Wednesday, September 04, 2019

US Sentencing Commission releases latest data report on crack offense resentencings thanks to FIRST STEP Act

Late Tuesday afternoon the US Sentencing Commission released this updated new data report titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted.  The data in this report reflects all motions granted through July 31, 2019....

This new data from the USSC show that 1,674 prisoners were granted sentence reductions, and of those "in 561 cases the court sentenced the offender to the length of time he or she had served to that date."  In all the other cases, the average sentence reduction was 69 months of imprisonment.

As I have highlighted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation, and yet these data show how this small piece has had big impact. In the course of eight months, this part of the FIRST STEP Act has shortened nearly 1700 sentences by an average of nearly 6 years amounting to around 10,000 prison years saved.

September 4, 2019 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact | Permalink | Comments (0)

Monday, August 26, 2019

Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems

Grant Pardon RatioRJ Vogt over at Law360 has this lengthy new piece discussing both federal clemency and one of my favorite parts of the FIRST STEP Act under the headline "How Courts Could Ease The White House's Clemency Backlog."  I recommend the piece in full, and here are some extended excerpts:

More than 11,430 federal prisoners, many of them nonviolent offenders serving life sentences, have commutation petitions pending at the U.S. Department of Justice’s Office of the Pardon Attorney, or OPA. Another 2,393 applications for presidential pardons, which are generally issued after someone completes a sentence, are also pending.

Both numbers mark record highs for a clemency system that America’s founding fathers designed to be, in the words of Alexander Hamilton, “as little as possible fettered or embarrassed.”

Today, access to clemency is anything but. Sam Morison, a former OPA attorney who now helps clients file petitions, says the Justice Department uses its oversight to stymie petitions before they ever reach the president’s desk. “The DOJ is to blame for the backlog,” Morison said. “They view their role as protecting the prosecutorial prerogative because, let's face it, that's what they do.”

Some legal scholars believe the First Step Act, a landmark criminal justice reform bill President Donald Trump signed into law in December, created a way for inmates to bypass DOJ oversight by asking judges for sentence reductions based on the circumstances of their cases.

But the concept hasn’t been tested in large numbers yet, and in the meantime, the odds of getting presidential relief are approaching zero. The office that granted 41% of all pending and newly filed clemency petitions in 1920 is on track to grant less than 0.1% under Trump....

Much of today’s epic backlog can be traced to President Barack Obama’s 2014 Clemency Initiative.

The project, which was designed to identify nonviolent federal prisoners who would not threaten public safety if released, got off to a rocky start when the DOJ sent the entire federal prison population a notice of the initiative and a survey to gauge inmate interest. The DOJ’s failure to “exclude inmates who were clearly ineligible for consideration” led to an overwhelming response, according to a 2018 inspector general report.

Over the last 33 months of Obama’s presidency, OPA received more commutation petitions than it had in the previous 24 years combined. At the same time, pardon petitions doubled, from a yearly average of 276 to an average of 521....

Shon Hopwood, a professor at Georgetown University Law Center, believes the First Step Act created a new path to commuted sentences... [H]e cited the First Step Act’s expansion of compassionate release as a more accessible option....

Under the First Step Act, a defendant no longer needs the bureau's backing. If the director won’t make the request for an inmate within 30 days of being asked, the new law allows the defendant to file a motion for resentencing directly in court. In a forthcoming law review article, Hopwood writes that judges can now consider “extraordinary” reasons for compassionate release without having to wait for Bureau of Prisons approval.

“Those serving long or life without parole sentences for marijuana trafficking offenses are the first to come to mind,” he wrote. “Another group ... might be those sentenced to harsh mandatory minimum sentences, even though the facts of their crimes made them far less culpable than someone committing a run-of-the-mill offense.”...

Margaret Love, U.S. pardon attorney from 1990-1997, told Law360 that the concept is “the hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention.”

“This has obviated the need for the clemency process to take care of the great majority of commutation cases,” she said.

Hopwood acknowledged that prosecutors are likely to oppose these motions, but said they could provide a safety valve in which the judiciary simultaneously helps alleviate mass incarceration and the OPA’s commutation workload.

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

August 26, 2019 in Clemency and Pardons, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, August 20, 2019

Another perspective on the scope of FIRST STEP Act crack resentencing

A few weeks ago in this post I noted the Fifth Circuit ruling in US v. Hegwood addressing intricate question of whether, when Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, it enabled a district court is to conduct a full resentencing or a more limited sentencing modification for eligible offenders.  The Fifth Circuit panel in Hegwood affirmed an approach FSA retroactivity as involving only a modest sentence modification proceeding rather than a complete resentencing. 

This morning I got an email flagging an earlier district court ruling US v. Payton, No. 07-20498-1, 2019 WL 2775530, at *4 (E.D. Mich. July 2, 2019), that goes the other way on this important and consequential issue.  Though predating Hegwood, Payton provides a useful overview and perspective that seemed worth reprinting to create a counterpoint to Hegwood:

District courts across the country are wrestling with this issue.  Many courts have ruled that the First Step Act, in conjunction with § 3582(c)(1)(B), does not authorize a full resentencing; broadly applying Dillon, they have found that a court’s authority under the First Step Act is as constrained as its limited authority under § 3582(c)(2). See Rose, 2019 WL 2314479, at *6 (internal citations omitted).

But a growing number of courts have found just the opposite — that the First Step Act vests the Court with broad discretion to resentence defendants considering the § 3553(a) factors, including the case law and Guidelines in effect today.  See, e.g., United States v. Stone, No. 96-cr-403, 2019 WL 2475750, at *2 (N.D. Ohio June 13, 2019); United States v. Biggs, No. 05-cr-316, 2019 WL 2120226, at *3 (N.D. Ill. May 15, 2019); Simons, 375 F. Supp. 3d 379; United States v. Dodd, 372 F. Supp. 3d 795, 797–98 (S.D. Iowa Apr. 9, 2019); United States v. Powell, 360 F. Supp. 3d 134, 140 (N.D.N.Y. 2019); United States v. Newton, No. 02-cr-30020, 2019 WL 1007100, at *5 (W.D. Va. Mar. 1, 2019); see also United States v. Booker, No. 07 CR 843-7, 2019 WL 2544247, at *3 (N.D. Ill. June 20, 2019); United States v. Black, No. 04-cr-100, 2019 WL 2402969, at *5 (E.D. Va. June 7, 2019); Rose, 2019 WL 2314479, at *7; Shelton, 2019 WL 1598921, at *2....

The Court agrees with Defendants that the only way to impose a reduced sentence is to consider the § 3553(a) factors and Guidelines, including the defendant’s record in prison. See Biggs, 2019 WL 2120226, at *3 (“Because the potential reduced penalties for covered offenses could influence the range of recommended penalties for non-covered offenses, ‘impos[ing] a reduced sentence as if ... the Fair Sentencing Act ... were in effect’ entails resentencing on all counts.”); see also Pepper v. United States, 562 U.S. 476, 481 (2011) (holding that “a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.”).

This interpretation is in keeping with the purposes of the First Step Act which was enacted, in part, to: provide a remedy for individuals subjected to overly harsh and prejudicial penalties for crack cocaine offenses; decrease the number of people caged in our overcrowded prisons largely because of the War on Drugs; and save taxpayer dollars.  See United States v. Allen, No. 3:96-CR-00149, 2019 WL 1877072, at *3 (D. Conn. Apr. 26, 2019); Simons, 375 F. Supp. 3d at 389.

It seems to me quite possible that this issue could be the first (of many?) matters related to the implementation of the FIRST STEP Act that makes its way to the US Supreme Court.

Prior related post:

August 20, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, August 10, 2019

Fifth Circuit articulates limiting account of FIRST STEP Act crack resentencing

A helpful colleague made sure I did not miss the notable Fifth Circuit opinion on FIRST STEP Act resentencing this past week in US v. Hegwood, No. 19-40117 (5th Cir. Aug 8, 2019) (available here). Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, but the language of that section left unclear whether a sentencing court is to conduct a full resentencing under the Act or a more limited sentencing modification for eligible offenders. District courts have been dealing with this resentencing question in various ways, and the Fifth Circuit panel ruling in Hegwood may be the first to address the issue. Here is its key passages:

This appeal concerns the First Step Act, in which Congress permitted a sentencing court to “impose a reduced sentence as if . . . the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.” The issue is whether district courts are authorized to conduct a plenary resentencing, which would include recalculating the Sentencing Guidelines range as if the defendant were being sentenced for the first time under present law, or whether courts are limited to reductions resulting from the Fair Sentencing Act. Concluding that the First Step Act does not allow plenary resentencing, we AFFIRM....

Hegwood argues that a new sentence under the First Step Act requires a Guidelines calculation to be made that is correct as of the time of the new sentencing, and Section 3553(a) factors are to be applied anew....

It is clear that the First Step Act grants a district judge limited authority to consider reducing a sentence previously imposed. The calculations that had earlier been made under the Sentencing Guidelines are adjusted “as if” the lower drug offense sentences were in effect at the time of the commission of the offense. That is the only explicit basis stated for a change in the sentencing. In statutory construction, the expression of one thing generally excludes another. TRW Inc. v. Andrews, 534 U.S. 19, 28-29 (2001).  The express backdating only of Sections 2 and 3 of the Fair Sentencing Act of 2010 — saying the new sentencing will be conducted “as if” those two sections were in effect “at the time the covered offense was committed” — supports that Congress did not intend that other changes were to be made as if they too were in effect at the time of the offense.

These limits make the First Step Act similar to Section 3582(c), which opens the door only slightly for modification of previously imposed sentences for certain specified reasons, including the lowering by the Sentencing Commission of the sentencing range that was in effect for the defendant at the time of initial sentencing. 18 U.S.C. § 3582(c)(2).  The Supreme Court held that “Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 826 (2010).

We do not see any conflict in this interpretation of Section 404 of the First Step Act with the provisions of 18 U.S.C. §§ 3582 and 3553. The district court under Section 3582(a) is only required to consider the Section 3553(a) factors “to the extent that they are applicable.” The government, relying on the fact that the First Step Act gives the court discretion whether to reduce a sentence, argues that the ordinary Section 3553(a) considerations apply to determine whether to reduce the defendant’s sentence.

The mechanics of First Step Act sentencing are these.  The district court decides on a new sentence by placing itself in the time frame of the original sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act.  The district court’s action is better understood as imposing, not modifying, a sentence, because the sentencing is being conducted as if all the conditions for the original sentencing were again in place with the one exception.  The new sentence conceptually substitutes for the original sentence, as opposed to modifying that sentence.

As a matter of statutory interpretation, I can understand why the Fifth Circuit is inclined in Hegwood to approach FSA retroactivity as only a modest sentence modification proceeding.  But as a matter of sound policy and practice, I think it makes more sense to approach these cases as full resentencings with all subsequent changes in both  applicable sentencing laws and relevant sentencing facts available for, an integral to, the judge's resentencing decision.  Otherwise, as seems to be the case in Hegwood, a defendant already subject to the undue harshness of the old 100-1 crack mandatory minimums is still forced to endure the undue harshness of other problems with the guidelines that have been fixed since his original sentencing.

I am hopeful, but not optimistic, that only a small number of defendants will be adversely impacted by the Hegwood approach to resentencing. And this case provides yet another example of how implementation of statutory sentencing reform can often be just as important for some defendants as the reform itself.

August 10, 2019 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, July 31, 2019

"Federal Criminal Risk Assessment"

The title of this post is the title of this new paper authored by Brandon Garrett recently posted to SSRN. Here is its abstract:

Risk assessments are a common feature of federal decisionmaking, including across a range of administrative agencies.  However, in federal criminal law, risk assessments have been only haltingly adopted.  Decisions regarding bail, sentences, and prison programming have largely been made based on official discretion.  Risk assessment instruments are currently used in federal courts pre-trial, post-conviction, and in federal prisons regarding security levels and reentry, with highly uneven results to date.  The adoption of the FIRST STEP Act, which has the ambition to transform the federal prison system through use of risk instruments, has the potential to introduce a more legitimate, transparent, and validated approach, using instruments developed publicly and, ideally, implemented consistently.

Questions remain regarding whether the risk and needs instrument adopted will then be successfully and consistently implemented to assign inmates to programs, whether there will be adequate resources for those programs, and what the effectiveness of those programs will be.  Prior efforts in the federal system, including concerns raised by reports and audits of federal risk assessment, as well as evidence from efforts in states and locally, suggest reason for caution and care as this new system is implemented. Important lessons can be learned from the successes and the failures of prior efforts to improve outcomes in the criminal system.

July 31, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, July 28, 2019

"After the First Step Act, we all have a role to play to build a society of second chances"

The title of this post is the headline of this notable new Fox News commentary authored by Craig DeRoche, who is the senior vice president of advocacy and public policy at Prison Fellowship. I recommend the piece in full, and here are excerpts:

FSA’s federal sentencing and prison system reforms still face key administrative and financial challenges.  Since May 2018, the Bureau of Prisons has lacked a permanent director.  The agency urgently needs a committed, effective leader to drive implementation of the reforms in the FSA. Five vacancies on the U.S. Sentencing Commission also mean that the sentencing reforms included in the FSA are yet to be incorporated into the sentencing guidelines used by federal judges.

In other significant ways, the FSA has yet to live up to its promise.  Evidence-based programming to reduce recidivism, a much-touted pillar of the bill, is not yet fully funded or implemented.  Further, the BOP has yet to allow faith-based prison programs with a proven record of recidivism-reduction, including Prison Fellowship, to function as reentry programs outside the chaplaincy.

As the largest Christian nonprofit serving prisoners and their families, we urge Congress to exercise its oversight and budgetary powers to ensure this historic achievement in federal criminal justice reform does not falter before its potential is realized.  And the public must let Congress know how important it is that these reforms be implemented fully and without unnecessary delay.

Ultimately, it will not be Congress, the Bureau of Prisons, or the White House that must live with the successes or failures of the FIRST STEP Act.  It will be the families with a loved one in federal prison, the incarcerated men and women working toward their second chance, and the countless neighborhoods to which they return after release.

The Bureau of Prisons is the largest single prison system in the United States.  The men and women behind its bars, despite the choices that got them there, have great, untapped potential.  They can return to society as better citizens, neighbors, employees, moms and dads. And when these former prisoners succeed, crime rates go down.

But it will take the full implementation of the FSA, putting the tools for success in the hands of those who need them. And it will take all of us — employers, faith communities, social service organizations, and ordinary citizens — doing our part to come alongside government, advocating for continued reform and building a society of second chances.

FSA was never meant to be the last step toward criminal justice reform.  Rather, in a time of marked political division, it is the first milestone, reminding us all what is possible when we choose to walk the path of restoration together.

July 28, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, July 24, 2019

Noticing the (inevitable?) contentions that the right people are in prison and the wrong people are getting out

At a time of considerable excitement about a range of criminal justice reforms (including leading Prez candidates seeking to outdo each other with ambitious reform proposals), and with the mainstream press giving coverage to many important human (and human-interest) stories surrounding the release of prisoners with the implementation of the FIRST STEP Act, it can be all too easy to forget that not everyone sees a need for criminal justice reform and not everyone is excited to see people released from prison.  These pieces caught my eye in recent days as providing useful examples that there are still plenty of folks eager to contend that the right people are in prison and the wrong people are getting out:

From the City Journal by Rafael Mangual, "Everything You Don’t Know About Mass Incarceration: Contrary to the popular narrative, most American prisoners belong behind bars."

From the Conservative Review by Daniel Horowitz, "Well, well: Criminal justice ‘reform’ wasn’t about ‘non-violent’ offenders after all"

From Fox News by Gregg Re, "Exclusive: Violent criminals and sex offenders released early due to 'First Step Act' legislation"

Some of these pieces are more responsible than others (e.g., the Fox News piece is particularly ugly for making much of the fact that all types of prisoners got the benefit of the "good time fix" that became effective last week). But all of these pieces highlight the kind of rhetoric and reasoning that it seems will be an inevitably enduring part of criminal justice conversations.

UPDATE: I have now seen these two notable responses to the last of the pieces noted above:

From Reason by C.J. Ciaramella, "Tucker Carlson's Unhinged Rant Against Prison Reform Makes Us All Dumber: Carlson claims the law 'allowed hundreds of violent criminals' back on the street. Here's what he didn't tell you."

