Sunday, August 01, 2021

Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action)

The news a few weeks ago that the Biden Justice Department is not disputing the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic continues to generate coverage and commentary.  Here is a round-up of just some recent pieces I have seen:

From Common Dreams, "Advocates Condemn Biden Plan to Send 4,000 Inmates Back to Prison After Pandemic"

From The Hill, "Inmates grapple with uncertainty over Biden prison plan"

From The Intercept, "Biden Has Said Pot Prisoners Should Be Free.  Now He’s Poised To Send Some Back To Prison."

From Politico, "Biden's prisoner's dilemma"

From The Root, "Biden Needs to Grant Clemency to the Over 4,000 People on Home Confinement"

It is understandable, but I still think quite unfortunate, that all of these stories focus almost exclusively on Prez Biden and his potential place in this story.  Most advocates have been talking up blanket clemency as the most efficient way to resolve this issue in order to keep the home confinement cohort from being sent back to prison after the COVID pandemic is over.  But, as I have highlighted in various posts, and stressed in this post titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?," Congress readily could (and I think should) enact a statute that provides for the home confinement program to be extended beyond the end of the pandemic.  This problem is fundamentally a statutory one created by Congress in the CARES Act, and it could be readily fixed by Congress simply by adding a sentence or two to pending pieces of legislation.

In addition, as I highlighted in this other post, another important option for case-by-case relief for members of this cohort is through compassionate release motions.  This is how Gwen Levi got relief, and such motions have the potential to reduce lengthy sentences and not merely allow these sentences to be served at home.  Consider the story told here by Jeanne Rae Green, who was transferred to home confinement in May 2020 after serving serving 6.5 years of a 12.5 year sentence for meth distribution.  It sounds like she and other members of this home confinement cohort could bring strong sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).  The legal limbo in which Jeanne and others now find themselves could be perfectly described as constituting "extraordinary and compelling reasons" for a sentence reduction, especially if prosecutors cannot show how the 3553(a) factors would be better served by a return to prison.  (Indeed, as I have previously mentioned, I think federal prosecutors could and should actively promote and support sentence reduction motions for now on home confinement at risk of being sent back to prison.)

I am pleased to see so many working so hard to ensure this issue garners continued attention, and I am hopeful that Prez Biden will use his clemency pen to bring relief to the home confinement cohort ASAP.  But in the meantime, I also hope that pressure will be brought to bear on all the others — from members of Congress to members of DOJ to members of the judiciary — who can and should also be doing more help this cohort.

Some prior recent related posts:

August 1, 2021 in Criminal justice in the Biden Administration, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Saturday, July 31, 2021

Amicus brief stresses congressional text does not preclude legal change as basis for 3582(c)(1)(a) sentence reduction

In this post last month, I lamented the split Sixth Circuit panel opinion in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021) (available here), which stated that "non-retroactive changes in the law [can] not serve as the 'extraordinary and compelling reasons' required for a sentence reduction."  In that post, I noted that nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  As I see it, the majority in Jarvis was eager to create an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences because, presumably based on its own sense of sound policy, it wanted to cabin the new sentencing discretion created by the FIRST STEP Act. 

Against that backdrop, I was pleased to learn of a new amicus brief filed in support of rehearing en banc in Jarvis that makes a series of forceful arguments that wisely lean heavily on textualism.  The brief is filed on behalf of the American Conservative Union Foundation Nolan Center for Justice and Shon Hopwood, and I recommend the entire filing (which can be downloaded below).  Here are a few excerpts emphasizing the statutory text:

Until and unless the Sentencing Commission promulgates a new policy statement clarifying what factors district courts may consider in deciding motions for compassionate-release sentence reductions, this Court should refrain from holding that factors are legally impermissible unless consideration of those factors conflict with the statutory text.  To do otherwise is to substitute this Court’s judgment for Congress’s.  Because a district court’s consideration of nonretroactive sentencing-law reforms as extraordinary circumstances does not contravene any contrary statutory command, it is legally permissible (and is in fact consistent with the legislative history and plain text of the First Step Act)....

The Sentencing Commission is empowered to promulgate a new policy statement that expressly permits district courts to consider nonretroactive sentencing-law reforms, combined with other factors, in determining whether a defendant has presented extraordinary and compelling reasons.  That the Commission presently lacks a quorum is irrelevant to interpretation of the underlying statutes.  Since the Commission can promulgate a policy statement permitting consideration of nonretroactive sentencing reforms, district courts may certainly consider such criteria now in the absence of a new and applicable policy statement.

Download Jarvis Amicus Brief FINAL

July 31, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, July 25, 2021

US Sentencing Commission releases more detailed "Compassionate Release Data Report" for 2020

As detailed in this post, last month the US Sentencing Commission released a short data report titled "Compassionate Release Data." That report provided notable but very basic numbers on the grants and denials of federal compassionate release motions nationwide for calendar year 2020.  The report revealed, as further discussed in this follow-up post, that judges granted a good number of these motions once COVID hit, but that the Bureau of Prisons approved stunningly few compassionate release applications and that there were considerable disparities in grant rates in different judicial districts.

I was quite pleased to see the USSC promulgate any compassionate release data, but I was eager for additional data beyond circuit and district breakdowns of these motions.  In my prior post, I hoped we might at some point see "a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction)."  Excitingly, the USSC has now released this updated expanded data report that provides a lot more details about compassionate release grants for calendar year 2020.

Specifically, this latest report includes data on "Demographic Characteristics Of Offenders Receiving Compassionate Release" and on "Selected Sentencing Factors For Offenders Receiving Compassionate Release" and on "Type Of Crime For Offenders Receiving Compassionate Release" and on "Original Sentence Length For Offenders Receiving Compassionate Release." I am so very pleased to see this additional data, although the extent of sentence reductions is still a data point not covered which seems to me to be important to understand the full compassionate release story (e.g.,ten granted sentence reduction motions that reduce sentences by five months seem quite different than ten granted motions reducing sentences by five years.)   

Upon first glace, it is hard to see if there are any particularly distinctive or disturbing patterns in this enhanced USSC compassionate release data.  Interestingly, looking at the demographics, I noticed that the percentage of black prisoners securing a sentence reduction in 2020 (which was 45.2% according to the USSC data) appears to be greater than the percentage of black prisoners in federal prison (which was 34.9% as of this USSC report with March 2021 data).  Likewise, I was intrigued to see that the percentage of prisoners convicted of drug trafficking securing a sentence reduction in 2020 (which was 53% according to the USSC data) appears to be greater than the percentage of such prisoners in federal prison (which was 43% as of this same USSC report).   

I hope that the US Sentencing Commission not only continues to release more and more granular data about sentencing reduction grants.  I also hope the USSC will (a) track recidivism rates for this population over time, and (b) learn about which guidelines might be seen to produce excessively long sentencing in retrospect as documented through these grants.  The kind of second-look sentencing mechanism now operating the the federal system is not only valuable and important as a means to achieve better justice in individual cases, but also should serve as an important feedback loop providing a kind of on-going audit of the operation of the entire federal sentencing system. 

A few of many prior related posts:

July 25, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Friday, July 09, 2021

New Urban Instititute report reviews "Implementation of the First Step Act: The Risk and Needs Assessment System"

Julie Samuels and Emily Tiry of the Urban Institute have this notable new 23-page report about one aspect of FIRST STEP Act implementation.  Here is its abstract:

The December 2018 First Step Act sought to address many long-standing problems in the federal prison system.  This brief focuses on implementation of the act’s risk and needs assessment system, intended to incentivize people in federal prison to pursue recidivism reduction programming that can sometimes reduce their time behind bars.  We summarize that system’s key requirements and major takeaways so far; detail the progress and challenges encountered in developing and implementing the risk assessment tool, needs assessment process, and earned time credits; and offer recommendations for improvement including suggestions to expand eligibility for early release or transfer and to consider the equity of the risk assessment tool.  We conclude that the US Department of Justice and the Federal Bureau of Prisons (BOP) could take a more vigorous approach to implement the law and fully realize the potential of the risk and needs assessment system to reduce recidivism and time spent in federal prisons.

Are you listening, DOJ and Congress? We are getting closer to a full three years since the FIRST STEP Act became law, and its implementation remains shaky and lots more could be done to make this first step even more consequential and impactful.

July 9, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, July 06, 2021

Gwen Levi, face of federal home confinement cohort at risk of prison return, granted compassionate release

In prior posts (some linked below), I have discussed the Office of Legal Counsel memo which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  In this recent post, I noted one person at risk of serving many more years in prison after success on home confinement, Gwen Levi, who was getting particular attention because she had already been re-incarcerated on the basis of a seemingly minor technical violation.

I expressed hope in that post that she might succeed with sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).  I am now happy to be able report that she has prevailed on such a motion, as detailed in this USA Today article headlined "Woman who was arrested after missing officials' phone call while in computer class is headed home":

An elderly woman who was recently arrested after she missed phone calls from officials while attending a computer class — a possible violation of her home detention — is headed back home following a federal judge's decision to grant her request for compassionate release.

In a four-page ruling Tuesday, U.S. District Judge Deborah C. Chasanow said "it would do little" to force Gwen Levi – a 76-year-old who's in remission from lung cancer and whom the Justice Department had deemed nonviolent – to serve the entirety of her sentence. "During her incarceration, she took many courses, worked, and completed drug education," Chasanow wrote, noting Levi's age, medical conditions and lack of major disciplinary problems.

Levi is among the more than 24,000 federal prisoners who, under the Trump administration, were allowed to serve their sentence through home detention to slow the spread of COVID-19 behind bars. But a Justice Department memo issued in the final days of the Trump administration said inmates whose sentences will extend beyond the pandemic must be brought back to prison. That included Levi, who has four years left to serve, and about 4,000 other prisoners, some of whom have secured jobs and gone back to school....

More recently, Levi attracted media attention after a trip to a computer class led to her arrest. Levi believed she had been approved to go to the class, her attorney said. She had turned her phone off, unaware that officials at her halfway house would be calling her several times. Levi was arrested four days later. A Bureau of Prisons report called the incident an "escape."

Levi was serving more than 30 years for drug conspiracy charges. Her sentence was reduced to 24 years as part of the First Step Act, a Trump-era criminal justice bill that shortened punishments for nonviolent drug crimes. Before her arrest last month, Levi had been on home confinement for 13 months.

In her ruling granting the request for compassionate release, Chasanow said Levi "has done well on home confinement," notwithstanding the incident that led to her arrest.

In a statement following Chasanow's decision, Kevin Ring, president of Families Against Mandatory Minimums, said: "Sending her back to prison for going to a computer class was shameful. She deserves to be home," Ring said. "But the fight is far from over. It's time for the Biden administration to ensure that the 4,000 people on home confinement get to stay home with their families, too."

Advocacy groups have been urging the Justice Department to rescind the Trump-era legal memo, but the administration does not believe the issue is urgent. The Justice Department said in May that inmates with years left to serve are not likely to be sent back to prison anytime soon because the public health crisis is expected to last for the rest of the year.

Some prior recent related posts:

July 6, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered | Permalink | Comments (0)

"The Revelatory Nature of COVID-19 Compassionate Release in an Age of Mass Incarceration, Crime Victim Rights, and Mental Health Reform"

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

The crime victim rights movement and mass incarceration grew side-by-side in the United States, and in many ways they deal with similar questions about the purposes, benefits, and effectiveness of the criminal justice system.  The COVID-19 worldwide pandemic in 2020 tested the value attributed to retribution, rehabilitation, and other criminal justice goals in sentencing and incarceration.  Specifically, the First Step Act of 2018 enhanced discretionary compassionate release from prison due to illness and disability, requiring a post-sentencing balance of interests between perceived risks to the prisoner while in prison and risks to the public if release were granted.  Early COVID-19 compassionate release decisions reveal that courts continue to base early release decisions primarily on an assessment of public safety risk from crime, not community impact, crime victim impact, or even prisoner health.  In so doing, judges and prosecutors usurp and marginalize the role of the community and those most affected by crime.

July 6, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (0)

Thursday, July 01, 2021

Hoping grandmothers and others on home confinement get compassionate consideration

In prior posts (some linked below), I have discussed the Office of Legal Counsel memo which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  There has been particular advocacy directed toward Prez Biden urging him to use his clemency powers to keep these persons from being returned to federal prison, and I have recently argued Congress could and should address this matter with a statutory fix.  But, critically, judges also might be able to grant relief on a case-by-case basis via sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).

One person at risk of serving many more years in prison after success on home confinement, Gwen Levi, is getting particular attention because she seems like low-risk person who has already been re-incarcerated on the basis of a seemingly minor technical violation.  Here are just some of the stories discussing her plight:  

From The Root, " 76-Year-Old Black Woman Released From Prison Amid Pandemic, Sent Back for Missing Phone Calls While Taking a Class"

extraordinary and compelling reasonsFrom USA Today, "'Scared and confused': Elderly inmate sent home during COVID is back in prison after going to computer class"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

Upon hearing about this story, I expressed on Twitter my hope that Gwen Levi was pursuing a compassionate release motion.  Kevin Ring of FAMM informed me not only that she was, but also that he had submitted a letter in support of her effort to secure a sentence reduction.  Kevin recently sent me a copy of this letter and has allowed me to post it here:

Download ECF 2079 Kevin Ring letter in support of comp. release

Though I do not know all the facts surrounding the crimes and current circumstances of Gwen Levi and the 4000 other persons on home confinement at risk of going back into federal prison, I do know that these situations certainly seem to present "extraordinary and compelling reasons" to consider whether further prison time is needed.  

Some prior recent related posts:

July 1, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, June 17, 2021

Local report on federal compassionate release in Rhode Island raises questions about US Sentencing Commission data

A helpful reader made sure I saw this new reporting about federal compassionate release practices from a local source in the Ocean State under the headline "Federal inmates seeking early release in RI approved 40% of the time in 2020."  Here are excerpts (with a little emphasis added):

More than one of every three federal inmates sentenced in Rhode Island who sought compassionate release last year was let go early from prison, according to data from the U.S. District Court in Rhode Island.

A new report from the U.S. Sentencing Commission found Rhode Island federal judges were second only to jurists in Oregon for districts granting compassionate release requests during 2020.  While data directly from federal court in Providence shows the Sentencing Commission undercounted denials during that time period, U.S. District Judge William Smith said he wasn’t surprised to learn Rhode Island was more likely than other districts to grant early release.  “I think we’ve been really, really aggressive and careful about compassionate release petitions that have come before us,” Smith said. “We’ve paid a lot of attention to them and I am really proud of the way we’ve handled them.”

A Target 12 review of data provided by the federal court found 78 inmates who were sentenced in Rhode Island requested an early release in 2020.  Of those requests, 45 were denied, 30 were granted, and three were withdrawn.

Smith said weighing whether they should grant an early release is a balancing test between the risk to an inmate, and a risk to the community.  “There were various points in the pandemic when some federal prisons were literally on fire with the virus,” Smith said.

He added that the judges were keenly aware that a denial of an early release could be tantamount to a death sentence at the height of the pandemic. “There were times when you would go to bed at night hoping you wouldn’t wake up in the morning to find someone you had under consideration for compassionate release was now on a ventilator in a hospital,” he said. “That was going on all across the country.”

Despite those concerns, the answer was still “no” more often than “yes.” “If [an inmate] is in for a very long period of time for a crime of violence – let’s say – that is much more difficult and probably don’t grant that one,” Smith said.

That was the case with inmates Gregory Floyd and Harry Burdick, who were convicted in the horrific June 2000 execution-style slaying of Jason Burgeson and Amy Scute at a golf course in Johnston. The couple was carjacked after leaving a club in Providence before being gunned down. Both Floyd and Burdick had their compassionate release requests denied.

A Target 12 review of the cases that were granted an early release found none of the inmates were serving time for crimes of violence.  The vast majority of the convictions – 19 of 30 – were primarily drugs cases, five were financial crime convictions, two were firearm possession cases, and one each of art theft, escape from prison, bank robbery, and a conviction of “transportation with intent to prostitute.”...

