Friday, January 18, 2019

US Sentencing Commission releases two new documents on FIRST STEP Act

Via email, I was alerted by the US Sentencing Commission to its release of two notable new documents concerning the FIRST STEP Act.  Here is the notice I received and links:

The FIRST STEP Act of 2018 was signed into law on Dec. 21, 2018.  Today the United States Sentencing Commission published two important documents describing the implementation and impact of the new law:·       

Both documents are interesting, and here is how the FAQ gets started:

Question 1

Is the Commission making any changes to the Guidelines in response to the Act?

The Act does not contain any directives to the Commission requiring action.  As it does with all new crime legislation, the Commission will review the Act to determine whether Guideline changes might be necessary or appropriate.  Because the Act did not include “emergency amendment authority,” any changes to the Guidelines in response to the Act may only be made during the Commission’s annual amendment cycle.  (See 28 U.S.C. § 994). 

During the annual amendment cycle, the Commission must publish proposed guideline amendments and solicit public comment.  See 28 U.S.C. § 994(x). In order for an amendment to move forward after that, at least four Commissioners must vote in favor of promulgating the amendment. See 28 U.S.C. § 994(a).  Once at least four Commissioners have voted in favor, the Commission must deliver the promulgated amendment to Congress no later than May 1 for the 180-day congressional review period. See 28 U.S.C. § 994(p).  If Congress takes no action, the amendment can take effect on November 1 of that year.

The Commission has not yet published any proposed amendments responding to the Act.  The Commission currently has two voting members and thus lacks a statutory quorum to promulgate amendments.

January 18, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, January 10, 2019

Attorney General Nominee Bill Barr reportedly to support FIRST STEP Act at coming hearing (and should be pressed on particulars)

This effective new Reuters article, headlined "Tough-on-crime record trails U.S. attorney general nominee into Senate hearings," reports on how the new AG-nominee's record on criminal justice issues and recent developments could intersect at next week's confirmation hearings. Here are the details:

President Donald Trump’s nominee for U.S. attorney general is expected to tell a Senate panel next week that he supports a new law easing prison sentences for some criminals, even though he advocated for decades for just the opposite.

William Barr for much of his career championed a get-tough approach to crime that has recently lost favor, culminating last month in Trump signing into law the biggest overhaul of the criminal justice system in a generation.

The First Step Act, enacted with strong bipartisan support in Congress, reduces mandatory minimum sentences for some nonviolent, low-level offenders and makes it easier for prisoners to qualify for early release to halfway houses or home confinement. Trump signed it into law just weeks after he nominated Barr, who issued a report during an earlier stint as attorney general in the 1990s called “The Case for More Incarceration.”

Barr is expected to say that he will support the new law when he appears before the Senate Judiciary Committee for confirmation hearings next week, according to two sources familiar with his preparations. “We believe that Barr’s position will be somewhat moderated when he testifies if for no other reason than that his boss (Trump) fully subscribes to the First Step approach,” said Fraternal Order of Police executive director Jim Pasco, who said he had been in touch with people helping Barr prepare for the Senate hearings.

The Senate, controlled by Trump’s fellow Republicans, is expected to confirm Barr’s nomination to again head the Justice Department.

Concerns about Barr’s record on criminal justice have so far taken a back seat to questions about how he would handle Special Counsel Robert Mueller’s investigation into possible collusion between Russia and the Trump campaign in the 2016 election. Trump has denied any collusion with Moscow and Russia has said it did not meddle in the election.

Republican Senator Lindsey Graham, the incoming chairman of the Judiciary Committee, said he did not discuss the First Step Act when Barr visited him at his office on Wednesday. “That would have been a good question to ask him,” Graham said after the meeting.

But criminal justice advocates said they were working with lawmakers on the committee to make sure Barr will be questioned in detail about specific elements of the new law to ensure that he will support it. “It certainly appears he holds an old-school view of our criminal justice system, but there is an overwhelming majority of members of the House and Senate on both sides of the aisle who do not feel that way,” said Holly Harris, executive director of Justice Action Network, a coalition of criminal-justice groups across the political spectrum....

