Tuesday, August 02, 2022

Ninth Circuit panel finds no improper enhancement when safety-valve-proffer information is considered with other information in setting below-guideline sentence

Addressing an issue of first impression, a Ninth Circuit panel today issued an interesting opinion addressing the application of a small provision of the FIRST STEP Act in US v. Brown, No. 20-5313 (9th Cir. Aug. 2, 2022) (available here).  Here are excerpts from part of the opinion providing background and the heart of the ruling:

In this case, Appellant Marquis Brown was arrested for smuggling drugs across the border. He pleaded guilty to the charge and faced a statutory ten-year mandatory minimum sentence.  He subsequently took advantage of a safety valve proffer and became safety valve eligible for a sentence below the mandatory minimum sentence. The district court imposed a 78-month sentence. That sentence was below Brown’s guidelines range of 108–135 months, but above the 71 months requested by the government, and the 42 months recommended by his attorney and the Probation Department.

Brown now appeals, arguing that his sentence was procedurally defective because the district court improperly relied on information he disclosed in his safety valve proffer to “enhance” his sentence....

Brown contends that the district court committed a procedural error because it improperly enhanced his sentence in violation of the First Step Act of 2018.  The First Step Act, which in part amended 18 U.S.C. § 3553(f), proscribes, inter alia, district courts judges from using information “disclosed by a defendant” in a safety valve proffer “to enhance the sentence of the defendant unless the information relates to a violent offense.” Pub. L. No. 115391, 132 Stat. 5194 (Dec 21, 2018). Despite the district court imposing a sentence that is below his guidelines range, Brown argues that the court ran afoul of this proscription when it relied on information from the safety valve proffer to deny him a further sentence reduction....

We have regularly held that the denial of a sentencing benefit or reduction is not an “increase in punishment.”  See, e.g. United States v. Waters, 771 F.3d 679 (9th Cir. 2014) (reviewing whether amendments to a statute violated a constitutional prohibition on when States can increase the punishment for a defendant’s crime).  In Waters, the appellant argued that a statute the district court relied on to deny his request for sentence reduction violated the Ex Post Facto Clause. Id. at 680.  We held that the amendments merely limited the appellant’s ability to reduce his sentence and “[did] not increase the punishment for his crime[.]” Id. at 681....

We hold that the district court did not impose an improper sentence enhancement here.  Brown contends that because the district court used information from the proffer in determining his final sentence, it was an improper enhancement.  It is clear that the district court considered information disclosed in the safety valve proffer to impose a sentence, such as Brown’s previous drug smuggling trips.  This is not prohibited.  The district court noted the previous drug smuggling trips, but also mentioned various other aggravating factors, including the nine-year-old being in the car, the amount and type of drug involved, and the impact on the community.  The sentencing court considered the safety valve information in conjunction with other mitigating and aggravating factors in its determination of a downward sentence variance.  The district court imposed a sentence of 78 months — a sentence not just below the mandatory minimum, but also 30 months below the low end of Brown’s guidelines range.  This does not constitute an enhancement.

Brown takes issue with the fact that the sentence was not as low as he had requested.  But the failure to reduce a sentence is not an enhancement.  Moreover, we do not take the First Step Act’s proscription as Congress stripping away a district court’s discretion.  All that § 3553(f)(5) prohibits is using information from a safety valve proffer “to enhance the sentence[.]” § 3553(f)(5).  Here, Brown got the benefit of the safety valve reduction, resulting in a sentence below both the mandatory minimum and his guidelines range. This is not an improper “enhancement” of a sentence under § 3553(f)(5).

August 2, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Friday, July 29, 2022

Another ugly report on the ugly implementation of the FIRST STEP Act

NBC News has another notable and depressing report on the implementation (or lack thereof) of the prison reform aspects of the FIRST STEP Act.  The full headline provides a summary: "Staffing shortages and deficient training leave First Step Act floundering, federal prison employees say: 'This is the biggest failure I've seen of something that's a law. It's pathetic,' one prison counselor said."  I recommend the piece in full, and here are excerpts:

Chronic staffing shortages in federal prisons and a lack of training have impeded implementation of a Trump-era law designed to give nonviolent inmates the opportunity for early release, locking some up longer and contributing to eroding morale, union leaders and rank-and-file staff members said in interviews....

Staff members at some of the country's largest federal prisons said carrying out the First Step Act, a bipartisan law signed in 2018 by then-President Donald Trump, has been taxing, if not impossible. "It's not going at all," Joe Rojas, the literacy coordinator at the Coleman Federal Corrections Complex in Florida, said of the First Step Act's implementation. "I'm the education department, and we're never open, and if we are, it's barely," said Rojas, who is also the president of the American Federation of Government Employees' Local 506 at Coleman....

Bureau officials say they have worked to identify inmates who qualify for early release and "have no data which suggests inmates had their release dates delayed."

Rojas said employees like him who should be operating programs that can help inmates earn time credits aren't able to do so because they're being diverted to other correctional officer-type duties during the staffing shortage — a practice known as augmentation. "Most of us are augmented," Rojas said. "There's no programming. If there's no programming, you can't do the First Step Act."

Some prior related posts:

July 29, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (1)

Monday, July 11, 2022

Seventh Circuit panel refuses to reconsider its extra-textual limit on compassionate release in light of Supreme Court's Concepcion decision

In this post a few weeks ago, I highlighted key language from the Supreme Court's work in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), that should help resolve a circuit split surrounding what factors can serve as the basis for compassionate release.  As explained in that post, I believe non-retroactive changes in sentencing law can potentially provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction.  Though the Third, Sixth, Seventh and Eighth Circuits have held otherwise, language from Concepcion would seem to undercut extra-textual limits on sentencing or sentence-modification considerations.  Here is one of a number of passages from Concepcion stressing that all relevant sentencing information is to be part of all sentencing determinations unless expressly excluded by statute (with my emphasis added):

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.

Disappointingly, it seems the first circuit panel to consider Concepcion expressly has decided to double-down on its extra-textual limit on what may be compassionate release considerations.  The Seventh Circuit today in a short opinion in US v. King, No. 21-3196 (7th Cir. July 11, 2022) (available here), refuses to engage with the key language of Concepcion but says this:

When deciding whether “extraordinary and compelling reasons”, 18 U.S.C. §3582(c)(1)(A)(i), justify a prisoner’s compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions.  That’s the holding of United States v Thacker, 4 F.4th 569 (7th Cir. 2021).... There’s nothing “extraordinary” about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255.

William King, who was sentenced to 216 months’ imprisonment following his guilty plea to three heroin charges, contends that Concepcion v. United States, No. 20–1650 (U.S. June 27, 2022), requires us to abandon these decisions and hold that anything at all — factual or legal, personal or systemic, routine or unique — may be treated as “extraordinary and compelling”.  That would be hard to reconcile with the language of the statute.  Routine is the opposite of extraordinary....

Concepcion ... held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing.  We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But decisions such as Thacker concern the threshold question: whether the prisoner is entitled to a reduction under § 3582(c)(1)(A)....

The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions.  We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants.  So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

As I have explained in prior posts, Congress via statute expressly stated that just one factor could never alone serve as the basis for sentence reduction under § 3582(c)(1)(a):  "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  That textual exclusion reveals Congress can and did, through express statutory text, seek to exclude one and only one particular reason from alone serving as the basis for qualifying for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — counsels that courts should not be inventing additional extra-textual categorical exclusions that Congress did not expressly state.  And Concepcion should serve as another reminder to circuit courts to stop inventing categorical limits on relevant considerations not set forth by Congress or the Constitution.

Of course, not every change in law could or should be considered “extraordinary and compelling” to provide the basis for compassionate release.   The alleged change in law cited by the defendant in King seems quite week, and I would not be so troubled if circuits were just indicating that they suspect only in rare cases might a change in law alone amount to an “extraordinary and compelling” reason.  But this new King decision reiterates the misguided notion that district judges are categorically excluded from ever considering "non-retroactive statutory changes or new judicial decisions" even though Concepcion stressed that the "only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution."  Sigh.

Prior recent related posts:

July 11, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, July 10, 2022

Couple of choice Concepcion commentaries

The Supreme Court's work in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), is an important sentencing precedent that is sure to be overshadowed by this Term's higher profile cases.  But I have been pleased to see  a couple new notable commentaries on Concepcion.  Here are links and excerpts from two pieces worth reading in full:

From CNN by Van Jones and Nisha Anand, "A rare Supreme Court ruling this term where conservative and liberals joined forces"

The Supreme Court's ruling in Concepcion could mean reduced sentences for thousands of people.  It also means that the Court just made it easier to reward those who take steps to better themselves.  And allowing judges to take new information into account will help ensure that rehabilitation becomes the main point of our criminal justice system.

Helping people transform their lives reduces crime.  It keeps us all much safer than simply locking people behind bars with no hope for the future. If members of a deeply divided Supreme Court can recognize this, then surely the rest of us can as well.

From Law360 by Mark Osler, "Justices' Resentencing Ruling Boosts Judicial Discretion"

Is Concepcion good for criminal defendants? Well, it doubtlessly will be good for some of them — those who are in front of judges who are inclined to reduce a sentence based on rehabilitation or new law.  However, if they are in front of a judge who cares mostly about the original facts and finality, the ruling probably won't be good for those defendants.

That dynamic will not only create disparities based on judge, but will enhance existing disparities.  After all, the judge who was likely to give a longer sentence at the front end is also most likely to deny a break down the road, while the judge who gave a lighter sentence at the initial hearing is probably more amenable to reducing a sentence at the second-chance hearing....

In the broadest strokes, Concepcion weighed in favor of more recognition of human dignity in the criminal justice system by allowing a fuller view of a defendant.  While this decision, in isolation, may bring mixed results, that trend is a good one.

Prior related posts:

July 10, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (11)

Thursday, July 07, 2022

Still more discussion of the BOP's failings with FIRST STEP Act

At Forbes, Walter Pavlo has this new piece under the headline "Bureau Of Prisons Holding Inmates For Longer Than Law Allows." The piece provides another account of the difficulties the BOP is having in giving persons in federal prison the credits set forth in the FIRST STEP Act. Here is an excerpt:

The FSA, signed into law by President Donald Trump in December 2018, allows many prisoners to earn additional time off of their sentence, up to a year, and also earn extensive time in pre-release custody (halfway house and home confinement). Those credits, up to 15 days for every 30 days of holding a job and participating in programs/education, can be significant. It means the difference between rejoining one’s family a year or more earlier than before the FSA. However, there are reports from around the country that the BOP is not providing accurate information to prisoners about their FSA credits and some are staying in prison longer than necessary....

A declaration by BOP’s Susan Giddings in a federal civil case (Northern District of Alabama, 1:22-cv-00294, Stewart v Warden) provides a glimpse of the challenges the BOP faces in trying to implement FSA. Giddings is the Chief of the Unit Management Section of the Correctional Programs Branch at the BOP’s Central Office in Washington DC. In addition to her role overseeing Correctional Systems, she has been involved in the development and implementation of the BOP’s FSA procedures. As part of Giddings’ declaration for the Petitioner, inmate Robert Stewart, she noted that “... for reasons that are not apparent to me, Petitioner’s FSA credits were in fact incorrectly calculated.” If one person’s is wrong, many others are as well. One of the reasons might be that the BOP is currently calculating these FSAs manually....

Thousands of inmates are in the position to be freed under FSA but many will be held longer than necessary as the BOP tries to get its computer system up to speed. As one family told me about waiting for the BOP’s new sentence calculator, “it can’t come soon enough.”

Some prior related posts:

July 7, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, July 03, 2022

Another account of continuing struggles with FIRST STEP Act implementation

NBC News has this lengthy new piece under the headline "Thousands of federal inmates still await early release under Trump-era First Step Act." Here are excerpts:

Thousands of nonviolent federal prisoners eligible for early release under a promising Trump-era law remain locked up nearly four years later because of inadequate implementation, confusion and bureaucratic delays, prisoner advocacy groups, affected inmates and former federal prison officials say.

Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.

The Department of Justice was tasked with carrying out the law through the federal Bureau of Prisons, but the bureau director, Michael Carvajal, a Trump administration holdover, announced his retirement in January amid criticism of a crisis-filled tenure marked by agency scandals.  No replacement for Carvajal has been named, and criminal justice advocates contend that for the bureau to allow even one person to be incarcerated beyond what is permitted under the First Step Act exposes ongoing failures.

“It shouldn’t be this complicated and it shouldn’t take this long,” said Kevin Ring, president of the nonprofit advocacy group Families Against Mandatory Minimums, or FAMM.  “Here we are, four years later, and it’s maddening.”

The Justice Department published a final rule in January that implements an integral feature of the law in which inmates can earn so-called time credits, which are obtained through participation in prison and work programs and calculated as part of the process of getting out early.  The problem, advocates say: They are identifying inmates whose time credits aren’t getting applied, and in some cases, the inmates aren’t getting released as early as they should be....

