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March 25, 2019

Eager for input on what to cover in webinar on "The First Step Act and Other Federal Sentencing Developments"

As detailed at this link, next week I will be doing a "CLE Live Quick Webcast" for the Ohio State Bar Association under the title "Federal Criminal Law: The First Step Act and Other Federal Sentencing Developments."  Here is the "course description":

This program will cover the basics of the First Step Act, the prison reform legislation that was signed into law on December 21, 2018.  We will also discuss other related federal sentencing developments, including the case of United States v. Haymond, currently pending with the Supreme Court.

I have put together a basic outline for my presentation, and it is all too clear to me that it will be impossible to cover thoroughly in just an hour's time all aspects of the FIRST STEP Act and Haymond and related matters.  Consequently, as the title of this post indicates, I am eager for input from readers on just what I should be sure to cover in the short time I have for this OSBA program.  I have a sense of which part of the FIRST STEP Act are most important to discuss, but I really welcome thoughts from those out in the field working on these and related issues.

March 25, 2019 at 01:49 PM | Permalink


I'd put in a plug for covering parts of the First Step Act that require counsel and courts to go beyond their core criminal justice comfort zone (of calculating guidelines, hearing resentencing motions, etc.). So I'd want to hear about 1) proving administrative exhaustion in the compassionate-release context; 2) getting BOP to comply with the "local preference" prison provision; and more generally 3) how to properly place alleged BOP recalcitrance / failures before the courts. (You could call your presentation "first steps toward losing an audience of generalists.")

Posted by: MP | Mar 25, 2019 1:58:52 PM

I would provide the list from FAMM's FAQ about offenses that are not eligible for "earned time" credit so that, when able, counsel can negotiate around it.

More importantly though, the changes to 851 enhancements, including addition of "serious violent felony" priors as predicates are a really big deal that federal practitioners must understand.

Also, the Sentencing Commission currently lacks a quorum, so while statutory safety valve has been amended and expanded to cover more folks, the Guidelines have not yet caught up, so folks will have to ask for the safety valve guideline reduction and reduction under 2D1.1(b)(18). Fun fact: you can now be both a career offender and safety valve eligible.

Finally, there are lots of intricate details to the changes, so when in doubt, call your friendly neighborhood federal defender for assistance.

Posted by: defendergirl | Mar 25, 2019 3:11:52 PM

More angst than you need from me but I have concerns about prisoners left behind by the First Step Act. It shouldn't be surprising that the general public and unfortunately members of congress are unaware of the limitations.

Nonviolent marijuana offenders and other drug offenders with life sentences do not receive sentencing relief from the First Step Act even if they are first time offenders.

There is something in the bill for many categories - juveniles, women, crack cocaine offenders but not for marijuana offenders.

The compassionate release reforms do not give relief to nonviolent marijuana or other nonviolent offenders with life sentences. The amount of time that needs to be served has been reduced from 3/4 to 2/3 of the sentence, but that excludes any nonviolent person serving a life sentence.

For the first 5 years of the Obama administration the population of the federal prison system increased by over 19,000 inmates.

Obama's clemency initiative granted clemency to slightly over 1,700 inmates. Thirty-nine of those commutations were granted to nonviolent marijuana offenders. Eleven of these thirty-nine were serving life sentences. The ussc counted 69 total but their criteria was that the major drug was marijuana not that marijuana was the only drug.

While hundreds of millions of dollars are being invested in emerging cannabis businesses while marijuana is still a schedule 1 drug on the controlled substance act, nonviolent marijuana offenders are serving life sentences for the same substance.

These are the prisoners left behind by the first step act and clemency project 2014.

Posted by: beth | Mar 25, 2019 8:52:31 PM

Very helpful, folks. Thanks!

Posted by: Doug B. | Mar 26, 2019 2:11:53 PM

You might want to explain how defense counsel can argue prejudice on resentencing in a situation where the original indictment states in excess of 50 grams of cocaine base but the actual conduct involves enough cocaine base so that the advisory guideline sentence remains the same.

Posted by: ? | Mar 27, 2019 2:04:13 PM

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