From the Washington Examiner by Derek Cohen, "Tucker Carlson and John Kennedy get the First Step Act all wrong"

July 24, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, July 23, 2019

Spotlighting how some federal prosecutors are pushing back on some applications of FIRST STEP Act crack retroactivity

Reuters has this notable and lengthy new article on some skirmishes over the crack sentencing retroactivity piece of the FIRST STEP Act under the headline "As new U.S. law frees inmates, prosecutors seek to lock some back up." I recommend the piece in full, and here are excerpts:

Monae Davis walked out of prison on March 7, thanks to a new law that eased some of the harshest aspects of the United States’ war on drugs.  Now the U.S. Justice Department is trying to lock him back up.

As Davis, 44, looks for work and re-connects with his family, U.S. prosecutors are working to undo a federal judge’s decision that shaved six years off his 20-year prison sentence under the First Step Act, a sweeping criminal-justice reform signed into law by President Donald Trump last December.  “They’re prosecutors — it’s their job to make it hard on people,” he said. “Do I think it is right? No, it’s not fair.”

Even as thousands of prison inmates have been released by judges under the new law, federal prosecutors have fought scores of petitions for reduced sentences and are threatening to put more than a dozen inmates already released back behind bars, Reuters found in an analysis of these cases.  The reason: the Justice Department says the amount of drugs they handled was too large to qualify for a reduced sentence.

Davis, for example, reached a deal in 2009 with U.S. attorneys in western New York to plead guilty to selling 50 grams or more of crack, resulting in his 20-year sentence.  Under First Step guidelines, that carries a minimum sentence of five years, less than half the time he has already served.  But prosecutors say Davis should not get a break, because in his plea deal he admitted to handling between 1.5 kilograms and 4.5 kilograms, which even under current guidelines is too high to qualify for a sentence reduction.

In a statement, the Justice Department said it is trying to ensure that prisoners seeking relief under the First Step Act aren’t treated more leniently than defendants now facing prosecution.  The department said prosecutors now have a greater incentive than previously to bring charges that more closely reflect the total amount of drugs they believe to be involved. “This is a fairness issue,” the department said....

More than 1,100 inmates have been released so far under this [Fair Sentencing Act retroactivity] provision in the new law, according to the Justice Department. (Another 3,100 here are being released under a separate provision that awards time off for good conduct.)

In most of the 1,100 sentence-reduction cases, U.S. prosecutors did not oppose the inmate’s release. But in at least 81 cases, Reuters found, Justice Department lawyers have tried — largely unsuccessfully so far — to keep offenders behind bars. They argue that judges should base their decision on the total amount of drugs that were found to be involved during the investigation, rather than the often smaller or more vague amount laid out in the law they violated years ago.

The difference between the two amounts in these cases is often significant — and, depending on whether a judge agrees with prosecutors’ objections, can mean years of continued incarceration rather than immediate release.

Regional prosecutors’ offices, though they often enjoy great autonomy, have made it clear that they are operating on instructions from Washington. One prosecutor in western Virginia in April objected to nine sentence reductions she had previously not opposed, citing Justice Department guidelines.

The federal government has lost 73 of 81 cases in which the issue has arisen so far, according to the Reuters analysis. Prosecutors have appealed at least three of those decisions and indicated they intend to appeal 12 more. If they succeed, men like Davis would return to prison.

First Step Act advocates say the Justice Department is undercutting the intent of the law. “Many of these people have served in prison for five, 10, 15, 20 years and more. It’s time for them to be able to get on with their lives, and the notion the Department of Justice is just going to keep nagging at them and appealing these cases is not what we ever had in mind,” Democratic Senator Dick Durbin, one of the law’s authors, told Reuters.

July 23, 2019 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 (5)

Sunday, July 21, 2019

All the real stories fit to print about the real challenges of criminal justice reform

The New York Times has been giving sustained attention to criminal justice reform stories of late, and these two recent piece especially caught my attention:

July 21, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, July 19, 2019

"The First Step Act of 2018: Risk and Needs Assessment System"

The title of this post is the title of this all-important 102-page document which was required by the FIRST STEP Act and was delivered on time by US Attorney General William Barr.  Here is the document's introduction:

On December 21, 2018, President Donald J. Trump signed the First Step Act of 2018 into law.  Title I of the First Step Act of 2018 (FSA or the Act) is focused on reforms to reduce recidivism among the federal prison population.  Many of Title I’s reforms hinge on the creation of a risk and needs assessment system.

Under the FSA, the Attorney General is charged with developing and releasing a risk and needs assessment system for use in the federal prison system.  With this report, Attorney General William P. Barr releases the First Step Act of 2018 Risk and Needs Assessment System.

This report outlines the work of the Department of Justice to develop and implement the Risk and Needs Assessment System (System).  It also introduces the new System that the Federal Bureau of Prisons will deploy in its facilities.  And the report announces the Department of Justice’s strategic plan to evaluate, validate, and enhance the System over time.

Chapter 1

Chapter 1, Developing the First Step Act of 2018 Risk and Needs Assessment System, details the requirements of the FSA regarding the development of a risk and needs assessment system, including the responsibilities of the Attorney General and the Independent Review Committee.  This chapter also summarizes the Department of Justice’s work to fully implement the Act’s requirements in creating the System.

Chapter 2

In Chapter 2, Characteristics of an Effective Risk and Needs Assessment System, this report identifies those characteristics and principles that are fundamental to developing an effective risk and needs assessment system.  This chapter also describes the valuable data and information that the Department of Justice received from our federal and state partners and experts in the field on developing a strong risk and needs assessment system. These characteristics, principles, and data informed the development of the System.

Chapter 3

Chapter 3, Te First Step Act of 2018 Risk and Needs Assessment System, describes the adopted System in detail, including the new assessment tool that will be deployed in the Federal Bureau of Prisons. This chapter then provides an explanation of the strengths of the tool and enhancements offered by the new System.

Chapter 4

Chapter 4, Implementing the First Step Act of 2018 Risk and Needs Assessment System, presents the Department’s strategic plan to fully and completely implement the System in the field. It also includes an agenda for continued engagement with experts, stakeholders, and the public on the System. Te chapter concludes by describing the significant resources that the Department of Justice is expending and will expend to implement the System.

July 19, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Highlights from DOJ press release and fact sheet on FIRST STEP Act implementation

The US Department of Justice today released this press release titled "Department Of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System."  Here are some highlights:

The Department of Justice today announced three major developments related to the implementation of the First Step Act of 2018 (FSA):

  • Over 3,100 federal prison inmates will be released from the Bureau of Prisons’ (BOP) custody as a result of the increase in good conduct time under the Act. In addition, the Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions.
  • The prioritization of $75 million in existing resources to fully fund the FSA implementation from the 2019 budget. The Department will continue its work with Congress to ensure additional funding is appropriated for FY2020 and future years.
  • The publication of the FSA Risk and Needs Assessment System (RNAS) that will help identify all federal prison inmates who may qualify for pre-release custody by participating in authorized recidivism reduction programming and/or productive activities....

Compassionate Release. The BOP updated its policies to reflect the new procedures for inmates to obtain “compassionate release” sentence reductions under 18 U.S.C. Section 3582 and 4205(g). Since the Act was signed into law, 51 requests have been approved, as compared to 34 total in 2018.

Expanded Use of Home Confinement. The FSA authorizes BOP to maximize the use of home confinement for low risk offenders. Currently, there are approximately 2,000 inmates on Home Confinement. The legislation also expands a pilot program for eligible elderly and terminally ill offenders to be transitioned to Home Confinement as part of a pilot program. Since enactment of the law, 201 inmates have qualified to be transitioned under the pilot program.

Drug Treatment. The BOP has always had a robust drug treatment strategy. Offenders with an identified need are provided an individualized treatment plan to address their need. About 16,000 BOP inmates are currently enrolled in drug treatment programs, including the well-regarded Residential Drug Abuse Program (RDAP).....

The Risk and Needs Assessment Tool – PATTERN

The Attorney General’s publication of a risk and needs assessment system was a key requirement of the FSA, signed into law by President Trump on Dec. 21, 2018. The publication of the RNAS report makes the changes in the law to good conduct time effective.

The RNAS is among several robust measures the Department has taken to implement the FSA, which seeks to reduce risk and recidivism among the prison population and assist inmates’ successful reintegration into society.  The new system will be used to assess all federal inmates for risk and identify criminogenic needs that can be addressed by evidence-based programs, such as drug treatment, job training, and education. The system was developed in consultation with the FSA-established Independent Review Committee (IRC), the BOP, the National Institute of Justice (NIJ), the Administrative Office of the U.S. Courts, the National Institute of Corrections, and over two dozen stakeholders groups.

The new tool to be used by the BOP is called the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN). PATTERN is designed to predict the likelihood of general and violent recidivism for all BOP inmates. As required by the FSA, PATTERN contains static risk factors (e.g. age and crime of conviction) as well as dynamic items (i.e. participation or lack of participation in programs like education or drug treatment) that are associated with either an increase or a reduction in risk of recidivism. The PATTERN assessment tool provides predictive models, or scales, developed and validated for males and females separately.

The PATTERN assessment, modeled specifically for the federal prison population, achieves a higher level of predictability and surpasses what is commonly found for risk assessment tools for correctional populations in the U.S.

The RNAS report will be available on the department’s website later today at www.nij.gov.

The RNAS will be subject to a 45-day study period beginning with the publication of the System. Starting Monday, July 22, the public may send comments to FirstStepAct@ojp.usdoj.gov. This study period allows stakeholders to review and analyze the System. After the study period, NIJ will hold a special listening session on the RNAS in early September.

In addition DOJ has released this First Step Act Implementation Fact Sheet, and here is one highlight therefrom:

I. Retroactive Application of Fair Sentencing Act (Crack: Powder)

The Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions

July 19, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Big day for the next stage of FIRST STEP Act implementation

July 19, 2019, is a big day in the implementation of the FIRST STEP Act because today marks 210 days since the law was officially enacted. And the Act states "Not later than 210 days after the date of enactment of this subchapter, the Attorney General, in consultation with the Independent Review Committee authorized by the First Step Act of 2018, shall develop and release publicly on the Department of Justice website a risk and needs assessment system...."

This "risk and needs assessment system" will serve as the backbone for the rehabilitative programming and earned time credits that can impact the experiences of every single current and future federal prisoner. In addition, DOJ's release of the risk and needs assessment system (which is widely expected to be today) will mark the time when revised good time credit calculations should become effective and lead to the swifter release from federal prison a few thousand persons.

I will be off line much of today, but I hope tonight I will be able to effectively cover whatever we hear from DOJ and others today. In the meantime, here are a review of just some of my prior posts on FIRST STEP Act implementation from the last 210 days:

On the FIRST STEP Act's good-time fix and DOJ's work:

On the FIRST STEP Act's crack retroactivity provision:

On the FIRST STEP Act's important change to "compassionate release":

UPDATE:  This DOJ press release reports on the latest FIRST STEP news.

July 19, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Thursday, July 18, 2019

Federal judge gives first-person account of FIRST STEP Act's impact through retroactive crack provision

The New York Times has this notable new first-person account of the FIRST STEP Act coming from a judge who was able to reduce a life sentence thanks to the Act's crack retroctivity provisions.  The piece is authored by Robin Rosenberg, and carries the headline "In ’99 He Was Sentenced to Life. Twenty Years Later, I Set Him Free." Here are excerpts:

In January 1999, Robert Clarence Potts III was sentenced to life in prison. He was 28, and had been convicted of drug and weapons charges. The federal judge sentencing him seemed to express some regret at the gravity of the penalty. But under the law at the time, Mr. Potts faced a mandatory sentence of life imprisonment without release because of the type of offenses and his two previous convictions for drug and other offenses.

“You are facing a very tough sentence here, and it is very regrettable that you are,” the judge, James C. Paine of the United States District Court of the Southern District of Florida, told him. The judge added that “we are governed by the law and the guidelines and we are going to have to go by those.” And the law and sentencing guidelines meant “a term of life imprisonment,” he explained.

To that, Mr. Potts responded, “Sir, there is not much I can say.”  But it was what he did afterward that ultimately made the difference.

On Friday, Mr. Potts, now 49, is scheduled to be released from prison after more than 20 years — a turn of events made possible by the First Step Act, passed by Congress and signed by President Trump last year.  Among other things, the law expanded early-release programs, modified sentencing laws and allowed defendants like Mr. Potts to seek a reduction in their sentence, a step toward correcting the country’s history of disproportionate sentences.

The decision whether to reduce his sentence fell to me when I was randomly assigned his case.  The twist was that I had been Judge Paine’s law clerk in 1989, 10 years before Mr. Potts was sent away.  Now I was a federal judge in the same courthouse where Judge Paine had served and where he had sentenced Mr. Potts two decades before....

Mr. Potts had served over 20 years in a high-security federal penitentiary when the First Step Act became law last December.  The First Step Act made the Fair Sentencing Act — signed by President Barack Obama in 2010 to reduce the disparity in sentencing for powder cocaine and crack cocaine offenses — applicable to past cases.  The First Step Act also allowed a defendant like Mr. Potts to seek a sentence reduction even when the original sentence was for life.  The law provides wide discretion to the court to determine whether to reduce a sentence and by how much.

At his sentence reduction hearing, Mr. Potts had much more to say than he did back in 1999.  Before me, he was remorseful, dignified and hopeful.  He was proud of all that he had accomplished in over two decades in prison — proud of the courses he took in personal growth, responsible thinking, legal research and software, proud of his participation in nearly every health, nutrition and fitness class available.  Perhaps he derived his greatest pride from conquering a debilitating addiction and maintaining his sobriety.  As his lawyer explained to me, sobriety is not a foregone conclusion in prison, where drugs are widely available....

The true marker of a person’s character is what he does when he thinks no one is watching.  Because Mr. Potts was sentenced to life, no one had really been looking at what he had been doing.  But his unwavering dedication to improve himself over the last two decades, despite his circumstances, convinced me that his hope in his own future isn’t misplaced.

After a long hearing, I concluded that 20 years was more than sufficient as punishment for his past — and serious — crimes, and ordered his release. To help his transition, he will spend six months in a residential re-entry center.  I believe Mr. Potts’s story is one of redemption through self-improvement.  His case speaks to the importance of criminal justice reforms such as the First Step and Fair Sentencing Acts. His story illuminates the human impact of such reforms and a person’s capacity for hope and redemption.

July 18, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, July 15, 2019

Another encouraging report on DOJ's commitment to FIRST STEP Act implementation

This new AP piece, headlined "Barr: Justice Dept. is ‘all in’ on criminal justice overhaul," provides another notable report on the work of Justice Department officials as the next stage of FIRST STEP Act implementation is set to get started.  Here are excerpts:

On a visit this past week to Edgefield — a facility with a medium-security prison and minimum-security camp — Attorney General William Barr took a firsthand look at some of the programs in place, from computer skills to cooking, auto mechanic training and factory work. He met with prison staff and a handful of inmates, including some who will be released early under the First Step Act.

Barr’s visit signaled a major policy shift since his first stint as attorney general in the early 1990s, when he exuded a tough-on-crime approach, advocating for more severe penalties, building more prisons and using laws to keep some criminals behind bars longer. Barr has said he will fully support and carry out the law....

During a tour that lasted nearly three hours, Barr also met with a prison psychologist, inmates who act as mentors in faith and drug-treatment programs, and with instructors who help prisoners create resumes and participate in job fairs. Passing through the narrow hallways, Barr peeked through the windows of some classrooms where inmates were completing computer skills and GED programs.  In one room, where older computers and typewriters lined the walls, Barr chatted about re-entry programs and heard from mentors who teach their fellow inmates how to prepare for the job interviews.

But some of the prison’s programs — like the culinary arts and auto repair programs — tend to be very popular among inmates and have wait lists.  As he walked through Edgefield, Barr told Hugh Hurwitz, the acting director of the Bureau of Prisons, they needed to make sure there were enough programs available to a wide swath of inmates.  “We’re focusing on building on the programs, the re-entry programs we need, and getting the funding to do it,” Barr said in an interview this past week with The Associated Press....