Data provided by the Bureau of Prisons shows that as of June 18, more than 8,600 inmates have had their sentences recalculated and are slated for release with the application of their time credits.  But it’s unclear how many qualified inmates are entitled to have been released early but remain incarcerated. In a response, bureau officials said, “We have no data which suggests inmates had their release dates delayed.”

But with the bureau’s own data identifying about 66,600 inmates who are eligible to earn time credits, some industry experts disagree. “We estimate that there are thousands of inmates who will not receive the full benefit — days off of their federal prison sentence — of the First Step Act simply because the agency is uncertain how to calculate these benefits,” said Walter Pavlo, president of the consulting firm Prisonology LLC....

Pavlo said the Bureau of Prisons never had the mechanisms in place to adequately track inmates’ participation and he is concerned the agency “is not facilitating the timely calculation and application of time credits in accordance with the final rule, forcing inmates to serve custodial terms longer than required.”  In the cases he’s reviewed, he said he has seen inmates in prison from six months up to a year who could have had either an earlier release or time in pre-release custody.  “The biggest problem is nobody on the front lines seems to understand the new rule,” Pavlo said. “There needs to be a task force on this now.”

Some prior related posts:

July 3, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Monday, June 27, 2022

SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors

There are many notable aspects to the Supreme Court's work this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here).  The votes alone could justify many posts, with Justices Thomas and Gorsuch joining an opinion broadly praising broad district court sentencing discretion (citing historical cases for good measure), and with all the other conservative justices embracing a fairly impractical (and unjust) statutory construction without considering any statutory canons. 

More generally, in keeping with my prior complaints about the oral arguments in this case, I was struck that none of the opinions in Concepcion mention sentencing purposes or justice or fairness even once in a case that concerns efforts by Congress to give full effect to the Fair Sentencing Act through the FIRST STEP Act.  The fundamental legal issue in Concepcion was whether a group of defendants (almost all of whom are persons of color) who have been serving, according to Congress, unjust and wrongful federal sentences for more than a dozen years should be limited in how they can now argue for more just and rightful sentences.  And, given that the defendant in the case had already served 15 years (of a 19-year sentence) for a conviction based on selling a tablespoon of crack, there are an array of rich legal and human stories here that justify further attention.

But, as the title of this post highlights, I am already thinking about what the Concepcion ruling means outside the crack context.  Specifically, I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.  Let me explain.

As most recently highlighted via this post about a First Circuit ruling in February, there is a deep circuit split about whether non-retroactive changes in sentencing law may constitute "extraordinary and compelling reasons" for compassionate release.  Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise.  And yet, this language from the Supreme Court's opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained....

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence....

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution....

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much....  Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

All this language about a court's broad discretion not only at initial sentencing but also when considering a sentence modification is directly relevant to federal judges' consideration of so-called compassionate release motions.  Concepcion makes plain, contrary to the problematic rulings of some circuits, that the "only limitation" on valid considerations are those in the Constitution or that Congress has expressly set forth.  And thus the Supreme Court's textualist ruling here ought to not only benefit Carlos Concepcion, but also every federal prisoner moving for compassionate release on any and all possible grounds not expressly excluded by Congress or the Constitution.

Prior related post:

June 27, 2022 in 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 (7)

Via 5-4 ruling, Supreme Court stresses broad sentencing discretion in crack resentencing case Concepcion

In a 5-4 decision, with a somewhat surprising group of Justices in the majority, the Supreme Court this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), stressed the broad scope of information that may be consider at sentencing or sentence modification. Here is how Justice Sotomayor's opinion for the Court gets started:

There is a longstanding tradition in American law, dating back to the dawn of the Republic, that a judge at sentencing considers the whole person before him or her “as an individual.” Koon v. United States, 518 U.S. 81, 113 (1996). In line with this history, federal courts today generally “exercise a wide discretion in the sources and types of evidence used” to craft appropriate sentences. Williams v. New York, 337 U.S. 241, 246 (1949). When a defendant appears for sentencing, the sentencing court considers the defendant on that day, not on the date of his offense or the date of his conviction. Pepper v. United States, 562 U.S. 476, 492 (2011).  Similarly, when a defendant’s sentence is set aside on appeal, the district court at resentencing can (and in many cases, must) consider the defendant’s conduct and changes in the Federal Sentencing Guidelines since the original sentencing. Ibid.

Congress enacted the First Step Act of 2018 against that backdrop. The First Step Act authorizes district courts to reduce the prison sentences of defendants convicted of certain offenses involving crack cocaine. The Act allows a district court to impose a reduced sentence “as if ” the revised penalties for crack cocaine enacted in the Fair Sentencing Act of 2010 were in effect at the time the offense was committed. The question in this case is whether a district court adjudicating a motion under the First Step Act may consider other intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First Step Act motion.

The Court holds that they may. It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained. Nothing in the First Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them. By its terms, however, the First Step Act does not compel courts to exercise their discretion to reduce any sentence based on those arguments.

The District Court in this case declined to consider petitioner Carlos Concepcion’s arguments that intervening changes of law and fact supported his motion, erroneously believing that it did not have the discretion to do so, and the Court of Appeals affirmed. The Court now reverses.

Justice Kavanaugh authored the chief dissent for the Chief Justice, Justice Alito and Justice Barrett. It concludes this way:

The Court’s disregard of the text of the First Step Act is especially audacious because the Act was a heavily negotiated and vigorously debated piece of legislation. The Act reflects a compromise among competing interests. Not for the first time in a sentencing case, the Court’s decision today unravels the legislative compromise reflected in the statutory text. The Court in effect green-lights district courts, if they wish, to make the 2016 amendment to the career-offender guideline retroactive in First Step Act proceedings—even though neither Congress nor the Sentencing Commission has made that amendment retroactive. Perhaps the Court’s decision represents better sentencing policy. Perhaps not. But under the Constitution’s separation of powers, this Court may not simply rewrite the First Step Act as the Court thinks best.

In sum, I would conclude that the First Step Act authorizes district courts to reduce a sentence based on changes to the crack-cocaine sentencing ranges, but not based on other unrelated legal or factual changes since the original sentencing. The Court holds otherwise. Therefore, I respectfully dissent.

I will need some time to review these opinions closely before being able to discuss the broader meaning and impact. But, yet again, it turns out sentencing jurisprudence at the Supreme Court is more pro-defendant than in many lower courts.

June 27, 2022 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, June 05, 2022

Another example of "old law" federal prisoners not getting compassionate release equal treatment

Last year, I blogged here about an NPR story regrading so-called "old law" federal prisoners, persons who committed federal crimes before November 1987 and who are therefore not currently able to apply to a judge for compassionate release under the FIRST STEP Act.  This follow-up post also noted the realities facing the group of very old (and often very sick) people in federal prison who were convicted of crimes before Nov 1987 and cannot seek compassionate release directly from courts. 

This past week, a helpful reader sent me a judicial opinion involving one of these "old law" prisoners, US v. Joseph, No.86-CR-00322 (SD Fla. June 2, 2022) (available for download below).  This short opinion highlights the plight of one of these prisoners, whom the judge decides meets the FIRST STEP Act criteria for compassionate release, but still cannot get a court to directly order a sentence reduction as can all prisoners convicted after Nov 1987.  I recommend the eight-page Joseph opinion in full, and here are excerpts (with some cites removed):

To put it simply, Mr. Joseph, who stands convicted of crimes occurring prior to November 1, 1987, may not personally move a district court for compassionate release....  While the Court is unable to grant the relief requested, Mr. Joseph remains able to submit a request for motion under section 4205(g) from the Warden at his facility.  U.S. Dep’t of Justice, Federal Bureau of Prisons, No. 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g) (2019) (“BOP Guidelines”).  In such request, Mr. Joseph must address the extraordinary and compelling circumstances that he believes warrant consideration, as well as his proposed release plan.  As explained below, Mr. Joseph has presented extraordinary and compelling circumstances, no longer presents a danger to society, and has an exceptional release plan....

Mr. Joseph is seventy-three years old, suffers from deteriorating medical conditions (including anemia, thrombocytopenia, prediabetes, bilateral low vision), has a history of leukopenia, prostate cancer, and atrial fibrillation, and is also overweight.  Report at 5.  At the hearing held by Magistrate Judge Becerra, Dr. Kossouf provided new testimony as to Mr. Joseph’s disconcerting blood cell condition.  Specifically, he testified that Mr. Joseph suffers from a life- threatening blood cell condition that will “inevitably evolve into an aggressive form of leukemia.” Report at 13. Importantly, there is no treatment for Mr. Joseph’s condition and his most recent bloodwork demonstrated a sharp deterioration in his health. Id. (emphasis added)....

Mr. Joseph has provided significant evidence of both the extent and depth of his family support — financially and emotionally.  It is the exceptional nature of his family support that makes it extremely unlikely Mr. Joseph will reoffend.  Moreover, almost forty years have passed since Mr. Joseph committed his offenses and he would be closely supervised while residing with his son and daughter-in-law.  Further, in an almost unprecedented turn of events, Mr. Tilman, a retired sergeant, testified in support of Mr. Joseph’s compassionate release to home confinement.  The retired sergeant corroborated the testimony of Trevin Joseph, Mr. Joseph’s son, regarding the extensive support Mr. Joseph will have upon his release.  In other words, Mr. Joseph has a release plan that this Court views favorably.

Mr. Joseph is not yet eligible for parole.  Thus, he cannot seek early release through this avenue.  In that way, he is no different from a “new law” prisoner — for whom no parole may be sought.  However, unlike a “new law” prisoner, Mr. Joseph can only request compassionate release through the Warden at his facility.  If the Warden denies his request, that is the proverbial end of the road for Mr. Joseph.  The “new law” prisoner, however, has one additional option — a direct motion to this Court upon exhaustion of administrative remedies.  This disparity between “old law” and “new law” prisoners appears wholly unwarranted.

In sum, the statutory language here is clear and unequivocal.  Mr. Joseph cannot seek relief directly from this Court based on compassionate release under section 3582.  Nonetheless, the Court trusts that the Warden can initiate the proper compassionate release process for an “old law” prisoner like Mr. Joseph under section 4205.  In the meantime, the disparities highlighted in this Order certainly merit further examination by Congress, which is in the best position to determine whether it is appropriate to continue preventing inmates who committed offenses on or before October 31, 1987 from fully availing themselves of the First Step Act.  After all, one of Congress’s goals in passing the FSA was to broaden the reach of section 3582(c)(1)(A).

Download 86-CR-00322 - US v Joseph - CR Order

Prior related posts:

June 5, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, May 30, 2022

Highlighting continuing struggles with implementing the FIRST STEP Act's earned time credits

In this post from the start of this year, I flagged Walter Pavlo's discussion of nettlesome issues surrounding implementation of various parts of the FIRST STEP Act. Issues raised in that prior piece are reviewed anew in this new Palvo piece in Forbes headlined "First Step Act Inaction Keeps Federal Inmates In Prison." Here is how the piece gets started:

The First Step Act (FSA), which among other things, provided federal prisoners a way to effectively lower their prison terms through participation in programs and productive activities. The law, signed by President Donald Trump in December 2018, meant that some prisoners could reduce their prison terms by up to one year. However, the rollout of the program has resulted in men and women remaining in prison well beyond what their release dates would be under FSA.

When the Federal Register published the final FSA rule on January 19, 2022, it also included comments from congressmen who expressed the need for clarity of the law. One such comment was “The Bureau does not have the resources to implement the FSA Time Credits program appropriately.” Over four months since that statement, it has proven to be true.

According to insiders at the BOP, prisoners and former executive staff with connections to the current state of the BOP as it relates to the FSA, there is “mass confusion at every institution,” and that the Designation and Sentence Computation Center, the entity ultimately responsible for calculating sentence duration, is backed up and the programming is not in place for FSA. The result is that thousands of prisoners are incarcerated beyond their legal release date.

May 30, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Thursday, May 26, 2022

Air Force Court of Criminal Appeals decides court martialed prisoner cannot seek compassionate release in military courts

A helpful reader altered me to an interesting ruling this week from the US Air Force Court of Criminal Appeals in In re Kawai, Misc. Dkt. No. 2022-02 (AFCCA May 25, 2022) (available here). Here is how the opinion gets started:

On 29 January 2022, Petitioner requested this court grant him extraordinary relief in what he styled as a “Motion for Compassionate Release and Reduction in Sentence,” pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).  This court received, by mail, Petitioner’s request on 2 March 2022, and docketed his petition on 11 March 2022; the Court did not order briefs by the Government or Petitioner in response.  We conclude we do not have jurisdiction to adjudicate Petitioner’s request and deny the petition.

Here is a key portion of the ruling:

The problem for Petitioner is the review of a motion for compassionate release is jurisdictional. “A motion to file for compassionate release can only be brought before the sentencing judge.” Ferguson v. United States, No. 1:22-cv10542, 2022 U.S. Dist. LEXIS 50986, at *2 (E.D. Mich. 21 Mar. 2022).  Yet, “[g]eneral courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved.” Witham v. United States, 355 F.3d. 501, 505 (6th Cir. 2004).  Because Petitioner’s court was dissolved after his case, and because his case is final under Article 76, UCMJ, there is no sentencing court within the military service courts in which Petitioner may bring a motion under 18 U.S.C. § 3582(c)(1)(A)(i).

