act, 124Stat. 2372. The new statute took effect on August 3, 2010. The question here is whether the Act’s more lenient penalty provisions apply to offenders who committed a crack cocaine crime before August 3, 2010, but were not sentenced until after August 3. We hold that the new, more lenient mandatory minimum provisions do apply to those pre-Act offenders.

Fast forward to the present day, and Congress this time around has figured out that it can and should address these pipeline issues directly when making statutory sentencing modifications. Specifically, here are the operative pipeline instructions that appear in the FIRST STEP Act with its three important sentencing changes:

SEC. 401. REDUCE AND RESTRICT ENHANCED SENTENCING FOR PRIOR DRUG FELONIES....

(c) APPLICABILITY TO PENDING CASES. This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

SEC. 402. BROADENING OF EXISTING SAFETY VALVE....

(b) APPLICABILITY. The amendments made by this section shall apply only to a conviction entered on or after the date of enactment of this Act.

SEC. 403. CLARIFICATION OF SECTION 924(c) OF TITLE 18, UNITED STATES CODE.... 

(b) APPLICABILITY TO PENDING CASES. This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

Put simply, Congress in the FIRST STEP Act has expressly provided that all cases in the pipeline, as long as a defendant has not yet been sentenced, are to be sentenced in accord with the new and lowered mandatory minimums (section 401) and without stacked 924(c) charges (section 403).  But, in slight contrast, only those pipeline defendants who have not yet been convicted, are able to be sentenced with the benefit of the new and expended safety valve provision (section 402) which allows defendants with a bit more criminal history to avoid the application of otherwise applicable drug mandatory minimums.

I am pleased to see Congress this time around directly addressing pipeline issues and thereby answering the most basic questions about how pending cases are to be handed.  And yet, ever eager to issue spot, I already have some follow-up questions:

  1. Imagine a defendant already sentenced earlier in 2018, but his sentence is reversed on some other ground and now he faces resentencing in 2019.  Can a defendant get the benefit of any new provisions of the FIRST STEP Act upon resentencing?
  2. Or imagine a defendant who might benefit from the broader safety valve and has not yet been sentence but did plead guilty earlier in 2018. Could this defendant move to vacate his plea simply in order to plead guilty anew in 2019 so that his conviction will then be "entered on or after the date of enactment of" the FIRST STEP Act?

The pipeline issues after the Fair Sentencing Act of 2010 impacted perhaps thousands of defendants, whereas the issues I raise above may only impact dozens. But for those particular defendants, what is still left uncertain might still certainly be a very big deal.  (I also suspect there are additional pipeline issues I have not yet imagined, and I welcome input on this issue and all other relating to FIRST STEP Act implementation.)

December 26, 2018 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Bernie Madoff's secretary wants to use new Trump law to get out of jail early"

The title of this post is the juicy headline of this notable new ABC News article about a notable defendant eager of make use of the FIRST STEP Act to seek release from federal prison.  I call the headline juicy in part because of the Bernie Madoff connection, as well as the fact that the FIRST STEP Act is described as the "new Trump law."  Here are excerpts:

One of the five employees of Bernie Madoff convicted in a $20 billion Ponzi scheme is seeking early release from prison based in part on the new criminal justice reform law signed last week by President Donald Trump. Annette Bongiorno, who was Madoff’s longtime secretary, has been in prison since February 2015 and asked the judge to order her release no later than March 2019, more than a year before her scheduled release date.

In a letter to U.S. District Judge Laura Taylor Swain, defense attorneys cited the First Step Act that they contend makes Bongiorno, 70, eligible for home confinement, since she is at an advanced age and has served two-thirds of her sentence. "The new statute permits her to make a direct application to the court for this relief, and Mrs. Bongiorno respectfully makes the application," defense attorney Roland Riopelle wrote.  "She remains an 'old fashioned' family oriented person who would benefit greatly from the release to home confinement that the First Step Act provides," he wrote.

A spokesperson for federal prosecutors in the Southern District of New York was not immediately available to respond to a request for comment on Bongiorno's bid for early release.  The office declined to comment to a similar request for comment by the Associated Press....

Bongiorno was convicted in 2014 after a six-month trial during which she insisted she did not know her boss was running what is widely-seen as the biggest Ponzi scheme in American history.  Madoff, who is now 80, is serving a 150-year sentence following conviction on a fraud that was exposed a decade ago.

In his letter to the judge, Riopelle called Bongiorno a "model prisoner" who has served her sentence at FCI Coleman medium security prison in Sumterville, Florida, "without a disciplinary violation of any kind." Riopelle said she was in decent health and in "generally good spirits" though finds the holiday season "a bit depressing."

Without seeing the filing referenced in this article, it is unclear to me if Bongiorno is seeking so-called "compassionate release" or is seeking relief under an elderly prisoner reentry pilot program.  The FIRST STEP Act has important new provisions making available two different possible means for elderly prisoners to seek release to home confinement or sentence modification, but the legal requirements and process are distinct in important ways.  Bongiorno certainly will not be the only older prisoner looking to take advantage of the FIRST STEP Act, and I expect there could be a lot of interesting jurisprudence emerging in the weeks and months ahead on these fronts.