The Justice Department has been working to meet the deadlines set by Congress for the First Step Act and is expected to unveil a risk-assessment tool this week that will help to evaluate federal inmates and ultimately could speed up their release.  Barr said the Justice Department and the Bureau of Prisons are both “all in in terms of making it work.”

“I’m impressed with how it’s going,” Barr said of the First Step Act’s implementation. “While there are a few things I probably would have done a little bit different, I generally support the thrust of the First Step Act.”

A few of many prior related posts:

July 15, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (3)

Thursday, July 11, 2019

More encouraging news of how FIRST STEP Act is reorienting DOJ priorities

USA Today has this fascinating new lengthy article under the headlined "Roofing, paving, artisanal bread: Feds look to kick-start law that will free hundreds of inmates." As the headline suggests, the article is about all the interesting activity afoot to effectively implement the FIRST STEP Act. I recommend the article in full, and here are excerpt:

Set in the foothills of the soaring Rocky Mountains, the mud-colored cluster of Depression-era structures has been a fixture in the federal penal system for decades.  Although just 10 miles south of Denver, notoriety has rarely found its way here except on the occasions when the Federal Correctional Institute Englewood’s worn cellblocks have housed the likes of Oklahoma City bomber Timothy McVeigh, former Enron chief executive Jeffrey Skilling and disgraced former Illinois Gov. Rod Blagojevich

Now, the 320-acre compound — distinguished by coils of razor wire and guard tower — is poised to play a leading role in a major criminal justice experiment.  Justice Department officials, including newly-installed Deputy Attorney General Jeffrey Rosen, have cut a path to this unlikely place in recent days to tout a series of rehabilitation programs that could be key to supporting the early release and re-entry of waves of federal inmates set to be released as part of a criminal justice overhaul approved by Congress last year.

Inside Englewood, a culinary arts program is training aspiring chefs to pump out artisanal breads, pastries and cakes.  An architectural drafting operation, manned by inmates, has produced designs for hundreds of chain restaurants and is assisting with a flood prevention project for the Port Authority of New York.

The prison’s signature enterprise, however, may be its most promising.  Thirteen inmates are part of a roofing and road paving crew that travels the country more than seven months of the year tending to repairs and new construction at federal government installations scattered from the Great Lakes to New England.  The crew members, many of whom have acquired valuable commercial drivers’ licenses while in prison and the skills to operate heavy machinery, have saved the federal government nearly $30 million in labor costs during the past three years, federal authorities said.

"I never thought I would get a chance to do something like this in prison," said Littlelee Ragsdale, a 36-year-old Wyoming man who is in the midst of a nine-year term for methamphetamine and heroin distribution. "This a great opportunity for a real career outside of here. It's not just one of those jobs to get by. Re-entry (to the free world) is now a realistic goal."

Leaning on the promise of Englewood’s programs and others like them scattered across the Bureau of Prisons system, Attorney General William Barr later this month is expected to unveil a tool that could shave years from the sentences of non-violent offenders like Ragsdale as part of the First Step Act, a sweeping law designed to reduce the federal prison population while easing offenders' transition back to their communities.  Congress approved the law last year with support from both parties.  Barr is set to lay out rules on July 19 for evaluating federal inmates that could speed their path toward release. On the same day, a separate provision of the law will prompt the release of an estimated 2,200 non-violent offenders based on a re-calculation of the credit they receive for good behavior while in custody....

The vast federal prison system has long been a drag on the government, soaking up more than a quarter of the Justice Department's $28 billion budget.  Even though its prison population has dropped since 2014, with 180,664 inmates, it is still the largest penal system in the United States.  The system holds more than seven times as many inmates as it did in 1980, at the start of the nation's drug war and a "tough-on-crime" strategy that featured mandatory minimum prison sentences for repeat drug offenses that doomed some inmates to more than two decades behind bars.  More than 45% of federal inmates are now serving terms for some type of drug offense, by far the largest offense grouping in the system....

Longtime advocates for such criminal justice reforms, who also have often been the fiercest critics of the Justice Department, are encouraged by the recent action but are wary of the challenges confronting full implementation of the law.  "I think they are doing their best to get prepared," said Kevin Ring, president of Families Against Mandatory Minimums, which has long highlighted the impact of harsh sentencing policy on families of the incarcerated. "The real test will be in the implementation of all of the different pieces."

I viewed passage of the FIRST STEP Act as such a big deal is because it created formal legal structures and reasons for the Justice Department to worry more about helping improve the prospects for people in federal prison and on their way out of federal prison rather than being only focused on putting more people in federal prison and trying to keep them in federal prison.  I find this article encouraging because it highlights how, thanks to the FIRST STEP Act, DOJ is now giving more time and attention to "a series of rehabilitation programs" (and apparently to promoting their DOJ's work to the press).

More generally, I believe Kevin Ring and other reform advocates are right to be encouraged by some aspects of DOJ's approach to the FIRST STEP Act, but the really big implementation tests are just getting started with release of the risk and needs assessment system coming next week and then BOP having up to 2.5 years to fully implement next steps.  I continue to be encouraged by big and small developments in this space, and I think we might even see the election season come to provide reform benefits rather than burdens.  If FIRST STEP Act implementation goes too slowly or poorly, Dems on the campaign trail might seek to assail the efficacy of a signature achievement of Prez Trump, and Prez Trump might in turn put added pressure on DOJ and others to do better.  (Indeed, I think DOJ's encouraging work to date and especially AG Barr's expected timely release of the risk and needs assessment system is a product of an eagerness to look good in the eyes of the President.)

A few of many prior related posts:

July 11, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (2)

Wednesday, July 10, 2019

Compassionate Release Training in DC (and online) next week

This NACDL tweet flags an important training opportunity taking place in DC and online next week for folks interested in getting in on some of the most exciting legal change brought about by the FIRST STEP Act.  Here is an image with the details:

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If that image does not do the trick, here is the text of a tweet from Mary Price of FAMM with the essentials:  "Calling all pro bono lawyers!  Want to learn how to help prisoners seeking Compassionate Release? We are training (live and by webinar) on Monday, July 15!  RSVP to agprobono @ akingump.com"

July 10, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 09, 2019

More coverage prisoner reentry issues as FIRST STEP Act's "good time" fix approaches

Prior FIRST STEP Act implementation posts (linked below) noted the delayed application of the Act's "good time" fix, which provides that well-behaved prisoners now get a full 15% credit for good behavior amounting to up to 54 days (not just 47 days) per year in "good time."   And in this post last month, I noted press coverage and efforts surrounding this "good time" fix as it gets closer to kicking in this month (assuming the Attorney General complies with a key deadline in the Act).  This press coverage continues with this Fox News piece headlined "Thousands of ex-prisoners to reunite with their families this month as part of First Step Act," and here are excerpts therefrom:

More than 2,200 federal inmates are returning to their families this month from behind bars under the bipartisan prison reform bill President Trump signed into law last year, according to policy experts and prisoner advocates involved in the effort.

This month will see the largest group to be freed so far under a clause in the First Step Act that reduces sentences due to "earned good time."  In addition to family reunification, the formerly incarcerated citizens, 90 percent of whom have been African-American, hope to get employment opportunities touted by Trump last month at the White House as part of the "Second Chance" hiring program.

"We’re a nation that believes in redemption," the president said, noting Americans with criminal backgrounds are unemployed at rates up to five times the national average, which was around 3.8 percent earlier this year. "You're gonna have an incredible future."

The Trump Administration has asked the private sector to help the ex-prisoners reacclimate to their newfound freedom with jobs and housing in one of the largest criminal justice public-private-partnerships ever assembled.

Kim Kardashian West, who successfully lobbied President Trump to free Alice Johnson, a great-grandmother who was serving a life sentence convicted of drug trafficking for a first-time, non-violent drug offense, announced a partnership with rideshare organization Lyft to hand out gift cards for reformed criminals to get to and from job interviews as transportation can be a barrier. "I just want to thank the president for really standing behind this issue and seeing the compassion that he's had for criminal justice has been really remarkable," the "Keeping Up with the Kardashians" star said during a Second Chance Hiring and Re-entry event at the White House in June....

Matthew Charles, the first inmate released from the program and recognized by Trump for being a “model citizen,” told “America’s Newsroom” barriers to employment and housing need to be “eliminated” so former inmates don’t find themselves back in prison.  The Trump Administration has a broad amount of support across governmental departments from labor to DOJ to DOE, as well as governors across the country streamlining state services in order to reduce the barriers Charles mentioned.

This article seems to imply that ninety percent of those who will be released from prison soon thanks to the "good time" fix are African-American, but that racial statistic actually relates to the distinct group of prisoners who have received reductions in their crack sentences due to a different provision in the FIRST STEP Act.  The group getting relief thanks to the operation of the "good time" fix later this month is likely to be more closely representative of the entire federal prison population (which is, very roughly speaking, about 1/3 white, 1/3 black, and 1/3 Latino).  And, as noted in another recent press article, a good number of non-citizen offenders will be deported upon their release from prison.

Prior related posts:

July 9, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Saturday, July 06, 2019

Deputy AG Rosen provides notable update on FIRST STEP Act implementation

USA Today has this new article focused on the work of new Deputy Attorney General Jeffrey Rosen, and deep into the lengthy article is an encouraging update on developments with the FIRST STEP Act. Here are the details:

In his first month, Rosen has sought a fuller understanding of the opioid crisis in America and has taken a lead role in Justice's implementation of bipartisan criminal justice legislation aimed at easing sentences for non-violent drug offenders, reducing the federal prison population and assisting offenders' transition back into their communities.

Rosen said Justice is on schedule to deliver a critical tool to assess the needs and risks of future recidivism for federal prisoners. The program, required under the First Step Act, a sweeping measure intended to reduce the nation's prison population, is due by July 19.

On the same date, the federal Bureau of Prisons is set to recalculate the amount of so-called "good time" earned by federal offenders, an action that is expected to result in the release of 2,200 offenders to their home communities.

Rosen, who was touring the federal prison in Englewood, Colo., earlier this week in advance of the actions slated for later this month, said Justice was "pushing hard" to abide by the requirements of the new legislation.

Since the First Step Act was signed into law in December, Rosen said 1,093 drug offenders have been released from federal prisons as part of a provision that reconciled overly harsh sentences issued to crack cocaine offenders.  Another 171 low-risk elderly inmates and 46 chronically-ill offenders also have been released under terms of the legislation.

"I’m putting my personal attention on that," Rosen said of the legislation. "The attorney general is, too."

I had heard from various sources that the Justice Department was on track to release the important risk and needs assessment tool on July 19, which in turn enabled the "good time fix" of the FIRST STEP Act to finally get implemented. I am pleased to hear somewhat officially that this will all be happening later this month, and that both AG Barr and DAG Rosen are invested in properly administering these parts of the FIRST STEP Act. The good time fix will immediately impact thousands of persons in federal prisons and impact hundreds of thousands more in the years to come. And the risk/needs tool should impact tens of thousands of federal prisoners as well.

A few of many prior related posts:

July 6, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

Wednesday, June 26, 2019

"The Future of Presidential Clemency Decisionmaking"

The title of this post is the title of this notable and timely new article authored by Paul Larkin and now available via SSRN.  Here is its abstract:

The Framers gave the president the clemency power when the federal government and the nation were in their infancy.  The president has far more demands on his time today than George Washington did in 1789.  The time necessary to make clemency decisions, even if done properly (and it has not always been done that way) alone could keep a large number of aides busy full time, let alone exhaust a chief executive troubled by the prospect that too many innocent people are rotting in prison or that too many people have been sentenced to the slow death of unnecessarily long terms of imprisonment.  Accordingly, the question is whether the president should leave clemency judgments to others, particularly ones who are professionals at sentencing.

Some scholars have suggested reinstituting some form of parole.  Yet, I think that we not will see a rebirth of parole any time soon.  The criticisms that persuaded Congress to abandon parole in the Sentencing Reform Act of 1984 have not disappeared or lost their force.  Proof can be seen in the fact that, during the debate over the First Step Act of 2018, neither the House of Representatives nor the Senate seriously considered reinstituting parole to address the overcrowding that federal prisons have witnessed over the last decade-plus.  Other scholars urge Congress to adopt a “second-look” resentencing system.  That also is unlikely.  The suggestion that Congress reinstitute some type of second-look mechanism would be scorned as the attempted resurrection of parole under an alias.  Indeed, the First Step Act approached this issue by using well-settled good-time and earned-time credit systems to decide whether and when to release prisoners, not a second-look mechanism.

A third option, however, can be found in a provision of the First Step Act modifying the gatekeeper role played by the Federal Bureau of Prisons (BOP) since the Sentencing Reform Act of 1984 went into effect.  An argument can be made that district courts now can resentence prisoners because prisoners can now go to court to argue that “extraordinary and compelling reasons” justify their early release without needing the BOP to ask a court for that relief.  That type of change to the law, however, is far from the type of interstitial fleshing out that Congress traditionally delegates to others.  Nonetheless, it remains to be seen how the Supreme Court will resolve that issue.

June 26, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, June 25, 2019

District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing LWOP sentence under 18 U.S.C. § 3582(c)(1)(A)

As regular readers know, ever since the passage of the FIRST STEP Act, I have been talking up 18 U.S.C. § 3582(c)(1)(A) as a critical and valuable new mechanism to reduce problematic prison sentences in any and every case in which the defendant presents "extraordinary and compelling reasons" for the reductions.  Though to date it seems this imprisonment-reduction authority granted by 3582(c)(1)(A) has been used almost only for so-called compassionate release situations in which a prisoner was extremely ill or had an extreme family situation, I posted here yesterday a recent example of a judge finding other reasons sufficient to reduce a sentence and making clear that the new FIRST STEP Act allows a judge broad authority to "determine whether any extraordinary and compelling reasons" justified a reduction in a prison term.  United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019).

Interestingly, around the time I was blogging about the Cantu ruling, another US District Court judge was issuing another important § 3582(c)(1)(A) ruling in United States v. Cantu-Rivera, Cr. No. H-89-204 (SD Tex. June 24, 2019) (available for download below).  This one, penned by Judge Sim Lake, is the first cases I have seen in which a defendant serving an LWOP sentence has had his sentence reduced to time served (30 years!) via a motion under § 3582(c)(1)(A).  This new Cantu-Rivera ruling, which runs only six pages and merits a full read, includes these notable passages:

Mr. Cantu-Rivera meets the age-related definition of extraordinary and compelling circumstances in U.S.S.G.§ lBl.13, comment. (n.l(B)).  He is 69 years old, he is experiencing serious deterioration in physical health because of the aging process (arthritic conditions in multiple joints, cataracts, diabetes, prostrate conditions), and he has served 30 years in prison....

The Court also recognizes the extraordinary degree of rehabilitation Mr. Cantu-Rivera has accomplished during the 30 years he has been incarcerated.  That rehabilitation includes extensive educational achievements, including Mr. Cantu-Rivera's completion of over 4,000 hours of teaching while in federal prison to complete a Teaching Aide apprenticeship with the Department of Labor.  The extraordinary degree of rehabilitation is also evident in Mr. Cantu-Rivera's service as a teaching assistant in several prison facilities for high-school equivalency and English-as-a­ Second-Language programs and his service in the BOP's suicide watch program, helping to care for inmates placed in solitary confinement due to suicide attempts.  Finally, the Court recognizes as a factor in this combination the fundamental change to sentencing policy carried out in the First Step Act's elimination of life imprisonment as a mandatory sentence solely by reason of a defendant's prior convictions.  § 401(a)(2)(A)(ii), 132 Stat. at 5220 (codified at 21 U.S.C. § 841(b)(1)(A)).  The combination of all of these factors establishes the extraordinary and compelling reasons justifying the reduction in sentence in this case.

Download Cantu-Rivera Opinion

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

June 25, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, June 24, 2019

New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 18 U.S.C. § 3582(c)(1)(A)

As regular readers know, even since the passage of the FIRST STEP Act, I have been talking up 18 U.S.C. § 3582(c)(1)(A) as a critical and valuable new mechanism to reduce problematic prison sentences in any and every case in which the defendant presents "extraordinary and compelling reasons" for the reductions. To date, it seemed that the imprisonment reduction authority granted by 3582(c)(1)(A) had been used almost only for so-called compassionate release situations in which a prisoner was extremely ill or had an extreme family situation.