Thousands of inmates across the country [filed CR motions] as COVID-19 was ripping through congregate care facilities, including prisons. According to the U.S. Federal Bureau of Prisons, more than 44,000 inmates contracted the virus and 238 of them died. Four BOP staff members also succumbed to the disease. “I am really proud to say as far as I know, not a single inmate from Rhode Island died of coronavirus in prison,” Smith said, adding just one inmate who was released committed a violation that sent them back to prison.

With the pandemic seemingly receding, 2021 has been a different story. Of the 23 inmates who have asked for compassionate release since January, just one has been granted. “The medical issues are not as chronic, not as severe, the prisons are in a much better shape in terms of controlling the virus,” Smith said. “Then the third piece is the vaccination rate has been rising.”...

But for those who refused to get the vaccine, especially out of personal preference, Smith said that wouldn’t likely help any of their future arguments for compassionate release on the basis of being at heightened risk of contracting the virus. “I think it is on them,” he said.

I lamented last week in this post that the US Sentencing Commission's data run on CR motions in 2020 provided no information about the persons in prison or the crimes that were resulting in grants and denials of sentence reductions.  It is thus quite valuable to see this local report detail that nearly two-thirds of persons getting sentence reductions were in drug cases and apparently none involved crime of violence.  It will be interesting to see if this pattern holds true if and when we get more details from more districts.

But while pleased for this additional data from Rhode Island, I am troubled to see that the US Sentencing Commission may be (drastically?) under-reporting denials of relief.  I do not want to assume anything hinky is going on, because there may be valid data collection question and challenges here explaining the discrepancy between the USSC data report and the data reported by the local news source.  For example, if a defendant is initially denied a motion for a sentence reduction, perhaps on procedural grounds, and then a month later prevails on such a motion, is this is coded as just one grant or is it one denial and one grant?

For all sort of reasons, I think it will prove very important to try to be very careful assembling accurate data here on all sorts of sentence reduction particulars.  The US Sentencing Commission, if and when it ever has Commissioners, will at some point need to modify various policy statements about these matters, and good data will be critical for the USSC and others advising the USSC to do their work in sound ways.

A few of many prior related posts:

June 17, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, June 14, 2021

SCOTUS rules in Terry that lowest-level crack offenders cannot secure resentencing based on FIRST STEP Act retroactivity of Fair Sentencing Act

Continuing to make quick work of its criminal docket, the Supreme Court's second criminal ruling today comes in Terry v. US, No. 20– 5904 (S. Ct. June 14, 2021) (available here), and it serves to limit the offenders who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act. Here is how Justice Thomas's opinion for the Court in Terry gets started:

In 1986, Congress established mandatory-minimum penalties for cocaine offenses.  If the quantity of cocaine involved in an offense exceeded a minimum threshold, then courts were required to impose a heightened sentence.  Congress set the quantity thresholds far lower for crack offenses than for powder offenses.  But it has since narrowed the gap by increasing the thresholds for crack offenses more than fivefold.  The First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194, makes those changes retroactive and gives certain crack offenders an opportunity to receive a reduced sentence.  The question here is whether crack offenders who did not trigger a mandatory minimum qualify.  They do not.

Justice Sotomayor has an extended concurring opinion in Terry (it is a bit longer than the majority opinion).  She explains at the start of this opinion that she writes separately "to clarify the consequences of today’s decision.  While the Fair Sentencing Act of 2010 and First Step Act of 2018 brought us a long way toward eradicating the vestiges of the 100-to-1 crack-to-powder disparity, some people have been left behind."

I will likely have a lot more to say about this Terry ruling and its potential echoes once I get a chance to read it more closely.

June 14, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Sunday, June 13, 2021

Borden claims and the potential for 3582(c)(1)(a) motions to enable retroactivity

I asked a few days ago, in the wake of the Supreme Court's ruling in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), limiting applicable ACCA predicates, "How many federal prisoners might now be serving illegal sentences after Borden?".   After a little reflection and added research, I have come to suspect that maybe only a few hundred federal prisoners are now serving ACCA sentences based on a problematic reckless predicate, though surely a larger number may seek relief in federal courts.  So, after flagging the issue of how many federal prisoners might now be serving illegal sentences after Borden, in this post I want to discuss a bit  how current federal prisoners serving ACCA sentences might seek relief.

Notably, some of this ground has been plowed in the wake of the Supreme Court's 2015 ruling in Johnson finding ACCA's residual clause unconstitutionally vague.  An intricate federal habeas jurisprudence has followed as ACCA prisoners looked to bring their Johnson claims into federal court through 2255 and 2241 motions. See generally Prof Leah Litman's writings here and here and here and here and here.

Justice Kavanaugh is clearly concerned about another round of this litigation the aftermath of Borden, as the last footnote in his dissent frets about "the collateral review petitions that will likely inundate courts in the circuits that [had held] ACCA covers reckless offenses."  In that footnote, Justice Kavanaugh seems eager to note that prisoners may not get relief based on Borden because "many petitions may fall outside §2255’s 1-year statute of limitations."  But Justice Kavanaugh perhaps does not realize that, thanks to the FIRST STEP Act, prisoners with viable Borden claims could now bring 3582(c)(1)(a) motions for sentence reductions based on "extraordinary and compelling" circumstances.

Prof Litman had so much to write about after Johnson because the procedural rules and jurisprudence surrounding 2255 and 2241 motions are extraordinarily intricate and often limiting.  And those procedural rules needed to be sorted through for ACCA-sentenced folks making Johnson claims because there was no other means to directly pursue resentencing in court.  But, thank to the provision of the FIRST STEP Act allowing federal courts to directly reduce sentence without awaiting a motion by the Bureau of Prisons, prisoners now have another distinct means to seek relief through a 3582(c)(1)(a) motion for a sentence reduction.

Critically, because 3582(c)(1)(a) motions have only a minor "exhaustion" procedural requirement, prisoners bringing such motions will have an easier time to getting to court to have their claim considered on the substantive merits.  But the substantive merits of a 3582(c)(1)(a) motion will be different than if a Borden claim is pursued via 2255 and 2241 motions.  A judge will have to find that "extraordinary and compelling reasons warrant" a sentence reduction and then consider 3553(a) factors.  Because those with winning Borden claims have been sentenced to an illegal five years or more, I would think they certainly present an "extraordinary and compelling reasons" for a sentence reduction.  How much the sentence should be reduced should be ten determined by consideration of the 3553(a) factors.

In other words, the FIRST STEP Act's procedural change to so-called "compassionate release" motions via 3582(c)(1)(a) now allows for rulings like Borden to be more efficiently given retroactive effect in federal courts.  Yet another lovely reasons to celebrate that Act. 

Prior related posts:

June 13, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Saturday, June 12, 2021

Senate Judiciary Committee advances three criminal justice and sentencing reform bills

I noted in this post last month that the US Senate Judiciary Committee had  plans to take three criminal justice bill: the First Step Implementation Act, the COVID-19 Safer Detention Act, and the Prohibiting Punishment of Acquitted Conduct Act.  This Law360 piece from a few weeks ago reported that, "on a 14-8 vote, the Senate Judiciary Committee passed the COVID-19 Safer Detention Act of 2021."  And the other bill moved forward this past week, as reported in this press release from Senator Grassley:

[T]he Senate Judiciary Committee voted to advance two bipartisan criminal justice reform bills authored by U.S. Senate Majority Whip Dick Durbin (D-Ill.), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-Iowa), Ranking Member of the Senate Judiciary Committee — the Prohibiting Punishment of Acquitted Conduct Act of 2021 and the First Step Implementation Act of 2021. These bills will build on the landmark First Step Act and continue Congress’s bipartisan efforts to make our criminal justice system fairer....

The bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2021 would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.  Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.  The legislation was passed out of Committee by a bipartisan vote of 16-6.  More information on the Prohibiting Punishment of Acquitted Conduct Act of 2021 can be found here.
 
The bipartisan, bicameral First Step Implementation Act would advance the goals of the landmark First Step Act (FSA), by, among other provisions, making eligible for retroactive review some of the FSA’s sentencing reforms. The FSA — authored by Durbin and Grassley and signed into law in 2018 — is bipartisan criminal justice reform legislation designed to make our justice system fairer and our communities safer by reforming sentencing laws and providing opportunities for those who are incarcerated to prepare to reenter society successfully.  The First Step Implementation Act was passed out of Committee by a bipartisan vote of 13-9.  More information on how the First Step Implementation Act of 2021 would further the goals of the FSA can be found here.

I have little sense of whether or when these bills might move through Congress and get to the desk of the President, but I am hope that congressional leadership sees that these bill are worth prioritizing because they have more bipartisan support that almost any other proposals these days.

Some prior related posts:

June 12, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, June 11, 2021

Another dive into the ugly BOP realities of federal compassionate release during the pandemic

The Marshall Project has this new piece on federal compassionate release with a full title that captures its essential themes: "31,000 Prisoners Sought Compassionate Release During COVID-19. The Bureau of Prisons Approved 36.  As the pandemic worsened inside federal prisons, officials granted fewer releases." Here are excerpts (with links from the original):

Tens of thousands of federal prisoners applied for compassionate release after the virus began sweeping through lockups. But new Bureau of Prisons data shows officials approved fewer of those applications during the pandemic than they did the year before.  While the BOP director greenlit 55 such requests in 2019, a new director who took over in early 2020 approved only 36 requests in the 13 months since the pandemic took hold in March 2020.  The downturn in approvals came even as the number of people seeking compassionate release skyrocketed from 1,735 in 2019 to nearly 31,000 after the virus hit, according to the new figures.

Because the numbers were compiled for members of Congress, BOP spokesman Scott Taylor said the agency would not answer any questions about the data, “out of respect and deference” to lawmakers.  But Shon Hopwood, a Georgetown law professor, called the bureau’s decrease in compassionate releases during the pandemic “mind-boggling.”...

Federal judges have stepped in to release thousands of people in the face of BOP inaction. And the bureau continues to face intense scrutiny and several lawsuits over its handling of COVID-19.  Since the first reported case last spring, more than 49,000 federal prisoners have fallen ill and 256 have died, according to corrections data tracked by The Marshall Project.  Thirty-five of those who died were waiting for a decision on their release requests....

People in federal prisons seeking release during the pandemic have two main ways to get out early.  One is home confinement, which allows low-risk prisoners to finish their sentences at home or in a halfway house.  They’re still considered in custody, and the decision to let them out is entirely up to the Bureau of Prisons.  As COVID shutdowns began last March, Congress expanded the eligibility criteria and then-Attorney General Bill Barr ordered prison officials to let more people go.  Since then, more than 23,700 people have been sent to home confinement — though several thousand of them may have to return to prison once the pandemic ends.

The other way to get out early is through compassionate release.  If a warden endorses a prisoner’s request, the case goes to BOP’s central office, which usually rejects it.  But if a warden denies a request or 30 days pass with no response, then the incarcerated person can ask a judge to reduce the sentence to time served.  The new data showed 3,221 people have been let out on compassionate release since the start of the pandemic — but 99% of those releases were granted by judges over the bureau’s objections.

Last fall, The Marshall Project published data showing that the Bureau of Prisons rejected or ignored more than 98% of compassionate release requests during the first three months of the pandemic.  Citing that reporting, federal lawmakers in December wrote to the agency to demand more data on both compassionate release and home confinement.

The updated figures outlined in the agency’s response to Congress in April showed that BOP wardens actually endorsed slightly fewer compassionate release requests as the pandemic progressed.  In the first three months, wardens approved 1.4% of release applications.  The central office rejected most of those, with Director Michael Carvajal ultimately approving just 0.1%.  By the end of April — more than a year into the pandemic, and after more than 200 prisoner deaths — wardens had approved 1.2% of applications, and Carvajal again accepted just 0.1%.

By comparison, federal judges approved 21% of compassionate release requests they considered in 2020, according to a recent report from the U.S. Sentencing Commission....

For the most part, the bureau has offered little insight into its reasons for denying compassionate release. According to the information BOP sent to Congress, wardens denied nearly 23,000 requests because the person “does not meet criteria.”  Roughly 3,200 people were denied because their cases were “not extraordinary and compelling,” while a little over 1,200 were rejected for not providing enough information or documentation.  Four people met the criteria but were denied due to “correctional concerns,” the agency said.

Of the 374 prisoners that wardens recommended for compassionate release during the pandemic, the agency’s central office rejected or did not respond to just over 90%, apparently without making any note as to why.  “The BOP does not track the specific reasons for approval or denial of a compassionate release request at the Central Office level, as there can be several reasons for a particular decision,” wrote General Counsel Ken Hyle.  Some of those reasons, he added, could be opposition from federal prosecutors, a lack of release plan or fear that letting someone out would “minimize the severity of the inmate’s offense.”

A few of many prior related posts:

June 11, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, June 10, 2021

US Sentencing Commission releases fascinating (and bare bones) "Compassionate Release Data Report"

I just received an email from the US Sentencing Commission with an alert about new data reports from the USSC.  Any new data from the USSC gets me excited, and I got even more jazzed upon seeing the heading "Compassionate Release Data" followed by this text in the email:

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions. This report provides an analysis of those compassionate release motions decided through December 31, 2020 for which court documentation was received, coded, and edited at the U.S. Sentencing Commission by May 27, 2021.

Data Overview

Through December 31, 2020, the Commission received the following information from the courts:

  • 2,549 offenders were granted compassionate release. This represents 21% of compassionate release motions.
  • 9,589 offenders were denied compassionate release. This represents 79% of compassionate release motions.
  • 96% of granted motions were made by the defendant.

Somewhat disappointingly, the full report linked here provides precious little additional data beyond circuit and district breakdowns of these motions and their dispositions. I would be especially interested in seeing a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction).  But I am excited to learn that the USSC data staff is keeping track of these matters and seemingly planning to regularly report of what it is tracking.   

June 10, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, June 03, 2021

Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a)

As blogged here last month, in US v. Owens, No. 20-2139 (6th Cir. May 6, 2021) (available here), a split Sixth Circuit panel held that "in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied."  This seemed consistent with the Sixth Circuit's prior holding in US v. Jones, 20-3701 (6th Cir. Nov. 20, 2020) (available here),  that district courts have full discretion [currently] to determine whether an 'extraordinary and compelling' reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion."  It was also consistent with rulings from other circuits like US v. McCoy, 981 F.3d 271, 285–87 (4th Cir. 2020) and US v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021).  

But today a distinct split Sixth Circuit panel in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021) (available here),  states that "non-retroactive changes in the law [can] not serve as the 'extraordinary and compelling reasons' required for a sentence reduction."  Here is a passage from the majority opinion in Jarvis:

The text of these sentencing statutes does not permit us to treat the First Step Act’s non-retroactive amendments, whether by themselves or together with other factors, as “extraordinary and compelling” explanations for a sentencing reduction.  See Tomes, 990 F.3d at 505.  But for those defendants who can show some other “extraordinary and compelling” reason for a sentencing reduction (and we have plenty of deferential decisions on this score), they may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors — above all with respect to the community safety factor.

Judge Clay authors a lengthy dissent in Jarvis that starts this way:

In passing the First Step Act, Congress amended 18 U.S.C. § 3582(c)(1)(a) to allow federal district courts to grant compassionate release under appropriate circumstances to those incarcerated in federal prison, even in instances where the Bureau of Prisons opts not to do so.  In accordance with this understanding of the amendment, we have found that district courts are not required to consider the policy statement in U.S.S.G. § 1B1.13 in determining what constitutes an extraordinary and compelling reason for release, thereby permitting district courts discretion in determining whether an individual defendant has demonstrated an extraordinary and compelling reason for release.  See United States v. Jones, 980 F.3d 1098, 1110–11 (6th Cir. 2020).  In line with that precedent, in United States v. Owens, 996 F.3d 755, 760 (6th Cir. 2021), we determined that a district court can consider a nonretroactive First Step Act amendment that creates a sentencing disparity in combination with other factors as the basis for an extraordinary and compelling reason for compassionate release.  The majority today ignores this binding precedent from our circuit and erroneously concludes that our previous decision in United States v. Tomes, 990 F.3d 500, 505 (6th Cir. 2021), requires that we affirm the district court’s denial of compassionate release in this case.