Democratic Senator Cory Booker, a member of the Judiciary Committee, is among those concerned by Barr’s record. “Barr took an extremely troubling approach to mass incarceration in the nineties at the DOJ and it doesn’t look like his views have changed much,” said a Booker aide, speaking on condition of anonymity.

As attorney general, Barr would be in a position to influence how prisoners would be released into halfway houses or home confinement. “It’s frustrating to think we might have found one of the few people who are still stuck in the 1980s and 1990s on these issues,” said Kevin Ring, head of Families Against Mandatory Minimums, which has worked to reduce minimum prison terms.

Barr was attorney general in 1991-1993, a time when U.S. crime rates reached an all-time high of 758 incidents per 100,00 people. They have since fallen by nearly half, to a rate of 394 incidents per 100,000 people in 2017, according to the FBI. At that time, Barr advocated long prison sentences to keep violent criminals off the streets. “First, prisons work. Second, we need more of them,” Barr’s Justice Department wrote in a 1992 report.

Barr maintained his get-tough stance after leaving office. Along with other former law enforcement officials, he lobbied against earlier versions of the First Step Act in 2014 and 2015. When Trump fired Attorney General Jeff Sessions in November, Barr and two other former attorneys general penned a Washington Post opinion piece that praised Sessions for directing prosecutors to pursue the severest penalties possible.

Barr’s advocacy came as others were concluding that mandatory minimum sentences and other tough policies had taken too harsh a toll, especially on African-Americans and Latinos, and were costing taxpayers too much money.

I am not at all optimistic that an Attorney General Barr will be much better (or at all better) than former Attorney General Sessions was on these important issues.  But I am hopeful that, with effective questioning by folks on both sides of the aisle during his confirmation hearings, nominee Barr might be inclined to make statements supportive of various key provisions of the FIRST STEP Act that will make it harder for him to undermine these provisions once in office.  I sincerely hope that strong advocates of the FIRST STEP Act and criminal justice reform will be sure to ask a lot of strategic questions of Barr in this arena rather than just give him a chance to repeat whatever Mueller investigation talking points that he is developing.

Prior related posts:

January 10, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Wednesday, January 09, 2019

Spotlighting problems with immediate application of expanded good time credit in the FIRST STEP Act

This new Reuters article, headlined "Error in U.S. prisons law means well-behaved inmates wait longer for release," reports on what appears to be a significant drafting hiccup in the expansion of good time credits through the FIRST STEP Act. Here are the details:

U.S. prisoners who were expecting earlier release for good behavior, thanks to a new criminal justice law enacted last month, must keep waiting due to an error in the bill, said activists working with the White House to fix the mistake.

Potentially thousands of inmates could be affected by the error in the First Step Act, signed into law on Dec. 21 by Republican President Donald Trump in a rare example of bipartisanship in Washington, with both Democrats and Republicans backing it.

The law required the Justice Department’s Bureau of Prisons (BOP), among other measures, to retroactively recalculate good behavior credits, a step that had been expected to reduce some inmates’ sentences by as many as 54 days per year. Previously, inmates could only earn up to 47 days per year toward early release for good behavior.

Advocates of the law expected the bill’s enactment into law meant that several thousand inmates would get their freedom right away, in time for the 2018 holiday season. But a drafting error in the language of the law has prevented the Justice Department from immediately applying the new method of calculating good-behavior credits, they said.

“You have thousands of families who thought the day this bill passed, their loved ones’ sentence was going to be recalculated and they were going to walk out of their halfway house, their home confinement ... or leave prison,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM). “It’s a frustrating mistake,” Ring said.

Wyn Hornbuckle, a Justice Department spokesman, said the department is analyzing changes for the law and plans to “carry out all necessary steps.”

Reuters has seen a letter sent to inmates at the Federal Correctional Institution Coleman, a federal prison in Florida, in which officials acknowledged the new good-behavior credits would not take effect yet. “The law will allow BOP in the future to apply 54 days of credit for every year a sentence was imposed, which is a change to the prior law,” the letter says. “While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates,” it says....

Activists said the law, as drafted, confused good-behavior credits, which reduce a sentence, with earned-time credits, which do not. Earned-time credits allow certain inmates to qualify for early transfer to halfway houses. The law also mistakenly said that new rules on good-behavior credits could not kick in until BOP finishes a risk-assessment process for deciding which inmates can get earned-time credits.