But now, thanks to this posting by Shon Hopwood, I see that District Court Judge Marina Garcia Marmolejo resentenced Conrado Cantu under this provision via a thorough and thoughtful order explaining why, in the wake of the FIRST STEP Act, "when a defendant brings a motion for a sentence reduction under the amended provision, the Court can determine whether any extraordinary and compelling reasons other than those delineated in U.S.S.G. § 1B1.13 cmt. n.1(A)–(C) warrant granting relief." United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019) (reprinted opinion available for download below).

As Shon explains in this post, this Cantu case may be the first in which a federal judge has "held that nothing in the statutory text of § 3582(c), nor the Sentencing Guidelines, precludes a judge from making its own determination of what are 'extraordinary and compelling' circumstances warranting a reduction of sentence."  Shon and I think this is exactly the right reading of 18 U.S.C. § 3582(c)(1)(A) after the changes made by the FIRST STEP Act.  Before FIRST STEP, the Bureau of Prisons was the gatekeeper for what motions should be brought for a reduction of imprisonment based on "extraordinary and compelling reasons."  Congress was clearly discontent with how that was going (and for good reason), and so now judges are to decide without a gatekeeper when  a term of imprisonment should be reduced based on "extraordinary and compelling reasons."

In light of all the big federal criminal justice rulings on behalf of criminal defendants in the last few days (especially Rehaif and Davis), I am wondering and hoping litigants and judges might now start to see the value of using 18 U.S.C. § 3582(c)(1)(A) to operationalize some new precedents rather than rely only or even primarily on 2255 motions.  There are a number of problematic procedural issues that can arise when a prisoner tries to get a favorable SCOTUS ruling applied retroactively through a 2255 motion.  But if the prisoner can show that a new SCOTUS ruling is part of what provides "extraordinary and compelling reasons" for a prison reduction (and such a reduction is in keeping with the traditional 3553(a) factors), perhaps motions via 3582(c)(1)(A) will go down easier than 2255 motions.

Download United States v Cantu

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

June 24, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, June 19, 2019

New Compassionate Release Clearinghouse to match lawyers with prisoners seeking release after FIRST STEP Act

This new press release, titled "FAMM, Washington Lawyers’ Committee, NACDL Launch Compassionate Release Clearinghouse," reports on an exciting new resource for helping to better implement a part of the FIRST STEP Act. Here are the details:

Thousands of sick, dying, and elderly federal prisoners who are eligible for early release will now have access to free legal representation in court through the newly established Compassionate Release Clearinghouse. The clearinghouse, a collaborative pro bono effort between FAMM, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and the National Association of Criminal Defense Lawyers (NACDL), is designed to match qualified prisoners with legal counsel should they need to fight a compassionate release denial or unanswered request in court.

“People who can barely make it out of their beds in the morning should not have to go into court alone against the largest law firm in the nation,” said Kevin Ring, president of FAMM. “Congress was clear that it wanted fundamental changes in compassionate release, yet we’ve seen prosecutors continue to fight requests from clearly deserving people, including individuals with terminal illnesses. It’s gratifying to know we will be able to help people in a tangible and meaningful way.”

The Compassionate Release Clearinghouse recruits, trains, and provides resources to participating lawyers. The Clearinghouse’s design and implementation is being assisted by the Washington, D.C., law firm of Zuckerman Spaeder LLP through its partner Steve Salky.

“Sick and dying prisoners for years were unjustly denied release on compassionate release grounds by the Bureau of Prisons,” said Jonathan Smith, Executive Director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “Now, prisoners will be assisted by dedicated and high-quality lawyers in seeking relief from the courts, evening the playing field, and allowing many of these prisoners to return home.”

The effort was made possible by the passage of the First Step Act, which addresses a well-documented, three-decades-long issue in which sick, elderly, and dying prisoners have been routinely denied early release by the Bureau of Prisons (BOP). Until December 2018, there was no mechanism to challenge or appeal those decisions. Now, prisoners are allowed to appeal directly to a sentencing judge if their petitions are denied or unanswered.

Since the passage of the First Step Act, prisoners have been filing motions for release, and some have been challenged by federal prosecutors. The Compassionate Release Clearinghouse will make sure those prisoners have an attorney to fight for them in court.

“NACDL is proud to participate in this critically important effort,” said NACDL Executive Director Norman L. Reimer. “To make the promise of the First Step Act a reality for qualified sick, elderly, and dying prisoners, the nation’s criminal defense bar is committed to recruiting pro bono attorneys to be champions for those in need. Additionally, NACDL’s First Step Implementation Task Force will aggregate resources to support attorneys who undertake this important work.”

The Clearinghouse started matching attorneys with prisoners in need in February, and has matched more than 70 cases with pro bono attorneys. The Clearinghouse is actively recruiting additional attorneys and law firms to join in the effort.

As regular readers may recall (and as I have stressed in a number of prior posts), because  18 U.S.C. § 3582(c)(1)(A), the provision of federal law often known as "compassionate release," allows a court to reduce a prison sentence based on any and all "extraordinary and compelling reasons," it should not only be the "sick, dying, and elderly federal prisoners" who are potentially eligible for early release.  But, as this press release highlights, because there is already a history of extreme resistance toward releasing even the most deserving under this provision, it is heartening to see these groups work to make sure prisoners can get needed legal help to benefit from the reforms Congress is surely eager to see given full effect.

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

June 19, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Noticing that early federal prisoner release often means earlier deportation for non-citizen offenders

The Marshall Project has this new piece spotlighting how the FIRST STEP Act will result in expedited deportation for some of the prisoners getting their sentences reduced.  The piece is headlined "First Step Offers Release for Some Prisoners—But Not Non-Citizens: About 750 federal inmates will be transferred to Immigration and Customs Enforcement custody starting in mid-July." Here are excerpts:

President Trump convened a news conference last week to celebrate the release of 3,000 federal prisoners on July 19 as part of the First Step Act. But not all of those inmates will actually walk free: 750 non-citizens could well face deportation....

The 750 non-citizens released from federal prisons will be held for transfer to Immigration and Customs Enforcement custody so ICE can start the deportation process, according to the Bureau of Prisons.

While the Trump administration has pressed to increase deportations, there is ample precedent for non-citizens being released from prison, only to be ejected from the country. In 2015, during the Obama administration, more than 6,000 prisoners were released after the nonpartisan U.S. Sentencing Commission revised sentencing guidelines for some drug crimes. More than 20 percent of those released were sent to ICE to face deportation....

About 35,000 people of foreign or unknown origin make up nearly 20 percent of all federal prisoners in Bureau of Prisons custody. People from Mexico constitute the largest population of non-citizens with prisoners born in Colombia, the Dominican Republic and Cuba as the next largest identifiable groups....

Nearly half of foreign-born federal prisoners are incarcerated for drug trafficking or related offenses, while those convicted of immigration offenses such as illegal reentry after deportation make up 28 percent.

Once detained by ICE, those released from federal prisons can theoretically be released on bond, said Ricardo S. Martinez, a chief U.S. district judge and chair of a federal judicial committee that reviews criminal justice bills and laws. “But more likely they are held until they can be repatriated back to their country of origin,” he said.

June 19, 2019 in FIRST STEP Act and its implementation, Offender Characteristics | Permalink | Comments (0)

Tuesday, June 18, 2019

Good day for thinking hard about sentencing second looks and second chances

I am greatly enjoying day two of the great "Rewriting the Sentence" conference at Columbia Law School (previously noted here and here and here and being live streamed here).  This afternoon, I have the honor of moderating a panel titled "Sentencing Second Chances: Addressing Excessive Sentencing With Escape Valves," and then will get to attend another later panel on "The Role of Mercy and Dignity in Criminal Justice: From Restoration to Clemency."   I am so excited this conference has two panels addressing, in varied ways, issues surrounding the correction or adjustment of problematic sentences.  As regular readers know, I have been thinking and writing about these issues a lot in recent years, making the case that they are particularly critical issues in an era of mass incarceration.  So I am so very glad this afternoon will be filled with robust discussions of sentencing second looks and second chances.

Excitingly, on the same day I am talking about these issues, Shon Hopwood has just published some important new writings on these topics.  Specifically, over at Prison Professors, Shon has this new important post titled "A Second Look at a Second Chance: Seeking a Sentence Reduction under the Compassionate Release Statute, 18 U.S.C. § 3582(c)(1)(A), as Amended by the First Step Act."  This post, which should be read in full and includes important links, overviews a set of new writings by Shon on second looks and second chances.  I plan to blog more about Shon's work in this space, and here I will start with the start of his posting:

There is a viable argument for why federal district court judges can use the compassionate release statute, as amended by the First Step Act, as a second look provision to reduce a sentence for people in federal prison if “extraordinary and compelling reasons” are present.  Over the weekend, I posted both a law review article (entitled Second Looks & Second chances that will be published by Cardozo Law Review) and a sample brief (that will form the basis of challenging Adam Clausen’s ridiculous 213-year federal sentence).  Both discuss the reasons why federal judges can and should give sentence reductions in cases where people in federal prison have a demonstrated record of rehabilitation in addition to compelling reasons why they were sentenced too harshly. See 18 U.S.C. § 3582(c)(1)(A).

In my article, I explain that there is a long history of second look provisions in American law, and why second look provisions are normatively desirable.  More importantly, the text and history of Section 3582(c) supports the view that, when Congress first enacted the compassionate release statute in 1984, it intended compassionate release to act as a second look provision to take the place of federal parole, which Congress was abolishing.  The problem was that Congress gave the power to trigger a sentence reduction under the compassionate release statute to the Director of the Federal Bureau of Prisons (“BOP”).

Leaving the BOP Director with ultimate authority to trigger and set the criteria for compassionate release sentence reductions created several problems.  The Office of the Inspector General found that, among many other problems, the BOP failed to provide adequate guidance to staff regarding the criteria for compassionate release and that BOP had no timeliness standards for reviewing such requests.  As a result of these problems and others, the OIG concluded that: “BOP does not properly manage the compassionate release program, resulting in inmates who may be eligible candidates for release not being considered.”

Congress heard the complaints. Congress passed, and President Trump signed, the First Step Act of 2018, which, among other things, changed the procedures and ultimately the criteria for when a person in federal prison can seek a sentence reduction under the compassionate release statute in 18 U.S.C. § 3582(c)(1)(A)(i).  After the changes made by First Step, federal prisoners can file a motion for a sentence reduction, and federal district courts are authorized to reduce a sentence even if the BOP fails to respond or even in the face of BOP opposition to a sentence reduction.

Under the First Step Act, Congress took the power that previously resided with the BOP Director to trigger and set the criteria for sentence reductions and transferred it to Article III courts — where it should be.

A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

June 18, 2019 in FIRST STEP Act and its implementation, Sentences Reconsidered | Permalink | Comments (0)

Monday, June 17, 2019

Seeking thoughts as we approach six months of implementing (and overseeing the implementation) of the FIRST STEP Act

I have been spending the day at Columbia Law School attending the great "Rewriting the Sentence" conference previously noted here and here and here.  All the panels have been terrific, and I am now blogging during the panel titled "A Federal Legislative Look: The First Step Act, and the Next Steps" because its moderator, the indefatigable Holly Harris, has urged everyone to get the word out that Representatives Doug Collins and Hakeem Jeffries have talked up a (needed) oversight hearing on FIRST STEP Act implementation "sooner rather than later."  The panel has emphasized that effective implementation of FIRST STEP is just as important as its initial passage, and it seems everyone recognizes that an oversight hearing in Congress can aid with effective implementation.

Speaking of implementation and oversight, I have been meaning to post these two recent letters sent to, and then coming from, the Department of Justice on this front:

Download Letter to AG William Barr and AD Hugh Hurwitz (1)

Download 2019-6-7 First Step Act - COURTESY COPY

There is far too much in both these letters to summarize easily what is herein. But those interested in many specifics of the FIRST STEP Act will be very interested in these letters.

Finally, as noted in the title of this post, we are getting ever closer to the six month mark since the FIRST STEP Act become law, and I would be grateful (in the comments or in other fora) to hear from all sort of folks about their views on the first six months of FIRST STEP implementation.

June 17, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Another notable new GVR by SCOTUS "to consider the First Step Act of 2018" over DOJ opposition

In this post two weeks ago, I flagged the interesting Supreme Court decision in Wheeler v. US to grant, vacate and remand the case to allow courts below "to consider the First Step Act of 2018."  In that case, petitioner asserted that a provision of the FIRST STEP Act changed the applicable mandatory minimum while his case was on appeal.  The Government responded that the FIRST STEP Act was not applicable once a case was on appeal, but SCOTUS decided to send the case back to the Third Circuit to consider the issue.

Now a second case, Richardson v. US, No. 18-7036, has received similar treatment via this new SCOTUS order list. In Richardson, the defendant received an extremely long sentence has on stacked 924(c) gun counts, and following the passage of the FIRST STEP Act, Richardson filed this supplemental brief asserting he is now "entitled to be resentenced under the recently passed First Step Act of 2018."  Once again, the Justice Department asserted in this response that "the First Step Act is unambiguously inapplicable here" and so provides "no sound basis" for a grant, vacate and remand. 

In the end, it seems SCOTUS thought there was a sound basis for a GVR in this case, because that is just what the Court did in order to enable the Sixth Circuit have the first crack at what I call a "pipeline" issue about the applicability of the FIRST STEP Act to cases in the pipeline when the Act was passed.

June 17, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, June 07, 2019

US Sentencing Commission releases data report on resentencings pursuant to Section 404 of the First Step Act of 2018 (making retroactive provisions of the Fair Sentencing Act of 2010)

I was very pleased to receive in my email in-box this afternoon news that the US Sentencing Commission has released this short new report titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  Here is how the 10-page report was summarized via the email:

Summary

The U.S. Sentencing Commission published new information on resentencings pursuant to Section 404 of the First Step Act of 2018 (enacted December 21, 2018).

Defendants sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act are eligible for a sentence reduction under Section 404 of the First Step Act.

Data Highlights [FN1]

    • 1,051 motions were granted for a reduced sentence.
    • 78.9% of granted motions were made by the defendant, 11.8% by the attorney for the government, and 9.3% by the court.
    • Offenders received an average decrease of 73 months (29.4%) in their sentence.
      • The original average sentence was 239 months.
      • The new average sentence was 166 months.

[FN1] The data report includes motions granted through April 30, 2019 and for which court documentation was received, coded, and edited at the U.S. Sentencing Commission by May 17, 2019.

Importantly, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation, and yet this report shows it already has had a big impact.  Specifically, within just over four months, this part of the FIRST STEP Act has shortened more than 1000 sentences by an average of over 6 years. With six thousand years(!) of extra prison time (and taxpayer expense) saved, this report shows that even a modest reform can have a very big impact for some folks.

June 7, 2019 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation | Permalink | Comments (1)

Wednesday, June 05, 2019

Curious (but still encouraging) discussion of expected release of prisoners after FIRST STEP Act "good time" fix becomes operational

In a few older FIRST STEP Act implementation posts (linked below), I flagged the statutory provision in the Act that delayed the immediate application of its "good time" fix.  (This fix provides that well-behaved prisoners will now get a full 15% credit for good behavior amounting to up to 54 days (not just 47 days) per year in "good time.")  Though folks had been hoping to fix the fix so that it could be immediately applicable, now enough time has passed that we are getting close to when the "good time" fix is very likely to kick in (assuming the Attorney General complies with a key deadline in the Act).   The coming July arrival of the "good time" fix kicking in has prompted this notable new Marshall Project piece headlined "White House Pushing to Help Prisoners Before Their Release."  Here are excerpts:

The White House is racing to help an estimated 2,200 federal prisoners line up work and housing before they are released next month, according to several policy experts and prisoner advocates who have been involved in the effort.

The early release is made possible by the First Step Act, a federal law passed with bipartisan support in December that is aimed at refocusing the criminal justice system on rehabilitation.  The prisoners scheduled to be let out in July are the largest group to be freed so far.  Their sentences are being reduced thanks to a clause that goes into effect next month, which effectively increased the amount of credit prisoners could get for good conduct in custody....