But in fact, Tomes’ conclusion that a non-retroactive sentence amendment cannot support a motion for compassionate release amounts to dicta that we are not bound to follow. Additionally, as Owens made clear, Tomes did not foreclose the conclusion that a sentencing disparity from a non-retroactive statutory change along with other grounds for release can serve as extraordinary and compelling reasons.  See Owens, 996 F.3d at 763.  By ignoring Owens, the majority contravenes the purpose of compassionate release to grant release, based on the consideration of the defendant’s unique circumstances, to individual defendants in extraordinary situations not covered by another statute.

Apart from concerns about how it approaches circuit jurisprudence, I find the majority ruling problematic from a straight-forward application of textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  The majority here, presumably based on its own sense of sound policy, seems to be just inventing an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.

Notably, in its instructions to the US Sentencing Commission, Congress did provide expressly in statutory text that there was to be one factor that could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a):  "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  That textual exclusion reveals that Congress plainly knows how, in express statutory text, to exclude a particular reason from being alone the basis for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — in turn suggest that courts should not be inventing additional extra-textual categorical exclusions that Congress did not expressly state.  Moreover, the use of the word "alone" in § 994(t) further suggests that Congress wants even "debatable" factors that cannot alone be the basis for a reduction to be useable in combination with other factors.

Congress continuing approval of advisory guidelines after Booker, along with its pro-judicial-discretion reforms in the Fair Sentencing Act and the FIRST STEP Act, all suggest that our nation's legislature is now quite comfortable and confident granting federal district judges broad authority to consider how best to achieve sound, individualized sentencing justice in a careful case-by-case manner.  But, this Jarvis ruling reveals that some circuit judges seem to still be eager to concoct categorical limits on judicial sentencing discretion even though they do not appear expressly in the text. 

June 3, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wednesday, May 26, 2021

Notable (and huge) sentence reductions used to remedy stacked 924(c) sentences for crooked cops

As reported in this Baltimore Sun article, headlined "Corrupt former Baltimore Police officers get sentences reduced from 454 years to 20 years," a couple of crooked cops this week got their sentences reduced considerably to undo the now-repealed harshness of severe stacking mandatory minimum 924(c) counts thanks to the FIRST STEP Act.  Here is a summary from the press account:

Two former Baltimore Police officers sentenced to a combined 454 years in federal prison for shaking down citizens in the early 2000s had their prison terms reduced to 20 years each by a federal judge Monday.

U.S. District Judge Theodore D. Chuang agreed with arguments put forward by attorneys for William King and Antonio Murray earlier this year under the First Step Act, noting that since their convictions in 2006 Congress has passed sentencing reforms that would have led to significantly shorter sentences if the officers were sentenced today....

The U.S. Attorney’s Office agreed that the sentences should be reduced, but to 30 years for Murray, and 65 years for King. “Neither sentence is unreasonable given the offense conduct in this case,” Assistant U.S. Attorney Sandra Wilkinson wrote.

The officers’ attorneys noted that former Gun Trace Task Force Sgt. Wayne Jenkins, who pleaded guilty to years of robberies and drug dealing, received 25 years in prison in 2018....  Chuang agreed, saying 20 years for King and Murray “roughly corresponds with the type of sentences presently imposed in comparable police corruption cases in this District.”...

Prior to the Gun Trace Task Force case, the case of King and Murray was one of the highest-profile Baltimore police corruption cases.  The officers, who were assigned to the BPD’s public housing drug unit, were called out in the “Stop Snitching” underground video, with a man on the tape saying the officers looked out for certain drug dealers.  A man they shook down went to the FBI, and authorities launched an investigation that found the officers were detaining and robbing drug dealers.

At the time, the officers “maintained that their activities were all in furtherance of legitimate police activity in an effort to develop sources to lead to arrests of drug distributors,” said prosecutors, adding the officers claimed they used their ill-gotten money to pay informants who could help them catch those higher up in the drug gangs.  King later said the tactics were imported by the department’s New York police leadership, and blamed immense pressure to reduce crime as the reason he and some colleagues went bad.

The men were convicted of robbery, extortion, and drug and handgun offenses, which each had penalties that were “stacked” at sentencing.  The sentencing judge, J. Frederick Motz, lamented at the time that the sentences were “absolutely disproportionate to the crimes that were committed” but said he had no discretion to depart from the mandatory sentencing laws.

The opinions from the district court in these two cases can be downloaded below:

Download United States v. William King No 05-cr-00203 (May 24 2021 D. Md.)

Download United States v. Antonio Murray No 05-cr-00203 (May 24 2021 D. Md.)

May 26, 2021 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered | Permalink | Comments (0)

Saturday, May 22, 2021

Ninth Circuit panel interprets FIRST STEP amendment to statutory safety valve to greatly expand who can avoid federal mandatory-minimum sentences

A helpful reader made sure I did not miss a significant new Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here).  Here is how the opinion gets started:

Title 18 U.S.C. § 3553(f), commonly called the “safety valve,” allows a district court to sentence a criminal defendant below the mandatory-minimum sentence for certain drug offenses if the defendant meets the criteria in § 3553(f)(1) through (f)(5).  In 2018, Congress amended one of the safety valve’s provisions: § 3553(f)(1).  See First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221. Section 3553(f)(1) focuses only on a criminal defendant’s prior criminal history as determined under the United States Sentencing Guidelines. See generally 18 U.S.C. § 3553(f)(1). As amended, § 3553(f)(1) requires a defendant to prove that he or she “does not have” the following: “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense.” Id. § 3553(f)(1)(A)–(C) (emphasis added).

As a matter of first impression, we must interpret the “and” joining subsections (A), (B), and (C) under § 3553(f)(1). If § 3553(f)(1)’s “and” carries its ordinary conjunctive meaning, a criminal defendant must have (A) more than four criminal-history points, (B) a prior threepoint offense, and (C) a prior two-point violent offense, cumulatively, before he or she is barred from safety-valve relief under § 3553(f)(1).  But if we rewrite § 3553(f)(1)’s “and” into an “or,” as the government urges, a defendant must meet the criteria in only subsection (A), (B), or (C) before he or she is barred from safety-valve relief under § 3553(f)(1). Applying the tools of statutory construction, we hold that § 3553(f)(1)’s “and” is unambiguously conjunctive. Put another way, we hold that “and” means “and.”

I believe that this statutory construction means that even more federal drug defendants will be able to benefit from the statutory safety valve thanks to the FIRST STEP Act than some may have thought. But, as the main opinion explains as it concludes, it is the statutory text that ultimately matters:

We recognize that § 3553(f)(1)’s plain and unambiguous language might be viewed as a considerable departure from the prior version of § 3553(f)(1), which barred any defendant from safety-valve relief if he or she had more than one criminal-history point under the Sentencing Guidelines.  See Mejia-Pimental, 477 F.3d at 1104.  As a result, § 3553(f)(1)’s plain and unambiguous language could possibly result in more defendants receiving safety-valve relief than some in Congress anticipated.

But sometimes Congress uses words that reach further than some members of Congress may have expected.  See Bostock, 140 S. Ct. at 1749 (noting that Congress’s plain language sometimes reaches “beyond the principal evil [that] legislators may have intended or expected to address,” but courts remain obligated to give Congress’s language its plain meaning) (citation and quotation marks omitted).  We cannot ignore Congress’s plain and unambiguous language just because a statute might reach further than some in Congress expected.  See id. (“[I]t is ultimately the provisions of [Congress’s] legislative commands rather than the principal concerns of our legislators by which we are governed.”) (emphasis added) (citation and quotation marks omitted).

Section 3553(f)(1)’s plain and unambiguous language, the Senate’s own legislative drafting manual, § 3553(f)(1)’s  structure as a conjunctive negative proof, and the canon of consistent usage result in only one plausible reading of § 3553(f)(1)’s “and” here: “And” is conjunctive.  If Congress meant § 3553(f)(1)’s “and” to mean “or,” it has the authority to amend the statute accordingly.  We do not.

May 22, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes | Permalink | Comments (1)

Friday, May 21, 2021

Notable data on BOP resistance to compassionate release requests from federal prisoners

As regular readers likely surmise, I have been quite pleased that federal courts have seized their new authority under the FIRST STEP Act to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  This BOP "First Step Act" page reports that there have been a total of 3,414 "Compassionate Releases / Reduction in Sentences" approved by courts since passage of the FIRST STEP Act, but the BOP has not reported on how many of such motions have been support by the BOP.  But this week, a letter from the BOP to members of Congress (which was apparently written in mid April and can be downloaded below) provides more details on how many compassionate release requests have been made and how few have been endorsed by the BOP.

Specifically, the letter to members of Congress authored by Ken Hyle, BOP's General Counsel, reports that since March 1, 2020, a little over 30,000 compassionate release requests were made by federal prisoners,  Of that number, only 374 of these requests were recommended for approval by prison wardens and then only 36 were approved by the BOP's Director.  In other works, during global pandemic, only about 1 out of 83 requests for compassionate release got approved by a federal warden, and then less than one out of every 10 requests approved by a warden was approved by the BOP Director.

Thankfully, federal judges had a much more fulsome view of compassionate release during a pandemics.  Specifically, given that around 3250 motions for compassionate release were granted by judges during the pandemic, it seems that for every compassionate release motion found satisfactory by the BOP Director, there were an additional 90 motions that federal judges concluded were satisfactory to  justify a sentence reduction under the provisions of 18 U.S.C. § 3582(c)(1)(A).

Download Response from BOP re. compassionate release during COVID 4.16.21

May 21, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

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

Thursday, May 13, 2021

Fascinating compassionate release ruling based on clear sentencing error without other means of remedy

Regular readers are likely familiar with many of my (pre-COVID) prior posts making much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds.  A helpful reader alerted me to an especially interesting example of the granting of a sentencing reduction in US v. Trenkler, Cr. No. 92-10369 (D. Mass. May 6, 2021) (available for download below).

Trenkler is a fascinating case and opinion for many reasons, and the discussion of the case particulars and compassionate release jurisprudence more generally make Trenkler a must-read for anyone working in this space.  Here are some small snippets from the start and heart of the 50+ page opinion to encourage downloads:

Defendant Alfred Trenkler is a sixty-five-year-old federal inmate serving a life sentence for convictions stemming from his role in an October 28, 1991 bombing in Roslindale, Massachusetts that killed one Boston Police Department Bomb Squad officer and maimed a second officer.  On November 29, 1993, a jury convicted Trenkler of illegal receipt and use of explosive materials and attempted malicious destruction of property by means of explosives, in violation of 18 U.S.C. §§ 844(d), 844(i) (Counts 2 and 3), and conspiracy, in violation of 18 U.S.C. § 371 (Count 1). See Jury Verdict, ECF No. 487. Trenkler is currently incarcerated at the U.S. Penitentiary in Tucson, Arizona (“USP Tucson”).  Defendant moves for compassionate release, asserting that extraordinary and compelling circumstances warrant his release based on (1) the COVID-19 pandemic, particularly in light of his documented heart condition and the outbreak that has left at least 1009 inmates infected with COVID-19 over the past year at USP Tucson; and (2) what Trenkler characterizes as a series of miscarriages of justice that call into question his convictions and sentence....  The Court reduces Trenkler’s sentence to a term of 41 years, followed by a term of supervised release of 3 years... 

In addition to the risks associated with the COVID-19 pandemic, Trenkler urges the Court to reduce his sentence to time served in light of the “unique circumstances” surrounding his case.  Those unique circumstances, in Trenkler’s view, include questions surrounding his guilt and the fundamental unfairness of his conviction; the disproportionality of his sentence as compared to Shay, Jr.’s sentence; and his unlawfully imposed life sentence.

[Despite limits in AEDPA concerning habeas petitions,] now Congress has spoken again [via the FIRST STEP Act].  And this time it has given trial judges broad authority — indeed it has imposed a statutory duty, upon a defendant’s motion — to conduct an individualized review of the defendant’s case for extraordinary and compelling circumstances that call out for correction....  [A series of discussed] cases — and others like them — leave no question that this Court may conclude that a legal error at sentencing constitutes an extraordinary and compelling reason, and reduce the sentence after conducting an individualized review of the case....

Here, it is both extraordinary and compelling that (1) a judge sentenced a defendant to life imprisonment using a preponderance of the evidence standard where the controlling statute provided that a life sentence could be imposed only by the jury; and (2) there exists no available avenue for relief from this legal error.

Download Trenkler CR opinion

May 13, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, May 09, 2021

Split Eleventh Circuit panel creates circuit split over compassionate relief criteria after FIRST STEP Act

I have blogged in recent months about a significant number of significant circuit rulings addressing the reach and application of the sentence modification provisions amended by the federal FIRST STEP Act.  The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, rightly in my view, that district courts now have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  Since then, there have been somewhat similar opinions from the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine "extraordinary and compelling" reasons that may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion (see rulings linked below). 

But this past Friday, a split Eleventh Circuit panel issued the first major ruling in this area that breaks with the jurisprudence developed in these other circuits.  The majority opinion in US v. Bryant, No. 19-14267 (11th Cir. May 7, 2021) (available here), gets started this way:

Thomas Bryant is a corrupt former police officer who was sentenced to prison for running drugs and guns. He filed a motion seeking a reduction in his sentence under 18 U.S.C. § 3582(c)(1)(A), and the district court denied that motion based on the Sentencing Commission’s policy statement found at U.S.S.G. § 1B1.13.  In resolving Bryant’s appeal, we must answer two questions about the relationship between Section 3582(c)(1)(A) and 1B1.13.

First, we must decide whether district courts reviewing defendant-filed motions under Section 3582(c)(1)(A) are bound by the Sentencing Commission’s policy statement.  Under Section 3582(c)(1)(A), a court can reduce an otherwise final sentence for “extraordinary and compelling reasons,” as long as the reduction is “consistent with applicable policy statements issued by the Sentencing Commission.”  The statute commands the Commission to publish a policy statement that defines “extraordinary and compelling reasons,” 28 U.S.C. § 994(t), and the Commission did: 1B1.13, which is entitled “Reduction in Term of Imprisonment under 18 U.S.C. § 3582(c)(1)(A).”  At the time, the statute required all motions to be filed by the BOP.  The policy statement repeats that then-existing statutory language and, in its application notes, lists several circumstances that are “extraordinary and compelling reasons” that justify a sentence reduction.

So far, so good.  But after Congress changed the statute to allow defendants to file motions in addition to the BOP, several of our sister circuits have held that 1B1.13 is not an “applicable policy statement[]” for those defendant-filed motions.  This is so, they say, because the policy statement, quoting the pre-existing statute’s language, begins with the following phrase: “Upon motion of the Director of the Bureau of Prisons.”  Based mostly on that language, our sister circuits have held that this policy statement is not an “applicable policy statement” that binds judicial discretion as to defendant-filed motions.

We disagree with that reasoning.  The statute’s procedural change does not affect the statute’s or 1B1.13’s substantive standards, specifically the definition of “extraordinary and compelling reasons.”  The Commission’s standards are still capable of being applied and relevant to all Section 3582(c)(1)(A) motions, whether filed by the BOP or a defendant.  And the structure of the Guidelines, our caselaw’s interpretation of “applicable policy statement,” and general canons of statutory interpretation all confirm that 1B1.13 is still an applicable policy statement for a Section 3582(c)(1)(A) motion, no matter who files it.

Second, because we conclude that 1B1.13 is an applicable policy statement, we must determine how district courts should apply that statement to motions filed under Section 3582(c)(1)(A).  Bryant argues that Application Note 1(D) of 1B1.13 conflicts with the statute’s recent amendment.  As a catch-all provision, Application Note 1(D) says that a court may grant a motion if, “[a]s determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).”  Bryant argues that, because the statute now allows for defendant-filed motions, we should replace “as determined by the [BOP]” with “as determined by the [court].”  This alteration to the policy statement would give courts effectively unlimited discretion to grant or deny motions under Application Note 1(D).