Whether the error can be promptly fixed was unclear. A federal judge in Chicago on Jan. 3 denied a prisoner’s request to be released earlier for good behavior, citing the letter of the law. “This court is not unsympathetic to the apparent inequity of petitioner’s situation,” wrote U.S. District Judge Sharon Johnson Coleman. “This court, however, is obligated to apply the law as it is written.”

Several activists for prisoners told Reuters their groups are working with the White House on whether the Justice Department can find a work-around or if a legislative fix needs to be tucked into a broader spending bill for action by Congress. Ring said his group is also in talks with lawmakers.

The error comes at a difficult time, with the federal government in a partial shutdown. The Justice Department is one of several agencies partially closed because its funding ran out on Dec. 22 and has not been renewed by Congress.

As I understand this problem, it flows from the fact that the enacted version of the FIRST STEP Act has the expanded good time credits provision tucked within sections of the Act which is said to be effective only when the Attorney General has created "a risk and needs assessment system" that the AG has 210 days to develop.  This placement leads to the view that the expanded good time credits cannot be applied until the risk and needs assessment system gets developed later in 2019.  I am not sure that is the only plausible reading of these provisions of the FIRST STEP Act, but it sounds as though this is the reading now being adopted by the Bureau of Prisons (and maybe some courts).  Such a reading would seem to mean prisoners will not get the benefit of expanded good time credits until at least July 2019.

The expanded good time credits provided by the FIRST STEP Act only amount to an additional week off a sentence for every year served.  So even for those prisoners clearly impacted by this problem, this temporary snafu may only mean a few more week or months in custody before release.  But for prisoners and their families hoping to see freedom a few weeks or months earlier in 2019, this really stinks.

January 9, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Sunday, January 06, 2019

Two helpful reviews of the FIRST STEP Act and what it does (and does not do)

I have seen two recent reviews of the politics, policy, practicalities and potential of the FIRST STEP Act.  Here are links to the two helpful pieces, with a small excerpt from each:

From the Brennan Center, "How the FIRST STEP Act Became Law — and What Happens Next"

The FIRST STEP Act changes the conversation on mass incarceration

The FIRST STEP Act is a critical win in the fight to reduce mass incarceration. While the bill is hardly a panacea, it’s the largest step the federal government has taken to reduce the number of people in federal custody. (The federal government remains the nation’s leading incarcerator, and more people are under the custody of the federal Bureau of Prisons than any single state system.)

The FIRST STEP Act’s overwhelming passage demonstrates that the bipartisan movement to reduce mass incarceration remains strong. And the bill, which retains major parts of SRCA’s sentencing reform provisions, is now known as “Trump’s criminal justice bill.” This means that conservatives seeking to curry favor with the president can openly follow his example or push for even bolder reforms. Finally, this dynamic creates a unique opening for Democrats vying for the White House in 2020 to offer even better solutions to end mass incarceration.

From FAMM, "Frequently Asked Questions on the First Step Act, S. 756"

Q20: What does the First Step Act do to improve compassionate release?

A: The First Step Act makes a number of important reforms to how the BOP handles compassionate release requests.  The Act requires increased notification to prisoners on the availability of compassionate release and their eligibility for it.  It will also require the BOP to expedite the application review process for terminally ill prisoners and make sure that families are notified of a person’s terminal illness and given a chance to visit that person quickly.

Most significantly, the First Step Act gives federal prisoners the ability to petition directly to the sentencing court for compassionate release in the event that the BOP has waited more than 30 days to respond to a petition or the federal prisoner has been denied compassionate release after exhausting all administrative remedies at the BOP.

January 6, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, January 04, 2019

FIRST STEP Act leads to release of Matthew Charles from federal prison after remarkable re-incarceration

I discussed in this post from last May the remarkable case of Matthew Charles, who a few years ago had his 35-year sentence reduced thanks to lower crack sentencing guidelines, but thereafter was reincarcerated when the Sixth Circuit concluded he was not eligible to benefit from guideline changes.  Now, as this local article details, Charles today has been freed thanks to the FIRST STEP Act:

Matthew Charles, a man who was forced to return to prison after a court reversed a judge's ruling that his sentence was unfair, will be released again after the passage of a sweeping federal law that allows courts to shorten unduly harsh prison terms.