With weeks remaining before thousands more prisoners walk free, the Trump administration has assigned the U.S. Probation Office and the Department of Labor to help people prepare to return home.  White House officials are also seeking as much help as possible from the private sector, according to policy experts involved in the effort. They’ve asked major corporations to make pledges to hire the ex-prisoners while pushing the Social Security Administration to make sure each prisoner has a Social Security card needed for employment.  The Salvation Army is providing help with housing.  White House officials have discussed asking ride-share companies and public transportation agencies to offer free rides, the policy experts and advocates for prisoners said.

The Society for Human Resource Management, a national membership association for people working in human resources, has been recruited to work with states and private employers to offer education, legal advice and guidance on how companies can hire ex-prisoners. President and CEO Johnny C. Taylor Jr. said his organization had already begun that work last year but has ramped up a messaging campaign to let companies know that more than 2,000 employable people are about to start asking for jobs.“We need them, and they need us,” he said....

Outside groups that lobbied for the First Step Act say preparing prisoners for the workforce has never been more important, with unemployment at record lows and businesses scrambling to fill positions.“We know this administration is focused on the roughly 2,200 federal prisoners who are expected to be released this summer under the First Step Act,” said Mark Holden, senior vice president of Stand Together, a justice reform group funded by billionaire industrialist Charles Koch. “We all share the same vision that those leaving prison have access to basic needs and services that will help them safely return home and become contributing members of society.”

In this twitter thread, Kevin Ring of FAMM highlights some reasons I find this press piece curious, such as the fact that it provides little statistical or substantive contexts. One would not know, for example, that roughly 1000 federal prisons are released on an average week and that over 50,000 persons are released from state and federal prisons each month. And, as Kevin notes, a lot of folks who will now be getting the benefit of the "good time" fix may already be on home confinement and/or in halfway houses and working on employment prospects.

That all said, I still want to trump and praise the fact that the White House is actively involved now in trying to help ensure good outcomes for FIRST STEP Act beneficiaries and is calling upon both government agencies and private entities to help with this effort.  In addition to increasing the likelihood of good outcomes, this investment by the White House and these broader stories can and should further demonstrate that criminal justice reform does not and cannot stop when a new law gets passed.  Implementation, and follow-up by all sorts of players, is critical to success and requires persistent energy and commitment. 

(As an aside, Kevin's tweets note that the biggest number of released-at-once prisoners in the federal system came after the 2013 drug guideline reductions were made retroactive, which was partially supported by the Obama Administration.  That point in this context now has me wondering if the Obama Administration took any special steps to help those released federal prisoners or those who got out via Prez Obama's clemency initiative.)

Prior related posts:

June 5, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Monday, June 03, 2019

Intriguing SCOTUS decision to GVR Fourth Amendment case "to consider the First Step Act of 2018" over DOJ opposition

A number of helpful folks made sure I did not miss the fact that the Supreme Court's order list today started with this disposition of Wheeler v. US:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.  The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit for the court to consider the First Step Act of 2018, Pub. L. No. 115-391 (2018).

Interestingly, the original cert petition in Wheeler concerned a Fourth Amendment issue (discussed here at Bloomberg Law).  But, following the passage of the FIRST STEP Act, Wheeler's counsel filed this supplemental brief on the FIRST STEP Act issue.  That supplemental brief states that after the original petition was filed, "new legislation was enacted under which Mr. Wheeler could not be subject to the 20-year sentence imposed.  Mr. Wheeler files this Supplemental Brief to explain the impact of the new legislation on his sentence and to request relief from his unlawful sentence as an alternative remedy."

Here is part of the feds response to the supplemental brief which comes at the tail of of its cert opposition brief:

The First Step Act amended 21 U.S.C. 841(b)(1)(A) to reduce the statutory minimum sentence for certain drug offenses by recidivists from 20 years to 15 years.  See First Step Act § 401(a)(2).  But in Section 401(c), titled “Applicability to Pending Cases,” Congress provided that “the amendments made by th[at] section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.”  § 401(c) (emphasis added).  Here, petitioner’s sentence was imposed in 2016, long before the First Step Act was enacted, and petitioner has been serving that sentence since that time....  The First Step Act is thus inapplicable to petitioner.

Petitioner’s contention (Supp. Pet. 4) that the First Step Act applies to all criminal cases pending on “direct appellate review” is incompatible with the language of the statute. Congress instructed that the relevant provisions of the First Step Act apply only to pending cases where “a sentence * * * has not been imposed.”  First Step Act § 401(c).

In this post back in December 2018, I highlighted some of the "pipeline" ambiguity concerning which on-going cases could or should get the benefit of the the new FIRST STEP Act provisions. Though one might read the GVR by SCOTUS here as an indication that the Court thinks all pending cases should benefit from the new legislation, it might be more accurate to say that the Justices want the Third Circuit to sort this matter out in the first instance.

June 3, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, May 22, 2019

"The Second Step Act should give white-collar criminals a chance after release"

The title of this post is the headline of this notable recent Washington Examiner commentary authored by Cassie Monaco.  Here are excerpts:

I will also never forget the day I found out that my husband had been charged with a nonviolent criminal offense.  The emotions that I felt and the pain that I had at that very moment are indescribable, not to mention the feelings of utter shock, knowing that your life will never be the same again.  Today, my husband is serving six and a half years at a federal prison in Colorado.

As the wife of an incarcerated individual, I had two choices: Do I indulge in self-pity, or do I channel my energy and emotions into something more productive? I chose the latter. And so I got involved with national advocacy efforts on criminal justice reform, and I created an organization called A Day Closer, with the sole mission of reducing recidivism by keeping families intact while a loved one is incarcerated.

The First Step Act is providing much needed relief and assistance to many of those incarcerated and their families.  It is also restoring dignity back into our very broken criminal justice system.  However, the act still leaves behind a group that oftentimes gets over looked: individuals convicted of white-collar crimes.

I can understand the lack of sympathy out there for many white-collar criminals, but not all of them are bad people.  In addition to admitting their crimes and apologizing to the victims, they are left financially destroyed, with their professional and personal lives ruined forever....

The First Step Act understandably focuses on relief for drug offenders.  But oftentimes, those offenders do not have the burden of restitution once they are out.  The white-collar group, although they are less likely to fall victim to recidivism, will however be saddled with a life sentence in the form of extraordinary restitution.  They will never be completely free, even after time served. This needs to change.

As the national conversation shifts to the Second Step, lawmakers should sponsor and support legislation that provides some relief with regards to restitution amounts. Meanwhile, by executive order, Trump should return the Office of the Pardon Attorney to its former place under the Executive Office of the President.  Finally, Trump should create an independent commission that advises the president on matters related to Executive Clemency.

The goal is simple: give those that have committed white-collar crimes, admitted to their mistakes, and served their time a real chance to start over and rebuild their lives, without being saddled with the burden that excessive restitution creates.

May 22, 2019 in Fines, Restitution and Other Economic Sanctions, FIRST STEP Act and its implementation, Reentry and community supervision, White-collar sentencing | Permalink | Comments (13)

Tuesday, May 14, 2019

Is anyone collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act?

As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the so-called compassionate release statutory provisions of 18 U.S.C. § 3582(c)(1) without awaiting a motion by the Bureau of Prisons.   I see this provision is as such a big deal because I think, if applied appropriately, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have their excessive prison sentences reduced.

The value and impact this part of the FIRST STEP Act will turn on how judges approach compassionate release, which is one reason I am hopeful (but not optimistic) that the US Sentencing Commission will report real-time data on how this part of the new law is being applied.  Valuably, the FIRST STEP Act provides that "not later than 1 year after December 21, 2018, and once every year thereafter, the Director of the Bureau of Prisons shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on requests for sentence reductions pursuant to subsection (c)(1)(A)."  But yearly reports on this topic seem insufficient given that judges considering sentence reduction motions, as well as lawyers litigating them, would benefit greatly from knowing more immediately about what kinds of motions are being brought and granted.

Last month, DOJ reported that "22 inmates have already received sentence reductions under this program," but I was unable to find any sentence reduction orders under § 3582(c)(1) via a quick Westlaw search.  I have blogged here and here reports on some sentence reductions, and a helpful lawyer recently sent me a copy of another such order in a Tennessee case from earlier this month (Download Pesterfield Order).  I will try to post in this space any news and information I receive on this front, but the question in the title of this post might be sensibly recast as a wishful thinking: "I sure hope someone is collecting and analyzing sentence reduction orders under § 3582(c)(1)."  If anyone is doing so, please loop me in as I fear there is still too much darkness and uncertainty in an arena that now presents the opportunity for much more transparency and light. 

A few prior related posts:

Since FIRST STEP:

Prior to FIRST STEP:

May 14, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Sunday, May 12, 2019

"Next Steps in Federal Corrections Reform: Implementing and Building on the First Step Act"

The title of this post is the title of this terrific new Urban Institute issue brief authored by Julie Samuels, Nancy La Vigne and Chelsea Thomson.  This webpage provides this abstract:

Advocates and legislators across the political spectrum celebrated the passage of the First Step Act in December of 2018, the first large federal prison reform bill in nearly a decade.  This research brief reviews key measures in First Step, describes the actions and oversight needed for faithful and vigorous implementation of the act, and highlights some of the law’s limitations.  Working from the original set of recommendations made by the Charles Colson Task Force on Federal Corrections, we then describe additional measures that represent the next logical — and evidence-based — steps in federal corrections reform.  These steps include expanding eligibility for earned time credits, making all sentencing provisions retroactive, further reducing mandatory minimum penalties, and creating a second look provision for people serving extremely long sentences to petition the court for sentence reductions.

May 12, 2019 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners | Permalink | Comments (0)

Monday, May 06, 2019

Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act

In prior posts, I have made much of a key provision of the FIRST STEP Act which allows federal courts to directly reduce sentences under the so-called compassionate release statutory provisions of 18 U.S.C. § 3582(C)(1)(A)This recent Reason article discussing the impact of this provision in a notable recent case from Montana.  The full title of this article serve as a summary of its contents: "A Terminally Ill, Wheelchair-Bound Inmate Applied for Compassionate Release. The Justice Department Argued He Wasn't Dying Fast Enough To Qualify. The FIRST STEP Act gives dying inmates the opportunity to appeal to a judge for compassionate release. This case shows why." Here are excerpts:

On Wednesday a judge ordered the release of federal inmate Steve Brittner, 55, under the new provisions of the FIRST STEP Act, a criminal justice bill passed late last year.  The judge ordered the release over the objections of federal prosecutors, who argued that Brittner, who is suffering from a malignant brain tumor, does not meet the "extraordinary and compelling" reasons to qualify for what's known as "compassionate release."

Brittner's case illustrates both the impact of the new law and the extraordinary hurdles terminally ill inmates and their families still face when trying to squeeze a small amount of mercy out of the federal government.

One provision of the FIRST STEP Act allows federal inmates to take their pleas to a judge if the federal Bureau of Prisons (BOP) rejects their petitions for compassionate release — a policy that is supposed to afford elderly and terminally ill inmates the opportunity to finish their lives among family and in relative peace....

"This is a very telling case," says FAMM president Kevin Ring.  "On one hand, the First Step Act's reforms to compassionate release worked as intended and this family prevailed.  On the other hand, it blows my mind that the Justice Department and BOP still fought tooth and nail to keep a low-level drug offender who is dying of brain cancer and bound to a wheelchair away from his family for the final weeks of his life.  They'll say they were just doing their jobs, but their job is to do justice."

A few prior related posts from before and after FIRST STEP :

May 6, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, April 29, 2019

More concerns expressed about Hudson Institute's place in developing key piece of FIRST STEP Act reforms

In this post a few weeks ago, I flagged this Mother Jones article discussing criticisms of the Justice Department's pick of the Hudson Institute to host the Independent Review Committee required by the FIRST STEP Act to help DOJ develop and implement the Act's risk and needs assessment tools and recidivism reduction programs.  This new Salon article, headlined "Is the Trump Justice Department trying to sabotage the First Step Act?," follows up with a focus on a this joint statement released last week by Representatives Jerrold Nadler and Karen Bass.  Here are excerpts:

House Judiciary Committee Democrats are raising the alarm over a move by the Justice Department that would give a conservative think tank opposed to criminal justice reforms a key role in implementing the First Step Act.  That bill, signed into law by President Trump in December, combines limited sentencing reforms with measures designed to allow current inmates to shorten their sentences by participating in evidence-based training programs.

But despite the president’s support for the measure, the Trump Justice Department has taken a step that appears aimed at undercutting the act. Earlier this month, the DOJ’s National Institute of Justice announced that it had selected the Hudson Institute to host the Independent Review Committee (IRC) mandated under the act.

In a joint statement released Tuesday, House Judiciary Committee Chairman Jerrold Nadler, D-NY., and Subcommittee on Crime, Terrorism and Homeland Security Chairwoman Karen Bass, D-CA., sharply questioned the decision. “Our concerns about this decision remain” even after staff was briefed by DOJ, the pair said.

Under the act, the IRC’s function is to create independent, unbiased oversight of the law’s implementation and to ensure that reforms are carried out in a bipartisan and evidence-based manner.  The act calls on the National Institute of Justice to “select a nonpartisan and nonprofit organization with expertise in the study and development of risk and needs assessment tools.”

The Hudson Institute doesn’t fit that description.  A bastion of neo-conservative thought, the institute was founded in 1961 by uber-Cold Warrior Herman Kahn, whose quest for “winnable” nuclear war strategies inspired Stanly Kubrick’s "Dr. Strangelove."  Its primary interests are advancing militaristic security policies and a pro-Israel and Islamophobic agenda in the Middle East, although it offers up neo-conservative critiques of domestic social and economic issues as well.

“The Hudson Institute appears to have little or no expertise in the study and development of risk and needs assessment tools,” Nadler and Bass wrote. 

That opinion was seconded by Marc Mauer, executive director of the Sentencing Project, a Washington, D.C.-based non-profit dedicated to working for a fair and effective U.S. criminal justice system. “The Hudson Institute has no interest or expertise in criminal justice policy, and to the extent they do have any opinion about policy, they’re very hostile to the kinds of provisions that are in the First Step Act,” Mauer said. “It’s a strange choice when there are so many other reputable think tanks and organizations that do have experience in these issues.”

Hudson’s chief operating officer is George W. Bush-era drug czar John Walters, which raised another red flag for Mauer: “Walters is one of the premier drug warriors of the past 20 years,” he said. “He’s the co-author, with John Dilulio, of Body Count, that book from the 1990s that spread the thoroughly discredited ‘superpredators’ myth.”

In their statement, Nadler and Bass noted that DOJ was not forthcoming when queried about why Hudson was chosen and suggested that perhaps the decision has come through other-than-conventional channels. “Committee staff questioned DOJ representatives charged with overseeing First Step Act implementation as to why the Hudson Institute was selected and were told that DOJ representatives did not know,” they explained. “Staff asked whether the Hudson Institute has ever studied or developed a risk and needs assessment tool and were told that DOJ representatives did not know. Staff asked on what date the Hudson Institute was selected and were told that DOJ representatives did not know. Staff asked what process was used to select the Hudson Institute, and again were told that DOJ representatives did not know.”...

“DOJ is either paying short shrift to implementing critical elements of the First Step Act or substituting its own perspective over the will of Congress,” they added. “We ask that NIJ immediately rescind this selection and appoint an organization that comports with the mandates under the First Step Act. Congress will remain vigilant and demands that DOJ carry out the letter and spirit of the First Step Act.”

Does President Trump know that somewhere in the Justice Department his minions are working to undercut the bill he signed?  Does he care?

A few of many prior related posts on FIRST STEP Act implementation:

April 29, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Thursday, April 25, 2019

"Jared Kushner: Fifteen Lessons I Learned From Criminal-Justice Reform"

The title of this post is the headline of this interesting Time commentary authored by Jared Kushner, which seems to be something of a follow up to his interview as part of The TIME 100 Summit.  I would recommend the extended piece in full, especially for those interested in more background on how the FIRST STEP Act became a reality and how best to be successful in seeking the next steps in federal criminal justice reform.  Here is a taste:

In the wake of this legislation, hundreds of people have asked me how it was possible in the middle of such a divided political climate to bring both parties together on an issue that initially seemed to have no consensus, no champion and no pathway.  Pursuing the passage of the First Step Act was one of the hardest experiences of my life.  I got a close-up view of how Congress works — and how it doesn’t.  Because this was neither a major issue of the campaign nor one of the first priorities of the new Administration, I did a lot of the staff work on it myself, with a small and dedicated team, and we were able to follow what I designed as a more intuitive process, instead of a standard legislative process. This ended up working even though this bill nearly died dozens of times along the way. Here are the key lessons I learned from the experience.