But we cannot do that. Application Note 1(D) is not inconsistent with the procedural change in the statute that allows defendants to file motions.  Because we can apply both the amended Section 3582(c)(1)(A) and Application Note 1(D), we must apply both.

In short, 1B1.13 is an applicable policy statement for all Section 3582(c)(1)(A) motions, and Application Note 1(D) does not grant discretion to courts to develop “other reasons” that might justify a reduction in a defendant’s sentence. Accordingly, we affirm.

Judge Martin's dissent gets started this way:

Today’s majority opinion establishes the Eleventh Circuit as the only circuit to limit an inmate’s ability to get compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons (“BOP”).  Our precedent now allows no independent or individualized consideration by a federal judge as plainly intended by the First Step Act.  And this limitation on compassionate release is based on an outdated policy statement from a Sentencing Commission that has lacked a quorum since the First Step Act became law.  The problems that arise from the majority’s reliance on the outdated policy statement are compounded by the majority’s express decision to strike (or ignore) language from the policy statement.  Sadly, this result reinstates the exact problem the First Step Act was intended to remedy: compassionate release decisions had been left under the control of a government agency that showed no interest in properly administering it.  With all respect due, I dissent.

A few of many, many prior related posts:

May 9, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Wednesday, May 05, 2021

New Urban Institute resources on FIRST STEP Act prison particulars

I learned today via email about two notable new resources from the folks at the Urban Institute engaging with some of the intricacies of the prison reform elements of the FIRST STEP Act. 

First, this posting by Emily Tiry and Julie Samuels, titled "Three Ways to Increase the Impact of the First Step Act’s Earned Time Credits," suggests how this piece of the Act could be improved. Here is a snippet:

The 2018 First Step Act—the first major federal criminal justice reform legislation in nearly a decade—established earned time credits (ETCs) to provide early release opportunities for people incarcerated in the federal Bureau of Prisons (BOP).

But to date, implementation of the ETC program has fallen short of expectations. No one has been released early via ETCs, it remains unclear how many — or if any — have actually received any ETCs, and BOP’s proposed rules for accruing and applying credits are restrictive and incomplete.

Though the COVID-19 pandemic has interfered with ETC implementation plans by severely disrupting available programming, without changes now, the outlook for ETCs having a meaningful impact on opportunities for early release is bleak....  Although the progress so far has been disappointing, we suggest three ways to maximize the ETC system’s impact. The first would require congressional action; BOP could make the other two changes on its own. 

Second, this new resource, titled "The First Step Act’s Risk Assessment Tool: Who is eligible for early release from federal prison?," walks through the risk assessment instrument now applied to all federal prisoners. Here is how the resource is set up (links from original):

The First Step Act offers people incarcerated in federal prison the opportunity to earn credits toward early release.  To help determine who is eligible (after excluding people with certain prior offenses), the US Department of Justice created the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN), a risk assessment tool that predicts the likelihood that a person who is incarcerated will reoffend.  This interactive version of PATTERN shows how each risk factor raises or lowers a person’s risk score and can estimate whether they qualify for early release.

May 5, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Tuesday, May 04, 2021

SCOTUS argument in Terry suggests low-level crack defendant unlikely to secure resentencing based on FSA retroactivity

On Tuesday morning, the Supreme Court heard oral argument in Terry v. United States, and the full oral argument is available here via C-SPAN.  The full argument runs nearly 90 minutes and the quality of the advocacy makes it worth the full listen.  But one can get a much quicker flavor of the tenor of the discussion from just a scan of the headlines of these press accounts of the argument:

From the AP, "Supreme Court skeptical of low-level crack offender’s case"

From Bloomberg Law, "Biden Switch Unlikely to Save Crack Offenders at Supreme Court"

From Law & Crime, "Biden Administration Flip-Flopped Its Position in Case Over Crack Cocaine Sentences. SCOTUS Did Not Seem Pleased."

From Reuters, "U.S. Supreme Court skeptical of expanding crack cocaine reforms"

From USA Today, "Supreme Court skeptical of applying Trump-era criminal justice law retroactively for small drug offenses"

From the Washington Post, "Supreme Court seems skeptical that law helps all convicted of crack cocaine offenses"

All the "skeptical" questions from the Justices certainly leaves me thinking that the Supreme Court will rule that Tarahrick Terry is not entitled to resentencing under the FIRST STEP Act provision making the Fair Sentencing Act retroactive.  That may not ultimately be such a big loss for Mr. Terry since, as the Acting SG explained to SCOTUS back in March, he is already finishing up his prison sentence through home confinement and that term is to be completed in September.  I am hopeful that the relatively small number of similarly situated defendants who would be adversely impacted by a Terry loss would have some similar silver lining.

Prior related posts:

May 4, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

New federal defender laments BOP's response to COVID and the FIRST STEP Act

The Federal Public and Community Defenders sent this new letter today to Senate Judiciary Committee leaders to follow up on the April 15 oversight hearing concerning the Federal Bureau of Prisons.  The 16-page letter covers a lot of ground, and here are excerpts:

For too long, DOJ and BOP have ignored congressional directives to prioritize the safety and rehabilitation of individuals in its custody, and left tools provided by Congress unused. These failures have been exacerbated by a culture that bends towards opacity and against accountability.  We urge Congress to intervene.  At minimum, it must strengthen and increase its oversight of DOJ and BOP to help ensure that federally incarcerated persons remain safe and that Congress’ vision for sentencing and prison reform is realized.  At best, it will enact legislation to smartly and swiftly lower prison populations and to move vulnerable individuals to a place of relative safety.

For the past 13 months, COVID-19 has torn through BOP facilities.  Meanwhile, BOP has failed to take the necessary steps — or to use available resources — to remediate the pandemic’s risk. Even now, despite the increased availability of vaccines across the country, COVID-19 remains a lifethreatening risk to those in BOP custody.  The death count of incarcerated individuals continues to mount, and conditions in federal detention facilities remain dire....

BOP and DOJ have failed to use the tools Congress gave them to safely lower prison populations.  The failure by DOJ and BOP to use tools to move vulnerable individuals to a place of relative safety — either by transferring them to home confinement or by seeking their release through compassionate release — has exacerbated the consequences of substandard medical treatment and care in BOP....

The First Step Act of 2018 (FSA) was intended to shorten certain federal prison sentences and to reorient the federal prison system away from pure punishment and towards rehabilitation.  The FSA’s ameliorative sentencing provisions have made significant strides: as of September 28, 2020, BOP has released 2,509 individuals who qualified for retroactive Fair Sentencing Act of 2010 relief. 

But since the FSA’s enactment, little has been done to advance the Act’s core prison reform: a system designed to reduce recidivism risk by offering individuals incentives in exchange for their participation in evidence-based programming and productive activities.  To create that system, the FSA directed the DOJ to dramatically expand programming in BOP facilities, and to develop a risk and needs assessment system (“RNAS”) that could determine “the recidivism risk of each prisoner” and “the type and amount of evidence-based recidivism reduction programming for each.”  Unfortunately, DOJ and BOP have failed to meet the programming or RNAS mandates and have undercut the promise of the FSA by promulgating restrictive policies behind closed doors....

Even prior to the pandemic, BOP had a long history of not providing sufficient programs.  Because the recidivism-reduction efforts of the FSA are meaningless without adequate programming, and in light of the IRC’s warning, we are deeply concerned that BOP does not have a plan of action to comply with the FSA requirement that BOP “provide all prisoners with the opportunity to actively participate in evidence-based recidivism reduction programs or productive activities according to their specific criminogenic needs, throughout their entire term of incarceration.”  BOP’s past performance, with inconsistent access and quality across institutions, makes it difficult to have confidence that BOP will meet its statutory obligations in this regard.  We hope that Congress will continue to closely oversee BOP’s efforts on this front, and to appropriate sufficient funding to support adequate programming.

May 4, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, May 03, 2021

Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio

It was 35 years ago, amid intense media coverage of a "crack epidemic" and the overdose death of basketball star Len Bias, when Congress passed the Anti-Drug Abuse Act of 1986 with the 100-to-1 powder/crack cocaine quantity ratio defining severe mandatory minimum sentencing terms.  As the US Sentencing Commission explained in this 1995 report, Congress "dispensed with much of the typical deliberative legislative process, including committee hearings," when enacting this law, and "the abbreviated, somewhat murky legislative history simply does not provide a single, consistently cited rationale for the crack-powder cocaine penalty structure."  Though the 100-to-1 ratio lacked any sound rationale in 1986, thousands of disproportionately black persons started receiving disproportionately severe statutory and guideline sentences for crack offenses in the years that followed.

Not long thereafter, in 1991 the US Sentencing Commission detailed to Congress that "lack of uniform application [of mandatory minimums] creates unwarranted disparity in sentencing" and that data showed "differential application on the basis of race."  Giving particular attention to cocaine sentencing, in 1995 the US Sentencing Commission explained to Congress that there was considerable racial disparity resulting from the 100-1 quantity ratio and that sound research and public policy might "support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 quantity ratio cannot be recommended."  In other words, three decades ago, an expert agency told Congress that mandatory minimums were generally bad policy and created racial injustice; over a quarter century ago, that agency also told Congress that crack minimums were especially bad policy and created extreme racial injustice.

In a sound and just sentencing universe, these reports and recommendations would have prompted immediate action.  But it took Congress another full 15 years to even partially address these matters.  After tens of thousands of persons were sentenced under the 100-to-1 ratio, Congress finally in 2010 passed the Fair Sentencing Act to increase the amount of crack need to trigger extreme mandatory minimum sentences.  The FSA did not do away with any mandatory minimums, and it still provided for much smaller quantities of crack to trigger sentences as severe as larger quantities of powder, but it still bent the arc of the federal sentencing universe a bit more toward justice.  However, it did so only prospectively as Congress did not provide for retroactive application of its slightly more just crack sentencing rules in the FSA.

Eight years later, Congress finally made the Fair Sentencing Act's reforms of crack sentences retroactive through the FIRST STEP Act. But, of course, no part of this story lacks for drama and racialized trauma, as the reach of retroactivity remains contested in some cases.  So, the Supreme Court will be hearing oral argument on Tuesday, May 4 in Terry v. US to determine if Tarahrick Terry, who was sentenced in 2008 to over 15 years in prison after being convicted of possessing with intent to distribute about 4 grams of crack cocaine, can benefit from the FIRST STEP Act's provision to make the Fair Sentencing Act reforms retroactive.

All the briefing in Terry is available here at SCOTUSblog, and Ekow Yankah has a great preview here titled "In final case the court will hear this term, profound issues of race, incarceration and the war on drugs." Here is how it starts:

Academics naturally believe that even obscure cases in their field are underappreciated; each minor tax or bankruptcy case quietly frames profound issues of justice.  But, doubtful readers, rest assured that Terry v. United States — which the Supreme Court will hear on Tuesday in the final argument of its 2020-21 term — packs so many swirling issues of great importance into an absurdly little case, it can hardly be believed.  The national debate on historical racism in our criminal punishment system?  Yes.  Related questions of how we address drug use with our criminal law rather than as a public health issue?  Undoubtedly.  Redemption after committing a crime? Of course.  The ramifications of a contested presidential election?  Sure.  The consequences of hyper-technical statutory distinctions on the fate of thousands?  Goes without saying.  A guest appearance by a Kardashian?  Why not.

Henry Gass at the Christian Science Monitor has another great preview piece here under the headline "On the Supreme Court docket: Fairness, textualism, and crack cocaine."  Here is an excerpt:

Mr. Terry’s punishment followed war-on-drugs-era federal guidelines that treated a gram of crack cocaine 100 times worse than a gram of powder cocaine.  The sentencing disparity has come to be viewed, by critics spanning the political spectrum, as one of the great injustices of the war on drugs.  It’s been one of the key drivers of mass incarceration, those critics say, in particular subjecting thousands of low-level offenders — the vast majority young people of color – to long prison terms.

In the past decade Congress has reduced almost all of those sentences — all except for Mr. Terry, and thousands of low-level crack offenders like him.  It’s a deferral of justice that has brought him into an unlikely alliance with congressional leaders from both parties, as well as former federal judges, prosecutors, and, latterly, the Biden administration.

On Tuesday it will bring him to the U.S. Supreme Court, when the justices will hear arguments on whether this vestige of the tough-on-crime era should be eliminated.  His case is relatively narrow and technical, but in a country — and a Congress — that has come to roundly condemn drug policies like the crack powder sentencing disparity, it’s significant.

May 3, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, April 30, 2021

Great example of clemency leading to more compassion ... in the form of compassionate release thanks to FIRST STEP Act reforms

I am not sure if anyone is trying to make a comprehensive list of the wide array of factors that federal courts have referenced in granting sentence reductions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) ever since the FIRST STEP Act allowed federal courts to directly reduce sentence without awaiting a motion by the Bureau of Prisons.  Thankfully, district and circuit court have consistently recognized that, in the word of the Second Circuit in US v. Brooker, 976 F.3d 228 (2d Cir. 2020), the "First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release."  And, via this new Law360 article, headlined "Ex-Detroit Mayor Ally Released From Prison Years Early," I saw a new opinion with a particularly notable reason given for such a reduction.  Here  are the basics and context from the article:

A former contractor and co-defendant to ex-Detroit Mayor Kwame Kilpatrick on Thursday was granted compassionate release from prison after serving eight years of a 21-year sentence over a municipal bribery and kickback scheme, with the judge citing health problems and the fact Kilpatrick had his sentence commuted. U.S. District Judge Nancy Edmunds reduced the sentence for Bobby Ferguson, 52, to time served, noting his underlying medical conditions that place him at grave risk were he to contract COVID-19, and the fact that Kilpatrick — the much more culpable defendant in the case — in January was granted a reprieve by former President Donald Trump.

Judge Edmunds said at the time of the original sentencing there were "serious differences" between Ferguson's conduct and that of Kilpatrick — the mastermind of the pay-to-play scheme to exchange city business for bribes and kickbacks.  That Ferguson is left facing a prison term more than twice as long as Kilpatrick served constitutes an "extraordinary and compelling" reason to grant Ferguson compassionate release, she said.  "He was not the driver of the bus; that was Mr. Kilpatrick, where the power resided," Judge Edmunds said.

Michigan federal prosecutors had strongly opposed granting Ferguson compassionate release, calling Kilpatrick's commutation "wrongful" and highlighting Ferguson's earlier convictions for assault and other alleged misdeeds.  The government also disputed that Ferguson's hypertension, diminished lung capacity due to an injury and high cholesterol merited an early release.   The government further argued that Ferguson had not exhausted his administrative remedies with the Bureau of Prisons, since he had only petitioned the prison warden for compassionate release based on his health issues and not the disparity in sentence that resulted from Kilpatrick's release.

However, Judge Edmunds said she was persuaded by other court decisions in finding that so-called "issue exhaustion" is not required for compassionate release. She also noted his prior violent crimes occurred decades ago, and that Ferguson hasn't displayed any such "hotheadedness" while incarcerated.

The full 11-page ruling this case is available at this link, and here is a key passage:

Defendant now faces the prospect of a period of incarceration much longer than a more culpable co-defendant.  At the time of sentencing, the Court noted there were “serious differences” between Defendant’s conduct and that of Mr. Kilpatrick. (ECF No. 493, PgID 16285.)  More specifically, Defendant was not an elected official and had been charged with and convicted of a substantially smaller number of charges. (Id.) The Court therefore concluded that Defendant deserved a shorter sentence than Mr. Kilpatrick and ultimately sentenced Defendant to a term of imprisonment 75% as long as Mr. Kilpatrick’s sentence. That Defendant now faces a period of incarceration more than twice as long as the time Mr. Kilpatrick served is both extraordinary and compelling.  See United States v. Sapp, No. 14-cr-20520, 2020 U.S. Dist. LEXIS 16491, at *5 (E.D. Mich. Jan. 31, 2020) (defining “extraordinary as beyond what is usual, customary, regular, or common” and “a compelling reason as one so great that irreparable harm or injustice would result if the relief is not granted”) (internal quotation marks and citation omitted).

