Thursday, March 21, 2019

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

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

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

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

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

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

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

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

Tuesday, March 19, 2019

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

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

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

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

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

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

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

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

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

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

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

Download 3-18-19 LARIMER ORDER

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

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

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

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

Monday, March 18, 2019

"Don't Overlook First Step Act Pilot Programs"

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, March 17, 2019

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

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

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

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

Here is an excerpt from this latter piece:

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

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

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

A few prior related posts:

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

Tuesday, March 12, 2019

Making progressive (but not political) case that the FIRST STEP Act "does much harm"

Marie Gottschalk has this new Jacobin commentary assailing the FIRST STEP Act under the headlined "Did You Really Think Trump Was Going to Help End the Carceral State?".  The piece reiterates at length a variety of the criticisms from the left waged against the risk assessment tools in FIRST STEP while its fate was being debated in Congress. I recommend the whole piece, and here is how it starts and some excerpts:

With much fanfare, President Donald Trump signed the First Step Act into law in December. New Jersey senator and presidential candidate Cory Booker hailed the legislation as a milestone that marked a “meaningful break from decades of failed policies that led to mass incarceration.” Other supporters were more measured, characterizing it as a modest first step to keep the momentum going for criminal justice reform.

But the greatest sins of the First Step Act are not its modesty. The legislation nicks the edges of the carceral state while bolstering disturbing trends in criminal justice reform. CNN commentator Van Jones has claimed that the First Step Act is a “rare clean bill” that “does no harm.” Jones is wrong — it does much harm.

Grounding penal policy in the best evidence-based research is a mantra in criminal justice reform. Yet key provisions of the First Step Act are at odds with leading research on how to enhance public safety while minimizing social and economic costs and maintaining a fair criminal justice system that treats everyone — including people who are imprisoned — with dignity....

Van Jones’s claim that the First Step Act paves the way for federal prisons to “rehabilitate and heal — not just punish” rings hollow. The legislation authorizes miniscule funding for its ambitious aims. It designates $75 million annually for the next five years to develop and implement the new risk and needs assessment system for each person in the federal prison system. In doing so, the measure diverts “limited resources for programming by requiring a complex risk assessment process that would primarily benefit people deemed at a low or minimal risk of recidivating,” according to the Sentencing Project, which ultimately gave its qualified support to the First Step Act....

The fundamental problem is not that people in prison do not want to participate in programs but rather the critical shortage of those programs, let alone quality programs. Currently, 16,000 people are on the wait list for the BOP’s literacy program.

The federal prison system is currently in crisis due to overcrowding and staff cutbacks that the First Step Act will not alleviate. Many federal facilities are operating way above capacity. Nurses, counselors, and even cooks have been drafted to serve as temporary correctional officers because of severe staffing shortages. Last year a bipartisan group of legislators charged the Bureau of Prisons and the Trump administration with ignoring calls in Congress not to eliminate thousands of jobs in the federal prison system.

It is impossible to run effective prison programs when people are locked down in their cells due to staffing shortages, teachers and counselors are filling in for correctional officers, and assaults and violence are on the rise, as has been the case in the federal prisons.

Concerns about the under-funding and under-staffing of federal prisons are well founded, and the headline of this new Marshall Project report does not provide a basis for any new optimism: "First Step Act Comes Up Short in Trump’s 2020 Budget: Supporters worry because law seeks $75 million a year for five years, but president’s plan lists $14 million." But I always find these kinds of criticisms of modest improvements in criminal justice systems quite politically tone deaf given how politicians on both sides of the aisle have shown so little interest in pursuing any reforms at all until fairly recently.

This author rightly notes that "many federal facilities are operating way above capacity," but she leaves out that the federal prison population is lower now than any year while Prez Obama was in office. If Prez Obama was unwilling or unable to pursue all the big changes that progressives would like to see, there need to be even more of a political sea change to make big reforms viable.  Notably, some of the 2020 candidates are talking big about criminal justice reform on the campaign trail (most notable Cory Booker), and it is seems to me that they have the space to advocate more boldly only because the FIRST STEP Act is law and not just a bill awaiting a vote.

Ultimately, this piece serves as yet another reminder that how the FIRST STEP Act is implemented and what follows legislatively and politically will ultimately define whether this first step really is more harmful than helpful.  I am still in the optimistic camp on this front, but this commentary provides the best argument for pessimism.

March 12, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, March 11, 2019

New indictment exposes underbelly of federal RDAP program ... and provides still more reason to be thankful for passage of FIRST STEP Act

This interesting new AP piece, headlined "Show up drunk: Indictments spotlight prison rehab scams," reports on indictments surrounding efforts to defraud the only long-standing federal prison program thathas  allowed prisoners to earn reductions in their rehabilitative efforts.  Here are the details:

It's a tip that has been passed onto convicts for years: On your way to federal prison, say you have a substance abuse problem, and you could qualify for a treatment program that knocks up to a year off your sentence.

Federal prosecutors have long suspected abuses in the program, which has enrolled a deep list of high-profile convicts.  Recently, a grand jury in Connecticut indicted three people accused of coaching ineligible convicts on how to get into the Residential Drug Abuse Program, or RDAP, by telling them to show up to prison intoxicated and fake withdrawal symptoms. The charges are among the first filed against prison consultants involving the program.

The case has put a spotlight on the unregulated world of prison consulting, in which some ex-convicts and former prison employees charge thousands of dollars for their inside knowledge to help people prepare for life behind bars. Some consultants say there has been wrongdoing in the industry for decades, including encouraging clients to scam their way into the rehab program.

The small industry now is "totally the Wild West," said Jack Donson, president of New York-based My Federal Prison Consultant and a retired federal Bureau of Prisons employee. "I hope it brings light to things," he said, referring to the Connecticut case.  "I hope it gives people ... pause to not cross that line to illegality and unethical conduct."

Completing the nine-month, 500-hour treatment program for nonviolent offenders is one of only a few ways inmates can get their sentences reduced. About 15,600 inmates — nearly 10 percent of the current federal prison population — participated in the program last year, and thousands more are on waiting lists. To get in, convicts must present evidence they had substance abuse or addiction problems during the year prior to their arrest. Upon completion, their sentences can be reduced and they can spend the last six months of their sentences in a halfway house.

Christopher Mattei, a former federal prosecutor in Connecticut, said the U.S. attorney's office increasingly saw white-collar convicts make use of the program. "It undermines the public's confidence that all people when they go before a court for sentencing will be treated fairly.  People who know how to game the system know how to get the benefits, whereas people who are struggling with addiction don't know all the angles to play," said Mattei, former chief of the financial fraud and public corruption unit in the Connecticut U.S. attorney's office....

The criminal indictments in Connecticut are believed to be among the first criminal charges filed against prison consultants in connection with the treatment program. Arrested were Michigan residents Tony Pham, 49, and Samuel Copenhaver, 47, both of Grand Rapids; and Constance Moerland, 33, of Hudsonville.  The three were managing partners in RDAP Law Consultants, authorities said.

Prosecutors said the three told clients over the past six years to falsely inform Bureau of Prisons officials that they had drug and alcohol problems, taught them how to fake withdrawal symptoms and how to fraudulently obtain medication to treat withdrawal symptoms, so they could show prescriptions to qualify for the program. The partners also told their clients to begin drinking alcohol daily before going to prison and to show up drunk, the indictments said....