However, Congress has charged federal district courts with exercising jurisdiction over habeas corpus petitioners who are imprisoned as a result of court-martial convictions. See Burns v. Wilson, 346 U.S. 137, 139 (1953); Chapman, 75 M.J. at 601; see also Gilliam v. Bureau of Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *3 (8th Cir. 10 Mar. 2000) (unpub. op.).  Federal district court is also the proper venue for Petitioner’s motion. See Owens, 2020 U.S. Dist. LEXIS 61460, at *2.

May 26, 2022 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, May 25, 2022

New Executive Order from Prez Biden, though mostly on policing, includes some sentencing and corrections matters

This new "FACT SHEET" from the White House, titled "President Biden to Sign Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety," provides an overview of what the latest presidential EO will cover in the criminal justice space. Though focused mostly on policing issues, I was intrigued to see this passage at the very end of the fact sheet:

Reforms Our Broader Criminal Justice System

Directs a government-wide strategic plan to propose interventions to reform our criminal justice system.  A new committee with representatives from agencies across the federal government will produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry.  The Attorney General will also publish an annual report on resources available to support the needs of persons on probation or supervised release.

Improves conditions of confinement. The Attorney General, in consultation with the Secretary of Health and Human Services, will update procedures as necessary to increase mitigation of Covid-19 in correctional facilities; expand the publication and sharing of vaccination, testing, infection, and fatality data disaggregated by race, ethnicity, age, sex, disability, and facility; and to identify alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission.  The Attorney General will also report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.

Requires full implementation of the FIRST STEP Act. The Attorney General will update DOJ policy as necessary to fully implement the FIRST STEP Act and to report annually on implementation metrics, including an assessment of any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.

UPDATE: Here is the full detailed "Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety" from the Biden White House.

May 25, 2022 in Criminal justice in the Biden Administration, Criminal Sentences Alternatives, FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Sunday, May 22, 2022

"Canceling Compassion: Nonretroactivity and the Narrowing of Postconviction Relief in Federal Courts"

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

In 2018, Congress passed the First Step Act, which opened the door for incarcerated individuals to apply directly to district courts for release or a sentence reduction by way of compassionate release.  A form of postconviction relief, certain federal courts have narrowed the scope of eligibility for compassionate release based on a restrictive reading of what are “extraordinary and compelling” reasons for relief.  Specifically, these courts hold that nonretroactive changes in sentencing law cannot constitute such “extraordinary and compelling” reasons as a matter of law.  This article explores the now-intractable circuit split that has emerged on this issue, critiques the underlying non-textual motivations that have guided certain courts, and proposes an immediate resolution by the Supreme Court.  Yet the deep disagreement amongst the courts, which has precluded relief based solely on an individual’s geographic location, raises a further question: should courts be the sole arbiter of compassionate release?

May 22, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, May 17, 2022

"Unequal Treatment: (In)compassionate Release from Federal Prison in the Context of the COVID-19 Pandemic and Vaccine"

The title of this post is the title of this new piece now available via SSRN authored by Mariah Haley. Here is its abstract:

COVID-19, the disease caused by SARS-CoV-2, has wreaked havoc globally since it was first discovered in December 2019.  In the United States, many federal prisons experienced outbreaks of the virus, leading to both severe illness and death.  Almost as soon as the pandemic began in the United States, people in prison — especially those with preexisting conditions — turned to the statutory mechanism known as “compassionate release” to request early release from prison based on the “extraordinary and compelling” nature of the pandemic.

This Note examines how federal courts have considered compassionate release requests during the pandemic.  The Note further explores the disparate outcomes resulting from the vast judicial discretion within the compassionate release space.  While no two compassionate release cases are the same, with cases very fact-intensive, this Note argues that the current system results in inequitable geographical-based outcomes.  In concluding, this Note calls on the United States Sentencing Commission to offer guidance to federal courts on how to approach compassionate release requests in the context of the First Step Act and the ongoing COVID-19 pandemic.

May 17, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, May 10, 2022

"When a Second Chance Gets a Second Chance: Reasonableness Review Reigns for Motions Under Section 404(b) of the First Step Act on Appeal"

The title of this post is the title of this new comment now available on SSRN authored by Patrick Riley. Here is its abstract: 

The First Step Act of 2018 was an historic criminal justice reform bill that, among its many provisions, retroactively reduced the disparity in sentencing for offenses involving crack and powder cocaine.  Before 2010, federal law mandated the same minimum criminal penalties for conduct involving an amount of crack cocaine one hundred times smaller than an amount of powder cocaine.  In 2010, Congress passed the Fair Sentencing Act, which reduced this disparity from 100:1 to 18:1.  However, the updated penalties only applied to sentences imposed after the passage of the Fair Sentencing Act.  Those already sentenced under the 100:1 ratio were left without any recourse until the First Step Act was passed in 2018.

Section 404(b) of the First Step Act applied the changes made by the Fair Sentencing Act retroactively to defendants imprisoned for crack cocaine offenses before the Fair Sentencing Act was passed in 2010.  Since the First Step Act was passed, federal courts have diverged in how they interpret their roles and responsibilities under section 404(b). One group of circuit courts interprets section 404(b) to provide limited discretion to the district court and, therefore, the appellate court need only review the district court’s decision under a deferential abuse-of-discretion standard.  The second group interprets section 404(b) to provide district courts with broad discretion to resentence defendants in a manner similar to an initial plenary sentencing, which appellate courts are required to review for reasonableness.

This Comment reaches the same result as the second group for two reasons: (1) This Comment applies the sentencing modification in 18 U.S.C. § 3582(c)(1)(B), rather than § 3582(c)(2), to section 404(b) of the First Step Act; and (2) this Comment interprets the text and purpose of section 404(b) as a sweeping remedy granting district courts broad discretion — like initial plenary sentencings — that must be reviewed for reasonableness.

May 10, 2022 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, May 09, 2022

US Sentencing Commission releases latest detailed "Compassionate Release Data Report"

Cr-line-chart-2022_cropVia email, I got word that the US Sentencing Commission today published this updated compassionate release data report.  Here is the very brief accounting of the report from the email (as well as a reprinting of the graphic that appears as Figure 1 of the report):

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions, most filed by offenders.  This report provides an analysis of the compassionate release motions filed with the courts during the COVID-19 pandemic.

The Commission received the following information from the courts on motions decided during fiscal years 2020 and 2021 (October 1, 2019 – September 30, 2021):

  • 3,867 offenders were granted compassionate release. This represents 17.2% of motions.

  • 18,653 offenders were denied compassionate release. This represents 82.8% of motions.

There are lots and lots of interesting data points throughout this data report, including data highlighting that people sentenced long ago (and before the guidelines became advisory) had significantly higher success in getting a sentence reduction.  Also interesting is the data detailing the reasons that courts provided for granting these sentencing reduction motions, which suggests some small evolution in stated reasons from FY 2020 to FY 2021.

But most striking data are those details the dramatic variations in grant rates from various districts. As but one of many remarkable examples, consider the three districts of Georgia: the Southern District of Georgia granted only 5 out of 248 sentence reduction motions for a 2% grant rate; the Middle District of Georgia granted only 4 out of 217 sentence reduction motions for a 1.8% grant rate; but the Northern District of Georgia granted 76 out of 170 sentence reduction motions for a 44.7% grant rate.  One could also tell an island variation story, and no motions were granted (out of only six) in the Virgin Island district; but that lovely island district of Puerto Rico saw 79.2% of motions (19 of 24) granted. 

Remarkably, the District of Maryland — with a total of 211 sentencing reduction motions granted (though "only" a grant rate of 32.7% with 646 motions) — granted more of these motions that all the courts of the Fifth Circuit!  (The Fifth Circuit had the lower total circuit grant rate of 9.3% with only 204 motions granted out of 2,197 total brought.) 

May 9, 2022 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 19, 2022

Justice Department tweaking prison PATTERN risk tool "to ensure that racial disparities are reduced to the greatest extent possible"

This new NPR piece, headlined "Justice Department works to curb racial bias in deciding who's released from prison," reports on the latest steps being taken to tweak the operation of the FIRST STEP Act.  Here  are the details:

The Justice Department is moving to reduce racial disparities in a tool it uses to assess a prisoner's risk of a return to crime, after scholars and justice advocates pressed for change. Among other steps, it plans to make tweaks that would significantly increase the number of Black and Hispanic men in prison who are eligible to take educational classes or work-life programs that could lead to an earlier release.

But the tool, known as Pattern, continues to overestimate the number of Black women who will engage in recidivism, compared to white women in prison.  And in its latest effort to overhaul the troubled risk assessment algorithm, the Justice Department said it is still unable to resolve other racial disparities. The department outlined the new developments in a report sent to Congress on Tuesday and obtained by NPR, pledging that it would continue to work "to ensure that racial disparities are reduced to the greatest extent possible."

"When using factors with criminal history, prison discipline, and education, the tool is almost inevitably going to have disparities — unless they correct for systemic biases in policing, prosecution, corrections, and education," said Melissa Hamilton, a law professor at the University of Surrey who has closely followed the process.

NPR dissected problems with Pattern in a report earlier this year. It uncovered sloppy math mistakes and other flaws that put thousands of prisoners in the wrong risk category and treated them differently in part because of their ethnic backgrounds. The Justice Department will roll out the new version of Pattern early next month, which it said "will neither exacerbate nor solve these racial bias issues." But the department said it was making other adjustments that could translate into a real difference for people of color in prison.

A law called the First Step Act that passed with bipartisan majorities during the Trump administration offers people in prison a path to early release, by earning time credits for performing work and taking educational classes behind bars. Only low and minimum risk prisoners are eligible for those programs, so how the Bureau of Prisons assesses risk has major consequences for their lives and their release plans.

In its new report, DOJ said it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for "public safety." Instead, the department shifted the boundaries between other risk levels for its general recidivism algorithm. DOJ estimated that 36 percent more Black men and 26 percent more Hispanic men might now qualify as minimum or low risk, with smaller increases for Black and Hispanic women in prison.

UPDATE: I am pretty sure the report referenced in this NPR piece is this one just released by the Justice Department titled simply "First Step Act Annual Report."  As stated at the start of the executive summary: "This Report reflects the ongoing efforts of the Department of Justice (the Department) to make the goals of the First Step Act a reality and summarizes the Department’s activities in that respect during the period since the publication of the last annual Report, in December 2020."

April 19, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Thursday, April 14, 2022

Discouraging update on various sentencing and prison reform bills from inside the Beltway

This new Politico article, "Criminal justice reform faces political buzzsaw as GOP hones its midterm message," provides an unsurprising, but still disappointing, update on the current political realities facing a set of small but important sentencing and prison reform bills pending in Congress. I recommend the whole piece, and here are excerpts:

The Senate delivered former President Donald Trump a bipartisan criminal justice reform deal shortly after the last midterm election.  Staging a sequel for President Joe Biden this year won’t be so easy.

Dick Durbin and Chuck Grassley, the top Democrat and Republican on the Senate Judiciary Committee, are still in talks over finalizing a package that would serve as a more narrow follow-up to the 2018 prison and sentencing reform bill known as the First Step Act.  But both senior senators acknowledge it’s not a glide path forward, particularly given the GOP messaging on rising crime ahead of the 2022 midterms — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.

“That’s dampened the interest in doing what we call the Second Step Act, but we’re still seeing what can be worked out,” Grassley (R-Iowa) said in a brief interview.  He added that if Democrats agree to certain provisions related to law enforcement, “that might make it possible to get something done.”  Durbin (D-Ill.), meanwhile, said he’s concerned about the bill’s prospects, particularly given Republican accusations during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime.  The Judiciary chair ranked criminal justice as high on his list of priorities, though he said legislation addressing crime and law enforcement “may be just as challenging as immigration” — a famously tough area of bipartisan compromise on Capitol Hill.

While both Durbin and Grassley say the sequel legislation is necessary to fully implement and expand on the sentencing updates in the First Step law, the campaign-season politics surrounding criminal justice reform threaten broader GOP support. Though 38 Republican senators backed the 2018 bill, it took Trump’s personal appeals to get many on board. And with Democrats in full control of Washington, Republicans’ emerging midterm message — that liberals are to blame for rising violent crime — could make sentencing changes that much harder.

Sen. John Cornyn (R-Texas), a member of the Judiciary Committee and a close adviser to Minority Leader Mitch McConnell, has yet to review the proposal but predicted a tough road ahead. “Particularly given the spike in violence in the inner cities, it would probably be controversial depending on what the specific proposal was,” Cornyn said. “The timing is not great given the closeness of the midterms and the primaries that still remain to be run.”

The Judiciary panel already passed the foundation for Durbin and Grassley’s potential criminal justice reform package last year. It would give inmates who were sentenced prior to the First Step law’s passage the ability to petition for its reduced sentencing guidelines, applying them retroactively if approved. Another bill included in it would increase eligibility for a program that allows certain elderly prisoners to serve the rest of their sentences at home. There’s also discussion around expanding the scope of a federal carjacking statute, according to a GOP Judiciary Committee aide....