The government argues that avoiding unwarranted sentence disparities, one of the § 3553(a) factors, should not be part of this step of the analysis and that taking this into account would contravene the interest in finality of sentences.  The Sixth Circuit has held, however, consistent with all other circuit courts that have addressed this issue, that district courts have “full discretion” to define extraordinary and compelling reasons. See Jones, 980 F.3d at 1109; see also Brooker, 976 F.3d at 237 (noting that “a district court’s discretion in this area — as in all sentencing matters — is broad”). The only statutory limit on what a court may consider to be extraordinary and compelling is that rehabilitation alone is not sufficient.  See 28 U.S.C. § 994(t).  That particular circumstances may also factor into the Court’s analysis under § 3553(a) has no bearing on whether they can be considered extraordinary and compelling.  And, here, the disparity only arose recently due to the unique circumstance of a co-defendant being granted a Presidential commutation.

While the finality of sentences is an important principle, the compassionate release provision of § 3582(c) “represents Congress’s judgment that the generic interest in finality must give way in certain individual cases and authorizes judges to implement that judgment.”  See United States v. McCoy, 981 F.3d 271, 288 (4th Cir. 2020) (internal quotation marks and citation omitted).  The Court finds this to be an appropriate case in which to do so. Not only has Defendant served a slightly longer term of imprisonment than a more culpable co-defendant, but his motion comes during an unprecedented global pandemic and Defendant has an increased vulnerability to the virus.

April 30, 2021 in Clemency and Pardons, FIRST STEP Act and its implementation, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, April 15, 2021

Heard at BOP oversight hearing: "Simply put, our prison system at the federal level is failing."

The quote in this title of this post is sentence from the opening statement by Senator Dick Durbin during this morning's hearing titled "Oversight of the Federal Bureau of Prisons" before the US Senate Judiciary Committee. The only witness for this hearing is Michael Carvajal, the Director of the Federal Bureau of Prisons, and I had hoped by now that there might be publicly available some written testimony from him (as well as official statements from Senator Durbin or others).  Lacking such available written statements as of 10:30am today, I guess I need to do a little "live blogging."  Specifically, how about this from Senator Chuck Grassley's opening statement:

"I consider the passage of the First Step Act as one of the good things I have done since being a Senator.  It's because of the hard work and overwhelmingly bipartisan nature of the First Step Act that I am disheartened with the lackluster implementation.

"It seems as though the Justice Department -- and within that Department, the Bureau of Prisons -- are implementing the First Step Act as if they want it to fail.  I hope this isn't true, but action speak louder than words, and the inaction of the Justice Department and BOP on this paints a very difficult picture."

UPDATE: I new see, as of 11:30pm EDT, that the written testimony of Director Carvajal is now available here.  It runs eight pages, and here are a few notable data points from the statement:

Since March of last year, we have transferred approximately 24,000 inmates to home confinement, with almost 7,000 transferred directly under the CARES Act, a 250% increase in home confinement placements since the beginning of the pandemic....

The Bureau manages the health and treatment of approximately 140,000 inmates in Bureau facilities and RRCs. As of April 6, 2021, the Bureau had 406 positive COVID-19 inmate cases and 47,227 inmates recovered in our federal prisons, while there were 51 positive cases in our RRCs and 55 positive cases in home confinement. With respect to staff, there were 1,243 positive cases and 5,532 recovered cases. Sadly, there have been 4 staff deaths and 230 inmate deaths from COVID-19....

Despite the pandemic, the Bureau is on track to meet the requirements of the First Step Act (FSA).  While the global pandemic certainly impacted the delivery of FSA programs in institutions, critical services such as mental health care, crisis intervention, and religious services have continued unabated throughout the pandemic.  As we have learned more about virus mitigation strategies and begun the process of vaccinating staff and inmates, we have been able to resume much of our programming.  As of April 1, 2021, over 49,000 inmates were enrolled in Evidence-Based Recidivism Reduction (EBRR) Programs and Productive Activities (PA).  With respect to inmate eligibility for FSA Time Credit, of approximately 124,000 inmates reviewed for eligibility, approximately 50% are eligible.

ANOTHER UPDATE: I just saw a copy of the detailed written submitted testimony of Kevin Ring, FAMM President.  Here are excerpts from page one of the lengthy submission:

FAMM was established 30 years ago. During the past few decades, we have learned a great deal about the hardship people in federal prison endure.  Prison is never easy, even under the best of circumstances.  However, the past year has been by far the most difficult year for people in prison and their loved ones that we have ever witnessed.  We appreciate that everyone in the country was affected by the spread of COVID-19 and resulting lockdowns and disruptions, and we acknowledge the unprecedented challenges the leadership of the Bureau of Prisons (BOP) had to face.  Our firm conclusion is that the BOP failed in several ways and that these failures were compounded by an inexplicable and infurating lack of transparency.

I fear we cannot adequately convey to you the desperation, fear, separation, and hardship that we have felt from the families we work with every day.  We asked some of them to share their firsthand experiences with us, so that we could paint a clearer picture of what transpired and how they felt.  Their observations are included in our comments below and in the addendum to this testimony.  The BOP ignored their voices throughout the past year and denied them basic information about the health and safety of their loved ones.

This statement includes a small portion of the concerns articulated by families.  In particular, we have highlighted their concerns regarding healthcare and the management of COVID-19 spread; the appalling conditions resulting from altered operations of the past year; the BOP’s lack of transparency with families and the public; underutilization of release mechanisms intended to protect prisoners; and lacking implementation of the First Step Act.  We share these families’ voices with you in the hope that will finally be heard and that they will inform your oversight.

April 15, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Thursday, April 08, 2021

Ninth Circuit provides yet another ruling on post-FIRST STEP Act federal compassionate release authority

When it rains it pours, at least wih respect to compasionate release rulings these days.  In this last post, I called a Fifth CIrcuit decision handed down yesterday the latest such ruling.  But, thanks to people on Twitter smarter than me, I learned that the Ninth Circuit issues a ruling on this topic today in US v. Aruda, No. 20-10245 (9th Cir. April 8, 2021) (available here). Here is the start and a key paragrph of the ruling:

Patricia Aruda appeals from the district court’s order denying her motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).  We hold that the current version of U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.13 is not an “applicable policy statement[] issued by the Sentencing Commission” for motions filed by a defendant under the recently amended § 3582(c)(1)(A).  Because the district court relied on U.S.S.G. § 1B1.13, we vacate and remand so that the district court can reassess Aruda’s motion for compassionate release under the correct legal standard....

We agree with the persuasive decisions of our sister circuits and also hold that the current version of U.S.S.G. § 1B1.13 is not an “applicable policy statement[]” for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant.  In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to § 3582(c)(1)(A) motions filed by a defendant.  The Sentencing Commission’s statements in U.S.S.G. § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding. See Gunn, 980 F.3d at 1180.

A few of many, many prior related posts:

April 8, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Fifth Circuit latest to issue notable ruling on federal compassionate release authority after the FIRST STEP Act

Last week brought a number of notable Tenth Circuit opinions regarding compassionate release authority after the FIRST STEP Act, as discussed in posts here and here.  A helpful reader made sure I did not miss the latest circuit ruling of note in this arena, this one coming from the Fifth Circuit in US v. Shkambi, No. 20-40543 (5th Cir. April 7, 2021) (available here).  Here is the start and some key parts of the ruling (with some cites removed):

The question presented is whether the U.S. Sentencing Commission’s compassionate-release policy statement binds district courts in considering prisoners’ motions under the First Step Act (“FSA”). The district court said yes and dismissed Francesk Shkambi’s motion for lack of jurisdiction. That was wrong for two reasons. First, the district court did have jurisdiction. And second, the policy statement is inapplicable. We reverse and remand....

The district court nevertheless thought itself bound by the old preFSA policy statement that appears in § 1B1.13.  That was error for three reasons.

First, the text of § 1B1.13 says it only applies to “motion[s] of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13. That makes sense because in 2006 (when the Sentencing Commission issued the policy statement) and in November of 2018 (when the Commission last amended it), the BOP had exclusive authority to move for a sentence reduction. When Congress enacted the FSA in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates.  So the policy statement continues to govern where it says it governs — on the “motion of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13.  But it does not govern here — on the newly authorized motion of a prisoner.

Second, the text of the commentary confirms the limited applicability of § 1B1.13. Application note 4 of the commentary makes clear that a “reduction under this policy statement may be granted only upon a motion by the Director of the Bureau of Prisons.”  U.S.S.G. § 1B1.13 cmt. n.4 (emphasis added).  That note expressly limits the policy statement’s applicability to motions filed by the BOP.

Third, the district court cannot rely on pieces of text in an otherwise inapplicable policy statement.  See United States v. McCoy, 981 F.3d 271, 282 (4th Cir. 2020) (refusing to “do some quick judicial surgery on § 1B1.13 . . . [and] assume that what remains . . . applies to defendant-filed as well as BOP filed motions”).  It’s true that application note 1 defines “extraordinary and  compelling reasons” by articulating four categories of reasons that could warrant a sentence reduction. But this “text may not be divorced from context.” United States v. Graves, 908 F.3d 137, 141 (5th Cir. 2018)....  And the context of the policy statement shows that it applies only to motions filed by the BOP.  Just as the district court cannot rely on a money-laundering guideline in a murder case, it cannot rely on the BOP-specific policy statement when considering a non-BOP § 3582 motion.

For these reasons, we conclude that neither the policy statement nor the commentary to it binds a district court addressing a prisoner’s own motion under § 3582.  The district court on remand is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a). In reaching this conclusion, we align with every circuit court to have addressed the issue.  See United States v. McGee, --- F.3d ---, 2021 WL 1168980, at *12 (10th Cir. Mar. 29, 2021); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); McCoy, 981 F.3d at 284; Jones, 980 F.3d at 1111; Brooker, 976 F.3d at 234.

A few of many, many prior related posts:

April 8, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, April 01, 2021

Tenth Circuit issues another notable ruling on federal compassionate release authority after the FIRST STEP Act

I flagged here earlier this week the notable Tenth Circuit opinion regarding compassionate release authority after the FIRST STEP Act in US v. McGee, No. 20-5047 (10th Cir. Mar. 29, 2021) (available here).  A helpful reader made sure I did not miss a similar ruling also from the Tenth Circuit today in US v. Maumau, No. 20-4056 (10th Cir. April 1, 2021) (available here).  The Maumau name may sound familiar because, as noted here, the district court ruled "that the changes in how § 924(c) sentences are calculated" after the FIRST STEP Act could help serve as a "compelling and extraordinary reason" to justify resentencing.  The Tenth Circuit today affirms that ruling today in an extended opinion that makes these points at the end of the opinion:

In its third and final issue, the government argues that, “[i]n addition to the controlling [statutory] texts, the relevant legislative history and the structure of the sentencing system also show that a court cannot use the compassionate release statute to override a mandatory sentence based on the court’s disagreement with the required length” of such a sentence.  Aplt. Br. at 39-40.  The underlying premise of this argument is that the district court in the case at hand granted relief to Maumau based upon its disagreement with the length of his statutory sentence.

We reject the government’s argument because its underlying premise is incorrect.  Nothing in the district court’s decision indicates that the district court granted relief to Maumau based upon its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions.  Nor was the district court’s decision based solely upon its disagreement with the length of Maumau’s sentence in particular.  Rather, the district court’s decision indicates that its finding of “extraordinary and compelling reasons” was based on its individualized review of all the circumstances of Maumau’s case and its conclusion “that a combination of factors” warranted relief, including: “Maumau’s young age at the time of” sentencing; the “incredible” length of his stacked mandatory sentences under § 924(c); the First Step Act’s elimination of sentence-stacking under § 924(c); and the fact that Maumau, “if sentenced today, . . . would not be subject to such a long term of imprisonment.”

A few of many, many prior related posts:

April 1, 2021 in FIRST STEP Act and its implementation, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, March 31, 2021

Might we be getting closer to (needed) new nominees for the "frozen" US Sentencing Commission?

I was so excited to see Prez Biden announce his first slate of judicial nominations in part because I have been presuming that we would not get needed nomination to the US Sentencing Commission until at least some judge nominees were first put forward.  (Ever the fan of semantic technicalities, I think we should also call any nomination to the USSC to be "judicial nominees" given that the USSC is the only agency located in the judicial branch.)  Adding to my excitement is this recent Roll Call article suggesting that nominations are in the works and may be able to be advanced quickly through Congress in a bipartisan manner.  I recommend the lengthy Roll Call article in full, and its full title highlights its themes: "Help wanted: Revived commission could spark criminal justice changes: Key judicial agency hasn’t had enough members to function for years." Here are excerpts:

The judicial agency that sets such policies hasn’t had enough members to function for years.  “What’s happened is, we’re frozen in time,” said Senior U.S. District Judge Charles R. Breyer, the lone remaining member of the seven-person U.S. Sentencing Commission.

That could soon change.  The Biden administration has reached out to key lawmakers and the criminal justice community for guidance on a slate of appointments to revive the sentencing commission, a move that also could influence congressional efforts to further change the nation’s criminal justice system.

President Joe Biden will make those picks against the backdrop of a simmering debate about fairness in the nation’s criminal justice system, after a summer of social unrest related to police misconduct sparked a focus on racial inequity in the criminal justice system more broadly.  Advocates say sentencing is a crucial consideration when it comes to overhaul.  A bipartisan group of senators on Friday reintroduced a broad sentencing overhaul bill, which includes provisions that direct the sentencing commission to act to implement it....

The commission must include two additional federal judges, and no more than four members can be from the same political party.  The Senate must approve the members.  The last confirmation vote was for Breyer’s reappointment, four years ago this month, at the beginning of Donald Trump’s presidency.  Breyer is the brother of Supreme Court Justice Stephen G. Breyer, and his term on the commission expires in October.

Trump made nominations for the sentencing commission, including two federal judges with reputations for tough-on-crime approaches.  But those nominees went nowhere because they raised concerns from civil rights groups, Senate Democrats and Iowa Republican Sen. Charles E. Grassley about whether those members would carry out the changes in the 2018 law known as the First Step Act.  Grassley, when he was chairman of the Judiciary Committee, championed the bill with now-Chair Richard J. Durbin of Illinois.  The Senate passed the bill, 87-12, and it became one of Congress’ few major bipartisan accomplishments in recent years.

Grassley said this week that he has had conversations that indicate the Biden administration is working to avoid Senate confirmation problems for a slate of nominees to the sentencing commission “because both they — the White House —and this senator, and I’m sure a lot of other senators, want to get the commission up and running so it can do its work.”

Durbin said in a written response to questions that the commission “can play a vital role in sentencing reform by informing Congress about federal sentencing developments.” But he also hinted at broader aims for the commission. “For too long, federal sentencing policies have had a disparate impact on Black and brown Americans,” Durbin said. “Our sentencing policies have to reflect fairer standards.”...

Breyer said the Judicial Conference is currently considering a list of judges to submit to the White House for consideration, and he anticipates that the White House will put forward a slate of six nominees.  Until then, he said, “I think we’re in crisis.” The sentencing structure was designed to change over time and be guided by experience, he said.  “And it’s an understandable tendency that if the guidelines don’t reflect reality that they’re ignored or given less weight,” Breyer added.  

A few prior recent related posts:

March 31, 2021 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Tuesday, March 30, 2021

Tenth Circuit becomes the latest circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act

I was pleased to see late yesterday another important circuit ruling on the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts, I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Not long thereafter, the Fourth, Sixth, and Seventh Circuits issued somewhat similar opinions generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion.  Yesterday, the Tenth Circuit joined the fun with its extended panel opinion in US v. McGee, No. 20-5047 (10th Cir. Mar. 29, 2021) (available here).  Here is how this opinion gets started:

In November 2000, defendant Malcom McGee was convicted by a jury of three criminal counts: (1) conspiracy to possess with intent to distribute one kilogram or more of a mixture of substance containing a detectable amount of PCP, in violation of 21 U.S.C. § 846; (2) causing another person to possess with intent to distribute in excess of one kilogram of a mixture or substance containing a detectable amount of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), and 18 U.S.C. § 2(b); and (3) using a communication facility to commit and facilitate the commission of a felony, in violation of 21 U.S.C. § 843(b).  Because McGee had previously been convicted in the State of California of two felony drug offenses, the district court sentenced McGee to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).