Last year in New York City, a lawyer and three other people were charged with defrauding the government and making false statements. They allegedly submitted bogus information to prison officials, claiming that a convicted drug dealer had a history of addiction, in an effort to get the client into the drug treatment program so he could be released early. The case remains pending.

Other consultants coach people on how to lie to get into the program, according to Donson, who said some also claim they can get convicts sent to prisons that have the RDAP program when only federal prison officials have that authority. He said he sees potential for fraud also as consultants rush to offer help related to a new law that allows federal prisoners sentenced for crack cocaine offenses before late 2010 the opportunity to petition for a lighter penalty.

Donson and other consultants say more monitoring of the industry and prosecutions would help deter misconduct. "It's an unregulated industry, so something like this hopefully brings some attention to it," said Dan Wise, an ex-con who completed the RDAP program and now runs a prison consultant business based in Spokane, Washington.

I think it important for the feds to appropriately police the RDAP program to ensure defendants who are truly struggling with addiction are able to access a program with finite resources. But this article fails to highlight that defendants' efforts to sneak into the RDAP program was a symptom of a broader disease, namely that federal prisoners have historically had precious few means to seek to earn reductions in their sentences. Thankfully, the FIRST STEP Act is a significant step toward treating this disease, as it provides an elaborate set of mechanisms for allow some prisoners to earn reductions through other rehabilitative efforts. But, critically, the FIRST STEP Act has a number of problematic exclusions and restrictions on which prisoners can earn reductions AND there is reason to worry that poor implementation of the FIRST STEP could lead to privileged prisoners again being better able to access programming and reduction that should be made properly available to as many prisoners as possible.

Without know more about the indictments and underlying facts referenced in this AP article, I am disinclined to comment directly on whether federal prosecution of prison consultants may be the most efficient and effective way to police the administration of prison programming. But I am eager to encourage everyone involved in counseling defendant and prisoners to be honest and straight-forward in their dealing or else prisoners and their families are likely to be the ultimate victims.

March 11, 2019 in FIRST STEP Act and its implementation, Offense Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Friday, March 08, 2019

Senator (and Prez candidate) Cory Booker introduces "Next Step Act of 2019" with wide array of sentencing and criminal justice reforms

As set forth in this press release, "U.S. Senator Cory Booker (D-NJ), a member of the Senate Judiciary Committee, and Congresswoman Bonnie Watson Coleman (D-NJ) today introduced a sweeping criminal justice bill — the Next Step Act  — that would make serious and substantial reforms to sentencing guidelines, prison conditions, law enforcement training, and re-entry efforts."  Here is more about this new (lengthy) legislative proposal from the press release:

The Next Step Act is the most comprehensive criminal justice bill to be introduced in Congress in decades. "It's been 75 days since the First Step Act was signed into law, and already, it's changing lives," Booker said.  "But the First Step Act is just as its name suggests — it is one step on the long road toward fixing our broken criminal justice system. There's more that remains to be done so that our justice system truly embodies those words etched onto our nation's highest court â?“ 'equal justice under law.' That's exactly what the Next Step Act does. It builds off the gains of the First Step Act and pushes for bolder, more comprehensive reforms, like eliminating the sentencing disparities that still exist between crack and powder cocaine, assisting those coming out of prison with getting proper work authorization and ID documents, reducing the barriers formerly incarcerated individuals face when they try to find jobs, and ending the federal prohibition on marijuana."...

Specifically, the Next Step Act would:

  • Reduce harsh mandatory minimums for nonviolent drug offenses: the 20-year mandatory minimum would be reduced to 10 years, the 10-year mandatory minimum would be reduced to 5 years, and the 5-year mandatory minimum would be reduced to 2 years.

  • Eliminate the disparity between crack and powder cocaine sentences (currently it is 18:1)

  • End the federal prohibition on marijuana, expunge records, and reinvest in the communities most harmed by the War on Drugs.

  • "Ban the Box" by prohibiting federal employers and contractors from asking a job applicant about their criminal history until the final stages of the interview process, so that formerly incarcerated individuals get a fairer, more objective shot at finding meaningful employment.

  • Removing barriers for people with criminal convictions to receiving an occupational license for jobs, such as hair dressers and taxi drivers.

  • Reinstate the right to vote in federal elections for formerly incarcerated individuals (blacks are more than four times as likely than whites to have their voting rights revoked because of a criminal conviction).

  • Create a federal pathway to sealing the records of nonviolent drug offenses for adults and automatically sealing (and in some cases expunging) juvenile records.

  • Ensure that anyone released from federal prison receives meaningful assistance in obtaining a photo-ID, birth certificate, social security card, or work authorization documents.

  • Improve the ability of those behind bars to stay in touch with loved ones, by banning the practice of charging exorbitant rates for phone calls (upwards of $400-$500 per month) and ensuring authorities take into consideration where someone's kids are located when placing them in a federal facility, a circumstance that acutely impacts women since there are far fewer women's prisons than men's prison.

  • Provide better training for law enforcement officers in implicit racial bias, de-escalation, and use-of-force.

  • Ban racial and religious profiling.

  • Improve the reporting of police use-of-force incidents (currently the Department of Justice is required to report use-of-force statistics to Congress, but states and local law enforcement agencies are not required to pass that information on to federal authorities, creating a significant gap in data that could be used to improve policies and training).

The Next Step Act is an effort to build upon the momentum of the First Step Act, which was signed into law late last year and which represents the biggest overhaul to the criminal justice system in a decade.  Booker was a key architect of the bill — he was instrumental in adding key sentencing provisions to the package after publicly opposing the House-passed version of the First Step Act first released in May 2018.  Booker also successfully fought to include provisions that effectively eliminated the solitary confinement of juveniles under federal supervision and banned the shackling of pregnant women.

The Next Step Act is based upon a number of individual bills Booker has authored, co-authored, or co-sponsored since arriving to the Senate in 2013, including the Marijuana Justice Act, the Fair Chance Act, the REDEEM Act, the Ending Racial Profiling Act, the Smarter Sentencing Act, the Dignity for Incarcerated Women Act, the Democracy Restoration Act, and the Police Reporting Information Data and Evidence Act.

I would be quite excited by a number of the substantive provisions in this bill if it had any chance of moving forward in any form.  But, for a host of political and practical reasons, this bill really serves more as Senator Booker's statement of aspirations rather than as a serious attempt to get something specific passed by Congress in the coming months.  Nevertheless, I am inclined to compliment the Senator for having so many big criminal justice reform aspirations, and the introduction of this bill will help ensure that Senator Booker keeps attention on criminal justice reform as he moves forward with his presidential campaign.

March 8, 2019 in Campaign 2020 and sentencing issues, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

"3 more steps to make 'First Step Act' work"

The title of this post is the headline of this recent Hill commentary authored by Jessica Jackson. Here are excerpts:

The First Step Act aims to transform the federal prison system, prioritize rehabilitation over punishment, and reform some of our nation’s harshest prison sentences — remnants of the outdated War on Drugs.  While getting any meaningful legislation signed into law is worthy of celebration, in most cases it is just the beginning of a much longer battle. The hard work — the part that goes mostly unnoticed — is turning intentions into actual programs, procedures and outcomes for real people. To meet those goals, the Trump administration and Congress must follow through and implement the law quickly, fully and fairly.

Some of the most important provisions have taken effect immediately....  A total of four sentencing reforms began to take effect in courtrooms across the country the day after the bill was signed. In total, they will impact 25,000 defendants every year.