A separate but related criminal justice push in the upper chamber, however, illustrates that reform advocates aren’t exactly pinning their hopes on a broader agreement this year. Supporters of eliminating the long-standing federal sentencing disparity between crack and powder cocaine offenses originally discussed including that provision in the committee’s bigger proposal.

Now advocates for change want the Senate to move a standalone bill on the crack-cocaine disparity, citing its support from 11 Senate Republicans — enough to overcome a filibuster. “They have been working on that package for the better part of a year now, and the [standalone bill] is ready right now,” said Holly Harris, executive director of the Justice Action Network, who is urging the Senate to act shortly after the Easter recess. “My hope is obviously that we can see the [standalone bill] through to fruition here. I mean, it’s literally on the goal line.”... Backers of the legislation eliminating the crack-cocaine disparity, which passed the House overwhelmingly in September, range from conservative Sen. Cynthia Lummis (R-Wyo.) to Senate Majority Leader Chuck Schumer. It’s backed by law enforcement groups, including the Major Cities Chiefs Association and the National District Attorneys Association.

While Schumer hasn’t yet laid out a timeline for when he’d bring the crack-cocaine disparity bill to the floor, members of the Congressional Black Caucus earlier this month wrote to him and Durbin urging the Senate to consider the bill “without delay.” The legislation is a top priority for the caucus, which has already faced setbacks on police reform and voting rights bills. And proponents of the reform are framing it as legislation about “fairness” instead of crime, highlighting support from Reps. Jim Jordan (R-Ohio) and Louie Gohmert (R-Texas).

But Senate aides on both sides of the aisle warn that despite the disparity-closing bill’s bipartisan support, it could still face a challenging path to final passage, including a potentially arduous debate over amendments. Republicans who oppose the bill would almost certainly want to force vulnerable Senate Democrats to take tough amendment votes amid reports of rising violent crime in major cities and the approaching November election. Grassley, who is not a co-sponsor, has also outlined concerns about whether there would be enough Republican support in the Senate to get the legislation over the finish line. While the Judiciary Committee held a hearing on the crack-cocaine disparity bill last year, it has yet to schedule a markup.

Meanwhile, Durbin isn’t giving up on his broader criminal justice reform package. At least not yet. While the Jackson hearings highlighted the “extremes” of GOP opposition, he said he remains hopeful that “there are fair-minded Republicans and Democrats who can form the basis of an agreement.”

Sigh. From the very start of this Congress, many folks have been stressing (see here and here) that the criminal justice arena as presenting opportunities for bipartisan reforms.  And nearly a year ago, as noted here, the Senate Judiciary Committee advanced the COVID-19 Safer Detention Act of 2021, the Prohibiting Punishment of Acquitted Conduct Act of 2021 and the First Step Implementation Act of 2021.  Since then, the House in September 2021 passed, as detailed here, the EQUAL Act by a margin of 361-66 and last month passed, as detailed here, the Prohibiting Punishment of Acquitted Conduct Act of 2021 by a margin of 405-12.  Not sure we can expect more bipartisan agreement than these votes reflect, and so I continue to believe the relatively modest reforms in all of these bills could have and should have been low-hanging fruit for bipartisan legislative achievements in this Congress.  Instead, it now appears that none of these bills may get to the finish line in this Congress. 

I understand fully the challenging politics presented by rising homicide rates and other crime challenges now facing the nation.  But these reforms are all sound tweaks to a federal sentencing and prison system that have rightly garnered strong bipartisan support because they are modest and sensible reforms that are long-overdue and have very little to do with violent offenders.  The apparent failure of this Congress to get any of these bills enacted so far strikes me as much more a story of problematic policy priorities than of modern crime politics.  Sigh.

April 14, 2022 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, March 10, 2022

US Sentencing Commission releases big new report titled "Compassionate Release: The Impact of the First Step Act & COVID-19 Pandemic"

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The US Sentencing Commission indicated that is was working on a big new compassionate release report, and I am pleased to see from my email inbox that it was released today.  Here is the text about the report that was in the email I received:

The United States Sentencing Commission (“Commission”) today released a new report that examines trends in compassionate release during fiscal year 2020 in light of the enactment of the First Step Act of 2018, and the COVID-19 pandemic.

Senior U.S. District Judge Charles R. Breyer, Acting Chair of the Commission, stated “I am pleased that the Commission has issued this comprehensive report on compassionate release trends in fiscal year 2020. This report builds on the Commission’s significant work in this area, including a report on the first year of implementation of the First Step Act and the Commission’s previously released quarterly data reports analyzing motions for compassionate release.”

Acting Chair Breyer noted, “Prior to the enactment of the First Step Act, only the Director of the Bureau of Prisons could file compassionate release motions. The First Step Act enables defendants to file these motions directly in federal court after exhausting administrative requirements. These changes, coupled with the pandemic, resulted predictably in a dramatic increase in both motions for and grants of compassionate release.”

According to the report, in fiscal year 2020, courts decided 7,014 compassionate release motions, granting compassionate release to one-quarter (25.7%) of those offenders. The number of offenders granted relief increased more than twelvefold compared to 2019 — the year immediately following passage of the First Step Act. Courts cited health risks associated with COVID-19 as at least one reason for relief in 71.5% of grants.

“Unfortunately, in the intervening time between enactment of the First Step Act and the COVID-19 pandemic, the Commission lost its quorum, rendering it unable to amend the compassionate release policy statement. The absence of this guidance has resulted in a lack of uniformity in how compassionate release motions are considered and applied across the country,” said Judge Breyer. The Report identified considerable variability in the application of compassionate release across the country among those offenders in the study group—ranging from a grant-rate high of 47.5% in the First Circuit to a low of 13.7% in the Fifth Circuit.

“This report underscores why it is crucial for the Commission to regain a quorum to again have the ability to address important policy issues in the criminal justice system, such as compassionate release,” added Breyer. “Nevertheless, I am proud of the extensive work the Commission did to compile this insightful data. I believe this report will provide valuable information to lawmakers, the Courts, advocacy organizations, and the American public.”

This full USSC report, available here, runs 86 pages and I hope to find time in the coming days to highlight a variety of findings from the report. The USSC has created this two-page infographic about the report with a few data highlights, and this USSC webpage provides an overview and an extended list of "key findings."

Though I am VERY excited to dig into this report and look forward to exploring what lessons these data may have for any possible revision of guidelines and practices related to compassionate release, I am a bit disappointed that this new USSC report only covers developments and data through September 2020.  Though these data capture the many developments through the first part of the COVID pandemic, there still had then not been any significant circuit rulings about the operation of compassionate release and other USSC data runs have detailed that there were an additional 10,000 motions and about 1500 addition compassionate release grants in just the six months after September 2020.  I fully understand why the USSC could not do this kind of detailed report on all cases up to the present, but everyone should not lose sight of the fact that this new report is already somewhat dated because it only captures data through September 2020.

March 10, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, February 23, 2022

Taking a look at compassionate release record of one SCOTUS short-lister

I recall seeing a few weeks ago a notable Twitter thread about the compassionate release record of Judge J. Michelle Childs, who is on Prez Biden's SCORUS short list.  I see now that Matthew Ahn has turned his analysis into this new Inquest piece, headlined "No Compassion: Judge Michelle Childs’ many denials of compassionate release signal a carceralism that should have no place on the Supreme Court." I recommend the piece in full, and here are portions:

[R]equests for compassionate release in recent years have required judges to confront the horrors of pandemic incarceration and the added harshness of a sentence that usually did not contemplate COVID-19.  And judges have wide discretion to reduce a sentence; the reduced sentence is not subject to the harsh mandatory minimums enshrined in federal law.  Despite this, judges often sidestep the question and conclude that things haven’t changed enough since sentencing, either in the urgency of an inmate’s situation or in the work they’ve done on themselves to grow despite that situation.  Even if an applicant is almost done serving their sentence or has been actively participating in prison programs for several years, the odds are long — only 18 percent of compassionate release motions were granted in 2020 and early 2021.

These low rates of compassion seem hard to square with the basic nature of a pandemic that has torn through prisons at rates far more dangerous than in the broader population. Even then, it’s hard to overturn denials of compassionate release on appeal, given the broad discretion the law affords trial judges.  Thus, a mixed record containing some grants and some denials of compassionate release might be tolerable if the judge is actually considering the arguments and agreeing to some reductions.  It’s harder to stomach if the judge isn’t granting any motions.    

Based on her 23 COVID-related compassionate release rulings available on Westlaw, Judge Childs falls into that latter category....

When I set out to examine Judge Childs’ record in this setting, I was not expecting every case she considered to end in compassionate release.  For many of them, her hands are tied because the applicant either hasn’t made the proper requests to the BOP prior to asking the judge, as the law requires, or hasn’t submitted any supporting information. Judge Childs’ denials in those cases are unsurprising to me.

But I did not expect to find nothing but denials.  And not just denials — Judge Childs has never, in any of these available decisions, ruled for anyone on either of the two steps. That’s unlike many other judges, who will often find extraordinary and compelling reasons but deny based on the § 3553 factors.  In other words, Judge Childs’ record is a genuine outlier that is especially punitive and carceral when it comes to evaluating requests for compassionate release.  And it’s not just that she is from South Carolina, either.  The grant rate in Judge Childs’ district is 18 percent, which is right at the national average.  She’s an outlier compared both to the country and her state.    

February 23, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (4)

Friday, February 18, 2022

Federal prison population dips down a bit and is now reported at 153,053

Just as it is likely foolish for persons with long-term investment plans to spend too much time looking at daily stock market numbers, it is likely foolish that I have become obsessed again with weekly federal prison population data ever since the Department of Justice last month, as noted here, announced its rules for implementing "the Time Credits program required by the First Step Act."  As regular readers may recall, the retroactive implementation of those credits led to the reduction of the federal prison population by about 3% in just a few weeks.  But then, as noted here, the federal Bureau of Prisons' weekly updated report revealed a return to increasing prison population numbers in early February.  And, since the federal prison population slowly climbed through 2021 (after big drops in the early pandemic days), I have been speculating that slow and steady prison population growth in 2022 would reflect a bit of "returning to normal."

But, just to ensure nobody thinks there are predictable trends here, the newest latest BOP report of the federal prison population, this on-line report of "Total Federal Inmates," now clocks in at 153,053 as of February 17, 2022.  That number is roughly 250 inmates lower than two weeks ago.  I suspect there is no simple explanation for the recent ups and downs, but this new date now (foolishly?) makes me a bit less pessimistic that the Biden era is destined to be marked by a steady increase in the federal prison population absent FIRST STEP Act events.

That all said, as we approach the President's Day weekend, it is worth recalling that the Joe Biden campaign includes promises to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes."  Thirteen months into this administration, I am unaware of any bold action taken by Prez Biden in this arena and he has yet to use his clemency power a single time, let alone broadly.

Prior recent related posts:

February 18, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Thursday, February 17, 2022

Deepening circuit split, First Circuit embraces broad view of sentence reduction authority under 3582(c)(1)(A)

I have not consistently blogged about every circuit ruling concerning the nature and scope of authority that district judges now have to reduced sentences under 18 U.S.C. § 3582(c)(1)(A) after the FIRST STEP Act.  Suffice it to say that these issues are so contested that they have created an intra-circuit splits in the Sixth Circuit as well as broader divisions across multiple circuits.  But I was moved to blog on this topic again because the First Circuit weighed in earlier this week in US v. Ruvalcaba, NO. 21-1064 (1st Cir. Feb. 15, 2022) (available here) through an opinion that effective reviews the legal landscape on its way to reaching this basic holding: 

After careful consideration, we hold that a district court — when adjudicating a prisoner-initiated motion for compassionate release — is not bound by the Sentencing Commission's current policy statement. We further hold that such a court may consider the FSA's non-retroactive changes in sentencing law on an individualized basis, grounded in a defendant's particular circumstances, to determine whether an extraordinary and compelling reason exists for compassionate release.

The second part of this holding is one that has particularly divided circuit courts, and I was pleased to see this textualist analysis from the majority opinion in support of its conclusion:

Nowhere has Congress expressly prohibited district courts from considering non-retroactive changes in sentencing law like those in section 401 of the FSA. Such a prohibition cannot be deduced from section 3582(c)(1)(A)'s requirement that a court consider the section 3553(a) factors when granting a sentence reduction. No part of this requirement suggests that a district court is precluded from considering issues relevant to those sentencing factors at the separate step of determining whether an extraordinary and compelling reason exists. Were this the case, there would have been no reason for Congress to caution that rehabilitation — a relevant consideration in the section 3553(a) inquiry — could not constitute an extraordinary and compelling reason....

On the whole, given the language that Congress deliberately chose to employ, we see no textual support for concluding that such changes in the law may never constitute part of a basis for an extraordinary and compelling reason. We are, moreover, reluctant to infer that Congress intended such a categorical and unwritten exclusion in light of its specific statutory exclusion regarding rehabilitation.