Following Congress’s enactment of the First Step Act of 2018 (First Step Act) and the changes the First Step Act made to both § 841(b)(1)(A) and 18 U.S.C. § 3582(c)(1)(A), McGee filed a motion with the district court pursuant to § 3582(c)(1)(A)(i) to reduce his sentence based on “extraordinary and compelling reasons.”  The district court denied that motion.  McGee now appeals.  Exercising jurisdiction pursuant to 28 U.S.C. § 2241, we reverse and remand to the district court for further consideration of McGee’s motion.

Though there are various elements to the McGee ruling, I was especially glad to see the panel explain effectively why it was improper for the district court to decide it could not grant a sentence reduction simply because Congress has not (yet) decided to make the sentencing changes in the FIRST STEP Act fully retroactive.  Here is part of the court's discussion on this point (emphasis in the original):

The plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A).  But nothing in § 401(c) or any other part of the First Step Act indicates that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants.  Indeed, as the Fourth Circuit noted in McCoy, Congress’s purpose in enacting § 3582(c)(1)(A) was to provide a narrow avenue for relief “when there is not a specific statute that already affords relief but ‘extraordinary and compelling reasons’ nevertheless justify a [sentence] reduction.” Id. at 287 (emphasis in original).  Thus, the possibility of a district court finding the existence of “extraordinary and compelling reasons” based, in part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.

A few of many, many prior related posts:

March 30, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, March 28, 2021

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

As detailed in this press release, on Friday "U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, the lead sponsors of the landmark First Step Act (FSA), introduced the bipartisan First Step Implementation Act, legislation that aims to further implement the FSA and advance its goals." Here is more from the release:

“In 2018, Congress came together to pass the most important criminal justice reform laws in a generation.  The First Step Act passed by overwhelming bipartisan majorities and was supported by a broad coalition of conservative and progressive groups alike,” Durbin said.  “I was proud to champion this landmark legislation with my friend and colleague, Senator Grassley.  Now we are committed to working together on a bipartisan basis to ensure that the First Step Act and its goals are successfully implemented.”

“Our 2018 criminal justice reforms were the most significant in a generation.  We ought to be doing all we can to ensure their proper implementation.  This new bill now also ensures we make good on the intent of the First Step Act, and further builds on the ideas that led to its passage,” Grassley said.

The First Step Implementation Act of 2021 would further the goals of the FSA by:

  • Allowing courts to apply the FSA sentencing reform provisions to reduce sentences imposed prior to the enactment of the FSA;
  • Broadening the safety valve provision to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses, if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism;
  • Allowing courts to reduce sentences imposed on juvenile offenders who have served more than 20 years;
  • Providing for the sealing or expungement of records of nonviolent juvenile offenses; and,
  • Requiring the Attorney General to establish procedures ensuring that only accurate criminal records are shared for employment-related purposes.

March 28, 2021 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, March 20, 2021

SCOTUS appoints counsel (and delays argument) after new government position on crack sentencing retroactivity issue in Terry

As noted in this prior post, earlier this week the Acting Solicitor General informed the US Supreme Court that the government had a new (pro-defendant) position in Terry v. United States, No. 20-5904, the SCOTUS case concerning which crack offenders have a so-called "covered offense" under Section 404 of the FIRST STEP Act to allow for their retroactive resentencing.  The Supreme Court yesterday responding via this order in the Terry case:

The case is removed from the calendar for the April 2021 argument session.  Adam K. Mortara, Esquire, of Chicago, Illinois, is invited to brief and argue this case, as amicus curiae, in support of the judgment below.  The case will be rescheduled for argument this Term.

In other words, the Court appointed a lawyer to make the case against broad retroactive resentencing for certain crack offenders after the government said it no longer supported that position.  Doing so is not unusual when the parties agree on an outcome different from the decision below.  What is relatively unusual is that this appointment needed to be made long after cert was granted and briefing complete because of the Acting SG's new position on the merits.

I am pretty sure, under normal circumstances, the April argument session is the last one of a usual SCOTUS Term. But in our current a world of online arguments and disrupted timelines, perhaps the Justices can and will schedule this one argument for some time in May.  The Acting SG noted that the defendant in this case is due to finish the imprisonment portion of his sentence this September, and it would seem the Court is remains eager to resolve this matter before it takes its summer break.

Prior related posts on Terry:

March 20, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, March 19, 2021

Notable new review and accounting of COVID and federal compassionate release results

Vice News has this effective and thorough new piece bringing together a lot of notable data on federal compassionate release in the COVID era under the full headline "Prisoners Keep Dying of COVID While ‘Compassionate Releases’ Stall in Court: At least 54 federal prisoners have died from COVID-19 after having a compassionate release request denied or left pending."  Though the headline is focused on prisoner deaths, the lengthy article covers a lot of ground is worth reading in full.  Here are excerpts (with links from the original):

Steven Brayfield was almost home. The 63-year-old from Springfield, Missouri, fought over six months for “compassionate release,” arguing in his emergency bid for freedom that he’d be unlikely to survive a coronavirus outbreak in federal prison. In the end, he was proven right.

Brayfield suffered from Type 2 diabetes, kidney problems, and obesity, among other health issues. He first asked his warden for compassionate release in July, when the dangers of COVID-19 in prison were already well documented but before the virus began to wreak havoc inside the minimum-security camp at the U.S. Penitentiary in Leavenworth, Kansas. He had just under two years left to serve on a non-violent, meth-related drug conviction....

But by Jan. 3, he was running a fever and tested positive for COVID. As he was struggling to breathe, prison staff escorted him to the hospital, where he was handcuffed to the bed. The next day, Brayfield’s judge granted his compassionate release request, reducing his sentence to time served. But his condition worsened and doctors put him on a ventilator. His public defender asked the judge to reverse the ruling, telling the court that if Brayfield died a free man, his family would be unable to afford the medical bills. He hung on until Jan. 19, remaining a federal prisoner until his last gasps for air. “You keep on thinking, my god, he’s so close to coming home,” said Shirley Marler, Brayfield’s 84-year-old mom. “Well, he came home alright, but in a box.”

Brayfield is one of at least 54 federal prisoners to die from COVID-19 after having a compassionate release request denied or delayed without a final resolution, according to data provided to VICE News.  The data, compiled by the University of Iowa’s College of Law’s Federal Criminal Defense Clinic, shows how a deluge of compassionate release requests during the pandemic overwhelmed the recently reformed system, leading to vulnerable people dying behind bars when they were eligible for freedom. 

Additional analysis of over 4,000 cases, based on data compiled by a researcher at Georgetown Law School and shared with VICE News, highlights a lasting legacy of former President Donald Trump: Judges appointed by Republicans grant compassionate releases at lower rates than Democratic appointees. Trump’s prolific stacking of the federal courts, where judges serve for life, will likely shape the way such cases are handled for many years to come. 

From 2020 to mid-January 2021, federal judges granted compassionate release to 2,271 prisoners, according to data provided to VICE News by the Administrative Office of the U.S. Courts in Washington, D.C. The rulings freed people who might have otherwise contributed to the tragic toll of COVID-19 (225 deaths and counting) inside the federal Bureau of Prisons.

In years past, compassionate release was virtually impossible for federal prisoners to obtain—an option made available only in life-or-death emergencies, at the discretion of prison officials. Between 2013 and 2017, the BOP approved just 6 percent of requests, letting out over 300 people, while 266 others died in prison custody after their requests were denied.

The passage of the First Step Act in 2018 reformed the system, allowing federal prisoners under “extraordinary and compelling” circumstances to petition their sentencing judges directly for compassionate release. Prisoners still have to “exhaust” their options within the BOP, but after 30 days the request goes to the courts. Prosecutors typically argue against the person getting out, and defendants can submit evidence such as medical records or letters of support. But even with the changes, compassionate releases remained rare at first. In 2019, judges granted fewer than 100 total, according to the Administrative Office of the Courts.

The pandemic changed everything. Coronavirus turned federal prisons into death traps, especially low-security institutions with dorm-style housing units. Suddenly the federal courts were flooded with compassionate release requests, with judges receiving more than 10,000 applications in just three months, from last March to May. Those who follow the courts closely have been frustrated by inconsistent applications of the law or lack of leniency by judges, especially ones appointed by Trump and George W. Bush.

A few of many prior related posts:

March 19, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, March 15, 2021

Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry

Earlier this year, the Supreme Court granted cert in Terry v. United States, No. 20-5904, which concerns which crack offenders have a so-called "covered offense" under Section 404 of the FIRST STEP Act to allow for their retroactive resentencing.  Today, thanks to a heads up from a helpful colleague, I learned that the Acting Solicitor General sent this important short letter to the Supreme Court concerning the government's position in the Terry case.  Here are the key passages:

In its brief in opposition to certiorari, filed on December 4, 2020, the United States argued that petitioner lacks a “covered offense” as defined in the First Step Act.  The purpose of this letter is to notify the Court that the United States has reconsidered that position and will no longer defend the judgment of the court of appeals.

Following the change in Administration, the Department of Justice began a process of reviewing the government’s interpretation of Section 404 of the First Step Act.  As a result of that review, the Department of Justice has concluded that petitioner’s conviction is a “covered offense” under Section 404, that petitioner is entitled to request a reduced sentence, and that the court of appeals erred in concluding otherwise.

In light of the government’s current position, the Court may wish to appoint an amicus curiae to defend the judgment below.  The case is currently scheduled for oral argument on April 20, 2021.  According to the Federal Bureau of Prisons, petitioner is scheduled to complete the remainder of his term of imprisonment, which he will serve almost entirely on home confinement, on September 22, 2021.  At that time, he will begin serving a six-year term of supervised release, which is the minimum term of supervised release permitted under 21 U.S.C. 841(b)(1)(C) for his offense.  Were the case not to be decided before September 22, a question of mootness would arise that would need to be addressed before any decision on the merits.

SCOTUS mavens will better know if the Justices might just remand this particular case rather than try to appoint an amicus at this stage of the proceedings. (Nerd joke alert: will we see a different kind of Terry stop here?)  But, whatever SCOTUS does, it is big news that the new Administration is open to a broader application of the FIRST STEP Act here, and I am hopeful that this kind of Justice Department new thinking may end up being applied in a whole host of other sentencing settings.

March 15, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, March 11, 2021

"How Compassionate? Political Appointments and District Court Judge Responses to Compassionate Release during COVID-19"

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

This paper seeks to examine how judges are deciding compassionate-release motions in the wake of the COVID-19 pandemic, which has proven particularly deadly inside the nation’s prisons.  I explore how judges appointed by Republicans and Democrats have ruled in more than 4,000 federal compassionate-release cases since March 2020, finding that judges appointed by Democrats are granting compassionate release at far higher rates than their Republican counterparts, with Trump judges granting among the fewest requests. 

The First Step Act of 2018 gave incarcerated individuals the right to file a motion for early release in court in light of “extraordinary and compelling” circumstances, and requests for release have skyrocketed since the outbreak of the virus.  The unique conditions of the pandemic, high levels of virus transmission in prisons, and the highly discretionary nature of the compassionate-release statute together offer a natural experiment for considering how judicial ideology impacts real lives.  The results of this analysis underscore the importance of the fight over control of the judiciary going forward.

March 11, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, March 08, 2021

Curious spitting over COVID prison data as Sixth Circuit panel ultimately affirms rejection of compasionate release motion

I sometimes feel social media tends to encourage some folks (myself included) to pick relatively silly fights over relatively silly matters.  That tendency seems to have bled over to a Sixth Circuit panel: today it released an opinion on a compassionate release appeal with two judges picking a relatively silly fight over relatively serious matter. Specifically, in US v. Mathews, No. 20-1635 (6th Cir. Mar. 8, 2021) (available here), the panel unanimously concluded that the district jusge did not abuse his discretion in denying
compassionate release based on his consideration of the § 3553(a) factors.  But while harmonious on the result, two judges decided to pick at each other over COVID prison data.

Judge Moore wrote the main opinion, and she begns by setting a serious tone concerning the matters at issue in the case (footnotes with cites to data omitted): 

By the end of 2020, one in every five persons incarcerated in the United States had tested positive for COVID-19. At least 275,000 imprisoned persons across the country have been infected; more than 1,700 have died.  A court’s refusal to reduce an incarcerated person’s sentence could result in death.

Judge Readler was apparently put off by this discussion and other parts of the opinion by Judge Moore, as he authors a one-page concurrence that includes complaints like this:

In reaching that conclusion, however, the lead opinion covers ground that is neither necessary to the outcome nor joined by another member of the panel, making it dicta, and seemingly misplaced dicta at that.  One example is the opinion’s introductory paragraph, which frames the appeal by invoking prison-related data collected by the Marshall Project.  As neither that data nor the means for collecting it are part of the record in this case, and thus unmeasured by federal evidentiary standards, the data’s value is difficult to assess.

Undaunted, Judge Moore has a lengthy footnote pushing back at Judge Readler which starts this way:

In what can only be described as dicta about dicta, Judge Readler diminishes COVID-19’s rampage in our federal prisons and assails The Marshall Project’s integrity.  We should not treat lightly the experience of persons who are incarcerated in prisons that are plagued with a deadly virus; nor should we demean those who advocate for imprisoned persons.  Many compassionate-release motions implicate complex issues of law and policy that merit our attention.  Contemplation of these issues aids our future reviews of compassionate-release motions.

This not-quite-judicious sparring by these jurists ultimately makes no difference to the outcome of the case, and I cannot help but wonder what the imprisoned appellant thinks of it all.  But I think that this particular outcome should not eclipse the official BOP data showing that more than 3000 compassionate-release motions motions having been granted since the passage of the FIRST STEP Act.  Throughout the COVID pandemic, an average of roughtly 50 sentencing reductions have been granted each week, which reveals that a good number of judges have, fortunately, refused to "treat lightly the experience of persons who are incarcerated in prisons that are plagued with a deadly virus."

March 8, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, February 27, 2021

"Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk"

The title of this post is the title of this paper recently posted to SSRN and authored by Amy Cyphert.  Here is its abstract:

The First Step Act, a seemingly miraculous bipartisan criminal justice reform bill, was signed into law in late 2018.  The Act directed the Attorney General to develop a risk and needs assessment tool that would effectively determine who would be eligible for early release based on an algorithmic prediction of recidivism.  The resulting tool — PATTERN — was released in the summer of 2019 and quickly updated in January of 2020.  It was immediately put to use in an unexpected manner, helping to determine who was eligible for early release during the COVID-19 pandemic.  It is now the latest in a growing list of algorithmic recidivism prediction tools, tools that first came to mainstream notice with critical reporting about the COMPAS sentencing algorithm.

This Article evaluates PATTERN, both in its development as well as its still-evolving implementation. In some ways, the PATTERN algorithm represents tentative steps in the right direction on issues like transparency, public input, and use of dynamic factors.  But PATTERN, like many algorithmic decision-making tools, will have a disproportionate impact on Black inmates; it provides fewer opportunities for inmates to reduce their risk score than it claims and is still shrouded in some secrecy due to the government’s decision to dismiss repeated calls to release more information about it.  Perhaps most perplexing, it is unclear whether the tool actually advances accuracy with its predictions.  This Article concludes that PATTERN is a decent first step, but it still has a long way to go before it is truly reformative.

February 27, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1)

Tuesday, February 23, 2021

Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act

As reported in this new Law360 piece, headlined "First Step Act's Authors Tell Justices Courts Are Misreading It," the First Step Act case currently on the  SCOTUS docket, Terry v. United States, No. 20-5904, and generated some notable amicus briefing.  Here are excerpts from this article:

The senators who wrote the First Step Act of 2018 have told the Supreme Court that they did not intend to exclude low-level crack offenders from the law's sentencing relief, contrary to the findings of some circuit courts across the country.

Since President Donald Trump signed it into law, four circuits have agreed with federal prosecutors that the landmark criminal justice reform bill applies only to those serving sentences for large quantities of crack, leaving those in prison for small amounts unable to revisit their sentences. Two other circuits, meanwhile, have reached the opposite conclusion and have extended relief to low-level offenders.  The Supreme Court has agreed to review this circuit split on the retroactivity of the law and is expected to hold oral arguments in April.