But challenges to fully implementing other provisions have been significant.  Just hours after President Trump signed the First Step Act into law, the federal government entered what would become the longest partial shutdown in history.  Key employees at the Department of Justice and White House were furloughed.  To add to the chaos, the Senate had not yet confirmed an attorney general.  The Bureau of Prisons has not had a permanent director since May 2018, when Mark Inch resigned.

Because of the lack of permanent leadership and the heated battle over border security funding, the first deadline laid out in the First Step Act came and went without effective action.  By Jan. 21, the Department of Justice was supposed to form an Independent Review Committee, which would be responsible for working with the Bureau of Prisons to create a new Risk and Needs Assessment across the federal prison system. One of the most critical components of the new law, the Risk and Needs Assessment System is relied upon by other key provisions.  The Review Committee has not yet been formed and further delays could significantly derail implementation efforts....

Now that leaders in Congress have reached a budget deal to fund the government through September and Attorney General William Barr has taken his oath of office, implementation of the First Step Act must pick up the pace and make up for lost time.

First, Attorney General Barr should nominate a permanent Director of the Bureau of Prisons and establish a credible and committed leader to steer the Bureau into a better future....

Second, Congressional Appropriations committee members must continue the bipartisan spirit that carried the First Step Act onto President Trump’s desk.  They can do so by fully funding the bill in Fiscal Year 2020.  This funding will allow for the valuable programming that will help people change their lives and earn time off the amount of time they have to serve behind the prison bars.

In fact, appropriators gave BOP $200 million more than the president’s budget requested, leaving ample flexibility to begin to implement the bill’s provisions.  As passed, First Step will require $75 million a year for five years to fund the expansion of prison programming and reentry preparedness.  This funding will become necessary after the Risk Assessment system is completed.  It will also allow people inside the prisons to take valuable, life-changing classes to prepare them to come home job-ready.

Finally, Congress must wield its oversight powers to ensure that implementation moves forward effectively and efficiently.  It is important to note that I am not calling for partisan hearings where House Democrats can score political points beating up on the administration’s failings.  Nor am I calling for opportunities for hard-line Senate Republicans to continue to trumpet the alleged dangers of being “soft on crime.”

Now that the First Step Act is the law of the land, both parties have good reason to keep a close watch. President Trump championed this bill as a rare bipartisan win for his administration.  Democrats vying for their party’s nomination have campaigned on the impact the bill will have on our justice system.  Nobody wins and everybody loses (most of all people in prison and their loved ones) if the First Step does not live up to its promise.

March 8, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Tuesday, March 05, 2019

FAMM sends letter to BOP and DOJ to urge full implementation of key provisions of the FIRST STEP Act

FAMM President Kevin Ring today sent this letter to Deputy AG Rod Rosenstein and Acting BOP Director Hugh Hurwitz urging them to work to fully implement key provisions of the FIRST STEP ACT. Here are a few passages from the start of the three-page letter:

Seventy-four days ago, President Donald J. Trump signed the First Step Act, bipartisan legislation to reform federal sentencing laws and prison policies.  The new law includes provisions to establish an elderly offender home detention program, require the Bureau of Prisons (BOP) to keep incarcerated individuals closer to their families, and increase the amount of good time from 47 days to 54 days per year, among others.  We are writing to urge you to implement these changes as expansively and quickly as possible.

FAMM is a national sentencing and prison reform organization with deep ties to people who are incarcerated and their loved ones.  FAMM regularly writes to nearly 40,000 federal prisoners and their families and loved ones with news about legal, legislative, and policy developments that could affect them.  And, we hear from many prisoners about their experiences.

We have heard from dozens of individuals who believe their incarcerated loved ones qualify for home detention under the Elderly Offender/Terminally Ill Offender Pilot Program. Section 603 of the First Step Act reauthorized and expanded the pilot program initially provided for in Section 231(g) of the Second Chance Act.  Under this program, certain elderly and elderly terminally ill prisoners may be released from prison early if they are at least 60 years old, have served two-thirds of their sentences, and meet various other requirements.  We believe Congress intended that this program take effect immediately upon passage of the First Step Act and be available in all BOP institutions.

To date, however, we are not aware that anyone has been released or even that the program has been established.  This delay stands in sharp contrast to the Bureau's timely release of program guidance for the expanded compassionate release program, also a product of the First Step Act.  The failure to implement the law in this area has been extremely frustrating for families who are anxious to welcome their elderly and terminally ill loved ones home to serve their sentences.  We urge you to immediately begin implementing Section 603 in all BOP facilities.

March 5, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Saturday, February 23, 2019

Another call to fix good-time credit after FIRST STEP good-time credit fix

David Oscar Markus has this new Hill commentary headlined "A small next step for criminal justice reform: Fix good time credit." Here are excerpts:

The current federal system awards good time credit — 15 percent — for all prisoners who behave.  That means for every year done in prison, you receive 54 days off in good time credit.

For a long time, the Bureau of Prisons only gave 47 days of credit, but the First Step Act told BOP that 15 percent was really 15 percent and prisoners should get the full 54 days.  Even with this directive, BOP has refused to give this credit, saying that there is an error in the statute, and has asked for Congress to reiterate that it really wants the 54 days of credit applied.  This is completely absurd, and both parties agree that this should be fixed immediately.  In addition to fixing the 54-day issue, there is one additional modest (and hopefully non-controversial) proposal that should be included.

As it stands, federal prisoners only receive good time credit if they are sentenced to more than a year of prison.  That means that if you are sentenced to a year and a day, you will receive 15 percent off with good time and serve about 10 months; however, if you receive a sentence of exactly one year in prison, no such good time credit will be applied, and you will serve that year day for day.

That means that the prisoner who receives a longer sentence of a year and a day will serve less time than someone who is sentenced to a year or 11 months.  It makes no sense.  Those who are sentenced to the lowest sentences — the lowest-risk offenders — should get the most benefit for good time, not the other way around.

Prior related posts:

February 23, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Tuesday, February 19, 2019

A detailed accounting of many steps for everyone to follow-up on the FIRST STEP Act

Mark Holden has this new commentary at The Crime Report headlined "The First Step Act: It’s Only a ‘First Step’."  I recommend the piece in full, and here are excerpts:

Signed into law during the closing days of 2018, the bipartisan First Step Act expands rehabilitative programming, modifies some mandatory minimum laws to provide more proportional sentencing, and provides a second chance to people like [Matthew] Charles who’ve worked hard to transform their lives while in prison.... The law is also acting as a catalyst for states that haven’t yet reformed their criminal justice systems.

But as important as the law is, additional steps are needed to improve our criminal justice system.  To bring about transformative change, policymakers at all levels must act.  The private sector, civic organizations and community leaders must also do their part to ensure that the formerly incarcerated can find work, housing and access the tools they need to succeed after being freed....

Congress should apply three of the law’s sentencing changes retroactively, to help people who received overly harsh sentences under outdated policies and pass other front-end reforms that prioritize prison beds for dangerous criminals while addressing low-level, nonviolent offenses through treatment and other programs that better serve this population.

In addition, Congress should codify the Supreme Court ruling that requires prosecutors share all of the information that they have about the alleged crime with the accused at the outset the case.  Lawmakers can also address our over-incarceration epidemic by clarifying criminal intent standards and working to rein in our bloated federal criminal code and regulatory code, under which virtually anyone can be charged with a crime.

The Trump administration can act on its own to reform the executive clemency process to create second chances for people who wouldn’t necessarily qualify for relief under the First Step Act.