In addition to the effective majority opinion, Ruvalcaba also has a notable extended dissent by Judge Barron in which he highlights another older extreme sentencing cases from the First Circuit — an remarkable case in which, as noted here, the entire First Circuit issued a remarkable opinion urging Supreme Court review while denying en banc review — which would seem to now have another chance to be addressed via 18 U.S.C. § 3582(c)(1)(A) thanks to Ruvalcaba. 

February 17, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, February 16, 2022

Spotlighting the ugly problem of federal prosecutors seeking waivers of future statutory rights to seek compassionate release

In this post a couple of years ago, I flagged an opinion by US District Judge Charles Breyer in US v. Funez Osorto, 445 F. Supp. 3d 103 (N.D. Cal. 2020), in which he rejected a plea agreement based on a provision that sought to dramatically limit the defendants' statutory rights to pursue future compassionate release motions.  Today I see this new NPR article discussing complaints about this practice, and here are excerpts:

Federal prosecutors have been seeking to limit defendants' rights to win compassionate release from prison in plea negotiations across the country, a practice that advocates say undermines the intent of Congress and produces cruel outcomes.

Two advocacy groups — Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers — asked Deputy Attorney General Lisa Monaco on Tuesday to prohibit U.S. attorneys from including the "pernicious" language in plea agreements.

In a copy of their letter exclusively provided to NPR, the groups said at least six jurisdictions around the nation are using the provisions, either barring defendants from filing any motions for early release because of extraordinary medical or family conditions or limiting them to only one such request and barring appeals....

The Justice Department had no comment on the advocates' letter.

Compassionate release is designed to give people in prison facing extraordinary or compelling circumstances a way to seek early release.  The Bureau of Prisons rarely approved such requests, so in 2018 Congress gave prisoners the ability to petition a federal court for freedom, under the First Step Act. More than 4,000 people have used that provision to win release....

Well over 90% of federal prosecutions end in guilty pleas, so the language in plea agreements carries enormous impact. "Individuals pleading guilty cannot know if their future holds a terminal medical condition, the death of the sole caregiver for their children, among many other tragic circumstances," said Shanna Rifkin, deputy general counsel of FAMM.

I have long thought that nearly all appeals waivers, as well as related collateral review waivers, are legally problematic and ought to generally be considered void as against public policy.  Though a criminal defendant trying to secure some remedy or release through an appeal or release motion is obviously the one most directly impacted by any and all possible future litigation over his sentence, the public also has a significant interest in a sentencing system that functions without significant error and that does not spend money on incarceration ineffectively and inefficiently.  Appeal waivers insulate all sorts of potentially significant sentencing errors from scrutiny and review, and waivers of other release or collateral motions can block efforts by prisoners to soundly and properly use existing legal mechanism to secure review of potentially excessive or unnecessary prison terms.

Congress amended the procedures for sentence reduction motions known as compassionate release through the FIRST STEP Act of 2018 precisely because it concluded that the executive branch in the form of BOP and DOJ could no long be trusted to be good stewards of this important sentence-review mechanism.  The amended process gives defendants, after seeking BOP support for a motion, the statutory to bring a motion directly to the judiciary.  Any efforts by the executive branch to reclaim sole authority over such motions though plea provisions runs directly contrary to what Congress duly provided in law as the new policy and procedure for these matters.  Consequently, such waivers should be, in my view, deemed unenforceable and void as against the public policy enacted by Congress via FIRST STEP.

February 16, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (22)

Friday, February 04, 2022

Federal prison population creeping up again after initial application of FIRST STEP earned-time credits

As noted in this prior post, the Department of Justice last month announced its rules for implementing "the Time Credits program required by the First Step Act."  DOJ provided for retroactive application of these credits, which produced a notable decline in the overall federal prison population.  Specifically, as indicated in this post, over the last two full weeks of January, the federal inmate population dropped nearly 3% down to 153,293 "Total Federal Inmates" on January 27 from a count of 157,596 on January 13.  

But on February 3, 2022, the federal Bureau of Prisons updated here its report of "Total Federal Inmates," and that number now reads at 153,316.  In other words, after the initial implementation of FIRST STEP earned-time credits dropped the federal prison population, this population total now is starting to creeping up again slightly.  And because the federal prison population was steadily creeping up throughout most of 2021 — an increase of nearly 6000 from a low of 151,646 inmates as of January 21, 2021 — I will be continuing to keep a close watch on where the federal prison population might be headed the rest of this year.  

Prior recent related posts:

February 4, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Thursday, February 03, 2022

Another congressional hearing on federal prisons, this time with testimony from out-going BOP director

As noted in this prior post, a couple weeks ago the Subcommittee on Crime, Terrorism, and Homeland Security of the US House Judiciary Committee held a hearing with multiple witnesses on "The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons?".  This morning, as detailed here, another similar hearing was conducted, though with only one witness, Michael Carvajal, the Director of the Federal Bureau of Prisons.  Carvajal has already resigned, though is serving until his replacement in place.  And in that role, he submitted this written testimony which is worth a full read.  Here are some excerpts:

We have begun awarding inmates FSA earned time credits for successful participation in FSA programs and moving eligible inmates to supervised release or pre-release custody. These credits are governed by a new regulation that the Bureau issued in January 2022. Working closely with other Department of Justice components, we are exercising our discretion to apply time credits towards supervised release for the sentences of over 4,900 inmates and anticipate moving over 2,500 inmates to Home Confinement or a Residential Reentry Center based on the published final rule governing the awarding of FSA earned time credits....

Based on the March 26, 2020 and April 3, 2020 guidance issued by Attorney General Barr, the Bureau began and continues to migrate eligible inmates to Home Confinement. I am pleased to report that since March 26, 2020, the Bureau has transferred more than 37,000 inmates to community custody, with more than 9,000 transferred directly pursuant to the authority granted by the CARES Act. Review of medically vulnerable inmates for potential placement in home confinement remains ongoing and will continue for the duration of the pandemic....

As the Committee is aware, the Department’s Office of Legal Counsel recently issued an opinion indicating that the Bureau may use its preexisting authorities and discretion to permit prisoners granted CARES Act Home Confinement to continue such placements after declaration of the end of the COVID-19 Emergency. The Department of Justice is preparing regulations to implement this decision....

[T]he First Step Act of 2018 paved the way for an inmate to file directly with the sentencing court, after the inmate has fully exhausted the internal appeals process, or 30 days after the warden received the inmate’s compassionate release request. Since the enactment of the FSA, we are aware of 4,025 compassionate releases regardless of the tens of thousands which have been sought. Since the passage of the CARES Act, 3,851 inmates have been released via compassionate release. The Bureau cannot track inmate-filed motions, as the Bureau is not a party to those cases....

The Elderly Offender Home Detention Program was reauthorized by the FSA, and it allows certain elderly federal inmates to seek placement on home confinement before the expiration of their prison sentence. Since passage of the FSA, the Bureau has approved 1,177 inmates to home confinement under this program.

February 3, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, January 30, 2022

In week two of implementation of FIRST STEP earned-time credits, federal prison population drops another 550

As noted in this prior post from two week ago, the Department of Justice earlier this month announced its new rule for implementing "the Time Credits program required by the First Step Act."  I noted that, with DOJ providing for retroactive application of these credits, we could expect to see a decline in the overall federal prison population.  A week later, as noted here, on the first day the federal Bureau of Prisons updated it total inmate count, there was reported a roughly 2.5% drop in the federal inmate population (down to 153,855 "Total Federal Inmates" on January 20, from a count of 157,596 on January 13).  

On January 27, 2022, BOP updated here its report of "Total Federal Inmates," and that number now reads at 153,293.  So, during what might be called week two of implementation of FIRST STEP earned-time credits, the federal prison population dropped more than an additional 550 prisoners.  That is a big drop, though also a big drop off from the week one decline of nearly 4000 inmates.  Because the federal prison population was steadily creeping up throughout most of 2021 — from a low of 151,646 inmates as of January 21, 2021 — it will be interesting to watch just where the federal prison population might be headed the rest of this year.  

Prior recent related posts:

January 30, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Wednesday, January 26, 2022

Articulating concerns while celebrating implementation of FIRST STEP earned-time credits

As first discussed in this post, the Department of Justice a few weeks ago officially announced its new rule for "implementing the Time Credits program required by the First Step Act"; as noted in this follow-up post, the process of awarding retroactive credits to prisoners who were eligible and had already done the work to earn credits resulted in an immediate significant reduction of the federal prison population.  And though there is much to celebrate about this stage of implementation of a huge part of the FIRST STEP Act — which was enacted with overwhelming bipartisan support in Congress and signed by President Trump way back in late 2018 — I have noticed a number of new commentaries and other press pieces flagging concerns to watch.

This CNN opinion piece, by Michael Cohen, E. Danya Perry and Joshua Perry, carries a headline that is most celebratory: "This is an unmistakable win for incarcerated people."  But, after an effective review of the positives of the new DOJ rules on earned-time credits, it closes with these sentiments:

There is still a lot of work to be done. There are strong indications that the BOP is not offering enough high-quality programs to help support people in prison, particularly during the pandemic.  While unquestionably impactful, the act was indeed only a "first step" towards broader changes that are desperately needed to reduce our cruel and counterproductive overreliance on incarceration.  And even this welcome development does not erase the needless suffering of too many people, while the BOP pushed back against inmates seeking time credit and initially proposed a rule that cut against Congress' intent.

This Forbes piece by Walter Palvo picks up these themes with even more concern for the implementation particulars under the headline "Bureau Of Prisons Begins Implementing First Step Act With Release Of Thousands In Custody":

One concern is that there does not appear to be a consistent way these ETCs are being calculated at each institution.  Case managers, who have been keying in classes that prisoners have taken over the past two years, seem to have a liberal way of calculating ETC and those who I have spoke to about their release have no idea how their release date was calculated.  As one man told me, “I was just happy to be released and don’t care how they calculated it.”  However, for the man or woman sitting in prison, it makes a huge difference.  Many advocates may be giving one another high-fives, but, as history has demonstrated, the BOP somehow finds a way to mess up a good thing. The law. already has flaws as there are a number of exceptions carved out to prevent some offenses from being ineligible from earning ETC. 

And this new NPR piece from Carrie Johnson spotlights long-standing concerns about the PATTERN risk-assessment tool central to these new prison policies.  The lengthy piece is headline "Flaws plague a tool meant to help low-risk federal prisoners win early release," and here are excerpts:

Thousands of people are leaving federal prison this month thanks to a law called the First Step Act, which allowed them to win early release by participating in programs aimed at easing their return to society. But thousands of others may still remain behind bars because of fundamental flaws in the Justice Department's method for deciding who can take the early-release track. The biggest flaw: persistent racial disparities that put Black and brown people at a disadvantage.

In a report issued days before Christmas in 2021, the department said its algorithmic tool for assessing the risk a person in prison would return to crime produced uneven results. The algorithm, known as Pattern, overpredicted the risk that many Black, Hispanic and Asian people would commit new crimes or violate rules after leaving prison. At the same time, it also underpredicted the risk for some inmates of color when it came to possible return to violent crime....

Risk assessment tools are common in many states. But critics said Pattern is the first time the federal justice system is using an algorithm with such high stakes. Congress passed the First Step Act in 2018 with huge bipartisan majorities. It's designed to prepare people in prison for life afterwards, by offering credits toward early release for working or taking life skills and other classes while behind bars....

Only inmates who pose a low or minimal risk of returning to crime can qualify for the programs, with that risk level determined using the Pattern algorithm.... The implementation has been rocky. The Justice Department finished the first version of Pattern in a rush because of a tight deadline from Congress. It then had to make tweaks after finding Pattern suffered from math and human errors. About 14,000 men and women in federal prison still wound up in the wrong risk categories. There were big disparities for people of color.

Prior recent related posts:

January 26, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Friday, January 21, 2022

"The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons?"

The title of this post is the title of this congressional hearing taking place this morning conducted by the Subcommittee on Crime, Terrorism, and Homeland Security of the US House Judiciary Committee.  I cannot yet find links to any written testimony, but here are the scheduled witnesses from this Witness List:

Homer Venters, Adjunct Clinical Associate Professor, NYU School of Global Public Health

Alison Guernsey, Clinical Associate Professor of Law, University of Iowa College of Law

Gwen Levi, Baltimore, MD

Melissa Hamilton, Professor of Law and Criminal Justice, University of Surrey, School of Law

Gretta L. Goodwin, Director, Homeland Security and Justice, U.S. Government Accountability Office

Julie Kelly, Senior Contributor, American Greatness

January 21, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, January 20, 2022

Due surely to implementation of FIRST STEP earned-time credits, federal prison population drops by nearly 4,000 in one week

As noted in this prior post from last Thursday, the Department of Justice last week officially announced its new rule for "implementing the Time Credits program required by the First Step Act" and began awarding retroactive credits to those who were eligible and had already done the work to earn credits.  In my post, I commented that, with the retroactive application of these credits, it would be interesting to see if the federal prison population (which as of Jan 13 BOP reported at 157,596 "Total Federal Inmates") would start to decline.  