U.S. District Judge Aleta Trauger ruled on Thursday that Charles was "entitled to immediate release" under the new law, known as the First Step Act.

Charles, 52, was sentenced to 35 years in prison on charges that he trafficked crack cocaine in 1996. Advocates and experts have argued that sentence was unfair because punishments at the time were much lower for people convicted of dealing powder cocaine. Over the years, reform laws have aimed to address the disparity by shortening sentences for crack cocaine. Charles' attorneys argued the Fair Sentencing Act, passed in 2010, justified lowering his term.

In 2015, former federal judge Kevin Sharp agreed Charles deserved a shortened sentence. As a result, Charles was released in 2016. He did not re-offend.

But after an appeals court reversed Sharp's ruling, Charles was ordered to serve a full 35 years behind bars. As Charles prepared to return to prison in 2018, his case received national attention in part due to coverage from Nashville Public Radio.

But the new First Step Act, passed into law late in 2018, allowed judges to apply the drug sentencing reforms of the Fair Sentencing Act retroactively. The law cleared the way for Charles' sentence to be reconsidered again.

Federal public defenders representing Charles asked for his sentence to be lowered on Dec. 27, days after the First Step Act was signed by President Donald Trump. Prosecutors responded Wednesday, saying they did not oppose his release because it was allowed under the new law. "Because Congress has now enacted a new law that does appear to make Charles legally eligible for a reduced sentence, the government does not object to the court exercising its discretion to reduce Charles’s sentence," the federal prosecutors wrote....

"Justice prevailed here," Sharp, the former federal judge, said in an interview. "It gives you hope that it can happen again." Sharp, who has become a leading advocate for sentencing reform, said Charles was "a poster child for why this act was needed." The former judge mentioned Charles' case during a meeting with Trump to discuss inequality in the criminal justice system.

The problem, Sharp said, is that Charles' case is not unique. It is similar to many others that do not receive publicity or review. "There are thousands of them out there," Sharp said. "We can't quit."

Prior related post:

January 4, 2019 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Sentences Reconsidered | Permalink | Comments (1)

Friday, 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)

Thursday, December 27, 2018

"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)

Wednesday, December 26, 2018

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)

Monday, 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)

Saturday, December 22, 2018

Federal judiciary has funds for three weeks of shutdown operations ... so let the FIRST STEP Act litigation begin

This notice from the US Courts, headed "Judiciary Operating During Shutdown," reports that "despite a partial shutdown of the federal government that began on Dec. 22, 2018, the Judiciary remains open and can continue operations for approximately three weeks, through Jan. 11, 2019, by using court fee balances and other funds not dependent on a new appropriation."  Here is more:

Most proceedings and deadlines will occur as scheduled. In cases where an attorney from an Executive Branch agency is not working because of the shutdown, hearing and filing dates may be rescheduled.  The Case Management/Electronic Case Files (CM/ECF) system also will remain in operation for electronic filing of documents.

If the shutdown were to continue past three weeks and exhaust the federal Judiciary’s resources, the courts would then operate under the terms of the Anti-Deficiency Act, which allows work to continue during a lapse in appropriations if it is necessary to support the exercise of Article III judicial powers.  Under this scenario, each court and federal defender’s office would determine the staffing resources necessary to support such work.

I sure hope the folks inside the Beltway can get their act together to avoid having the shutdown extend past January 11, and my law nerd heart is warmed by reading "Most proceedings and deadlines will occur as scheduled" until then. Moreover, as the title of this post hints (and as I will be discussing in a few follow-up posts), I think there some important new legal arguments to make (and some old legal arguments that are stronger) now that the FIRST STEP Act is the law of the land. I sincerely hope lawyers and advocates are already getting at least some of those arguments ready for court, and thus I am pleased the courts are still open for business despite the shutdown.

December 22, 2018 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (2)

Friday, December 21, 2018

Prez Trump signs historic (though modest) FIRST STEP Act into law ... and now comes the critical work of implementing it well!!