The first lesson is that you have to reach out and talk to the other side. You will never make a deal in politics by only talking to people who agree with you.  Ivanka and I would frequently host bipartisan groups of six to eight legislators at our home for off-the-record dinners, normally on a specific legislative priority, and the first toast was always by someone saying, “We don’t do this enough. We used to spend more time with people in the other party in safe and productive environments.”  Politics is a tribal business, and my reaching out to Democrats made some on the right uncomfortable.  My politics have been those of an independent.  Since I was new to professional politics, I did not feel that I knew the best way to solve the problems we have in this country so I sought out respected people on both sides of the aisle.  I saw that when people reach out on either side of the aisle, they are subjected to criticism and even being labeled a “traitor” by those in their own party.  By contrast, President Trump is a pragmatist.  He looks to solve problems but is not ideologically fixed. I believed that he deserved thoughtful, researched options on how to pursue the promises that he made to the American people.  There are many different ways to solve problems and no party has a monopoly on good ideas.

The second lesson is that you have to engage early with a diverse group of people.  For the prison reform effort, we started out by hosting multiple listening sessions in which we assembled the right people and allowed everyone to share their perspective. T his included Senators, Congressmen, governors, academics, law enforcement and many others. From these conversations we got good ideas, we saw overlapping areas of agreement, and we made people feel included in the process from the outset. Asking a lot of questions and closely listening, helped me form a more nuanced perspective.  As my close friend and mentor Ambassador Bob Lighthizer would tell me during intense trade negotiations, “I don’t know anyone who ever got smarter by talking.”  While being in the White House and having the President on board was powerful, we could not have gotten this done if it weren’t for the many outside groups supporting the effort.  There are too many to name who worked on this issue for a decade before I got involved, but they laid the foundation for our success.  When we had politicians on the fence about voting with us, we would activate these outside groups and they always knew who the most influential voices were for each Senator or Congressman.  Having many supporters out on TV and in the communities in both liberal and conservative circles helped bring around others who were less familiar with the issue.  This coalition enabled me to cross the most important hurdle of all, which was to get President Trump to support this effort over the objections of others.

The third lesson is to study what was tried and assess why it failed.  Our system was designed to make change hard, and I remind my team all the time not to be afraid to follow intuition over ceremony and to try new approaches. We started by looking at the 2016 legislative effort and sought to understand who supported it and why the effort had failed. We were told that the Senate would not put a new bill on the floor since there was still too much disagreement. The leading opponent in 2016 was then Senator Jeff Sessions, who in 2018 was the Attorney General. Following dozens of discussions with interested parties, I engaged with him and after several meetings I was able to get him to agree not to block prison-reform efforts in exchange for us not working on the sentencing reforms he opposed. I told him that I would assume that we would work in good faith to achieve our shared goals of reducing crime. To that end, we would take all of his comments under advisement and try to incorporate them to the degree possible.  This angered Senators Chuck Grassley and Dick Durbin, who had spent considerable time crafting the compromise language on the old bill.  They were skeptical of Sessions’ working in good faith on this issue and thought we were disrespecting their work. After several heated meetings, I told them that we were going to start working in the House on a prison-reform bill.

The other side of this is to study what has worked . The best thing about the federalist system is that the states are laboratories of democracy where ideas are tested. On prison reform we analyzed the many red states where reforms have succeeded.  For instance, in Texas in 2002, Governor Rick Perry saw that the costs of incarceration were rising fast. He determined, with the help of his then policy director Brooke Rollins — who later led this effort with me from the White House — that you can change the prison system to focus it on locking up the worst violent criminals and that by being more targeted with these efforts you can lower incarceration costs and also lower crime rates.

The fourth lesson was to develop a full legislative strategy early, and be prepared to modify as things progressed.  We started working with Representatives Doug Collins and Hakeem Jeffries in the House, who had been the co-sponsors for the previous prison-reform bill.  What we hoped would be easy got complicated very quickly.  When the White House engaged, this raised the profile of the effort making it more political than it was the last time.  We received criticism on all sides.  Law-enforcement groups insisted that the current version of the bill was inadequate and in need of major revisions; Congressman Jeffries was taking heat for working with Trump’s White House; and Senate Democrats even claimed that our version of the bill was potentially racially discriminatory in how it would be implemented.  We had our work cut out for us.

The fifth lesson is that the details really matter.  It’s easy for politicians to disagree on big concepts, but you find compromise and solutions in the details. During the negotiations we had many moments where both sides almost quit.  At one point, those at the table who were against the bill had put so many poison pill provisions into the draft legislation that I got an emergency call from Ja’Ron Smith, the talented legislative staffer who volunteered to work on this with me.  Ja’Ron told me that Jeffries’ team had walked away. The poison pills did not matter to our primary objective, while putting undue pressure on the Congressman, who was already getting a lot of criticism from the left. I didn’t want to let him down.  We reviewed the provisions and determined which ones were reasonable and which were not....

The seventh lesson is that nothing significant in Washington gets done without the President’s buy-in. After a year of research and planning, we were confident that this was a worthwhile effort but could not take any further steps without President Trump’s blessing.  The President was a bit skeptical going into the meeting, saying “Jared, this sounds like a pretty liberal issue.”  So I scheduled a policy meeting in January 2018 with external conservative leaders who could better explain how these reforms would advance his agenda.  Before it began, Sarah Sanders noted that her father had passed similar reforms in Arkansas and that they were some of the most impactful and popular things he had done.  When the President entered the room he was pleased to see many familiar conservative faces.  I made a few introductory points and quickly passed it off to others to make the case.  Having conservative governors, activists and law-enforcement leaders there helped a lot.  But the most important statement made at that meeting was by aide Reed Cordish who said to President Trump, “You promised during your campaign to fight for the forgotten men and women of this country. There is no one more forgotten or underrepresented than the people in prison.” I could see that this statement hit the President and moved him deeply.

After we had gone through the statistics and policy, the President said, “That’s really sad. These people make a mistake, do their time, get out and then have all of these challenges. In some ways, what do we expect them to do?”  He saw immediately why both parties should support these reforms and told me: “I am all in. Let’s get it done, but work with Jeff to make sure this isn’t soft on crime.”

April 25, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (5)

Wednesday, April 24, 2019

Judge Jack Weinstein provides thorough explanation for FIRST STEP Act crack retroactivity sentence reduction

A few weeks ago, as noted here, the Justice Department issues a press release discussing the implementation of the FIRST STEP Act in which it reported that the "Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 826 sentence reductions and 643 early releases."  These numbers are encouraging, though the US Sentencing Commission is this impact analysis reported that there were "2,660 eligible offenders ... in BOP custody as of May 26, 2018" who should benefit from Section 404 of the FIRST STEP Act making the Fair Sentencing Act of 2010 retroactive.  So we may be only a third of the way toward fully implementing just this one section of the new law.

Notably, a judicial legend has now added to the number of federal offenders benefiting directly from the FIRST STEP Act, as earlier this week Judge Jack Weinstein issued this extended opinion explaining the legal basis and justifications for reducing by eight months a sentence being served for a crack offense imposed back in 2009.  I recommend the 15-page opinion in full because it is a clear and effective explanation of the import and impact of the FIRST STEP Act, and here is an excerpt from the start of the opinion:

Defendant Cheyenne Simons was sentenced over a decade ago to a twelve-year term of imprisonment for his role in a criminal conspiracy to distribute crack cocaine.  He now moves to have his sentence reduced pursuant to Section 404 of the First Step Act.  The Act permits courts to retroactively lower the sentence of a defendant convicted of certain Controlled Substances Act violations involving crack cocaine.

The United States concedes that Simons is eligible for resentencing but argues that the court should decline to revisit its original sentence.  “Nothing in the First Step Act,” it contends, “changes the court’s original assessment of the Section 3553(a) factors or suggests that a sentence should be arbitrarily reduced.” Gov’t Letter 5, ECF No. 754, Mar. 27, 2019.

The government is mistaken.  We now have two well-considered statements of federal policy by Congress since the defendant was originally sentenced — the First Step Act and the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (2010) (“the Fair Sentencing Act”).  Both favor sending fewer people to prison, imposing shorter sentences for drug crimes, and reducing the sentencing disparity between crack and powder cocaine offenses.  The court must consider this new governmental policy when deciding whether a reduction of defendant’s sentence is warranted.  See Sent. Hr’g Tr., Apr. 22, 2019, passim.

An extra year, day, or moment of freedom from prison, when warranted, is worth pursuing by a prisoner, and, if justified by the law, should be granted by the court.

Defendant’s motion is granted.  His sentence is reduced to time served.  An amended judgment and conviction shall be filed forthwith.

After serving more than 136 months of his 144-month original sentence, Simons is now eligible for immediate release.  While this decision does not substantially shorten his sentence, justice favors freedom over unnecessary incarceration.  Every day of imprisonment that can be appropriately shortened in a case like this should be.  See Shaila Dewan & Alan Binder, Just How Much of an Overhaul Is This Overhaul of the Nation’s Criminal Justice System?  N.Y.Times, Nov. 16, 2018 (“One day makes a difference because you don’t know what that one day can bring about in a person’s life,” was declared by a former inmate properly released early from federal custody after serving more than 21 years for her involvement in a crack cocaine ring).

April 24, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Implementing retroactively new USSC crack guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, April 15, 2019

Extended letter from criminal justice groups calling for robust implementation of the FIRST STEP Act's prison reforms

Via email today, I learned of this notable lengthy letter signed by an array of criminal justice groups addressing key issues related to the implementation of the prison reform components of the FIRST STEP Act.  Because the full letter runs seven pages, I will provide the summary that appeared in the email that I received:

[T]his sign-on letter call[s] for the implementation of the First Step Act in a manner that is consistent with Congressional intent and the text of the statute.  The letter, led by The Leadership Conference on Civil and Human Rights, ACLU, and Justice Rountable, was addressed to the Department of Justice’s National Institute of Justice Director David Muhlhausen, and makes the following three arguments:

(1) DOJ must appoint an appropriate “non-partisan non-profit” host organization with expertise in the study and development of risk and needs assessment tools to select and convene the members of the Independent Review Committee as required by the statute;

     a. NIJ appointed The Hudson Institute — a conservative think tank with no visible expertise or experience in the study and development of risk and needs assessment systems — to host the IRC.

     b. The Hudson Institute has selected at least three members for the IRC whom may not meet the stated criteria outlined in the statute.

(2) Neither the Bureau of Prisons (BOP) security classification system nor the current version of the Post Conviction Risk Assessment (PCRA) should be adopted as a substitute for the Risk and Needs Assessment System required by the statute;

     a. The BOP security classification and the PCRA were not designed to identify specific criminogenic needs and heavily relies on static factors that classify many people who do not go on to reoffend as high risk.

(3) The Bureau of Prisons must immediately begin providing rehabilitative programming.

Some of many prior related posts on FIRST STEP Act implementation:

April 15, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, April 13, 2019

Noting a notable federal prisoner now benefiting from the FIRST STEP Act's elderly offender home confinement program

The New York Times has this notable new article focused on one notable federal offender now benefiting from the FIRST STEP Act.  The headline of the piece indirectly reveals some of its themes: "He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul."  Here are some excerpts from the piece:

Three weeks ago, a 69-year-old man convicted of bank fraud quietly left a federal prison camp in Cumberland, Md., and moved into a friend’s one-bedroom apartment in Manhattan. He was one of the early inmates to benefit from a criminal justice bill signed into law by President Trump.  The law, the First Step Act, offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities.

But one person who benefited from the law was Hassan Nemazee, the prisoner at Cumberland, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.  He was a national finance chairman for Hillary Clinton’s 2008 presidential campaign and later raised hundreds of thousands of dollars for Barack Obama’s first presidential contest.

Mr. Nemazee, who is serving the rest of his sentence in home confinement, acknowledged in interviews that he was not a fan of Mr. Trump, but he felt personally indebted to the president and his aides for pushing through “the most significant prison reform legislation in a generation.”...

Mr. Trump said recently at the White House that “unfair sentencing rules were contributing to the cycle of poverty and crime,” and since the First Step Act’s passage, more than 500 people with “unfair sentences have been released from prison and are free to begin a new life.”  But Mr. Nemazee left prison under a less publicized part of the bill that allows certain offenders who are over 60 and not considered a threat to others to be released into home confinement if they have completed two-thirds of their sentence.

In home confinement, Mr. Nemazee does not wear an ankle bracelet, but officials may call him on a landline late at night or early in the morning to verify he is at home. He may be summoned for a urine test at any time and must submit his weekly schedule for approval, he said.  Still, it feels a lot like freedom.  He may leave his apartment to go to work, the gym, religious services or appointments with his doctors and lawyers. He may also go out to lunch, “which is always a treat, given where I have been the last eight and a half years.”...

The Bureau of Prisons has said that since the bill’s passage, 10 prisoners — of 23 thus far deemed eligible — have been released into home confinement. The bureau would not identify the prisoners or comment on their cases.  Another is reported to be a white-collar criminal named Herman Jacobowitz, 60, who pleaded guilty in Brooklyn in 2005 in another large fraud case and was sentenced to 15 years, according to court papers and a lawyer familiar with the case. Mr. Jacobowitz could not be reached for comment.

Some of many prior related posts on FIRST STEP Act implementation:

April 13, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0)

Friday, April 12, 2019

Spotlighting concerns about organization tasked with helping Justice Department develop and implement risk and needs assessment tools under FIRST STEP Act

As reported here on Monday, this week the Department of Justice finally got around to announced the selection of the Hudson Institute as the host the Independent Review Committee required by the FIRST STEP Act to help DOJ develop and implement the Act's risk and needs assessment tools and recidivism reduction programs.  Various folks, including members of Congress, have expressed various concerns about this pick, and this new Mother Jones article effectively reviews why.  The article is headlined "Trump Keeps Celebrating Prison Reform. His Administration’s Latest Move Could Sabotage It," and is worth reading in full.  Here are excerpts (with links from the original):

Now lawmakers of both parties who backed the First Step Act are alarmed at the Justice Department’s latest move, and at least two senators made clear their discomfort during a hearing on Wednesday.  “I’m a little bit worried that we just let a fox in the chicken coop here,” Sen. Dick Durbin (D-Ill.) said of the Hudson Institute during a confirmation hearing for deputy attorney general nominee Jeffrey Rosen.  “This is a think tank that has a point of view…They published an article entitled, ‘Why Trump Should Oppose Criminal-Justice Reform.’ This is the same agency that’s now been chosen by the Department of Justice and Trump administration to be part of this so-called independent review [committee] system.”

Sen. Mike Lee (R-Utah) meanwhile described the institute as an “opponent of the First Step Act” and asked whether Rosen would choose another group to focus on the risk assessment tool if he were confirmed. (Rosen did not answer that part of the question but said he supported the First Step Act.)  “I don’t see a lot of good faith in implementing this law right now,” Lee said.  “And it’s become increasingly clear to me in the last few days that some Department of Justice officials at least don’t like the First Step Act, and they seem not to care that Congress passed this law and that President Trump signed this into law.”

The Hudson Institute, founded in 1961, is known for its work on national security and foreign policy, though it also focuses on economics and domestic policy.  For the First Step Act, it has announced six committee members so far who will develop the risk assessment program.  One of the members is its own chief operating officer, John Walters, who served as a drug czar in the Bush administration.  During his confirmation hearing for that position in 2001, some senators said they were concerned about his views on criminal justice: He had written it was a “great urban myth” that the country was imprisoning too many people for drug possession, and he had suggested that the disparity between crack and powder cocaine sentences was merely a “perceived racial injustice,” implying no real racial discrimination was at play.  In 2015, after he joined the Hudson Institute, he wrote that the concept of “mass incarceration” was also a myth, and that “the great majority of federal prisoners appear to be incarcerated because they were, properly, adjudged guilty and justly sentenced.”  These views appear to be in direct conflict with changes in the First Step Act, including reforms to ease some mandatory minimum sentences and retroactively reduce sentencing disparities between crack and powder cocaine offenses. (That said, a Hudson Institute spokesperson says Walters has publicly endorsed reforms to crack sentencing since the early 2000s.)