States can parallel many of these federal actions by removing barriers for people with criminal records. More “Clean Slate” laws, like the one enacted in Pennsylvania last year, will create second chances for people by unblocking them from jobs, housing, and education.

States could also increase the transparency of their criminal justice systems through more data collection and enhanced due process protections for citizens.  Across the country individuals are incarcerated awaiting trial without considering other factors like the potential for flight risk, or whether the individual poses a threat to public safety, while others are incarcerated due to excessive fees and fines, and technical violations....

Businesses can help transform lives and enable people to contribute to their communities by hiring qualified candidates with criminal records.  I’m proud to work for Koch Industries, which hires people with criminal records and recently signed the Getting Talent Back to Work pledge with the Society for Human Resource Management to end outdated, non-inclusive hiring practices.

Finally, groups like Hudson Link for Higher Education, Safe Streets & Second Chances and The Last Mile can provide incarcerated people with skills and identify obstacles that prevent them from succeeding after their release....

We believe, as Winston Churchill did, in “an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man.” We all share a moral imperative to help find and unlock that treasure, to unleash the potential in everyone.

If we all do our part, we can bridge the partisan divide and build on the great foundation provided by the First Step Act. It’s time to take the next steps on criminal justice reform, this year and beyond.

February 19, 2019 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, February 18, 2019

Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?

In this post on Friday, I mentioned that I consider the statutory changes to the so-called compassionate release provisions in federal law to the "sleeper provisions" of the FIRST STEP Act.  This four-page FAMM document, titled "Compassionate Release and the First Step Act: Then and Now," reviews some basics of the changes made by the FIRST STEP Act, and on page 3 one finds this account of what I think is a very big deal:  "The most significant change to compassionate release is that the Act provides prisoners the power to file a motion for compassionate release if they can demonstrate they have tried and failed to convince the BOP to do so for them.  Before passage of the First Step Act a denial by the BOP was not appealable."  In other words, courts rather than the BOP are now ultimately to decide who may merit a reduced "term of imprisonment" under 18 USC 3582(c)(1)(A)(i).

To focus on the statutory language, prior to the FIRST STEP Act, a federal judge under 3582(c)(1)(A)(i) needed to first receive a "motion of the Director of the Bureau of Prisons" in order to have authority to "reduce the term of imprisonment [based on] extraordinary and compelling reasons [that] warrant such a reduction."  The BOP was notoriously stingy about filing such motions (with only about .01% of inmates benefiting), and the program was, in the words of the Justice Department's Inspector General, "poorly managed and implemented inconsistently."  Now persons in federal prisons still need to request the support of BOP for such a motion, but courts can now consider a sentence reduction "upon motion of the defendant" based on a claim that "extraordinary and compelling reasons warrant such a reduction" if BOP refuses move the court or 30 days after making the request.  Importantly, the US Sentencing Commission has set forth a (reasonably expansive) policy statement concerning criteria for compassionate release via USSG 1B1.13, but it will now be fundamentally the province of the federal courts to develop jurisprudence on what should be deemed "extraordinary and compelling reasons" warranting a sentence reduction under 18 USC 3582(c)(1)(A)(i).

I plan to do a series of posts explaining why I think a number of different criteria ought to meet the (textually vague) requirements of "extraordinary and compelling reasons."  For this first post in this series, I will focus on suggestions by the Justice Department's Inspector General when he testified on this issue back in 2016 before the US Sentencing Commission.  Specifically, in testimony to the USSC, IG Michael Horowitz suggested that BOP make inmates eligible for consideration for compassionate release starting at age 50.  According to the latest BOP data, there are currently nearly 35,000 persons in federal prison aged 51 or older.  Of course, the IG did not call for early release of all post-50 prisoners, but he did urge:  "Within that larger pool of eligible aging inmates, we believe the BOP could further identify more aging inmates whose offenses, criminal histories, conduct in prison, and release plans make them suitable candidates for compassionate release, resulting in reduced overcrowding and cost savings to the Justice Department and the BOP."  As explained above, it would seem that it is now appropriate for the courts, and not just BOP, to take an active and ongoing role in deciding who among the 35,000 are "suitable candidates for compassionate release."

Importantly, ill prisoners as well as elderly prisoners should be ready candidates for compassionate release (and these two groups surely overlap).  The latest BOP data here on medical placement shows that more than 5000 federal prisoners are in "care level" 3 or 4 facilities, and "Care Level 4 facilities are reserved for inmates who require daily nursing care or therapy."  As the IG explained to the USSC in his testimony three years ago, beyond the humanitarian value of allowing ill persons to receive treatment outside of prison facilities, releasing ill prisoners helps "reduce overcrowding in the federal prison system" and can "result in cost savings for the BOP" and in turn the federal taxpayer.

Even if we imagine only 10 percent of elderly and ill federal inmates are "suitable candidates for compassionate release," we still could be looking at a means for releasing many thousands of federal prisoners in relatively short order.  I fear, because these provisions are unfamiliar, that courts may not start making robust use of compassionate release right away.  But I hope they will, and I especially hope that federal prisoners and their advocates will press this important new frontier for federal sentencing improvements. 

A few prior related posts:

February 18, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, February 15, 2019

Sad start to what should become happier compassionate release tales after passage of FIRST STEP Act

Though the (clumsy) increase in good-time credits has received considerable attention since the passage of the FIRST STEP Act (see prior posts here and here and here and here), I find the change to the administration of so-called compassionate release rules to be among the most fascinating elements of the new legislation.  If legislative enactments can have "sleeper provisions," I would call the compassionate release changes the sleeper provisions of FIRST STEP.  This four-page FAMM document, titled "Compassionate Release and the First Step Act: Then and Now,"  reviews some basics of the changes made by the FIRST STEP Act for those eager for a short accounting of before and after.

Today's New York Times covers this issue through one particular sad story under the headline "A New Law Made Him a ‘Free Man on Paper,’ but He Died Behind Bars." This article is worth reading in full, and here are excerpts:

At a federal courthouse in Tennessee, a judge signed an order allowing an ailing inmate to go home. But he died in a prison hospice before he heard the news.

At his wife’s home in Indiana, as she was getting a wheelchair, bedpans and other medical equipment ready for his arrival, the phone rang. “It was the chaplain,” said the wife, Marie Dianne Cheatham. “He said, ‘I’m sorry to have to tell you.’ And my heart fell through the floor. I knew what he was going to say.”

For years, terminally ill federal prisoners like Ms. Cheatham’s husband, Steve, have in theory had the option of what is called compassionate release. But in practice, the Bureau of Prisons would often decline to grant it, allowing hundreds of petitioners to die in custody. One of the provisions of the new criminal justice law, signed by President Trump on Dec. 21, sought to change that, giving inmates the ability to appeal directly to the courts.

Mr. Cheatham, 59, did just that, filing a petition last month so that he could leave prison in North Carolina and go home to die. He became one of the first to be granted release under the new law. But then came the harsh truth that made so many families pin their hopes on the law’s passage in the first place: Days and even hours can mean the difference between dying at home or behind bars.

Created in the 1980s, compassionate release allowed the Bureau of Prisons to recommend that certain inmates who no longer posed a threat be sent home, usually when nearing death. But even as more and more Americans grew old and frail in federal penitentiaries, a multilayered bureaucracy meant that relatively few got out.

A 2013 report by a watchdog agency found that the compassionate release system was cumbersome, poorly managed and impossible to fully track. An analysis of federal data by The New York Times and The Marshall Project found that 266 inmates who had applied between 2013 and 2017 had died, either after being denied or while still waiting for a decision. During the same period the bureau approved only 6 percent of applications.  Many state penal systems, which house the majority of American inmates, have their own medical release programs with similar problems.