Ahead of the hearing, a broad coalition of liberal and conservative groups is supporting petitioner Tarahrick Terry, who is serving a 15-year sentence for possession with intent to distribute 3.9 grams of crack. If allowed to reopen his sentence, Terry could be eligible for immediate release under new sentencing rules.

In addition, the four senators who are largely responsible for the sentencing reforms in the First Step Act have filed an amicus brief in the high court supporting Terry's case. Sens. Richard Durbin, D-Ill., Charles E. Grassley, R-Iowa, Cory Booker, D-N.J., and Mike Lee, R-Utah, told the justices that those provisions were instrumental to the law's passage and that Congress had always meant to extend that relief to those convicted of small quantity offenses.

"The text Congress enacted makes retroactive relief broadly available to all individuals sentenced for crack-cocaine offenses before the Fair Sentencing Act," the senators wrote in a brief filed Friday. "Had Congress intended to exclude individuals with low-level crack offenses from relief, Congress of course could have done so."...

The question at issue in Terry's case is whether low-level crack offenses qualify as covered offenses.  The Eleventh Circuit held that they do not and ruled against Terry, deepening a split among the courts that now makes the availability of sentencing relief under federal law dependent upon which circuit the defendant is located in....

The government has yet to file its opening merits brief in the case, and it is possible that President Joe Biden's acting solicitor general could change the government's position in the case to extend sentencing relief to low-level crack offenses, even if such changes are rare in criminal cases.

Notably, the broad and diverse coalition of amicus briefs filed in support of the petitioner in Terry includes not only a bipartisan group of Senators, but also: a group of former federal judges, prosecutors, and NACDL; a coalition of states and DC; and the ACLU, NAACP and R Street; Americans for Prosperity; the Constitutional Accountability Center; and the Cato Institute, American Conservative Union, Lincoln Network and Rutherford Institute

It will be interesting to see if all these "friends" might led the Justice Department to change its ligation approach to these issues under new leadership.  It will also be interesting to see if there are many (or any) outside groups or other voices eager to make the case that the FIRST STEP Act's retroactivity provisions do not extend to low-level crack offenders.

February 23, 2021 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Tuesday, February 16, 2021

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected under the First Step Act, 2020"

The US Justice Department's Bureau ofJustice Statistics today released this interesting new data report titled "Federal Prisoner Statistics Collected under the First Step Act, 2020."  Despite the year in its title, the report provides data on the federal prison population at the end of 2019 (so before any COVID-era shocks).  Here is how this 19-page report gets started and a few of its "key findings":

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (BOP) on a number of topics and to report these data annually. BJS is required to report on selected characteristics of prisoners, including marital, veteran, citizenship, and English-speaking status; educational levels; medical conditions; and participation in treatment programs. Also, BJS is required to report some facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time-credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

The statistics in this report are for calendar year 2019, which represented the first full year under the FSA, and were collected in 2020. Data for 2020 will be available from the BOP in the second half of 2021. Unless otherwise noted, all counts in this report include federal prisoners held in correctional facilities operated either by the BOP or by private companies contracted by the BOP.

Key findings

  • The portion of federal prisoners who were the parent, step-parent, or guardian of a minor child (defined as a dependent age 20 or younger by the BOP) grew from 45% to 49% from year-end 2018 to year-end 2019 (table 1).
  • On December 31, 2019, a total of 31,458 federal prisoners were non-citizens of the United States (18% of all BOP prisoners), and 21,922 prisoners identified English as their second language (13% of all BOP prisoners). 

  • During 2019, a total of 3,791 federal prisoners earned a general-equivalency degree (GED) or other equivalent certificate while in prison. 

  • In 2019, there were 386 incidents of prisoners being placed in administrative maximum - segregated housing, the BOP’s most restrictive level of segregated housing. 

  • Of the 180 pregnant prisoners in federal custody in 2019, a total of 94 gave birth in custody and 74 were released before giving birth (table 2)....

  • While in custody, 116 federal prisoners received medication-assisted treatment for a substance-use disorder in 2019....

  • ƒIn 2019, all 122 BOP-operated facilities had video-conferencing capabilities for prisoners to participate in judicial hearings, foreign embassy consultations, reentry-related communications from probation offices, preliminary reentry preparation, disciplinary hearings, and the Institution Hearing Program.

  • A total of 89,369 prohibited acts occurred in BOP-operated facilities during 2019, of which 63,025 were committed in medium- or high-security facilities (71%) (table 4).

  • A total of 54,848 individual federal prisoners committed the 89,369 prohibited acts (table 5).

  • More than half of the individuals who committed prohibited acts in 2019 were age 35 or older (29,175 prisoners or 53%).

  • During 2019, there were 1,252 physical assaults on BOP staff by federal prisoners, with 18 of the assaults resulting in serious injury to the staff member (table 7).

  • In 2019, a total of 11,491 persons volunteered at BOP-operated facilities (table 8).

  • Faith-based programs made up 56% of all BOP recidivism-reduction partnerships in 2019 (table 9).

February 16, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Sunday, February 14, 2021

Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing

6a00d83451574769e2025d9b40d8aa200c-320wiI have not been able to keep up with all of the jurisprudential ups and downs that have followed the FIRST STEP Act finally making retroactive key parts of the Fair Sentencing Act for federal crack offenders.  Thus, I am quite grateful that a recent email discussion with various lawyers led to Assistant Federal Defenders Johanes Maliza and Thomas Drysdale drafting this extended guest post to catch us all up on some critical cases and issues in this arena:

The sentencing excesses that Congress addressed with the Fair Sentencing Act, and then the First Step Act, should stay in the past.  The pending cert petition in Bates v. United States, No. 20-535, has the potential to keep them there for everyone.  Bates asks the Court to decide whether cocaine base defendants getting resentenced under the First Step Act should get resentenced under modern sentencing guidelines, or under repealed, invalidated, or otherwise discarded sentencing rules.

The Court recently granted cert in another First Step Act case, Terry v. United States, No. 20-5904.  But Terry gets at a different, more limited question.  In Terry, the Court is answering only whether certain low-level cocaine base offenders are eligible for a resentencing.  The Terry question is important, and needs to be resolved to bring uniformity across the circuits, but the government made one good point as it opposed the petition: Terry concerns a limited group of defendants.

A Terry defendant would have to be a person with a small (often very small) amount of cocaine base, who is still serving her sentence 10 years after the Fair Sentencing Act.  Most 841(b)(1)(C) defendants from 2010 are out of prison by now, though many are still on Supervised Release.  The vast majority of cocaine base offenders still serving prison terms for pre-August 2010 conduct are mid- and high-quantity defendants, who were charged under 21 U.S.C. § 841(b)(1)(A) or (B).  Terry only concerns people charged under § 841(b)(1)(C).

Even if Terry comes out for the petitioner, every single person who would benefit from Terry needs the answer to Bates: Which guidelines do courts use for resentencing? Indeed, the few Terry defendants still in prison are those who need a positive result in Bates the most because resentencing based on the guidelines from 2010 could still be sky high, even while the statutory scheme has shifted dramatically in the last 10 years.  Guidelines still anchor federal sentences; as the government says in Bates they remain the “lodestar.”

Consider a real, but anonymized, defendant in Central Illinois to show the need for modern guidelines in § 404 resentencings.  Mr. Jones [not client's real name, though he has given permission to speak about his case] was convicted of violating 21 U.S.C. § 841(b)(1)(A), for 50 grams or more of cocaine base in 2010.  The charge began with a 10-year mandatory minimum; but with four drug priors, his statutory minimum was Life.  His guidelines were Life.  His minimum term of Supervised Release was 10 years.

Because he cooperated, (the only way to get out from under life), Mr. jones got a 324- month sentence, plus 10 years of Supervised Release.  Even if he got out of prison before he died, he was going to die on Supervised Release.  Terry, which only concerns persons sentenced under § 841(b)(1)(C), has nothing to do with him because was charged under § 841(b)(1)(A).  With an 841(b)(1)(A) conviction, Mr. Jones is clearly eligible for resentencing under § 404 of the First Step Act, but the terms of that resentencing was not defined by the Act.  Since Mr. Jones was convicted of having 50 grams of cocaine base, his charges would come under 21 U.S.C. § 841(b)(1)(B) in 2019. But how much does that really matter if his guidelines didn’t change?

One might assume the statutory changes transform everything now that a Mandatory Life is either 5-40 or 10-Life after First Step.  Which one, and why do we care?  Well, his prior convictions still set up his stat max, and his stat max still sets up his new guidelines.  Considering all four of his prior drug crimes still worked to raise his statutory max to Life and made his guidelines range 262-327 months and his 324-month sentence was still within that range.  But while one provision of the First Step Act gave Mr. Jones the right to seek resentencing, another provision made two of his priors ineligible to trigger § 851 enhancements because the statutory maximum sentences on those priors was below 10 years.  And while Mr. Jones’ resentencing worked its way through the docket, the Seventh Circuit issued a string of opinions that culminated in a ruling that Illinois cocaine convictions cannot serve as § 851 enhancements. Mr. Jones’ remaining two statutory enhancements, both for cocaine, were now out. Well, they were still there, since this Seventh Circuit ruling wasn’t necessarily retroactive, but this was a shockwave for Mr. Jones’ guidelines.  Under the law in 2010, Jones had statutory Life, and guidelines range of Life.  Now, under statutory changes and modern guideline interpretation, he had a statutory range of 5-40, and guidelines range of 188-235.

While his case was pending for First Step Act resentencing, the law had shifted for everybody else.  Mr. Jones’ 324-month sentence, after cooperation, had transformed from “Harsh-but-at-least-not-Life,” into, “That’s 11-plus years over the low end of the guidelines?!?”  Thankfully for Mr. Jones, he is in the Seventh Circuit, so the district court recalculated his guidelines as part of First Step resentencing, and gave him a 188-month (bottom-of-the-range) sentence.  Still harsh. But he’ll be out in a few years, not a decade.  But in the Tenth Circuit, which is where the Bates case comes from, this entire analysis would have amounted to passionate argument from his attorney, soaring rhetoric about finality from the government, and a “Whaddya gonna do?” from the district judge because the circuit does not permit a defendant's current guideline range to be considered at a First Step resentencing.

It is hard to imagine that that the First Step Act intended to leave people like Mr. Jones behind.  A broad bipartisan coalition passed the First Step Act, trying to reduce the draconian sentences imposed on nonviolent drug offenders.  Because the Supreme Court in Terry will only resolve the few people with § 841(b)(1)(C) convictions who are still in prison, the difference in treatment between what happened with Mr. Jones and what happened in a case like Bates will not be addressed.  The Supreme Court should take up and render a decision in a case like Bates as soon as possible in order to resolve a resentencing wait and uncertainty for hundreds, if not thousands, of defendants. No matter what happens in Terry, the issue in Bates is going to need a resolution. That resolution should come earlier, so that nobody has to overserve a minute of their sentences.

February 14, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, January 24, 2021

Two more new 3582(c)(1)(A) reductions to remedy stacked 924(c) sentences reformed by FIRST STEP Act

As regular readers know, I have made much of the FIRST STEP Act provision now allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  The BOP reports here that a total of 2,693 of these motions have now been granted in the 25 months since the FIRST STEP Act became law.  The vast majority of the sentencing reduction motions brought by federal prisoners and granted by federal district judges these days are focused on the health threat posed by COVID.  But judges are still rightly finding other "extraordinary and compelling reasons" warranting sentencing reductions.

A helpful reader recently flagged for me two great new district court rulings using § 3582(c)(1)(A) to undo the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  Both rulings ought to be read in full as yet another set of examples of the ridiculousness and injustice of (post-trial) sentences that had to be imposed by judges under mandatory sentencing provisions, and to appreciate how the FIRST STEP Act helps to restore at least a little sanity and justice in this ugly part of the federal sentencing world.  I will here just note the openning paragraphs and provide a link to the full opinions:

US v. McDonel, No. 07-20189 (ED Mich. Jan. 13, 2021):

Defendant Robert McDonel, then 21 years old, was sentenced to over 100 years in prison in 2008 after engaging in a spree of auto parts store robberies using a handgun.  That extraordinarily harsh sentence was the product of a statutory sentencing scheme that required enhancing and stacking sentences for multiple firearm brandishing offenses even when the crimes were committed as part of the same episode and charged in a single indictment.  Congress since has corrected that Draconian measure, but the legislation does not help McDonel, as the amendment is not retroactive. He asks the Court for relief under 18 U.S.C. 3582(c)(1)(A)(i), as amended by section 603(b)(1) of the First Step Act of 2018, Pub L. 115-391, 132 Stat. 5194, 5239, which allows a sentence reduction for “extraordinary and compelling reasons.”  The gross disparity created by the legislative changes, which mitigated the harshness in the sentencing scheme to which McDonel was subjected, coupled with McDonel’s youth and rehabilitative efforts, qualify as extraordinary and compelling reasons under section 3582(c)(1)(A)(i). Other factors that the Court also must consider favor relief.  The motion will be granted.

Download McDonel opinion

US v. Nafkha, No. 2:95-CR-00220-001-TC (D Utah Jan. 11, 2021):

Prisoner Mounir Nafkha moves for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), asking the court to reduce his nearly 73-year sentence in the custody of the United States Bureau of Prisons (BOP) to time served.  To date, Mr. Nafkha has served approximately 25 years of his sentence. He asserts that the circumstances surrounding his sentence — which consists of four consecutively “stacked” counts under 18 U.S.C. § 924(c) — constitute extraordinary and compelling reasons for his early release.  The court finds that Mr. Nafkha has satisfied his burden of showing extraordinary and compelling reasons to release him and that the balance of sentencing factors set forth in 18 U.S.C. § 3553(a) warrant his release. Accordingly, his motion (ECF No. 214) is GRANTED.

Download Nafkha Grant

January 24, 2021 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, January 19, 2021

Some news and notes and rulings on federal compassionate release

I know that lots of people are eagerly awaiting the reported forthcoming list of clemency grants from Prez Trump on his last full day in office (including, it seems, Joe Exotic).  As we wait, I have noticed a number of recent pieces about so-called compassionate relief motions in the federal system, a mechanism which serves as a means now for federal judges to modify the prison sentences of some federal prisoners.  Here is a round up of some of these new pieces, included a few discussing grants and denials of compassionate release to notable individuals:

From Law360, "Pandemic Is Changing Compassionate Release Calculus"

From Colorado Politics, "Federal judges in Colorado denied overwhelming majority of requests to release inmates for COVID-19"

From Uerweb, "Bill Underwood is FREE! Former Music Exec Granted Compassionate Release from Prison After 33 Years"

From the AP, "Jailed kids-for-cash judge loses bid for pandemic release"

From Reuters, "U.S. judge rejects 'Pharma Bro' Shkreli's bid for compassionate release from prison"

January 19, 2021 in Celebrity sentencings, FIRST STEP Act and its implementation, Sentences Reconsidered | Permalink | Comments (0)

Saturday, January 09, 2021

SCOTUS grants cert on four new criminal cases, including one on FIRST STEP Act retroactivity of reduced crack sentences

The Supreme Court last night issued this order list which grants review in 14 new cases that will be heard later this SCOTUS Term.  Four of the cases involve criminal issues, and one is a sentencing case concerning the reach and application of the FIRST STEP Act's provisions making the reduced crack sentences of the Fair Sentencing Act retroactive.  This SCOTUSblog post has a lot more about the sentencing case and a brief review of the others:

In Terry v. United States, the justices agreed to weigh in on a technical sentencing issue that has significant implications for thousands of inmates: whether a group of defendants who were sentenced for low-level crack-cocaine offenses before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018. The Fair Sentencing Act reduced (but did not eliminate) the disparity in sentences for convictions involving crack and powder cocaine, and the First Step Act made the Fair Sentencing Act retroactive.  The specific question that the court agreed to decide is whether the changes made by the First Step Act extend to inmates convicted of the most minor crack-cocaine offenses.