President Donald J. Trump officially signed the FIRST STEP Act into law today, and I am so very excited that a significant piece of sentencing and prison reform finally became law after years and years and years of talk and effort by so many.  I wish the reform was even more significant, especially on the sentencing side, but something is better than nothing and but for a modest reform to crack sentencing terms, we really have had nothing positive coming from Congress on the sentencing side in more than 20+ years.

The White House has this extended "fact sheet" about the FIRST STEP Act under the heading "President Donald J. Trump Secures Landmark Legislation to Make Our Federal Justice System Fairer and Our Communities Safer."  Here is an excerpt:

CREATING SAFER COMMUNITIES AND A FAIRER FEDERAL JUSTICE SYSTEM: The First Step Act will make our Federal justice system fairer and our communities safer.

  • The First Step Act will help prepare inmates to successfully rejoin society and enact commonsense sentencing reforms to make our justice system fairer for all Americans.
  • Among many reforms, the First Step Act will:
    • Promote prisoner participation in vocational training, educational coursework, or faith-based programs by allowing prisoners to earn time credits for pre-release custody.
    • Expand prison employment program opportunities.
    • Enact fair, commonsense reforms to mandatory minimums.
    • Eliminate the three-strike mandatory life sentencing provisions.
    • Give certain offenders the ability to petition the courts for a review of their sentences.

As the title of this post highlights, I am viewing the enactment of the FIRST STEP Act only as completing stage 1 of achieving significant federal criminal justice reform. Stage 2 involves the critical work of implementation, and so many of the large and small elements of the the FIRST STEP Act involve important and challenging implementation issues. Most obviously, the risk assessment system for prisoner programming and time credits needs to be developed and deployed in a fair and effective way and that is easier said than done. And the instruction that federal prisoners be house, whenever possible, within 500 miles of their homes is easier to describe than to ensure. And the new authority created by the FIRST STEP Act for courts to consider directly so-called "compassionate release" motions for sentence reductions presents a profound opportunity and a profound challenge for taking a second look at extreme (and extremely problematic) sentences.

I could go on and on, but I will save FIRST STEP Act "issue spotting" for the days and weeks ahead (I have created a new category archive for this very purpose).  For now I will just savor needed legal change and congratulate all those on the front lines who worked so very hard to help make this day possible.  Wow!

December 21, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (6)

Thursday, December 20, 2018

Some accounts of what should come after the FIRST STEP Act

So far I have be disinclined to blog about what should come after the FIRST STEP Act, in part because the bill is still not yet officially law and in part because I think the most important (and challenging) work right after the enactment of the FIRST STEP Act is taking the many steps necessarily to effectively and expansively apply and implement all of its provisions. But, perhaps unsurprisingly given the modest nature of so many of the provisions of the FIRST STEP Act, a number of fine folks are already writing fine things about next steps. Here is a sampling of some of this writing:

December 20, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation | Permalink | Comments (4)

FIRST STEP Act approved by US House by vote of 358 to 36, will become law as soon as Prez Trump signs!!

As reported in this UPI piece, the US House of Representatives "overwhelmingly approved a bill overhauling the country's criminal justice system Thursday, sending the legislation to President Donald Trump's desk for a signature." Here is more:

The chamber approved the First Step Act with a 358-36 vote two days after the Senate passed it by a similar margin of 87-12. Lawmakers expect Trump to sign the legislation into law Friday.

The House approved a different version of the legislation earlier this year and had to amend it to make the Senate version.

Trump has described the reform as "reasonable sentencing reforms while keeping dangerous and violent criminals off our streets." "Congress just passed the Criminal Justice Reform Bill known as the #FirstStepAct. Congratulations!  This is a great bi-partisan achievement for everybody.  When both parties work together we can keep our Country safer. A wonderful thing for the U.S.A.!!" he tweeted.

House Speaker Paul Ryan welcomed passage of the legislation, saying it's something he's "believed in for a long time."

"These reforms to our criminal justice system will not only reduce recidivism and make communities safer, but they will help people into lives of purpose," he said.

HUZZAH!!!

Interestingly, when the prison-reform only versions of this bill received a House vote back in May, only two DOP members voted against it while 30+ Dems voted not because of a concern the bill did not go far enough. With the new version including a few modest sentencing reforms, this time around all Dems voted yea and all 36 nays came from GOP members (as detailed in this final vote tally).

