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May 19, 2021

Senate Judiciary Committee to mark up three criminal justice and sentencing reform bills

I was pleased to see today this press release from Americans for Prosperity noting that the US Senate Judiciary Committee has a meeting scheduled on Thursday which includes plans "to mark up three key bills: the First Step Implementation Act, the COVID-19 Safer Detention Act, and the Prohibiting Punishment of Acquitted Conduct Act."  Here is how the press release describes these bills:

I have blogged about all these bills in these prior posts:

Senators Durbin and Grassley introduce new "First Step Implementation Act"

Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act" 

Senators Durbin and Grassley re-introduce "Prohibiting Punishment of Acquitted Conduct Act" 

It is exciting to all three of these bill poised to move forward in the legislation process.  None alone would be a massive reform, but all together would be a significant advance in federal criminal justice reform.

May 19, 2021 at 10:37 PM | Permalink


From my work as a prison lawyer, I saw many (mostly drug) cases where defendants received very long sentences based upon acquitted conduct (but the Judge included the acquitted drug conduct based upon his judgment by a preponderance of the evidence). My serious question is whether Congress will make this new law prohibiting the use of acquitted conduct retroactively applicable, to help those men already serving very long sentences. The number of inmates to whom retroactive application would apply would be relatively small, since 97% of Federal criminal cases are resolved by guilty plea and only about 3% go to trial. "Acquitted conduct" only arises from cases that went to trial. A related and disturbing issue for me is that I saw several inmates who had received long, enhanced sentences based upon the testimony or interviews by law enforcement with people the defendant's counsel never had an opportunity to cross examine. Many co-defendants are willing to lie about drug quantity attributable to another defendant to help themselves get shorter sentences. Only criminal law attorneys grasp that defendants do not have a Constitutional right to confront and cross examine people providing evidence against them for sentencing purposes. The Confrontation Clause only applies at trial, but not to sentencing proceedings, and this is wrong. In the worst example of how this can play out, I am aware of a New York Federal drug case where the defense got a continuance of sentencing, after the Government added a witness to their list 2 days before the hearing was scheduled to occur. The Defendant told his lawyer that he did not know the witness and had never met him, so he could not have sold him drugs. Upon investigation, defense counsel discovered that the witness had been incarcerated in a California prison at the time he testified he was buying drugs from the defendant in Brooklyn, New York. The Judge was most angry at the AUSAs who had presented his testimony! How could they have not investigated and known that their witness had been in a California prison at the time he was testifying he had been buying cocaine from the defendant every week for a year? Congress needs to address the Confrontation problem at sentencing as well.

Posted by: Jim Gormley | May 20, 2021 8:13:52 AM

Another of the bizarre cases I encountered from working as a prison lawyer was a case where the Special Jury Verdict form was returned by the Jury, finding the defendant guilty of distributing cocaine, but finding that the drug quantity was 0! The Judge instructed the Jury that if the quantity was really 0, then they had to find the defendant NOT GUILTY; but if he was GUILTY, then they had to find some drug quantity. After further deliberations, the jury found the defendant GUILTY again, but found a drug quantity of 2 grams of crack cocaine.

Posted by: Jim Gormley | May 20, 2021 8:19:23 AM

There appears to be a potentially significant drafting error in the COVID-19 Safer Detention Act, S. Bill 312, which would provide a number of improvements to our treatment of elderly and vulnerable federal prisoners.

Specifically, Section 3, subsection 2 of the draft legislation (https://www.govinfo.gov/content/pkg/BILLS-117s312is/pdf/BILLS-117s312is.pdf) currently expands the pilot home detention program (34 USC 60541(g)) for elderly non-violent offenders by allowing individuals to become eligible once they have completed 1/2 their sentence, reduced for good time credits. That is in contrast to current law, which only allows them to become eligible once they have served "2/3 of the term of imprisonment to which the offender was sentenced," with no adjustment for good time credits.

Section 3, subsection 1 of the draft legislation provides for judicial review of the BOP's failure to place an eligible elderly offender on home confinement, and allows a judge to remedy that failure by "reduc[ing] an imposed term of imprisonment of the defendant and substitut[ing] a term of supervised release with the condition of home detention for the unserved portion of the original term of imprisonment. . . ."

What this means is that if this legislation were passed and BOP actually implements it by releasing eligible elderly offenders, an eligible elderly offender could be released to home confinement at 50% of his or her sentence reduced for good-time credit, serving the remainder of his or her sentence as reduced for good time credit (or other reductions, such as RDAP or First Step Act earned time credits) on home confinement. However, if the BOP does not implement the legislation and an offender moves for judicial review, the court would only have power to substitute a term of home confinement in the amount of the original sentence, without any reduction for good time or other (e.g., FSA/RDAP) credit. As a result, an eligible offender may be disincentivized from using the judicial review provision because while it may result in his getting out of prison earlier, it could result in a lengthening of the total term of confinement, including home confinement.

I assume this is just a drafting error or oversight, but the legislation should really provide something like the following:
"a court may reduce an imposed term of imprisonment of the defendant and substitute a term of supervised release with the condition of home detention for the unserved portion of the offender's remaining sentence, as currently calculated by the Bureau of Federal Prisons, and reduced by any by any credit toward the service of the offender’s sentence awarded under section 3624(b) of title 18, United States Code, or for any other credit toward the service of the offender's sentence already awarded, including through the offender's participation in RDAP or accrual of earned time credits under the First Step Act."

This simple, technical fix will ensure that the judicial review provision works as intended and will not have the unintended, perverse effect of either discouraging offenders from seeking judicial review, or of actually lengthening their sentences.

Please feel free to contact me with any questions; I strongly encourage this technical, small amendment that will allow the legislation to fully serve its intended purpose.

Posted by: Harry Larson | May 21, 2021 11:39:05 AM

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