Some of many prior related posts:

April 12, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, April 09, 2019

A few comments on implementing the FIRST STEP Act in written testimony from AG William Barr

Attorney General William Barr testified today before a House Appropriations subcommittee. Unsurprisingly, media and twitter attention is focused on what AG Barr had to say about the Mueller report. But notably, while AG Barr's written statement did not even mention the Mueller report, he says a lot about the Trump administration's budget proposal for the Justice Department and has this paragraph about the FIRST STEP Act:

In December, Congress passed and the President signed the First Step Act of 2018, which seeks to reduce recidivism, refine sentencing laws, and eliminate disproportionate penalties for certain crimes. I intend to robustly fund and diligently implement this bill at the Department. The Act directs the National Institute of Justice (NIJ) to evaluate Second Chance Act programs no later than five years after its enactment. Therefore, the FY 2020 Budget requests $1.5 million for NIJ to support the first phase of this evaluation, which will focus on identifying appropriate outcome measures for Second Chance Act programs.  In addition, related to the First Step Act, the Federal Bureau of Prisons (BOP) is requesting $14 million to incentivize the development of innovative pilot projects in reentry and recidivism-reduction approaches. BOP is also requesting $1 million to expand the availability of medication-assisted treatment for inmates with opioid abuse disorders and to enable more inmates to get treatment.

April 9, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Monday, April 08, 2019

"Department of Justice Announces First Step Act Implementation Progress"

The title of this post is the heading of this notable and lengthy press release from the US Department of Justice this afternoon.  The full release (and its links) are must reads for anyone and everyone following closely the early implementation of the FIRST STEP Act.  I may need a few posts to fully unpack all the particulars, but I will start here with the start of the release and a few choice specifics:

Today, the Department of Justice’s National Institute of Justice (NIJ), in accordance with the First Step Act, has announced the selection of the nonprofit and nonpartisan Hudson Institute to host the Independent Review Committee. The Committee, whose members will be appointed by Hudson Institute in accordance with the Act’s requirements, will assist the Department as it develops and implements risk and needs assessment tools and evidence-based recidivism reduction programs.

“The Department of Justice is committed to implementing the First Step Act,” said Attorney General William Barr. “The Independent Review Committee plays an important role in that effort by assisting in the development of a new risk and needs assessment system and improvements to our recidivism reduction programming.  I am grateful to Hudson Institute for hosting this important Committee, which will lead to better policies at the Department and, ultimately, better outcomes for prisoners reentering society.”

NIJ also announced today that it is contracting with outside experts and leading researchers, including Dr. Grant Duwe Ph.D., Dr. Zachary Hamilton Ph.D., and Dr. Angela Hawken Ph.D., for assistance and consultation as the Department develops the Risk and Needs Assessment System under the Act.  Dr. Duwe is the Director of Research for the Minnesota Department of Corrections, and a nationally recognized expert on the development of recidivism risk assessment systems. Dr. Hamilton is an Associate Professor of Criminal Justice and Criminology and the Director of the Washington State Institute for Criminal Justice, and focuses on treatment matching through risk and needs assessment systems.  Dr. Hawken is a Professor of Public Policy at the New York University Marron Institute, and is the founder and director of New York University’s Litmus/BetaGov program, which assists in the development and validation of data-driven policies. Each of these experts will bring unique expertise as they augment NIJ and the Bureau of Prisons’ (BOP) efforts to implement the Act.

Today’s announcements by NIJ are the latest in a growing list of accomplishments as the Department works diligently to implement the Act, signed into law in December 2018. Some other highlights of the Department’s ongoing implementation efforts include...

The Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 826 sentence reductions and 643 early releases....

BOP has issued procedures for “compassionate release” sentence reductions under 18 U.S.C. §§ 3582 and 4205(g) (BOP Policy Number 5050.50), and 22 inmates have already received sentence reductions under this program.

BOP has issued procedures providing for participation in the Second Chance Act home confinement pilot program under 34 U.S.C. 65401(g) (BOP Operations Memorandum 001-2019), and 23 inmates are currently participating, with additional inmates currently being screened for program inclusion.

April 8, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, April 03, 2019

Effective accounting of FIRST STEP achievements and work still to do

Van Jones and Jessica Jackson have this effective new CNN piece under the headline "Why we're celebrating a three-month-old law."  I recommend the piece in full (and many of its links) for anyone seeking a quick primer not only on why the FIRST STEP Act is already an historic achievement and but also on the critical work ahead for those eager to see this legislation achieve all it is capable of achieving.  Here are excerpts to whet appetites for the full commentary:

By way of review, the First Step Act was the big bipartisan success story of 2018.  Liberals like Rep. Hakeem Jeffries and Sen. Dick Durbin joined with conservatives like Rep. Doug Collins and Sen. Chuck Grassley.  We both got personally involved as advocates through cut50.org, a bipartisan reform group that we co-founded during the Obama administration....  And in a move that surprised many, President Donald Trump endorsed the legislation and signed it into law.  In doing so, we witnessed a real evolution of the President's views on crime and punishment. The same President whose inaugural address included a line about stopping "American carnage" came to publicly decry harsh prison sentences.

While passing the First Step Act represented real progress, the true measure of any law should be its impact on people's lives. As the first quarter of the First Step Act comes to a close, there are at least five things we should be celebrating....  But there is still a long way to go before the First Step Act has been fully implemented and fulfilled its promise. This is what needs to happen now....

We named this legislation the First Step Act for a reason.  We know there is much more to be done, as our critics often point out.  However, there can be no second, third, or fourth step without a first.

We were in attendance at the Trump administration's 2019 Prison Reform Summit and First Step Act Celebration to both celebrate the good work that has been done and continue to push for more.  We were joined by lawmakers from across the country, faith leaders, business executives, cultural figures and the advocates who helped shape and pass the legislation.  We also brought with us a half-dozen people who have recently been released from federal prison because of this legislation and have traveled to Washington to share their stories.

They had much to be thankful for -- and the President gave them all an opportunity to speak.  Yvonne Fountain had 10 years remaining on her prison sentence when she heard from her lawyer that his motion for her immediate release had been granted.  April Johnson was ordered by a judge to be released from prison to return home and care for her terminally ill daughter and two young grandchildren.  Catherine Toney, Troy Powell, and Gregory Allen have all come home within the last 30 days hoping to contribute to society by being good employees and citizens.

They have all experienced significant challenges, too, and talked candidly about them with staffers on Capitol Hill and White House officials.  As more people hear their voices, see their faces and listen to their stories, more hearts will open and more progress will be possible.  After all, the stories and voices of incarcerated and formerly incarcerated people have already pushed Trump to do much more than most people ever thought he would....

When the President signed the First Step Act into law just days before Christmas, he gave Topeka K. Sam and Shon Hopwood, who had both served time in federal prison, an opportunity to share their stories before cameras in the Oval Office.  At his 2019 State of the Union Address, President Trump, in front of millions of viewers and the bicameral assembly, highlighted Alice Johnson alongside another case of unjust incarceration, Matthew Charles.  Neither of us will forget the President during the 2019 State of the Union address, saying "Welcome home, Matthew."

This time last year, practically no one believed that a bipartisan breakthrough of this scale and magnitude was even possible.  For those of us who continue to believe and fight for a victory on what was once considered to be a lost cause, celebrating the First Step Act is something we experience with a great deal of pride.

A few prior related posts on FIRST STEP Act implementation:

April 3, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Monday, April 01, 2019

Encouraging news and inspiring notes as White House celebrates FIRST STEP Act

This Washington Examiner piece, headlined "Trump announces Second Step Act to help ex-prisoners find work," reviews some highlights from today's celebration of the FIRST STEP Act at the White House today. Here are excerpts:

President Trump announced plans Monday for a Second Step Act focused on easing employment barriers for formerly incarcerated people.  "We are proving we're a nation that believes in redemption," Trump said at a White House event celebrating people released under the First Step Act, which he signed in December.

Trump said the "second step" legislation will feature a $88 million funding request for prisoner social reentry programs. "Today, I'm announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records, and that's what we're starting right away," Trump said....

Some advocates had urged deeper sentencing reforms in a second major criminal justice reform bill.  Troy Powell, whose crack cocaine sentence was shortened by the First Step Act, spoke at the event Monday and called for more action to release inmates.  "There's more that can be done. I left so many people behind in prison doing 40, 50 years for nothing, I mean absolutely nothing," Powell said.  "I think there should be a second step."

Trump applauded Powell. "Could I have said it better than that?  His statement about so many people?  And that's true, so many people are there that really are serving 40 and 50 year sentences for things you wouldn't even believe, for things some people wouldn't even be going to prison for today," he said....

Trump said his administration would also "encourage employers to adopt second chance hiring practices," and gave rare applause to the media for favorable coverage of Alice Johnson, whose drug sentence he shortened last year using his executive clemency powers.  "Alice said, 'I also want to thank the media.' I bent over and said, 'Are you sure?' And I do too, I think that's fantastic," Trump said.

One speaker at the event, former prison inmate and Georgetown University law professor Shon Hopwood, was introduced by Trump as a current teacher of his daughter Tiffany Trump. "I think you're going to be rewarded in a way you cannot even imagine," Hopwood told Trump.

Via this twitter link, one can watch the full clip of Prez Trump speaking about criminal justice reform and hear the inspiring comments of a number of former federal prisoners who have been helped by the FIRST STEP Act.  Also, the White House released this "Fact Sheet" today titled "President Donald J. Trump Is Committed to Building on the Successes of the First Step Act."  The whole document is notable, and here are excerpts:

April 1, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"Trump Celebrates Criminal Justice Overhaul, but His Budget Barely Funds It"

The title of this post is the headline of this notable new article in the New York Times.  Here are excerpts:

President Trump on Monday is expected to host about 300 guests, including convicted felons, at the White House for the “First Step Act Celebration,” a party intended to bring attention to a rare piece of bipartisan legislation he passed last year, and which he plans to highlight on the campaign trail.

The East Room fete will cap a day of events dedicated to overhauling the criminal justice system, an issue that agencies across the government have been asked to elevate. The labor secretary, Alexander Acosta, is expected to participate in a panel on work force development.  Ben Carson, the secretary of Housing and Urban Development, is to lead a session about prisoner re-entry.  Ivanka Trump, the president’s daughter and senior adviser, will weigh in on a session dealing with incarcerated women. Kim Kardashian, the reality star, was even invited to participate in the panels and the party, but couldn’t attend.

Months after the legislation passed, and amid foreign policy blunders and a defeat on funding a wall along the southern border, Mr. Trump’s administration is putting the issue front and center.

But some activists who helped work on the legislation — which would expand job training and early-release programs, and modify sentencing laws, including mandatory minimum sentences for nonviolent drug offenders — have expressed concern that Mr. Trump is more attuned to the political opportunities the law offers him, rather than with ensuring it is enacted effectively.

Despite the high-profile party and round tables — and the White House releasing a presidential proclamation declaring April “second chance month” — Mr. Trump’s budget, released last month, listed only $14 million to pay for the First Step Act’s programs.  The law passed in December specifically asked for $75 million a year for five years, beginning in 2019. The funding gap was first reported by The Marshall Project.

Advocates participating in the events at the White House on Monday said they were hoping that officials would publicly address questions about funding the program. “The answer is a resounding yes. We’re fully committed to doing that,” said Ja’Ron Smith, a White House adviser who has worked extensively on the First Step Act implementation, referring to the funding.

In a budget justification document, the Bureau of Prisons, which operates under the Justice Department, said that it had not concluded how much money would be required to put the First Step Act into effect. But it goes on to say that fulfilling the law is a “priority” and that the Bureau of Prisons’ budget for re-entry activities “will be prioritized to fully fund the requirements of the act.” The document also noted that the prison bureau plans to dedicate $147 million in the 2020 fiscal year to First Step Act-related activities, which includes the cost of expanding halfway housing, the cost to relocate people and $85 million for the Second Chance Act grant program, which aids states and nonprofits in reducing recidivism.

Despite the assurances that the changes remain a budget priority, questions about funding have advocates on the issue concerned. “The First Step Act cannot fulfill its promise of turning federal prisons toward rehabilitation and preparing men and women to come home job-ready if it is not fully funded,” said Jessica Jackson Sloan, national director of #Cut50, a prisoner advocacy group that worked closely with the White House to get the legislation passed. Ms. Sloan said the group has been meeting with appropriators and talking to White House officials for months “to ensure that the proper funding is requested and appropriated.”

Some activists have been more willing to give the Trump administration the benefit of the doubt, noting that the lower funding level for 2019 could be because First Step programs are not expected to be up and running until the end of August, less than two months before the end of the federal fiscal year....

At a campaign rally in Grand Rapids, Mich., last week, Mr. Trump described the First Step Act as legislation that politicians had been trying to do “for so many years.” He added a dig at his opposition: “While we are pushing and pursuing all of these common-sense policies to advance the common good for our citizens, Democrats are pushing a cynical and destructive agenda of radicalism, resistance and revenge.”

The kickoff party on Monday will also offer Mr. Trump an opportunity for a photo-op with convicted felons, many of whom are African-American, as his campaign advisers want him to expand his appeal beyond his hard-core base. Many Democratic lawmakers and prison advocacy groups were happy to work with the Trump administration on the legislation, despite early skepticism about Mr. Trump’s commitment to the issue.

After today's notable event at the White House, I may have a lot to say about how the politics and policy of federal sentencing reform are continuing to evolve in all sorts of interesting ways.

UPDATE: I just saw that NPR today had this segment, headlined "3 Months Into New Criminal Justice Law, Success For Some And Snafus For Others," which covers some similar ground.  Here is a small part of this piece:

Activists who backed passage of the law say that certain parts of the act are working as intended, but other parts seem to be facing delays and uncertainty. "It's been a mixed bag," said Mark Holden, general counsel to Koch Industries, which has been a big supporter of the statute....

Congress passed the law but has not appropriated funds for the initiative. And the president's budget released earlier this year did not clearly request the $75 million that is needed to support the new criminal justice overhaul.

Despite that, a senior administration official said Trump is committed to working with Congress to fully fund and implement the law. "We are hoping to get the independent review council in place as soon as possible," the official said.

The official blamed the 34-day government shutdown for contributing to delays but said there would not be a significant holdup.

Another official said the Justice Department is using resources it has on hand to work on the risk assessment tool internally, in the absence of the committee, and expects to meet the July deadline. But the official acknowledged that Congress will need to provide money or approve shifting funds around in order for the agency to move ahead with the panel and other aspects of the law.

Ensuring that the money is available will be crucial to the effectiveness of the First Step Act, said Nancy La Vigne, head of justice policy at the Urban Institute. "We always recognized that without proper funding, the First Step Act is really nothing more than window dressing," La Vigne said.

April 1, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Thursday, March 28, 2019

Might White House provide "impact data" on FIRST STEP Act as Prez Trump celebrates the law next week?

Download (12)In this post last week, I wondered aloud "Might the US Sentencing Commission provide some real-time updates on the implementation of the FIRST STEP Act?".  Today, after seeing this heart-warming article in the Washington Examiner, I am now wondering and hoping that the White House might be a source of FIRST STEP data now that they have a celebration of the law in the works.  The Examiner article is headlined "Jared Kushner called Walmart to get job for first woman freed by First Step Act," and here are excerpts:

Catherine Toney began February in prison and ended the month with a job at Walmart after White House adviser Jared Kushner called the Arkansas-based retailer on her behalf.  Toney, 55, is believed to be the first woman freed by the First Step Act, which President Trump signed in December. She was released Feb. 1 after serving 16 years, benefiting from the law's retroactive crack cocaine sentence reductions.

Toney will join Trump on Monday for an event celebrating the criminal justice reform law, his first major bipartisan policy achievement. Other recently released inmates were invited to attend.

Toney met Kushner, Trump's son-in-law and an architect of the reform law, on Feb. 21 when she attended a White House Black History Month event. Kushner asked about Toney's plans — and she said she wanted to work at the Walmart in Daphne, Ala. He volunteered to call Walmart for her, according to Toney and two others in the room.