A week later, on the first day that BOP updates here its reports of "Total Federal Inmates," there is a dramatic change in the total federal prison population.  Specifically, this morning BOP reports 153,855 "Total Federal Inmates," a decline of 3,741 persons now federal inmates.  This roughly 2.5% drop in the federal inmate population in one week is surely the result of the implementation of FIRST STEP Act earned-time credits, and it will now be interested to see if there are continued drops in the weeks ahead.  (I suspect there will be as implementation must take more than just a week, though I will be very surprised if there are subsequent drops as large as this one.)

Among the notable parts of this story is that it represents a bi-partisan, multi-Congress, multi-administration achievement many years in the making.  Of course, the formal law making this possible was the FIRST STEP Act which was enacted with overwhelming bipartisan support in Congress in 2018 and which President Trump signed after he helped get to the bill to the finish line.  But, well before that bill was passed, congressional leaders and the Justice Department during the Obama years had started drafting and building consensus around the prison reform elements of the Sentencing Reform and Corrections Act of 2015 (first discussed here in October 2015).  And now, of course, it is the Justice Department of the Biden Administration that finalized and now implements this important earned-time credits program required by the FIRST STEP Act.   

Prior recent related posts:

January 20, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Wednesday, January 19, 2022

Frustrating (but still fascinating) SCOTUS argument on crack offense resentencing under FIRST STEP Act

The Supreme Court heard oral argument today in Concepcion v. USNo. 20-1650, to address this technical question as presented by the Petitioners: "Whether, when deciding if it should 'impose a reduced sentence' on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments."  Perhaps in part because the federal government agrees that a district court "may" consider new facts at crack offense resentencing, it seems likely that the defendant here will secure some form of relief.  But, perhaps in part because of the federal government's position, a number of Justices seemed quite eager to talk up the virtues of limiting the scope of a crack offense resentencing.  And because everyone talked at great length about sentencing laws and practices — save Justices Barrett and Thomas, who were mostly quiet — all federal sentencing fans will want to make time to listen to (or read) the oral argument available here.

Many aspects of the argument were fascinating, included Justice Breyer's persistent eagerness to talk up the US Sentencing Commission and even USSC staff documents.  But I found the tenor and tone of the entire argument to be somewhat frustrating given the historical context of unjust crack sentencing.  The advocates and the Justices often suggested it was exceptional that Congress provided for crack resentencings, and the Assistant SG repeatedly spoke of the defendant's original "lawful sentence."  Nobody really mentioned at all the exceptionally unjust and unfair original 100-1 crack sentencing ratio and how that injustice was overwhelmingly acknowledged by Congress through the Fair Sentencing Act of 2010 and finally fixed retroactively  though the FIRST STEP Act of 2018.  Put more directly, Congress has twice made quite clear that it believes that crack defendants sentenced before 2010 received unjust and wrong sentences, even if those sentences may have been technically "lawful."  

In other words, what is fundamentally at issue in Concepcion is whether a group of defendants (almost all of whom are persons of color) who have been serving unjust and wrong federal sentences for more than a decade should be limited in how they can argue for now getting a more just and rightful sentence.  Most fundamentally, these crack defendants want to argue that they should also benefit at resentencing from other improvements in the guidelines apart from crack reforms.  But the Assistant AG expressed concern that allowing arguments for a more just and rightful sentence based on new guidelines could lead to an "unjustified windfall for a select subset of crack cocaine offenders."  But, as I see it, understanding how these defendants have been subject to unjust sentencing for many years, it is functionally impossible for them to really get any "windfall."  Indeed, allowing current new and improved law to inform a new and improved sentence for these crack defendants is the exact opposite of "unjustified windfall."  It is what all should recognize as justice, years late, but hopefully not short.

January 19, 2022 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, January 18, 2022

SCOTUS to hear argument over terms of crack offense resentencing under FIRST STEP Act

The Supreme Court will be hearing oral argument on Wednesday morning in Concepcion v. USNo. 20-1650, which presents the following sentencing issue as phrased by the petitioner in this brief:

Whether, when deciding if it should “impose a reduced sentence” on an individual under section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

The Government articulates the issues somewhat differently in its brief:

Whether a district court is required to consider all legal and factual developments occurring after an offender’s original sentencing — whether or not related to the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 — in connection with a motion for a reduced sentence under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5222.

I was happy to be able to join this law professors' amicus brief which stresses the centrality of the 3553(a) factors at federal sentencing, which calls for analysis of all relevant considerations at initial sentencings and at any resentencings.

January 18, 2022 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Helpful FAMM "Explainer" talks through DOJ rule for implementing earned time credits under FIRST STEP Act

As noted in this prior post, last week the Department of Justice announced its new rule for "implementing the Time Credits program required by the First Step Act."  Because this rule is to be applied retroactively and enables perhaps half of all current (and future) federal prisons to earn early release, it is a very big deal while also having lots and lots complicated implementation intricacies.  Helpfully, FAMM has this helpful new four-page document titled "First Step Act Earned Time Credits Rule Explainer," which starts this way:

On January 13, 2022, the BOP published a rule implementing the Earned Time Credits that were included in the First Step Act. There are a lot of questions about the rule, many of which this Explainer attempts to answer.  There is still much to learn, however, and we will continue to update this Explainer as we learn more.  Please understand that we cannot answer your questions about whether you or your loved one is eligible for credits toward pre-release custody or supervised release, among other things. 

Here are some of the essentials from the document provide a window into just some of the particulars:

Who is eligible to apply FSA Time Credits toward pre-release custody or supervised release?

  • People in BOP custody (including those in a halfway house or on home confinement);
  • who are serving a federal sentence;
  • who have successfully participated in Evidence-Based Recidivism Reducing Programs (EBRR or Programs) or Productive Activities (PA); 
  • who have been assessed as “minimum” or “low” risk for at least one assessment or who can obtain warden approval; and
  • who have earned credits equal to the remainder of their prison term.

Who is barred from either earning FSA Time Credits or applying those credits toward pre-release custody?

  • People serving sentences for convictions under state or District of Columbia law, or who have a final order of removal under immigration law, cannot apply credit toward pre-release custody or supervised release.
  • People serving a sentence for a conviction the First Step Act identifies as disqualifying cannot earn credit. In limited circumstances, certain prior convictions may also prohibit one from earning credit....

What do earned FSA Time Credits do?

  • Eligible people who have earned FSA Time Credits may have them applied toward pre-release custody (halfway house or home confinement transfers) or early transfer to supervised release (essentially shortening the sentence).
  • Transfer to supervised release is limited to one year, but people may be transferred to pre-release custody earlier

Prior related post:

January 18, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Thursday, January 13, 2022

Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules

As reported in this new AP article, headlined "Thousands of federal inmates to be released under 2018 law," this weeks brings some big FIRST STEP Act implementation news, just over three years since President Trump signed the landmark sentencing reform legislation.  Here are the basics:

The Justice Department will begin transferring thousands of inmates out of federal prisons this week as part of a sweeping criminal justice overhaul signed by President Donald Trump more than three years ago.

The department, in a rule being published Thursday in the Federal Register, is spelling out how “time credits” for prisoners will work. The bipartisan law is intended to encourage inmates to participate in programs aimed at reducing recidivism, which could let them out of prison earlier....

While the transfers are expected to begin this week, it isn’t clear how many inmates will be released. The department would only say that “thousands” of inmates are being affected.

Under the law signed in December 2018, inmates are eligible to earn time credits — 10 days to 15 days of credit for every 30 days they participate in prison programs to reduce recidivism. The programs range from anger management and drug treatment to educational, work and social skills classes.

The announcement of a finalized rule being published comes about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs. It also comes a week after an announcement that the director of the prison agency, Michael Carvajal, will resign from his position in the face of mounting criticism over his leadership.

The Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet....

The inmates being released will be sent to supervised release programs, released to home confinement or transferred into the bureau’s residential re-entry centers, commonly known as halfway houses. The law allows inmates to earn time credits back to 2018, when the First Step Act was enacted.

The Justice Department says implementation of the finalized rule will begin this week with inmates whose time credits exceed the days remaining on their sentence, are less than a year from release and have a term of supervised release. Transfers are underway. More are expected in the weeks ahead as officials apply the time credits to inmates’ records.

The rule also changes the bureau’s definition of a “day” of credit. A proposed version in January 2020 said inmates would need to participate for eight hours in certain academic programs or prison jobs to qualify for one day’s worth of credit. But the final version changes the timetable and says the prior standard “was inconsistent with the goals” of the law. Inmates will earn 10 days for every 30 days they participate in programs. Inmates who can remain in lower risk categories will be eligible for an additional five days of credit in each 30-day period.

Advocates say the finalized definition of a “day” will make it easier for a wide array of prison programs to count toward time credits and will mean more people will be eligible for release earlier.

This new Justice Department press release, titled "Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act," discusses these developments this way:

Today, the Department of Justice announced that a new rule has been submitted to the Federal Register implementing the Time Credits program required by the First Step Act for persons incarcerated in federal facilities who committed nonviolent offenses.  As part of the implementation process, the Federal Bureau of Prisons (BOP) has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).

“The First Step Act, a critical piece of bipartisan legislation, promised a path to an early return home for eligible incarcerated people who invest their time and energy in programs that reduce recidivism,” said Attorney General Merrick B. Garland.  “Today, the Department of Justice is doing its part to honor this promise, and is pleased to implement this important program.”

The First Step Act of 2018 provides eligible inmates the opportunity to earn 10 to 15 days of time credits for every 30 days of successful participation in Evidence Based Recidivism Reduction Programs and Productive Activities.  The earned credits can be applied toward earlier placement in pre-release custody, such as RRCs and HC.  In addition, at the BOP Director’s discretion, up to 12 months of credit can be applied toward Supervised Release.  Inmates are eligible to earn Time Credits retroactively back to Dec. 21, 2018, the date the First Step Act was enacted, subject to BOP’s determination of eligibility.

Implementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term.  Some of these transfers have already begun, and many more will take place in the weeks and months ahead as BOP calculates and applies time credits for eligible incarcerated individuals.

The final rule will be published by the Federal Register in the coming weeks and will take immediate effect.  The rule, as it was submitted to the Federal Register, can be viewed here: https://www.bop.gov/inmates/fsa/docs/bop_fsa_rule.pdf

This seems like a very big deal, especially with the retroactive application of credits and the new "day" rule for earning credit, and I will be very interested to see if the federal prison population (which today BOP reports at 157,596 "Total Federal Inmates") starts a move back down after having grown by around 6,000 persons during the first year of the Biden Administration.

January 13, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (8)

Tuesday, January 11, 2022

"Compassionate Release as Compassionate Decarceration: State Influence on Federal Compassionate Release and the Unfinished Federal Reform"

The title of this post is the title of this new paper authored by Chun Hin Jeffrey Tsoi now available via SSRN. Here is its abstract:

The First Step Act's (FSA) compassionate release reform was a “modest but necessary” step; the pandemic and the threat it posed to the incarcerated population ought to prompt reflections on what the next steps should be.  This Essay is intended to serve as both a brief historical review of state influence on federal compassionate release, and as a reflection on the unfinished compassionate release reform in terms of DOJ’s execution. 

Part I briefly surveys the trajectory of 18 U.S.C. § 3582(c) from the Sentencing Reform Act (SRA) to the Prisoner-initiated & Court-ordered (PICO) compassionate release provision in the FSA, and its application in the pandemic.  Part II supplements the compassionate release literature by exploring the history of PICO compassionate release in state law as a backdrop of the long-awaited federal reform allowing prisoners to petition for their own release, and it proposes that state practices, especially that of New Jersey, might have influenced the introduction and passage of FSA in part through the Model Penal Code.  Part III suggests that the arc of compassionate release reform in federal law is nevertheless unfinished, with the Department of Justice’s (DOJ) objection practices being part of the necessary change.  Using data and cases from the District of Columbia, whose PICO compassionate release statute is modeled after federal law and clearly intended as a response to the pandemic, this Essay proposes that the DOJ's perspective and practices must change to adapt to the essential purpose of compassionate release: addressing mass incarceration in America with compassion.

January 11, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, January 05, 2022

Highlighting the challenging issues of implementing the FIRST STEP Act's earned time credits

Walter Pavlo has this extended new Forbes piece detailing some of the nettlesome issues that surround implementation of various parts of the FIRST STEP Act. The piece is headlined "Implementation Of The Criminal Justice Reform Law, First Step Act, Will Likely End Up In Court," and here are excerpts:

President Donald Trump signed one of the most sweeping criminal justice reform laws, The First Step Act (FSA), into law on December 21, 2018.  Since then, its interpretation has been debated and argued, mostly behind closed doors in Washington, on how to fully implement it.  One lesser defined part of FSA is whether or not those in custody within the Federal Bureau of Prisons (BOP), could earn credits for participation in classes and meaningful activities in order to get time reduced off of their sentence.  COVID’s wrath on the BOP slowed FSA implementation but we are on the cusp of discovering the extent of the law’s effects on those currently incarcerated....