“It is a system that is sorely needing compassion,” said Mary Price, the general counsel for Families Against Mandatory Minimums, which advocates criminal justice reform....  The law’s passage has caused a scramble to use the new appeal process for compassionate release, said Ms. Price, whose organization has worked to arrange lawyers for some of those inmates. “There’s a road map now for this, and a way home for people that we’ve never seen before,” Ms. Price said.

Before the First Step Act passed, Ms. Cheatham followed its fortunes closely, hoping it could lead to a shortened sentence for her husband, whose health was deteriorating. Last fall, he was diagnosed with advanced-stage cancer and told he had only a few months to live. In mid-December, he applied for compassionate release, Ms. Cheatham said.

The new law requires that prisoners be told within 72 hours of a terminal diagnosis that they may apply for compassionate release, and that the Bureau of Prisons aid those who wish to apply but cannot do so on their own.  After a few weeks, Ms. Cheatham had heard nothing back.  The Bureau of Prisons declined to answer most questions about Mr. Cheatham’s case, but did say that it had not received his application for compassionate release until Jan. 11.  According to the judge’s order, the request was filed on Dec. 13.

A senator’s office said the government shutdown would make it difficult for them to provide immediate help.  Finally, she called a federal public defender in Tennessee, where her husband had been sentenced, who told her about the new process allowing an appeal after 30 days.  Within a few days, on Jan. 25, they filed a preliminary motion for immediate release.

It was to be a homecoming to a home Steve Cheatham had never seen.  The Cheathams had met and married after he was already in prison, serving a nearly 16-year sentence for a series of bank robberies in 2006.  According to an F.B.I. agent’s account, Mr. Cheatham passed notes to tellers at three banks in Tennessee, making off with about $13,000. The agent made no mention of any weapon....

On Jan. 30, the formal request for compassionate release was filed, and the next day, a judge signed the order to send Mr. Cheatham home.  Ms. Cheatham got the news shortly after 1 p.m.  “My heart just was so full of joy,” she said.  “I called everybody I could think of to tell them,” including the prison chaplain, whom she asked to deliver the good news to her husband.

Later that afternoon, the chaplain called back. Mr. Cheatham had died before he could tell him about the judge’s order.  Ms. Cheatham was devastated, but expressed her hope that on some level, Mr. Cheatham may have sensed the news.  “At least,” she wrote to a supporter, “he died a free man on paper.”

Some of many prior related posts:

February 15, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, February 13, 2019

Detailed memo maps out arguments and urges litigation for immediate good-time credit under FIRST STEP Act

A helpful reader alerted me to this notable new memorandum from the office of the Federal Public Defender for the District of Oregon titled "Delayed Implementation Of The First Step Act’s Good Time Credit Fix Violates The Rules Of Statutory Construction And Due Process Of Law." The memo is authored by Stephen Sady and Elizabeth Daily, and here is how it gets started:

With a single exception to date, thousands of federal prisoners who expected immediate release based on the First Step Act’s congressional clarification of the good time credit statute have been required to remain in custody beyond completion of their sentences, with many more scheduled to similarly serve unnecessary incarceration over the next six months.  The good time fix requires that prisoners showing exemplary compliance with institutional rules receive the full statutory 54 days of good time credits, rather than the 47 days presently provided, for each year of their term of imprisonment.  The Bureau of Prisons has continued to provide only 47 days of credit, claiming that a delayed effective date prevents it from implementing the good time fix until it develops an unrelated risk and needs assessment system. The Bureau should be following the rules of statutory construction, as guided by the Constitution, to immediately put into effect the only congressionally-approved manner of calculating good time credits.  The Executive Branch has the power -- and in good conscience the obligation -- to correct the wasteful and inhumane over-incarceration of prisoners who have reached their lawful sentence expiration date.

Rather than wait for the Executive Branch to do the right thing, prisoners’ representatives should litigate for immediate relief on their clients’ behalf from the Judicial Branch.  This article provides the legal grounds for relief in several parts. In Section A, we describe the history of the Bureau’s denial of the full good time credits intended by Congress and the First Step Act’s fix, which clarifies the correct 54-day calculation.  In Section B, we review the rules of statutory construction that call for immediate implementation of provisions, like the good time fix, that clarify congressional intent.  The second half of Section B specifically addresses the serious due process and equal protection problems avoided by immediate implementation of the good time fix.  In Section C, we outline the paths to expedited relief for the current federal prisoners suffering irreparable harm with each passing day.  The last sections address the need for counsel and include a description of the release of Mark Walker 60 days prior to his projected release date, as the first federal prisoner to receive the full 54 days of good time credit he earned under the statute.

Prior related posts:

February 13, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Sunday, February 10, 2019

Doesn't the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto?

The question in the title of this post is prompted by the interesting intersection of an important sentencing reform in the new FIRST STEP Act and an important Eighth Amendment case that I have had my eye on for some time  finally getting before the Supreme Court.  Let me explain, starting with the FIRST STEP provision.

For those particularly concerned about extreme mandatory minimum sentences, Section 403 of the FIRST STEP Act is a heartening overdue change to federal sentencing law.  This provision, described as a "clarification of Section 924(c)," now eliminates the required "stacking" of 25-year mandatory minimums for using a firearm during other crimes for those offenders without a prior record convicted of multiple 924(c) counts at the same time.  In other words, the extreme 25-year recidivism enhancement of 924(c) is now to apply only to actual recidivists.

The prior requirement of "stacking" 924(c) counts led to Weldon Angelos' extreme 55-year mandatory-minimum sentence for selling marijuana with his personal guns nearby (which is discussed at length here by Paul Cassell, the judge forced to impose the sentence).  US Sentencing Commission data here and here shows that well over 100 offenders each year have been subject to convictions for multiple 924(c) counts.  Just a few of many extreme 924(c) stacked sentences are noted in prior posts here and here and here and here.  Sadly, Congress did not make Section 403 of the FIRST STEP Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.

But there is one particular defendant with a particularly extreme stacked 924(c) sentence that I am hoping might get some indirect benefit from the new law in his on-going Eighth Amendment litigation.  Wendell Rivera–Ruperto, who was paid in 2010 by undercover FBI informants to serve as "armed security" at six faux drug deals, received a federal sentence of nearly 162 years, of which 130 years were for his six stacked convictions under 924(c).  As discussed here a year ago, in a terrific First Circuit opinion denying rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here), Judge David Barron lamented how judges "have no choice but to approve mandatory 'forever' sentences ... so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin."  In so doing, Judge Barron highlights many questionable elements of the Harmelin ruling and, writing on behalf of the entire First Circuit, suggests SCOTUS take up Rivera–Ruperto to reconsider the "three-decades old, three-Justice concurrence in Harmelin."

As of a few days ago, as revealed in this SCOTUS docket sheet, all the cert papers have been finally filled in Rivera–Ruperto, and the Justices will consider the case at their February 22 conference.  Notably, and not surprisingly, the feds now say in opposition to cert that passage of the FIRST STEP Act reduces the important of the case: "future defendants in petitioner's position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance."  But, as the title of this post is meant to suggest, the fact that the Eighth Amendment is supposed to take guidance from an "evolving standards of decency" and be responsive to a "national consensus" against a sentence, I strongly believe the enactment of the FIRST STEP Act primarily operates to make Wendell Rivera–Ruperto's constitutional claim even more substantively potent. 