"He promised me he was going to do it," Toney said. One day later, she got a call from a woman named Becky at Walmart's corporate office, saying that Kushner had called, and that the company wanted to help. "I went to the White House, but I came home to nothing, not anything at all. By him calling corporate himself, he made sure I got in this Walmart where I asked," Toney said. "He was a man of his word and he did what he said he would."...

The White House did not immediately respond to a request for comment, but a Walmart representative confirmed that Kushner personally called. The representative said Toney met the standards for employment, and that the company wanted to help other former prisoners.

Jessica Sloan, national director of the prison reform group #cut50, said Toney is part of a bigger-picture effort by Kushner to enlist businesses to hire formerly incarcerated people, including by helping reduce re-entry barriers, such as poor Internet literacy. "Catherine is a test case" for the retail giant, said Sloan, whose group offered Toney a temporary contract job, before she landed the Walmart position, to help her buy a car.

Also attending the Monday celebration is April Johnson, 40, who was freed from prison in January under a compassionate release provision to care for her daughter, who is suffering from terminal cancer, and for her daughter's two sons. "I would like to thank [Trump] for putting the new law in effect," she said.

Troy Powell, 41, wants to thank Trump, while urging a second step for others. Powell, now working at a lumber company, served nearly 16 years of a crack cocaine sentence and was freed under the same retroactive provision as Toney. In prison, Powell said there's some surprise at Trump's role.  "When the election was going, no one was looking forward to Trump being in there," Powell said. "People thought the Democrats were going to change the laws and get them out of prison, but then it was the Republicans and Trump who changed the laws."

Powell notes, however, that the First Step Act reduces certain future prison sentences, including limiting gun sentencing enhancements, without retroactively reducing the same sentences for those now in prison. Another section of the law expanding "good time" credit to give near-immediate release to about 4,000 people, a provision meant to apply retroactively, has been stalled due to a drafting error.

Amy Povah, the founder of the CAN-DO Foundation, said that despite criticism, the First Step Act "has actually exceeded some expectations," particularly with compassionate releases for elderly or ailing inmates.  Still, Povah advocates for Trump to supplement the law with more grants of clemency to prisoners.

Monday's events at the White House will feature a "strategy session" on how to move forward on reforms, a workforce re-entry event with Labor Secretary Alex Acosta, and an afternoon celebration with Trump.

I am very pleased to see Amy Povah continue to urge Prez Trump to follow-up the FIRST STEP Act with clemency grants, especially because we are already getting close to a full year since Prez Trump started generating lots of clemency excitement by talking up the possibility of lots and lots of clemency grants.  I also think she is right to note that, as I discussed in this prior post, there could be a huge impact from the FIRST STEP Act allowing inmates to bring directly to court so-called compassionate release motions to "modify a term of imprisonment"  under 18 U.S.C. § 3582(C)(1)(A)

But, as the question in the title of this post hints, I find it really hard to judge whether the FIRST STEP Act is meeting or exceeding (or falling below) expectations because I have not yet seen even a partial accounting of how many persons have been released from prison thanks to various provisions of the Act.  In addition, the heart of the bill's prison reforms, both the increase in "good time" credit and the creation of an "earned time" credit system, are already having an array of early implementation challenges.  And, problematically, because the federal Bureau of Prisons lacks a permanent director and because the US Sentencing Commission lacks a quorum of commissioners, two key agencies for implementing the Act are operating at a significant deficiencies.

Put simply, I am very excited the White House will be having an exciting event to celebrate the exciting FIRST STEP Act, and now I hope that this event will help give everyone more reasons to be excited about the reality of FIRST STEP Act implementation.

A few prior related posts on FIRST STEP Act implementation:

March 28, 2019 in Data on sentencing, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, March 25, 2019

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

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

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

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

March 25, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing | Permalink | Comments (5)

Thursday, March 21, 2019

Might the US Sentencing Commission provide some real-time updates on the implementation of the FIRST STEP Act?

The question in the title of this post first came to mind when I first came across this local article a couple weeks ago reporting that "so far, 14 Rhode Islanders convicted under stiff mandatory-sentencing laws have gained early release under the newly enacted federal law called the First Step Act."  More recently, I saw this extended piece from the Indiana Lawyer with this interesting data report:

Already in the Southern District of Indiana, some 15 offenders have been released from federal prison pursuant to the First Step Act, and another 15 to 20 releases are expected soon.  Though Northern District judges have not yet reduced any sentences under the act, federal defender Jerry Flynn expects reductions and releases to begin in his district soon.

These reports of prison releases from Indiana and Rhode Island appear to be a function of the initial implementation of Section 404 of the FIRST STEP Act, the retroactive application of Fair Sentencing Act of 2010 which lowered crack mandatory minimums.  And these reports have me already wondering about (1) which districts may (or may not) be doing a particularly good job implementing the latest round of crack retroactivity, and (2) whether most defendants now benefiting from crack retoractivity are securing immediate release from prison or are just getting long sentences reduced a bit.

To its credit, the US Sentencing Commission has a long and impressive track record of keeping track of guideline retroactivity and producing lots of good data and analysis of who benefits from retroactivity.  So I am pretty confident the USSC will eventually produce good data on how this crack retroactivity part of the FIRST STEP Act gets implemented.  But, of course, there are many more part of the new Act that may (or may not) be getting implemented effectively right now, and I am less confident that the USSC is tracking or planning to report on developments in these other areas.

To again credit important and helpful work already done by the USSC, the Commission has published an Overview & FAQs (updated Feb. 15, 2019) and a Prison & Sentencing Impact Analysis (published Jan. 18, 2019) on the FIRST STEP Act.  But these documents do not even discuss some facets of the Act that concern matters related to sentencing and the work of federal judges.  I am thinking particularly about sentence modification under 18 U.S.C. § 3582(C)(1)(A) (often called compassionate release).  As noted in this prior post, the FIRST STEP Act now provides that an inmate can bring a request to "modify a term of imprisonment" directly to a sentencing court (rather than needing a motion by the Bureau of Prison) based on the claim that "extraordinary and compelling reasons warrant such a reduction."  As noted in this prior post, the press is reporting on some sentence modification motions are being granted.

I think it would be a great service to the federal criminal justice community if the US Sentencing Commission would give focused attention to reporting on FIRST STEP Act implementation.  Indeed, because the USSC has only two active commissioners and seems unlikely to have any more anytime soon, the Commission cannot formally do much more these days than produce research and data.  Today happens to make the three-month anniversary of the FIRST STEP Act being signed in to law, and I think data always makes a great anniversary present.

March 21, 2019 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Tuesday, March 19, 2019

Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case

I learned last night of a remarkable new four-page order entered in US v. Marks, No. 03-CR-6033 (WDNY March 14, 2019) (available for download below).  Chad Marks' case has been followed for years by clemency advocates like Amy Povah, and this CAN-DO profile page has lots of background materials about his case, his requests for clemency, and all the positive work he has done since being sentenced many years ago to 40 mandatory prison years due to extreme recidivist stacking § 924(c) firearm charges. 

As informed readers know, the FIRST STEP Act eliminated the provisions of federal law that had required multiple § 924(c) firearm mandatory-minimum sentences to be stacked to include recidivist 25-year terms.  But it did not make this change retroactively applicable to offenders like Mr. Marks' who were subject to its severe terms in prior years.  This new order by US District Judge David Larimer speaks to this reality, and here is part of what it has to say:

Although the First Step Act and the Guideline changes referenced in it benefit many, it does not appear that Marks would benefit directly because the changes to Section 924(c) do not appear to be retroactive. One option now is for those in the system to say to Mr. Marks, “too bad, the changes don’t apply to you and you must serve the lengthy remainder of your 40-year term, and perhaps die in jail.”

Chad Marks has now filed a pro se motion (Dkt. #491) requesting this Court, in part, to request the United States Attorney for the Western District of New York, James P. Kennedy, Jr., to consent to vacating one of Marks’ Section 924(c) convictions, which would, in effect, remove the draconian, mandatory 25-year consecutive sentence.

Admittedly, this is not a typical request. Marks makes this request, though, relying on several cases from other districts throughout the country where the U.S. Attorney did precisely what Marks seeks here. Marks relies principally on the case of U.S. v. Holloway, 68 F. Supp. 3d 310 (E.D.N.Y. 2014). That thoughtful opinion is annexed to Marks’ motion as Exhibit A. In the Holloway case, the defendant was convicted of three Section 924(c) violations for three separate car jackings over a two-day period. He received a mandatory sentence of 57 years. In Holloway, District Judge John Gleeson remarked that such a stacking sentence “would be laughable if only there weren’t real people on the receiving end of them.”

Prosecutors spend their days seeking convictions and appropriate sentences. What is sought here is different, but in his decision in Holloway, Judge Gleeson praised the U.S. Attorney for the Eastern District of New York for agreeing to vacate a prior conviction in that particular and unusual case. He noted that prosecutors can and should use their vast power to remedy injustices in an appropriate case.

So, what to do?  Does this defendant, Chad Marks, deserve this remedy? In my more than 30 years as a district court judge, I have never known a prisoner to do more to make changes in his life while incarcerated. Marks’ acts and accomplishments while incarcerated for the last decade are truly extraordinary. Marks has obtained a college degree, participated in about 100 rehabilitative programs, has received numerous awards and citations, is engaged as a GED teacher and has mentored other inmates. Marks has recounted many of these accomplishments in his motion (Dkt. #491, page 7). The record reflects extraordinary accomplishments.

Extraordinary cases require extraordinary care and sometimes extraordinary relief.  I urge all to review Judge Gleeson’s thoughtful decision in the Holloway case. The criminal “justice” system is about justice and fairness ultimately.  Chad Marks was convicted of serious crimes, but I believe that Marks is not a danger and is not now the person convicted of these charges in 2008, which involved a rather small-scale drug case.  All of Marks’ co-defendants have completed their sentences.

I request that the United States Attorney for the Western District of New York, James P. Kennedy, Jr., carefully consider exercising his discretion to agree to an order vacating one of Marks’ two Section 924(c) convictions.  This would eliminate the mandatory 25-year term that is now contrary to the present provisions of the statute. Congress has now recognized the injustice of “stacking.”

To facilitate that review, I request that Marks’ appointed counsel, Jillian S. Harrington, Esq. provide a filing listing in detail the many, many accomplishments, awards and other matters involving Marks while he has been incarcerated. In addition, counsel should list the scores of rehabilitative programs that Marks successfully completed.  Marks has described many of his accomplishments in his pending motion, but I leave it to counsel to provide a detailed supplement to assist the U.S. Attorney’s review as well as this Court’s.

Download 3-18-19 LARIMER ORDER

I am so very pleased to see this federal judge enter this formal order urging the US Attorney to vacate a charge in order to do justice in this extraordinary and compelling case.  However, I keep using the term "extraordinary and compelling" in this post because I do not think the federal judge here has to rely on the US Attorney to do justice in this case now that the FIRST STEP Act has changed the process around judicial consideration of sentence modifications under 18 U.S.C. § 3582(C)(1)(A).

As noted in this prior post, the FIRST STEP Act now provides that an inmate can bring a request to "modify a term of imprisonment" directly to a sentencing court (rather than needing a motion made by the Bureau of Prison) based on the claim that "extraordinary and compelling reasons warrant such a reduction." This is what gets described often as the "compassionate release" provision of federal law, and most generally assume that it is only applicable to sick and dying prisoners. But, ever the textualist, I am eager to highlight to everyone that Congress only formally requires a judge to find "extraordinary and compelling reasons warrant such a reduction." As I read this new Marks order, I think Judge Larimer has already essentially made such a finding.

That all said, even though I think Judge Larimer has authority to do justice for Mr. Marks without awaiting action by the local US Attorney, I still think it strategically wise to see the prosecution's involvement in his effort to do justice. With the buy-in by the local prosecutor and vacating of a one of Mr. Marks' 924(c) convictions, there would likely be no appeal and likely no impediment to a Mr. Marks getting released in short order. If Judge Larimer were to act on his own using § 3582(C)(1)(A), however, the feds could possibly appeal and seek to block any early release.

March 19, 2019 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, March 18, 2019

"Don't Overlook First Step Act Pilot Programs"

The title of this post is the title of this notable new Law360 commentary authored by By Addy Schmitt and Ian Herbert.  I recommend the piece in full, and here are excerpts (with footnotes omitted):

Much attention has been paid to the provisions in the law designed to address systemic issues for defendants in drug cases.... The First Step Act also includes numerous changes to address quality-of-life issues for current inmates and to help individuals transition back to society following their incarceration....

However, two programs are particularly notable because of the potential they hold to reduce prison sentences for certain prisoners by up to one-third.  The first is a pilot program that will allow the Bureau of Prisons to release to home confinement inmates over 60 years old who have served at least two-thirds of their sentences.  The second is a recidivism reduction program that will allow prisoners to earn credit worth up to one-third of their sentences for participation in programming designed to reduce recidivism.

Both programs have their faults and come with caveats.  As others have written, Congress gave the attorney general great power to decide how to implement the programs, which could hamper their effectiveness.  But combined, the two programs have the potential to offer substantial reductions in sentences, particularly to elderly and nonviolent prisoners....

One of the most profound changes that the First Step Act makes for currently incarcerated individuals is to reauthorize and expand a pilot program that allows for early release to home confinement for elderly, nonviolent prisoners.

The pilot program was created by the Second Chance Act of 2007, but it contained some important restrictions that reduced the impact of the program.  First, it was not required at all BOP facilities.  Second, it only applied to prisoners over 65 years old who had served the greater of 75 percent of their sentence or 10 years in prison.  Third, prisoners who were serving life sentences or who had been convicted of crimes of violence, sex offenses or terrorism-related offenses were ineligible, as were prisoners who attempted to escape.

The First Step Act changed the first two of these restrictions (though it left the requirements in the third).  The First Step Act directed the attorney general to make the program available at all BOP facilities, reduced the eligibility age to 60 years old, reduced the amount of time that a prisoner had to serve before being eligible from 75 percent to two-thirds of his or her sentence, and, most importantly, removed the requirement that the prisoner must serve at least 10 years prior to becoming eligible.

The result of these changes is that nonviolent prisoners over 60 could serve as much as one-third of their prison sentence in home confinement rather than in a BOP facility.

Unfortunately, these substantial reductions in terms of imprisonment are not yet guaranteed.  Though the law says that the attorney general “shall conduct a pilot program” in all facilities, it does not require release of anyone, saying only that the attorney general “may release some or all eligible elderly offenders” to home confinement.

However, while the attorney general is not required to release any prisoners under the pilot program, a separate provision of the First Step Act mandates that the BOP shall “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted” under the law.  Thus, the elderly release pilot program, coupled with the directive to move low-risk prisoners to home confinement, sends a clear signal that Congress intended for the attorney general to utilize the benefits of home confinement.

The pilot program began with the start of fiscal year 2019, and the attorney general is given authority to release eligible offenders upon written request from the BOP or prisoners who meet the criteria described above.  For that reason, nonviolent prisoners over 60 years old who have served more than two-thirds of their sentence should request to take part in the program immediately.

March 18, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, March 17, 2019

Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act

In this post last month, which was titled "Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?," I speculated about the possible impact of a key change of the FIRST STEP Act allowing federal courts to directly reduce sentenced under compassionate release statutory provisions.  Excitingly, in recent days I have seen two article reporting on encouraging action in this arena:

From the Houston Chronicle, "‘Pill mill’ doctor among first released under law for dying prisoners"

From NPR, "Seriously Ill Federal Prisoners Freed As Compassionate Release Law Takes Effect"

Here is an excerpt from this latter piece:

FAMM's Facebook group has been sharing information about how to prepare petitions for release. And the group's lawyers are doing what they can to support families seeking help, too.

"Now, thanks to the First Step Act, when I hear from someone struggling with the compassionate release process, I don't have to say, 'I'm sorry,' " FAMM general counsel Mary Price told NPR.  "Instead, I can say, 'Let me see if I can find you a lawyer.' "

Price said the new possibilities opened up by the law have changed her work. "It is the most amazing feeling to work with the many lawyers who are filing and beginning to win compassionate release motions for prisoners who I know would never have made it to court, were it up to the BOP."

A few prior related posts:

March 17, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)