By January 24, 2022, the BOP is under a mandate to have the FSA fully implemented.  Under the FSA, prisoners who successfully complete recidivism reduction programming and productive activities are eligible to earn up to 10 days of FSA Time Credits for every 30 days of program participation.  Minimum and low-risk classified prisoners who successfully complete recidivism reduction programming and productive activities and whose assessed risk of recidivism has not increased over two consecutive assessments are eligible to earn up to an additional 5 days of FSA Time Credits for every 30 days of successful participation.  However, prisoners serving a sentence for a conviction of any one of multiple enumerated offenses are ineligible to earn additional FSA Time Credits regardless of risk level.  It is complicated.

Many of the BOP’s facilities are understaffed and pressures of COVID combined with prisoner lockdowns has led many institutions to suspend or delay many of the programs that could have counted toward FSA credits.  Now an internal memorandum posted at some prison camps across the country is causing a stir because of how sweeping the FSA may be for prisoners.  The memo stated [with caveats and exclusions]: "Under the First Step Act of 2018 (FSA), eligible inmates may earn Federal Time Credit (FTC) for successful participation in Evidence-Based Recidivism Programs and Productive Activities.... Inmates are now eligible to earn FTC retroactively back to December 21, 2018; this award will be based on criteria established by BOP."...

Far from clarifying things, the implementation of FSA, based on this limited amount of information, will be almost impossible over the near term.  This affects multiple levels of the criminal justice system; prisons, halfway houses, home confinement and supervised release.  It is an intricate web of agencies that manage the incarceration and supervision of hundreds of thousands of people in the federal criminal justice system.

Those in prison want to be out of the institution.  With many programs suspended in institutions, prisoners have been looking to “Productive Activities,” like a job in the prison, as a means to gain FSA credits.  However, interpretation of that term has been the subject of discussion ever since FSA was passed.  The list of program classes eligible for credit is limited and the hours associated with each one must be based on a need assessment of the prisoner.  It is unknown how a BOP case manager can look back until 2018 for classes (programs) that did not even exist because there was no FSA until December 2018.  In order for “Productive Activities” during the time frame of 2018-2021, it must mean that the BOP is interpreting a broad definition of the term ... I know the prisoners’ interpretation....

Indeed, there will be many prisoners on January 15, 2022 who are being detained unlawfully if the law comes into effect on that day and they are still incarcerated ... that is going to happen.  Thousands will file lawsuits whether they are in prison, halfway houses, home confinement or supervised release, fighting for their right to a broadly defined, and subject to BOP discretion, FSA credit.  Rather than Trump’s FSA being a law, it is going to be subject to interpretation by judges across the country.

While this information is welcome news to those incarcerated, it is also a monumental task for BOP case managers.  Case managers are primarily responsible for moving inmates from prison to halfway houses and home confinement.  It requires a tremendous amount of paperwork and coordination, often taking months.  There is also the additional issue of capacity at halfway houses and monitoring.  This is going to be more complicated than anyone ever imagined.

January 5, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, November 16, 2021

New OIG report assails BOP failures in implementation of FIRST STEP Act

This new Forbes article highlights key features of this detailed new memorandum from the Office of Inspector General criticizing the Bureau of Prisons on various failing that disrupted implementation of the FIRST STEP Act. Here is how the Forbes piece gets started:

On December 21, 2018, then President Donald J. Trump signed into law the First Step Act (FSA), which enacted several criminal justice reforms throughout the federal prison system. Now, nearly three years later, the Federal Bureau of Prisons (BOP) has yet to implement much its central purpose which was to further reduce institutional prison populations by offering incentives to inmates to earn credits toward more halfway house through certain educational programs.  It turns out part of the holdup on the implementation is because BOP management and union staff have been unable to come up with a solution to meet to discuss how the program will be implemented.  The reason we now know this is not because of an announcement from the BOP, but from the release of a recent Office of Inspector General (OIG) report criticizing the lack of implementation along with a lack of the BOP responding to a number of OIG reports over the past 3 years.

According to the OIG report, the BOP’s national union has declined to conduct formal policy negotiations in a remote manner.  Relying on labor contractual terms providing for in-person negotiations, the national union has insisted on in-person negotiations and expressed its availability to meet in person.  This disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which has stalled the development of more than 30 BOP policies, about half of which were created or revised in response to the FSA.

November 16, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, September 30, 2021

Examining "life-or-death lottery for thousands of federal inmates" from compassionate release

Ai2html-graphic-desktop.93a75d10This lengthy new CNN article, Headlined "Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic," takes a deep dive into the realities of compassionate release processes and outcomes. Here are excerpts:

Judge Danny Reeves ... has denied compassionate release motions from at least 90 inmates since the beginning of the coronavirus pandemic, a CNN review of court records found. In Reeves' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions in 2020 and the first half of 2021, according to data released by the US Sentencing Commission this week. In some judicial districts, the approval rate was even lower.

But elsewhere in the country, compassionate release is a different story: Nearly 50% of compassionate release motions decided by the federal court in Massachusetts and more than 60% decided by the court in Oregon were approved during the same time period -- including some for inmates with far less serious medical conditions.... [The image shows darker colors based on percentage of motions for compassionate release that were granted, by judicial district.]

Federal judges in all of these districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases. But those wide disparities show that whether defendants get released early during the pandemic has had almost as much to do with which courts are hearing their motion as it does with the facts of their cases, legal advocates and researchers say.

The compassionate release process, expanded by Congress in a landmark 2018 criminal justice reform bill, has acted as a safety valve for the federal prison system during the pandemic, with more than 3,600 inmates being released in 2020 and the first half of 2021. But it has given judges broad discretion to interpret which sentences should be reduced, leading to a national patchwork of jarringly different approval rates between federal courts.

The reasons behind the disparities have to do with variations in sentence length and legal representation for inmates, as well as differing approaches between more liberal and conservative judges, according to interviews with more than a dozen lawyers, advocates and experts studying compassionate release.

More broadly, the percentage of motions granted nationwide has fallen this year, as judges and Department of Justice lawyers have been pointing to inmates' vaccination status as a reason to oppose their release. "Judges are looking at the same law and policy but interpreting it differently," said Hope Johnson, a researcher with the UCLA School of Law who's studied compassionate release cases. "There's an arbitrariness in the way these decisions are being made."...

Overall, 17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted.

Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts. He said he would like the commission to pass a new standard urging judges to take "the pernicious effect of Covid" into account in deciding compassionate release cases. "You need a national standard," Breyer told CNN, adding that without one, "it creates a vacuum and it creates uncertainty, and most importantly it creates disparity."

September 30, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

SCOTUS starts new term with four new cert grants, one involving the sentencing process for retroactive crack case resentencing

I was pleased to see that the Justices decided to give us a taste of the start of the new SCOTUS Term by issuing this morning this one-page order list that includes the granting of certiorari in four new cases (all of which are likely to be heard in early 2022).  And I am even more excited to see that there was a federal sentencing case on the certiorari granted list, "20-1650 CONCEPCION, CARLOS V. UNITED STATES."  Here is the SCOTUSblog collection of docket entries in this case, and it is interesting to see that (unlike most cases that get granted) the Justices did not need a relisting to decide it should take up this matter.  And here is a link to the cert petition from Mr. Concepcion that sets forth this question presented:

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

Notably, back in February of this year, this post titled "Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing" reviewed some of the persistent legal questions arising in the thousands of retroactive crack case resentencings that Section 404(b) of the First Step Act of 2018.  I am pleased to see SCOTUS take up some of these issues in Concepcion, and I hope the Justices will be able to some more clarity to retroactive resentencing procedures.

Earlier this week, I flagged in this post a number of other sentencing issues swimming around in the cert pool that are worth watching in the weeks and months ahead.  I assume we will get a much, much, much longer order list on Monday morning where we will likely see cert denied on some of these issues but also possible relisting of others.  So, SCOTUS sentencing fans, stay tuned as engines are just getting started for the new Oct21 Term.

September 30, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Tuesday, September 28, 2021

US Sentencing Commission releases updated "Compassionate Release Data Report" covering all of 2020 and first half of 2021

As detailed in prior posts here and here, a few months ago the US Sentencing Commission started releasing short data report titled "Compassionate Release Data."  Though these reports provide only some very basic accounting of the grants and denials of federal compassionate release motions nationwide, they still provide the only "official" accounting of who is getting relief and some of the basics surrounding their demographics. 

Exciting, the latest of these reports was released today at this link and "reflects compassionate release motions decided by the courts during calendar years 2020 and 2021 (January 1, 2020 - June 30, 2021)."  Table 1 of the report shows, perhaps unsurprisingly, that the number of these motions brought and the grant rate declined though the first six months of 2021.  I presume that could reflect the fact that lots of the strongest cases may have received release in 2020 and also concerns about COVID started declining as vaccines became available to federal prisoners.

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

A few of many prior related posts:

September 28, 2021 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, September 05, 2021

More than two dozen attorneys general urge Congress to extend crack retroactivity to offenders left behind by Terry

Back in June, as discussed here, the Supreme Court embraced a limiting interpretation in Terry v. US, No. 20–5904 (S. Ct. 2021), as to who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act.  As detailed in this press release from the Michigan Attorney General, this past week "a bipartisan coalition of 25 attorneys general [signed a letter] urging Congress to amend the First Step Act and extend critical resentencing reforms to individuals convicted of the lowest-level crack cocaine offenses."  The full letter is available at this link, and here are excerpts from the start and close of the letter:

As our jurisdictions’ Attorneys General, we are responsible for protecting the health, safety, and well-being of our residents. Although our jurisdictions vary in size, geography, and political composition, we are united in our commitment to an effective criminal justice system that safeguards the communities of our states. To that end, a bipartisan coalition of Attorneys General supported the passage of the First Step Act of 2018 — landmark legislation that brought common sense improvements to myriad aspects of the criminal justice system. Central to these reforms was retroactive relief for individuals sentenced under the discredited 100-to-1 crack-to-powder cocaine ratio that Congress abolished in 2010. Following the Supreme Court’s recent opinion in Terry v. United States, however, the lowest level crack cocaine offenders remain categorically ineligible for resentencing. We write today to urge Congress to amend the First Step Act, and to clarify that its retroactive relief applies to all individuals sentenced under the prior regime....

There is no reason why [lowest-level offenders] — and these individuals alone — should continue to serve sentences informed by the now-discredited crack-to-powder ratio. Discretionary relief is unambiguously available to serious dealers and kingpins sentenced under the prior regime; extending Section 404’s scope would simply allow individual users and other low-level crack cocaine offenders to have the same opportunity for a second chance. We therefore urge Congress to clarify that Section 404 of the First Step Act extends to all individuals convicted of crack cocaine offenses and sentenced under the 100-to-1 ratio—including the lowest level offenders.

September 5, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, August 30, 2021

Sixth Circuit invents another extra-textual limit on what can permit a sentence reduction under 3582(c)(1)(A), including one in contradiction of USSC guidelines

In this post earlier today, I noted and criticized the Third Circuit's work in US v. Andrews, No. 20-2768 (3d Cir. Aug. 30, 2021) (available here), for its embrace of extra-textual categorial exclusions as to what might qualify as extraordinary and compelling reasons to support a sentence-reduction motion under 18 U.S.C. § 3582(c)(1)(A).  Turns out, today was a special day for this kind of extra-textual policy work by the courts, as the Sixth Circuit in US v. Hunter, No. 21-1275 (6th Cir. Aug. 30, 2021) (available here), also decided to make up rules in this context:

As explained further below, the text and structure of § 3582(c)(1)(A) limit a district court’s discretion to define “extraordinary and compelling” in two ways relevant to this case. First, non-retroactive changes in the law, whether alone or in combination with other personal factors, are not “extraordinary and compelling reasons” for a sentence reduction. Second, facts that existed when the defendant was sentenced cannot later be construed as “extraordinary and compelling” justifications for a sentence reduction.

I have explained in a number of prior posts why the "first" point made by the Hunter court is unsupported by the text of 3582(c)(1)(A) (see here)  But the "second" point from the Hunter panel seems especially problematic and an especially misguided policy invention.  Congress instructed, in 28 U.S.C. § 994(t), that the US Sentencing Commission "describe what should be considered extraordinary and compelling reasons for sentence reduction," and the USSC has expressly stated, in USSG §1B1.13 application note 2, that facts that existed when the defendant was sentenced can later support a finding of "compelling and extraordinary" reasons for a reduction.  Here is this USSC application note in full:

2. Foreseeability of Extraordinary and Compelling Reasons. — For purposes of this policy statement, an extraordinary and compelling reason extraordinary and compelling reasons need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment.  Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

So, to review, Congress tasked the Sentencing Commission with describing how district courts should assess extraordinary and compelling reasons for a sentence reduction, and the USSC said that there is no preclusion on the consideration of facts known at the time of sentencing.  But, in contravention of the instructions of Congress and the work of the USSC, this Sixth Circuit panel has decided it can and should make up its own misguided rule that facts that existed when the defendant was sentenced cannot contribute to providing extraordinary and compelling reasons for a reduction.