Some of the most recent of many prior related posts as FIRST STEP Act gets ever closer to becoming law:

December 20, 2018 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, December 19, 2018

US Sentencing Commission provides latest "Sentence and Prison Impact Estimate" for FIRST STEP Act

Back in March of this year, as reported in this post, US Sentencing Commission posted on its website this letter from the USSC's Director of its Office of Research and Data to an analyst at the Congressional Budget Office.  This document included a detailed "Sentence and Prison Impact Estimate Summary" of the impact of S.1917, the Sentencing Reform and Corrections Act of 2017.  That analysis not only detailed the expected impact of an array of provisions in the SRCA, but also confirmed my sense that the prison-reform provisions of that bill could be in many ways more important and impactful than many of its sentencing-reform provisions. 

The FIRST STEP Act, notably, has preserved and even expanded upon some of the prison-reform provisions that were in the SRCA, but it only now has a few of its sentencing-reform provisions.  Still, its impact is likely to be considerable (with just how considerable depending upon its implementation).  And, helpfully, the US Sentencing Commission has now produced this new, updated document titled "Sentence and Prison Impact Estimate Summary, S. 756, The First Step Act of 2018 (as passed by the Senate on December 18, 2018)."  Here is that document's basic accounting of the three biggest impact items of the bill: 

Section 101: Risk and Needs Assessment System

Retroactive Impact: 106,114 eligible offenders were in BOP custody as of May 26, 2018.

Section 402: Broadening of Existing Safety Valve (to offenders with up to 4 criminal history points)

Prospective Impact: 2,045 Offenders Annually; -21.8% Sentence Reduction; Decrease of 1,072 beds in BOP 5 years after effective date.

Retroactive Impact: Not authorized in bill.

Section 404: Retroactive Application of Fair Sentencing Act (to defendants previously sentenced)

Impact: 2,660 eligible offenders were in BOP custody as of May 26, 2018.

December 19, 2018 in Assessing Graham and its aftermath, Data on sentencing, FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Latest issue of the Federal Sentencing Reporter covers "The 2018 Debate over Federal Statutory Reform Proposals"

I am still so full of ideas and thoughts about what's next after the Senate's passage of the FIRST STEP Act, and in some future posts I will link to writings about second and thirst steps and so on.  But, coincidentally, just today I got notice that the December 2018 issue of the Federal Sentencing Reporter has just been published on-line, and it is a must-read for those looking to fully understand the background and back-story of the FIRST STEP Act.  

This Issue of FSR is already a bit dated, as it went to press last month before anyone was sure if Congress would get some version of the bill to the desk of the President.  But it still effectively highlights, thought the work and words of a number of leading reform advocates, why the path toward passage was so challenging and so important.  Here is snippet of my short introduction, followed by links to all the the original commentary:

This Issue of FSR provides a snapshot of the discussion and debate over the direction and scope offederal statutory reform proposals through 2018.  As of this writing, in early November 2018, meaningful lawmaking in this area is still just a possibility rather than an achieved reality; the momentum for reform that built through the first part of the year was halted by campaign dynamics as members of Congress turned their attention to the 2018 midterm elections.  But with President Trump reportedly embracing(in August) a compromise proposal that would add some [sentencing reform] provisions to the FIRST STEP Act, and with Senate Majority Leader Mitch McConnell pledging to consider taking up criminal justice reform after the midterms, there remain reasons to be optimistic that all the big reform talk reflected in this Issue might yet produce big reform action before the end of 2018.

The materials in this Issue of FSR include both original commentary and primary documents that provide a flavor of the terms of the debate, in Congress and beyond, as political realities shifted from not believing any reform was possible during the Trump administration to strategizing just what kinds of reform should be prioritized. Georgetown Law Professor Shon Hopwood, a leading advocate for federal reforms, solicited original commentaries for this Issue that canvass the major provisions of key bills working their way through Congress in 2018.  Authored by some of the leading policy advocates involved on all sides of the conversation, these articles showcase why the scope and focus of statutory reform has engendered spirited debate.

December 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)