As I explained here, I see Justice Anthony Kennedy's departure as creating a new window of opportunity for advocates to urge overturning (or cutting back) the terrible Eighth Amendment precedent that is Harmelin.  Thus, I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.   I am fearful the Court will remain fearful of taking on these issues and thus leave the (now-even-stronger) Eighth Amendment claim in this case to be considered anew through an inevitable 2255 motion.  Still, my fingers are crossed to support the cert chances of potentially the biggest non-capital Eighth Amendment case in a generation.

A few prior related posts:

February 10, 2019 in Drug Offense Sentencing, Examples of "over-punishment", FIRST STEP Act and its implementation, Gun policy and sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, February 07, 2019

Another review of the bad mess surrounding the "good time" fix in the FIRST STEP Act

I have done a few prior FIRST STEP Act implementation posts here and here focused on the problems with immediate application of its "good time" fix.  This recent Mother Jones article, fully headlined "Trump’s One Real Bipartisan Win Is Already Turning Into a Mess: Confusion and division over a provision in the First Step Act has left thousands of well-behaved inmates in limbo," effectively explains the issue and reports on the latest state of affairs. Here are excerpts:  

The law stipulates that prisoners can use these credits to shave off as many as 54 days from their sentences each year, up from 47 days previously — a change that also applies retroactively. Before the measure passed, criminal justice reform advocates estimated it would allow about 4,000 people to get out of prison quickly, perhaps even in time for the winter holidays. Before the measure passed, criminal justice reform advocates estimated it would allow about 4,000 people to get out of prison quickly, perhaps even in time for the winter holidays.

Lawmakers speaking in private to advocacy groups were reportedly clear that the credits would be recalculated right away — in order to take immediate effect — according to activists I spoke with who were involved in discussions about the bill on Capitol Hill and at the White House leading up to its passage. “There’s no doubt what the intent was,” says Jessica Jackson Sloan, national director of #cut50, an organization that seeks to reduce the prison population and that lobbied hard for the bill. “This stuff was debated ad nauseam publicly on the floor of the Senate,” adds Holly Harris, executive director of the Justice Action Network. “Legislative intent is very clear.”

On December 22, just one day after the First Step Act was signed, Vivek Shah, a federal prisoner in Chicago, tested that theory. He filed a habeas corpus petition in federal court seeking his immediate release from confinement because of the new rule on good-time credits. But in early January, US District Judge Sharon Johnson Coleman denied his request, saying that the law did not actually allow for his release until a later date. Technically, she wrote in her decision, the First Step Act stipulates that these extra credits can’t be doled out to inmates until after the Justice Department develops a risk and needs assessment program, a process that could take more than seven months, according to a deadline that she notes was laid out in the law.

Advocacy groups quickly shot back. The risk assessment, they argue, is specifically intended to help prisons figure out which inmates can spend extra days in halfway houses—a completely different point unrelated to determining which inmates can shave off time for good behavior. “There’s literally nothing in the good-time credits that has anything to do with the risk and needs assessment,” says Erin Haney, a policy director at #cut50. “These are people who are in good standing and have been given 47 days, and it just has to be recalculated to 54 days.”

The discrepancy in the policy’s interpretation seems to be a result of lawmakers putting the provision about good-time credits in a section that deals with the risk assessment program, a fact Judge Coleman notes in her ruling. Activists from the group FAMM, which advocates for families of incarcerated people, have suggested this was a legislative drafting error given the previous assurances about speedy recalculation of credits. “Everyone, including us, missed this mistake in the bill,” says Molly Gill, vice president of policy at FAMM. “We have notified lawmakers of the problem and asked them to fix it.”

To address the issue, lawmakers could pass a rider clarifying that good-time credits should be recalculated immediately, Gill says, or the DOJ could issue an administrative directive ordering the Bureau of Prisons not to delay the process.

But when contacted by Mother Jones, several lawmakers who co-sponsored the legislation declined to comment on the record about whether it was a drafting mistake or their intent to make well-behaved inmates wait for the risk assessment program. Taylor Foy, a spokesman for Sen. Chuck Grassley (R-Iowa), who helped craft the law and chaired the Judiciary Committee when it was passed, said it was not an error. “The text of the bill has been around for quite a while. It shouldn’t be a surprise,” Foy said, adding that Grassley hopes the risk assessment can be developed as quickly as possible. Sen. Dick Durbin (D-Ill.), one of the Democrats who championed the bill, declined to comment about his interpretation of the provision, as did Reps. Hakeem Jeffries (D-N.Y.) and Doug Collins (R-Ga.), who were crucial in drafting the legislation.

The Bureau of Prisons appears to be on the same page as Grassley. “We know that inmates and their families are particularly interested in the changes regarding good conduct time,” it said in a statement to Mother Jones. “While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates.” The agency added that it would wait until “the risk and needs assessment system is issued by the Attorney General.” It did not say whether it had provided guidance on the matter to individual prisons, but at least two facilities sent the same statement to inmates in January, according to advocacy groups.

The Bureau of Prisons is likely in a holding pattern for the near future, since any directive about the First Step Act would “need the cooperation of the attorney general, which is what makes the Barr hearing so critical,” says Harris of the Justice Action Network, referring to William Barr, Trump’s nominee for the position. During his Senate confirmation hearing, Barr said he had “no problem” reforming the prison system and would “faithfully implement the law,” but his record of tough-on-crime rhetoric raises questions about the extent to which he would intervene to help inmates get out sooner....

Matters were made even more complicated over the past month because of the record-making government shutdown. Lawmakers have largely been consumed by the impacts of the shutdown and negotiations over border security, while the Justice Department furloughed workers and delayed its development of the risk assessment program during those weeks. “So the long and short of it is that prisoners will end up waiting at least seven months, and likely longer, before they can get their sentences reduced with the extra good time promised under the First Step Act,” says Gill....

In the meantime, those 4,000 prisoners who hoped to be out for the holidays remain stuck behind bars waiting for answers. “Many inmates…are disappointed that nothing is happening,” an incarcerated man at the Federal Prison Camp in Duluth, Minnesota, wrote to me during the shutdown, speaking generally about the First Step Act’s implementation. “There’s nothing more urgent than freedom,” adds Haney.

Prior related posts:

February 7, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Tuesday, February 05, 2019

Prez Trump gives early and considerable attention to criminal justice reform in 2019 State of the Union address

As expected given the invitation of Matthew Charles and Alice Johnson to be in the audience, Prez Trump devoted considerable time to discussing criminal justice reform during the first part of his State of the Union address tonight. He spoke on these issues at length, and here is what he had to say drawn from this transcript of the full speech:

Just weeks ago, both parties united for groundbreaking Criminal Justice Reform.

Last year, I heard through friends the story of Alice Johnson.  I was deeply moved.  In 1997, Alice was sentenced to life in prison as a first-time non-violent drug offender.  Over the next two decades, she became a prison minister, inspiring others to choose a better path.  She had a big impact on that prison population — and far beyond.

Alice’s story underscores the disparities and unfairness that can exist in criminal sentencing — and the need to remedy this injustice.

She served almost 22 years and had expected to be in prison for the rest of her life.  In June, I commuted Alice’s sentence – when I saw Alice’s beautiful family greet her at the prison gates, hugging and kissing and crying and laughing, I knew I did the right thing — Alice is here with us tonight.

Alice, thank you for reminding us that we always have the power to shape our own destiny.