December 26, 2018 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1)

December 24, 2018

Lamenting lack of retroactive application of new sentencing changes in FIRST STEP Act (... and so rooting again for robust clemency)

This recent piece from The Guardian, fully headlined "Current inmates feel left behind by Trump's criminal justice reform bill; First Step Act reduces the mandatory sentence for three-strikes offenders but the provisions will not be made retroactive," spotlights how certain inmates have gotten left behind even as the inappropriateness of their sentences inspired key sentencing reforms in the FIRST STEP Act.  Here are excerpts:

On paper, Chris Young seems exactly the kind of person a prison reform bill ought to release from federal custody. In the eight years since he was last free, Young has become an avid reader, taught himself to write computer code and worked as a tutor for fellow prisoners. Right now he’s reading Yuval Noah Harari’s Homo Deus “for fun”.  He also says that since he can’t get real-world practice, he re-reads the same passage of a programming book every day after lunch, to make sure it’s committed to memory.

When he was 22, Young was arrested on a third low-level drug charge. Under so-called “three strikes” laws, he was given a mandatory life sentence.  For decades, in cases involving repeat drug offenders, such laws have stripped federal judges of discretion. The judge who sentenced Young, Kevin Sharp, was so shaken by the experience he retired shortly after.  “What I was required to do that day was cruel,” Sharp tweeted earlier this year.

The bipartisan First Step Act, signed into law by Donald Trump on Friday, softens that “cruel” requirement for federal judges, reducing the mandatory sentence in such cases to 25 years. But it will not do anything for Young.  In one of many compromises made by progressive reform advocates to secure conservative support, this and several other provisions were not made retroactive.  “I’m human and I would have loved to have benefited from the bill, but unfortunately I don’t,” Young told the Guardian from federal prison in Lexington, Kentucky. “I don’t necessarily feel left behind, I just feel [lawmakers] don’t understand what goes on with the … actual humans that their choices and politics affect.”...

Advocates believe [the Act] can be a launching point for state and local reform which could have a much greater impact on the US inmate population. After all, just 10% of people incarcerated in the US are in the federal system.  “I absolutely think that this one is going to be catalytic towards other de-carceration campaigns on the local and state level,” said Glenn Martin, a formerly incarcerated reform advocate who helped bring dozens of former inmate-led groups on board for the First Step Act.

“I think that the Senate — a conservative Republican Senate — has just given permission to conservatives all over the country [to become] engaged in criminal justice reform.” Nonetheless, the lack of retroactivity on a majority of the sentencing reforms was “a tough pill to swallow”.

“It’s one of the concessions that hurts the most,” said Martin. “It’s about fairness, and yet there’s this group of people who continue to be harmed because of the lack of retroactivity.”

That includes people like John Bailey, a 71-year-old inmate of the federal prison in Hazleton, West Virginia which is nicknamed “misery mountain”. Bailey’s brother Oliver said he was struggling to understand the logic of the changes not applying to inmates like John, who was imprisoned in 1992 on a non-violent drug charge. “If you recognize the injustice now,” asked Bailey, “how come it doesn’t apply to those that suffered the same injustice before?”

Advocates who worked on the bill said conservatives and politically vulnerable Democrats opposed retroactivity because of how releasing prisoners early might resonate with voters.

There is one bright spot for the Baileys. One provision of First Step that does apply to current inmates is a requirement that prisoners be housed no more than 500 driving miles from their home. Bailey, who is from St Petersburg, Florida, has spent his prison life in Leavenworth, Kansas and now West Virginia, thousands of miles away. Oliver has not seen John since he was jailed. “At this point something’s better than nothing,” he said. “We need to progress from here.”

It’s a common sentiment. Chad Marks is serving a 40-year sentence on drug conspiracy charges, thanks to another provision First Step will restrict. Marks’ sentence was enhanced by “stacking” language in federal law which dramatically increases a sentence if an offender possesses a firearm in the commission of a drug crime, whether or not it is used. “I don’t understand how lawmakers can say that doing this is wrong,” he said, “and that they are going to fix it, but not apply it retroactively. That was a big blow. What has my focus and attention right now is the fact that lawmakers did something, but my focus is also on a second step coming.”...

Young, Bailey and Marks continue to wait for a second step. While they do, all three must place their primary hope for release in an act of clemency: a pardon or commutation issued by the president. Young’s case has been endorsed by Kim Kardashian, who successfully lobbied for the release of another federal prisoner, Alice Johnson, in June. Marks said he was “more than hopeful that I will find relief through clemency”.

“I am praying that president Trump will find me worthy of mercy and grace,” he said. “I won’t let him down or disappoint him.”

As regular readers know, Prez Trump has been letting me down and disappointing me by having so far failed to make good on all the talk from earlier this year that he was looking at "3,000 names" for possible clemencies. I sincerely hope that Prez Trump and those assisting him on clemency matters are going to give extra attention to persons serving extreme sentences that would no longer be applicable under the new sentencing provisions of the FIRST STEP Act.  (I also think persons serving particularly extreme sentences should file (or seek to re-file) constitutional or other challenges to their sentences that might be emboldened by FIRST STEP Act reforms, but I will discuss this idea in a subsequent post.)

A few of many recent related posts: 

December 24, 2018 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Fifty Years of American Sentencing Reform — Nine Lessons"

The title of this post is the title of this notable new paper authored by Michael Tonry now available via SSRN. Here is its abstract:

Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice.  Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending.  Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up.  Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.  Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines.  Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes.  Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.

December 24, 2018 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)