In a “friend of the court” brief urging the justices to grant review in another case presenting the same question, the National Association of Criminal Defense Lawyers explained that the lower courts are divided on this question; as a result, NACDL wrote, Supreme Court review is necessary “to prevent thousands of predominately Black defendants from being forced to spend years longer in prison than identically situated defendants” elsewhere in the country “and to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized.”

Other grants on Friday are:

  • Greer v. United States: Whether, when applying plain-error review based on an intervening decision of the Supreme Court, a court of appeals can look at matters outside the trial record to determine whether the error affected a defendant’s substantial rights or affected the trial’s fairness, integrity or public reputation....
  • United States v. Palomar-Santiago: Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on the misclassification of a prior conviction....
  • United States v. Gary: Whether a defendant who pleaded guilty to being a felon in possession of a firearm is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowing that he is a felon.

January 9, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, January 07, 2021

Sixth Circuit panel reiterates "district courts have discretion to define 'extraordinary and compelling' on their own initiative" for 3582(c)(1)(A) motions

A helpful reader made sure I did not miss another recent notable Sixth Circuit ruling discussing the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  A couple of months ago, as noted in this post, a Sixth Circuit's panel handed down US v. Jones, No. 20-3701 (6th Cir. Nov. 20, 2020) (available here), to become then only the second circuit to rule expressly that district courts now have broad discretion to determine what now qualifies as "extraordinary and compelling reasons" for a sentence reduction now that federal courts can directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  Yesterday, a distinct Sixth Circuit panel reiterated this important doctrinal reality in  US v. Elias, No. 20-3654 (6th Cir. Jan. 6, 2021) (available here).

Notably, the Elias decision ultimately affirmed a district court's decision not to grant a defendant any reduction in sentence.  But the ruling usefully restated the broad authority of district courts in this arena.  Here is some of that discussion:

This Court recently spoke on that question [of whether the existing sentencing guideline confines district court authority], stating that § 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates.  Jones, 980 F.3d at 1108–11.  The text of the guideline, along with the clear congressional purpose in the First Step Act of removing the BOP from its gatekeeping role, led this Court to its conclusion.  See id. (discussing the purpose of the First Step Act and noting that “[t]he first sentence of § 1B1.13 predicates the entire policy statement on the Director of the BOP’s filing a motion for compassionate release”).  The statement in Jones that § 1B1.13 was inapplicable to inmate-filed compassionate-release motions aligned with the Second Circuit, the first Circuit to rule on the matter, as well as the majority of district courts.  See Brooker, 976 F.3d at 234.  Since Jones, the Seventh Circuit and Fourth Circuit have reached the same conclusion.  See United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); McCoy, 981 F.3d at 281–82.

Thus, there has emerged a newfound consensus among the courts, and the government provides no compelling reason for us to disturb the consensus of our sister Circuits. Therefore, we hold that § 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates, and so district courts need not consider it when ruling on those motions.  Further, we clarify that, as in Jones and Ruffin, district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others....  And, in the absence of an applicable policy statement for inmate-filed compassionate-release motions, district courts have discretion to define “extraordinary and compelling” on their own initiative.  See Jones, 980 F.3d at 1111; Ruffin, 978 F.3d at 1007 (suggesting that without an “‘applicable’ policy statement for motions by defendants . . . district court[s] may freely identify extraordinary and compelling reasons”).

A few of many, many prior related posts:

January 7, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, January 05, 2021

Notable recent reports on FIRST STEP Act implementation efforts

While there is considerable discussion of the next steps in federal criminal justice reform (including by me), there is still lots and lots of work still to do in implementing fully the FIRST STEP Act of 2018.  The reality of FIRST STEP work to do comes through over and over again in these two recent implementation reports from the Department of Justice and the Independent Review Committee:

The Attorney General's First Step Act Section 3634 Annual Report (Dec. 2020)

Report of the Independent Review Committee Report Pursuant to the Requirements of Title I Section 107(g) of the First Step Act (FSA) of 2018 (Dec. 21, 2020)

January 5, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Monday, December 21, 2020

Pondering next steps in federal sentencing reform on the second anniversary of the FIRST STEP Act

The FIRST STEP Act, which is fully titled the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, was signed by Prez Trump into law on Dec. 21, 2018.  That means today is the second anniversary of what many have rightly called the biggest federal criminal justice reform legislation in a generation — while others have also rightly called this law a relatively small modification to the federal criminal justice system.  Because I consider the FIRST STEP Act a very big deal and also a very small start of needed federal sentencing reform, I am inclined to ponder today just what could and should be the next steps after the FIRST STEP.

I am not quite sure if future big federal reform bills should be called the NEXT STEP or the SECOND STEP, but I am quite sure some of the criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62) would make a good starting point for the next Congress.  Here are just a few proposals that I would be eager to prioritize:

Mandatory Minimums: Empower judges to determine appropriate sentences, by fighting to repeal mandatory minimums at the federal level and give states incentives to repeal their mandatory minimums.

Retroactive Reforms: Make all sentencing reforms retroactive to allow for individualized resentencing.

Crack/Cocaine Sentencing Disparity: End the federal crack and powder cocaine disparity in sentences, and make the change retroactive.

Bureau of Prisons Oversight: Create a Bureau of Prisons ombudsman position for people who are incarcerated and their families to make complaints and get prompt redress.

Removing barriers to reentry: Remove restrictions on access to public housing, employment, occupational licenses, driver’s licenses, and public benefits.  Create a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible.

Juvenile Sentencing Reform: Abolish life without parole for juveniles.

There are lots of other good ideas in the Biden-Sanders Unity Task Force recommendations, but I have highlighted a few proposals which would largely require action by Congress (rather than reforms that might be achieved just though executive action or other means).  I am sure readers may have other ideas for legislative sentencing reforms that the next Congress should prioritize.

Though the FIRST STEP Act is now two years old, and though I do not think it is too early to think about the NEXT STEP or the SECOND STEP, I also think it critical that the next Congress and the Biden Adminstration keep working hard on robust application of the FIRST STEP Act.  Helpfully, the implementation picture is informed by the US Sentencing Commission's recent intricate data report (and this infographic) on “First Step Year One,” and the federal Bureau of Prisons and the National Institute of Justice have useful webpages about various other aspect of the Act.  But there is much more work still to do to ensure the FIRST STEP Act fulfills its full potential and has its maximum impact; I hope in 2021 that FIRST STEP work can move forward while another reform bill gets going.

A few of many, many prior related FIRST STEP Act posts:

December 21, 2020 in Criminal justice in the Biden Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

Saturday, December 19, 2020

Split Sixth Circuit panel decides FIRST STEP Act's less severe 924(c) mandatory minimums are applicable to resentencing

In this post a full two years ago right after the enactment for the FIRST STEP Act, I flagged some issues regarding which "pipeline" defendants might be able to benefit from the Act's reduced sentencing terms.  (By "pipeline," I meant cases in which offense conduct took place before passage of the FIRST STEP Act, but a sentence was not fully finalized when the Act became law.)  In that post, I noted that Congress in the FIRST STEP Act had expressly provided that the reduced 924(c) mandatory minimums were to be applicable "if a sentence for the offense has not been imposed as of such date of enactment" of the Act.  And then I pondered in that post: "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?"

A Sixth Circuit panel this past week spoke to these issues in US v. Henry, No. 19-2445 (6th Cir. Dec 18, 2020) (available here).  The panel split, with the majority eager to give broad application to the FIRST STEP Act's reduced sentencing terms.  The Henry court gives various justifications for its reading of the applicable provision of the Act, including its legislative history: "the legislative history of the First Step Act demonstrates Congress’s intent to remedy overly punitive mandatory-minimum sentences faced by defendants, including defendants resentenced after the Act’s enactment."  Judge Gibbons writing in dissent sees matters differently, explaining "Given the vast sentencing disparities depending on whether the First Step Act applies — 55 years versus 15 years in this case — it is unclear why Congress chose to extend the Act’s protection to a defendant sentenced on the date of enactment but not to a defendant sentenced just one day prior. But whatever the wisdom of that decision, 'Congress has . . . drawn a line in the sand.'"

I am very much in favor of the approach adopted by the majority here, which essentially recognizes that absent a clear "line in the sand" for limiting application of the newer, less severe sentencing terms, it makes sense to give those terms the broadest possible application.  As the dissent notes, a full 40 years of imprisonment is at issue in this matter.  As I see it, if Congress is not 100% clear that an extra four decades of time in a cage  must be imposed, courts ought not mandate its imposition.

December 19, 2020 in FIRST STEP Act and its implementation, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, December 06, 2020

Tangible example of continuing big sentence reductions in COVID era thanks to the FIRST STEP Act

I have highlighted in some recent posts some important new circuit rulings about district courts' sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act (see here and here).  These rulings reinforce that federal judges now have broad authority to consider any and all "extraordinary and compelling reasons" for a sentence reduction and need not just focus on medical reasons for granting compassionate release.  But, of course, amidst the worldwide COVID pandemic, lots and lots of vulnerable inmates have lots and lots of medical reasons for requesting compassionate release, and many federal judges have been responsive to these requests.  

As of this writing, the BOP is now reporting at this FSA page that there have been "2,205 Approved" total "Compassionate Releases / Reduction in Sentences" since the passage of the FIRST STEP Act in December 2018.  The US Sentencing Commission has previously reported, as noted here, that 145 of these motions were granted in "First Step Year One," which in turn suggests that over 2000(!) compassionate release motions have now been granted by federal district judges in the COVID era. 

These topics are on my mind because a helpful reader sent me a district court ruling granting a sentence modification last week that provides a tangible example of a defendant securing quite a significant sentence reduction.  I sometimes get asked about examples of a defendant securing relief despite having served less than half of their initial sentence, and US v. Ferizi, No. 1:16-cr-42 (LMB) (ED Va. Dec. 3, 2020) (available for download below), is such a case.  The defendant in Ferizi was initially sentenced to 240 months in prison, but that sentence was "reduced to time served" after he served just over 60 months. Here is an excerpt (cites removed):

There is no dispute that defendant has a particularized susceptibility to the disease.  Defendant has had a chronic cough since childhood, and was diagnosed with asthma in 2018. Defendant's obesity is yet another factor that places him at greater risk for severe illness — the CDC has warned that having a body mass index greater than 30 is a risk factor, and defendant's BMI has fluctuated between 30 and 31 during his incarceration.  Considering these multiple risk factors, the government has conceded that Ferizi is at elevated risk of contracting COVID-19, and as such has established 'extraordinary and compelling circumstances' to justify release for purposes of 18 U.S.C. § 3582....

Defendant has also satisfactorily responded to the Court's concerns that it might be infeasible to release him if he could not then be promptly deported, either because he might be on a no-fly list or because Kosovo might refuse to accept him.  The government has "confirmed with FBI and ICE" that, in spite of defendant's no-fly status, he would be able to board a specifically-designated deportation flight....

The government argues that even if that is the case, "the seriousness of [defendant's] offense and the danger he poses to the community make him an inappropriate candidate for compassionate release."  There is no doubt that defendant committed a serious offense when he provided the personal information of U.S. government and military employees to ISIL, and as the victim impact letter attached to the Presentence Investigation Report demonstrates, his actions were harmful to the individuals whose names appeared on the list posted by ISIL.  Nevertheless, even defendants who have committed very serious offenses can be appropriately released from custody or supervision where "[t]here is no indication that defendant poses a risk to the public, and reducing defendant's sentence to time served will not diminish the seriousness of his offense or respect for the law."...

In this case, defendant's offense did not involve violence, and none of the individuals whose information he gave to ISIL suffered physical harm. Defendant has explained that he
"totally and completely oppose[s] ISIL and all that it stands for," and that immaturity rather than ideology was the primary motivator of his conduct....  Defendant had no significant criminal history before his arrest for his present offenses, which he committed when he was only 19 years old.  He has incurred only minor infractions while in BOP custody, all of which were more than two years ago.  He has completed educational courses and drug treatment programs, and has been rated by BOP staff as a "low" risk for recidivism....

Given defendant's age; the more than five years he has spent in prison, including the particularly brutal months in the Malaysian prison; his health risks; and the conditions at Gilmer, defendant has established extraordinary and compelling grounds for release, which the § 3552 [sic] factors do not outweigh. 

Download Ferizi Order Granting Compassionate Release

A few of many prior related posts:

December 6, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 02, 2020

Fourth Circuit becomes the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act

I am very pleased to see today yet another important circuit rulings on the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have consider this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Then, on the same day last month, the Sixth Circuit in Jones and the Seventh Circuit in Gunn issued similar opinions recognizing that district court now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion.  Now, today, the Fourth Circuit has become the fourth circuit to get into this act with a great panel opinion in US v. McCoy, No. 20-6821 (4th Cir. Dec. 2, 2020) (available here).  Here is how this opinion gets started:

The defendants in these consolidated appeals were convicted of robberies and accompanying firearms violations under 18 U.S.C. § 924(c). At the time, sentences under § 924(c) were “stacked,” which exposed the defendants to additional mandatory minimums and led to sentences ranging from 35 to 53 years of imprisonment. After the defendants’ convictions became final, Congress passed the First Step Act and ended sentence “stacking” under § 924(c). Today, the defendants’ sentences would be dramatically shorter – in most cases, by 30 years – than the ones they received.

At the same time it shortened sentences under § 924(c), the First Step Act significantly expanded access to compassionate release under 18 U.S.C. § 3582(c)(1)(A). Prior versions of § 3582(c)(1)(A), which empowers courts to reduce sentences for “extraordinary and compelling reasons,” had allowed review of sentences only at the request of the Bureau of Prisons (“BOP”). The First Step Act removed the BOP from that gatekeeping role, authorizing defendants themselves to file motions for sentence reductions.

Relying on both these First Step Act provisions, the defendants moved for reductions in their sentences under § 3582(c)(1)(A), resting their case for “extraordinary and compelling reasons” primarily on the length of their § 924(c) sentences and the disparity between their sentences and those that Congress deemed appropriate in the First Step Act. After considering each defendant’s individual circumstances – including their youth at the time of the offenses, their lack of significant prior criminal history, their exemplary behavior and rehabilitation in prison, and their already-substantial years of incarceration – the district courts granted the defendants’ motions and reduced their sentences to time served.

We now affirm the judgments of the district courts. As the government emphasizes on appeal, § 3582(c)(1)(A) prohibits sentence reductions that are not consistent with “applicable policy statements issued by the Sentencing Commission.” But contrary to the government’s argument, treating the defendants’ § 924(c) sentences as an “extraordinary and compelling” reason for release is not inconsistent with any “applicable policy statement” of the Sentencing Commission for the simple reason that the Commission has yet to issue a policy statement that applies to motions filed by defendants under the recently amended § 3582(c)(1)(A). Nor was it otherwise improper, we conclude, for the district courts to consider the First Step Act’s declaration of the appropriate level of punishment under § 924(c) in assessing the defendants’ cases, on an individualized basis, for compassionate release.

Like the other circuit opinions and many comparable district court opinions, this Fourth Circuit ruling is the real McCoy, and its closing paragraph provides a fitting summary of the sound work that district courts are doing in accord with the congressional guidance in the FIRST STEP Act:

We return to the Second Circuit’s description of the First Step Act and its amendment of § 3582(c)(1)(A): an “incremental” change that does not mandate more lenient sentences across the board but instead gives new discretion to the courts to consider leniency.  Zullo, 976 F.3d at 230.  The district courts in these cases appropriately exercised the discretion conferred by Congress and cabined by the statutory requirements of § 3582(c)(1)(A).  We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions. The courts took seriously the requirement that they conduct individualized inquiries, basing relief not only on the First Step Act’s change to sentencing law under § 924(c) but also on such factors as the defendants’ relative youth at the time of their offenses, their post-sentencing conduct and rehabilitation, and the very substantial terms of imprisonment they already served.  Those individualized determinations were neither inconsistent with any “applicable” Sentencing Commission guidance nor tantamount to wholesale retroactive application of the First Step Act’s amendments to § 924(c).

A few of many, many prior related posts:

December 2, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)