Inspired by stories like Alice’s, my administration worked closely with members of both parties to sign the First Step Act into law.

This legislation reformed sentencing laws that have wrongly and disproportionately harmed the African-American community.

The First Step Act gives non-violent offenders the chance to re-enter society as productive, law-abiding citizens.  Now, states across the country are following our lead. America is a nation that believes in redemption.

We are also joined tonight by Matthew Charlesfrom Tennessee.  In 1996, at age 30, Matthew was sentenced to 35 years for selling drugs and related offenses.

Over the next two decades, he completed more than 30 Bible studies, became a law clerk, and mentored fellow inmates.

Now, Matthew is the very first person to be released from prison under the First Step Act.  Matthew, on behalf of All Americans: WELCOME HOME.

February 5, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, February 04, 2019

Prez Trump's special guests for his 2019 State of the Union Address suggest he will give significant attention to criminal justice reforms

This new White House release details a baker's dozen list of "the special guests who will join the President and First Lady at the U.S. Capitol when President Donald J. Trump delivers the second State of the Union Address of his presidency."  Here are two names on the list that should be familiar to regular readers of this blog:

Matthew Charles

Matthew Charles’s life is a story of redemption.  In 1996, he was sentenced to 35 years in prison for selling crack cocaine and other related offenses. While in prison, Matthew found God, completed more than 30 bible studies, became a law clerk, taught GED classes, and mentored fellow inmates.  On January 3, 2019, Matthew was the first prisoner released as a result of the First Step Act....

Alice Johnson

President Trump granted Alice Johnson clemency on June 6, 2018.  Alice had been serving a mandatory life sentence without parole for charges associated with a nonviolent drug case.  During her nearly 22 years of incarceration, Alice accomplished what has been called an “extraordinary rehabilitation.”  After her release, she was overjoyed to be reunited with her family.  She has now dedicated her life to helping those who are in a similar position as she was and giving a voice to the criminal justice reform movement.

I am so very pleased that Matthew Charles and Alice Johnson will have the opportunity to attend the State of the Union and in so doing will provide such a positive and importance face for criminal justice reform efforts.  I am also hoping (though not really expecting) that Prez Trump might talk about clemency activity (and reform to the clemency process) and further reform of mandatory-minimum sentences (including retroactive application of recent reforms) as potential next steps for his administration and as important agenda items for the new Congress.

Prior related post:

February 4, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Friday, February 01, 2019

Matthew Charles, released thanks to the FIRST STEP Act, provides view of next steps for criminal justice reform

Matthew Charles has this new Washington Post commentary headlined "I was released under the First Step Act. Here’s what Congress should do next."  It merits a full read, and here are excerpts:

In December, Congress approved and Trump signed the First Step Act.  The new law included a provision that shortened sentences for crack cocaine-related offenses, such as mine.  The U.S. Sentencing Commission estimates that change will help almost 2,700 people.

This time, there was no mistake.  The government and my defense attorney agreed that I should be released immediately.  On Jan. 3, I went home.  I was one of the first people to get released under the law.

My heart is filled with gratitude for everyone who supported me and supported the First Step Act.  Every week, I hear about more people leaving prison because of the new law. Overall, more than 150,000 people in the long term will benefit from the law’s sentencing and prison reforms.  The First Step Act was a great start, but we have to do more.  I got a second chance — and so should so many others.

Since leaving prison, I have looked for ways to serve the poor and to advocate on behalf of those I left behind.  This week, I went to Washington to thank lawmakers for supporting prison reform and to ask that they consider more reforms that will recognize that people can change.  In the year and a half that I was home, people saw that I was not the same person who was convicted of selling crack as a young man.  There are many people still serving decades-long sentences who have rehabilitated themselves, like I did.  Unfortunately, most Americans do not see or hear from them, and they are not given a real opportunity to demonstrate that they have changed.

Congress should pass a law that would allow all federal prisoners to earn a second chance after serving a certain amount of time — maybe 15 years.  People would not be guaranteed release, but they would be given an opportunity to be resentenced by a judge.  The judge could determine whether they had used their time in prison to atone for their crimes and make changes for the better.  If not, they would continue to serve their original sentence.

A law such as this would encourage prisoners to improve themselves. Some might think this idea is too lenient, but 15 years is a long time.  From what I saw during my years behind bars, anyone who wants and deserves a second chance would be able to demonstrate that within 15 years....

I got lucky. Our justice system shouldn’t depend on luck.  The First Step Act is in place — now it should be used to make real change and help families.  And let’s not lose any time in making a Next Step Act, because everyone deserves a second chance.

February 1, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, January 30, 2019

Contextualizing passage of the FIRST STEP Act and its likely echoes

Sociology Prof Michelle Phelps has this notable new Conversation commentary headlined "Congress’s First Step Act reflects a new criminal justice consensus, but will it reduce mass incarceration?". The piece explains why the author thinks "no" is the sensible answer to the question headlining her commentary.  Here are excerpts (with some links from the original preserved):

I have found in my research that criminal justice policies and practices in the United States have often followed complex trajectories. Reforms often receive support from unlikely coalitions.  But, by focusing on these strange bedfellows, commentators and advocates sometimes paper over the deeper disagreements in ideas about who, how and how much to punish.  Fights over these differences ultimately shape how policies get put into practice — and whether the bill ultimately achieves its intended outcomes.  While the First Step Act’s passage may look like a clear victory for more moderate punishment, its implementation and impact under the Trump administration is likely to be quite limited.

Criminal justice is often described by academics and journalists as a pendulum that swings wildly between harsh punishment focused on retribution, and more lenient treatment focused on redemption or reformation.  In this metaphor, some people saw Trump’s election as a swing of the pendulum away from progressive punishment and back toward punitive policies.

In our book Breaking the Pendulum, my colleagues Joshua Page and Philip Goodman and I argue that a better metaphor is the constant, low-level grinding of tectonic plates that continually produce friction and occasionally erupt in earthquakes. This friction manifests in traditional political combat, mass demonstrations, prison rebellions, and academic and policy work.  Periodically, major changes in conditions like crime rates and the economy change to provide support and opportunities to one side or another.  These changes often bring together unlikely allies.

People typically associate the “law and order” approach to criminal justice with Republicans.  However, new research shows how liberals laid the ground for these policies. It was the Democratic administration of President Lyndon Johnson during the 1960s that first launched the “war on crime” by expanding federal funding to build up the capacity of local law enforcement agencies. In the following decades, the crime rate spiked, due in part to better reporting by police departments, and crime became a hot political issue.

By the 1990s, Republicans and Democrats had all but converged on attitudes toward law enforcement. Not wanting to lose to Republicans by being portrayed as “soft on crime,” Democrats took increasingly “tough” criminal justice stances. President Bill Clinton’s wildly popular 1994 Violent Crime Control and Law Enforcement Act was the apex of this bipartisan enthusiasm for aggressive policing, prosecution and punishment.  The bill made federal sentencing guidelines more severe, increasing both life sentences and the death penalty, and built up funding streams to increase local police forces and state prison capacity.

Despite the rhetoric of the crime bill, the best evidence suggests that it played little role in the explosion of the national prison population — or what scholars term “mass imprisonment.”  This is because policies focused on harsh punishment had already peaked by 1994.  In addition, it only applied to the federal system, which represents only 10 percent of all people locked up.  Finally, even though there was wide support for the crime bill, activists, politicians, judges and others continued to fight against “tough” punishment, eventually building the momentum for the First Step Act.

What does this history tell us about the First Step Act?