As I see the Hunter opinion, it really seems like the panel was troubled by a murderer getting his sentence reduced to "only" 21 years in prison.  If the substantive merits of the reduction  so bothered the panel, I sure wish it would have explained its concerns with a focus on how the 3553(a) factors were weighed, rather than by making up a lot of problematic law concerning what cannot serve as the basis for finding an extraordinary and compelling reason.   As I have noted before, Congress set forth one (partial) express exclusion in § 994(t): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."  In light of this clear (and limited) statutory command, all other limits created by circuit courts appear to me to be extra-textual policy-making, not textual statutory interpretation.

August 30, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A)

Over the last year, the federal circuits have started issuing various opinions concerning what factors may serve as the basis for compassion release in the wake of the FIRST STEP Act allowing courts to consider sentence-reduction motions under 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  Of course, Congress long ago expressly instructed, in 28 U.S.C. § 994(t), that the US Sentencing  Commission "shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples."  But the Commission has not had a quorum in the nearly three years since the FIRST STEP Act became law, so courts have had to figure out these matters on their own for now.

Given the statutory text enacted by Congress in 1984 and in 2018, I think the first big circuit ruling in this space had it right.  Specifically, the Second Circuit in September 2020 was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts now have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  That seemed right because Congress nowhere placed in the statutory text any categorical limits on what kinds of factors could qualify as "extraordinary and compelling."  Congress did set forth one (partial) express exclusion in § 994(t): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."  But this clear statutory command always led me to conclude that (1) any other factor could possibly be considered an extraordinary and compelling reason, and also (2) that rehabilitation of the defendant combined with other factors could be considered an extraordinary and compelling reason.

I provide this backstory to explain why I am troubled by part of the Third Circuit's work today in US v. Andrews, No. 20-2768 (3d Cir. Aug. 30, 2021) (available here).  The very first sentence of the Andrews ruling has a Kafka-esque "only in America" quality to it: "Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen."  That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way.  Specifically, as described by the panel opinion, the district court decided that "the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law."  Of course, there is no statutory text enacted by Congress that sets forth this "as a matter of law."  But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorial exclusions "as a matter of law" regarding what might qualify as extraordinary and compelling.  Sigh.

Here is some of the Third Circuit panel discussion (with some cites and parentheticals removed):

We begin with the length of Andrews’s sentence.  The duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance.  “[T]here is nothing ‘extraordinary’ about leaving untouched the exact penalties that Congress prescribed and that a district court imposed for particular violations of a statute.” United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021). “Indeed, the imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to now reduce that same sentence.” United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021) (Tymkovich, C.J., concurring).  Moreover, considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties. See Gore v. United States, 357 U.S. 386, 393 (1958) (“Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, these are peculiarly questions of legislative policy.” (citation omitted)).

The nonretroactive changes to the § 924(c) mandatory minimums also cannot be a basis for compassionate release.  In passing the First Step Act, Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced.  See First Step Act § 403(b).  That is conventional: “[I]n federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.”  Dorsey v. United States, 567 U.S. 260, 280 (2012).  “What the Supreme Court views as the ‘ordinary practice’ cannot also be an ‘extraordinary and compelling reason’ to deviate from that practice.” United States v. Wills, 997 F.3d 685, 688 (6th Cir. 2021).  Interpreting the First Step Act, we must “bear[] in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 320 (2014)... And when interpreting statutes, we work to “fit, if possible, all parts” into a “harmonious whole.” Brown & Williamson, 529 U.S. at 133 (internal quotation marks omitted) (quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)).  Thus, we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.  Such an interpretation would sow conflict within the statute.

This ruling and others like it seem to me to have the framing wrong.  Sure, a lawfully imposed sentence, even one based on now-reduced mandatory minimums, will not and should not alone  always qualify in every single case as the sole basis for compassionate release.  (This is what making a change retroactive will do "as a matter of law," namely make every sentence imposed based on that law always eligible for a reduction in every single case.)  Defendants in these compassionate release cases are not arguing that a lawful, now-changed sentence serves as the sole basis for a reduction in all cases, rather they are just saying such facts can and should be considered by judges along with other factors in assessing whether there are extraordinary and compelling reasons for sentence reduction.  Since Congress has not expressly stated that these are improper factors, they can only become unlawful if and when judges start making up extra-textual limits on application of statutory law here.

A few of many, many prior related posts:

August 30, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, August 19, 2021

Still more attention (and some helpful action) for the home confinement cohort

It has now been a full month since the news broke that the Biden Justice Department was going to accept the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic.  The dilemma of the home confinement cohort continues to generate considerable attention and here are a few new pieces:

From The Bulwark, "Biden Must Act to Ensure Nonviolent Offenders Aren’t Sent Back to Prison"

From Inquest, "Keeping Them Home: During the Trump administration, lawyers at DOJ said thousands of people who were sent home from prison during the pandemic need to be sent back when the COVID emergency ends. They got the law wrong, and DOJ should say so."

Helpfully, in addition to attention, this week also brought action to help this group as detailed in this new press release titled "FAMM, NACDL, and Washington Lawyers’ Committee launch CARES Act Home Confinement Clearinghouse."  Here are the basics:

FAMM, the National Association of Criminal Defense Lawyers (NACDL), and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs (WLC) launched the “CARES Act Home Confinement Clearinghouse” today in an effort to prevent up to 4,000 people on CARES Act home confinement from returning to prison.

The Home Confinement Clearinghouse will match people on home confinement with pro bono attorneys or federal public defenders who will consider filing compassionate release motions in federal court on their behalf.

“Sending thousands of people back to prison after nearly two years of being with their families and reintegrating into society is unnecessary and cruel,” said FAMM President Kevin Ring. “The White House has shown no willingness to act so we are turning to the courts.”...

Due to the Biden Administration’s failure to act, FAMM, NACDL, and WLC have determined that it is essential for people on home confinement to pursue other viable options to avoid their unnecessary return to prison. Compassionate release is one such option....

People eligible for free representation through the CARES Act Home Confinement Clearinghouse fall into the extraordinary and compelling circumstances provision in the federal compassionate release law. Many of them have been deemed by the Bureau of Prisons as “low risk,” were released to home confinement during a global pandemic due to their vulnerability to the virus, were never informed about the possible return to prison, have successfully reintegrated into family and community for a year or longer, and face the re-emergence of COVID-19 threat.

The CARES Act Home Confinement Clearinghouse is modeled after the highly successful Compassionate Release Clearinghouse COVID-19 Project launched by the same organizations last year. The Clearinghouse was launched in an effort to protect vulnerable incarcerated people from the spread of COVID-19 in federal prisons and placed over 2,000 cases with pro bono counsel. Federal public defenders helped even more people. Federal judges answered the call by granting more than 3,500 compassionate release motions, despite BOP and Justice Department opposition to nearly every case,

The Cares Act Home Confinement Clearinghouse will turn to federal judges again to help prevent the cruel unnecessary reincarceration of up to 4,000 law-abiding people. We will also urge the Justice Department to not oppose any of the motions as they have done in the past.

Some of many prior related posts:

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

Tuesday, August 10, 2021

Another reminder that "old law" federal prisoners are still awaiting compassionate equal treatment

A few months ago, I blogged here about an NPR story regrading so-called "old law" federal prisoners, persons who committed federal crimes before November 1987 and who are not currently able to apply to a judge for compassionate release under the FIRST STEP Act. NPR returned to this story recently with this new piece headlined "Some Older Prisoners Aren't Eligible For Compassionate Release. Lawmakers Want Change." Here are excerpts:

COVID-19 has exacted a terrible toll inside America's prisons, spreading there at six times the rate as among the general population. The coronavirus pandemic motivated tens of thousands of incarcerated people to request early release on the grounds that their old age and health troubles made them especially vulnerable.

But the Federal Bureau of Prisons told lawmakers that of the nearly 31,000 prisoners to request compassionate release, the BOP approved just 36. Thanks to Congress, many had another option.  The First Step Act gave them the opportunity to go to court and persuade a judge they should win compassionate release.  More than 3,000 people have won their freedom that way during the pandemic.

But that law overlooks a small group of people in federal prison who were convicted of crimes before November 1987. One of them is Kent Clark.  NPR focused on Clark and other "old law" prisoners in a story this year.  Clark's cousin said Clark had lost his memory during his 31 years in prison.  After the story ran, public defender Rahul Sharma finally got Clark's medical records.

"They showed he has moderate to severe dementia, borderline blindness, tooth loss, severe depressive disorder, gout, cardiac arrhythmia and honestly just severe pain throughout his body," Sharma said.  He said Clark had been wandering into other people's prison cells and kept a list of things he needed to remember to do every day, like going to the bathroom and wearing a mask.  "It was found by the facility, by the prison, that he was a real danger to himself, given the severity of his dementia," Sharma said.

Clark has now been moved to a hospital in Florida where he's guarded by corrections officers, with one arm chained to the hospital bed and irons on his legs.  The warden has denied Clark's request for compassionate release.  Sharma said Clark, now 66, is deteriorating rapidly.

Senate Judiciary Committee Chairman Dick Durbin, D-Ill., is leading efforts to make "old law" prisoners eligible to petition a judge for compassionate release.  A bill moving through Congress would change the law to make "old law" prisoners eligible to petition a judge for compassionate release.  The Senate Judiciary Committee advanced the measure by a bipartisan vote of 14-8 in May.

Democrats hope to bring it to the full Senate this fall, saying the bill would fix a glaring injustice.  Senate Judiciary Committee Chairman Dick Durbin, D-Ill., is leading the charge.  "'Old-law' offenders are some of the most vulnerable and deserving of relief in federal prisons," Durbin said in a written statement.  "There is no logical or moral reason to exclude these offenders from the opportunity to petition the court for compassionate release."  Durbin called it a "modest, but necessary" reform and pointed out that the top Republican on the committee, Chuck Grassley of Iowa, is on board.

But some Republican senators, like Arkansas' Tom Cotton, are resisting.  "Most of this bill is just an expansion of criminal leniency policies for serious offenders under the guise of protecting inmates," Cotton said at a committee meeting this summer.

Mary Price, the general counsel of FAMM, a group that advocates for incarcerated people and their families, said that giving people in prison the option of petitioning a judge for release is not a "get-out-of-jail-free card."  Indeed, Price said, only about 20% of people in prison who sought compassionate release during the pandemic have been approved by judges.

August 10, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Earned time credits set up by FIRST STEP Act subject to notable litigation

Though easily forgotten with all the COVID era issues and concerns, one the biggest and potentially most consequential elements of the FIRST STEP Act was its creation of a system of "earned time credits."   This part of the Act would enable certain inmates under certain circumstances to earn increased time in pre-release custody (i.e., to move from prison to a halfway house and/or home confinement).  I recall thinking at the time of FIRST STEP enactment that a robust approach to "earned time" could prove to be very consequential for incarcerated individuals while a limited approach to "earned time" could significantly reduce its potential and importance.  Against that backdrop, I am not surprised to see this new Reuters piece headlined "U.S. Justice Dept clashes with inmates over credits to shave prison time."  Here are basics:

The U.S. Justice Department asked a judge on Tuesday to deny a bid by four low-level federal inmates to qualify for early release under a new criminal justice reform law that allows shortened prison terms through recidivism-reduction programs.

In the U.S. District Court in Oregon, federal prosecutors said no program or activity the inmates took part in qualify for earned time credits. The inmates' public defender and some lawmakers have said the Bureau of Prisons' (BOP) criteria are too strict....

At issue is a provision from the 2018 First Step Act, which aims to ease harsh sentencing for non-violent offenders and reduce recidivism. The BOP may award 10 or 15 days' credit for every 30 days of participation in recidivism-reduction or activities such as academic classes or certain prison jobs. In a January 2020 proposal, the BOP defined a day of participation as 8 hours and limited the menu of qualifying programs.

"The math speaks for itself," federal defenders wrote in a January 2021 letter to BOP. "It would take 219 weeks, or over 4 years to earn a full year of credit under the BOP's proposed rule."

In Tuesday's case, lead plaintiff Adrian Cazares is serving a 71-month sentence for cocaine importation. He has held prison jobs such as a painter and an HVAC worker, and completed courses such as anger management, entrepreneurship, and a residential drug abuse program. None of those are on the BOP's approved list, prosecutors said.

"If HVAC work doesn't qualify, what kinds of jobs do?" asked Magistrate Judge John Acosta, noting the program's goal of reducing recidivism and facilitating reintegration into society.

"The ones that are identified by the Bureau of Prisons," federal prosecutor Jared Hager replied, noting the inmates have "not shown entitlement to any credit." The list of qualifying programs and activities will be updated by Attorney General Merrick Garland, he added.

A few prior related posts:

August 10, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, August 01, 2021

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

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

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

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

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

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

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

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

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

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

Some prior recent related posts:

August 1, 2021 in Criminal justice in the Biden Administration, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Saturday, July 31, 2021

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

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

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

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

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

Download Jarvis Amicus Brief FINAL

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

Sunday, July 25, 2021

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

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

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

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

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

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

A few of many prior related posts:

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

Friday, July 09, 2021

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

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

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

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

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

Tuesday, July 06, 2021

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

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

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

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

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

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

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

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

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

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

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

Some prior recent related posts:

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