First, it’s not surprising that Republicans and Democrats, conservatives and liberals came together on the bill. Both camps have moved away from the “tough on crime” mantra.  Democrats now talk of “smart on crime” policies while some Republicans support the “right on crime” initiative.  Both agree that aggressive policing and heavy criminal penalties for low-level offenses, particularly drug crimes, do more harm than good.

The rise of a new approach to criminal justice can be tied to a number of changes since the 1990s, including historically low crime rates, strained state and federal budgets and a growing awareness of the negative consequences of mass incarceration.  Critically, a cadre of conservative leaders spent the past two decades working to change Republican orthodoxy on this issue.  They frame mass incarceration as a fiscal and moral failure that wastes tax dollars and violates the Christian principles of “second chances” and redemption....

However, bipartisan consensus is not as seamless as it is sometimes portrayed.  A group of Republican leaders remain aggressively opposed to these criminal justice reforms.  And at the last hour, they nearly killed the First Step Act....

During his confirmation hearing last week, [Attorney General nominee William] Barr promised to “diligently implement” the First Step Act, but then backtracked to support Session’s policies at the Justice Department, adding, “we must keep up the pressure on chronic, violent criminals.”

Like the ‘94 bill before it, this indicates that the First Step Act will likely be more bark than bite.  The First Step Act might provide relief to several thousand current federal prisoners.  But Barr will likely follow Sessions and direct his prosecutors to seek the maximum criminal penalties against current defendants, including for drug offenses, limiting the impact of the First Step Act’s sentencing reform.  And the bill will have no practical effect on state prison systems, which in some cases have already embraced much more radical reforms.

While the First Step Act is a move in the direction of more humane and moderate criminal justice practices, I think it will likely be a very small first step indeed.

January 30, 2019 in Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, January 29, 2019

Any predictions (or suggestions) for what Prez Trump will say about FIRST STEP Act in coming State of the Union?

Thanks to the federal government shutdown, we have to wait an extra week to hear Prez Donald Trump deliver the annual State of the Union address to a joint session of Congress and to the nation.  But I do not want to wait to speculate about what the Prez might say during SotU about the one big bipartisan achievement of the last year, namely the passage of the FIRST STEP Act.

As detailed in posts here and here from exactly a year ago, Prez Trump's 2018 State of the Union was arguably the first huge moment on the path to the passage of the FIRST STEP Act.  Prez Trump in that speech said: "As America regains its strength, this opportunity must be extended to all citizens.  That is why this year we will embark on reforming our prisons to help former inmates who have served their time get a second chance."  

Of course, as I have stressed in (too) many prior posts, the real impact of the FIRST STEP Act depends greatly on how the law gets implemented.  So I am hoping that Prez Trump, in addition to crowing about the FIRST STEP Act, will commit his administration to ensuring the Act is well-implemented.  Doing so requires not only keeping the government open, but also ensuring appointments to the new institutions created by the Act (as well as to existing essential institutions like the US Sentencing Commission).  Notably, as detailed in this MuckRock piece from last week, headlined "The First Step Act’s first steps are stalled," the shutdown contributed to a poor start on this institutional implementation front:

As part of the “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act,” the First Step Act’s formal name, the National Institute of Justice -- part of the Department of Justice’s Office of Justice Programs -- was supposed to establish an Independent Review Commission [IRC] within 30 days of the law’s enactment.  The review commission is supposed to assist the attorney general and the Bureau of Prisons in the design and deployment of the risk and needs assessment tool, which will be used to determine the risk of recidivism and violent misconduct as well as assign the types, lengths, and rewards for recidivism reduction programs....

The first step in the development of the tool, which is slated to be operational within 210 days of the bill’s enactment, estimated to be the end of July 2019, was the selection of a nonprofit to lead the IRC. That organization would then appoint members to the committee. 

The law requires that the IRC be comprised of no fewer than six individuals who “shall all have expertise in risk and needs assessment systems,” including: two published peer-reviewed scholars, “two corrections practitioners who have developed and implemented a risk assessment tool in a corrections system,” one of whom should be familiar with Bureau of Prisons operations, and “one individual with expertise in assessing risk assessment implementation.” However, the government shutdown makes it unlikely that the NIJ has hit its first goal for the review commission. In turn, other requirements, such as the creation of the tool itself within 210 days of the bill’s passage, likely will be delayed.

Of course, I do not really expect Prez Trump to speak to these wonky particulars regarding the FIRST STEP Act. But I do hope his team urges him to talk up his success on criminal justice reform and perhaps even talk about wanting to follow up with positive second steps of some sort.

January 29, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (5)

Monday, January 28, 2019

"Federal criminal justice reform is now law: What comes next?"

The title of this post is the headline of this recent Hill commentary authored by Tim Head, the executive director of the Faith & Freedom Coalition. Here are excerpts:

Now that the FIRST STEP Act is law, the question becomes what is next at the federal level and what policy innovations can state governments develop to continue the national momentum toward a more efficient and effective justice system.

The next order of business for implementation of federal reform is for the U.S. Senate to confirm William Barr as Attorney General of the United States.  As Attorney General, Barr and his appointed lieutenants would be responsible for selecting a new director for the federal Bureau of Prisons and ensuring that the Bureau accurately administers the codified risk assessment system for low-level, non-violent offenders who are eligible for release, and provide these inmates with the programs to help them safely and successfully re-enter society upon their release.

While the sentencing reforms contained in the FIRST STEP Act were secondary to the prison reforms that are to be administered by the Department of Justice, further sentencing improvements are possible through the U.S. Sentencing Commission.  The independent Sentencing Commission issues guidelines for sentencing in all federal criminal cases.

Today, the Commission lacks a quorum to function in its duties to administer federal sentencing laws.  The acting chair, Judge William Pryor of the Eleventh Circuit U.S. Court of Appeals is currently awaiting renomination by the White House and confirmation by the Senate.  By once again making Judge Pryor the chair of the commission, the Trump administration and the Senate can follow through on the promises made by the passage of the FIRST STEP Act.

These nominations are necessary to ensure proper implementation of the provisions contained in the FIRST STEP Act and are essential to ensure the reforms championed by President Trump and reform leaders in Congress are delivered. However, despite the “ah-hah” moment that the federal government realized with the passage of the FIRST STEP Act, states must continue to lead the way as they have done for the past decade.

Many states have joined the chorus of justice reform begun by Texas, Georgia and South Carolina.  Ohio recently passed legislation to seal certain low-level criminal records and promote drug and alcohol treatment programs as alternatives to prison.  In Pennsylvania, Governor Tom Wolf (D) signed the nation’s first "Clean Slate” law to seal records of offenders convicted of low-level, nonviolent misdemeanor offenses who do not incur further criminal charges over ten years.

Pennsylvania also removed one of the most challenging barriers for ex-offenders to safely and successfully re-enter society by eliminating automatic suspensions of driver’s licenses for low-level offenses.  Kentucky Governor Matt Bevin and the state legislature enacted reforms to make it possible for former low-level inmates to attain occupational permits so they can work to support themselves and their families and turn away from crime.

The momentum achieved by state-level reforms made the FIRST STEP Act possible at the federal level.  States that have been slow to move have example after example of successful improvements in other states.  And now, in light of what President Trump and Congress have done to make the justice system more efficient and effective, it is vital to continue the cycle of reform across the country which has made our communities safer and restored lives at all levels.

January 28, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

Saturday, January 26, 2019

Latest discussion of fixing timing problems with expansion of good-time credit in the FIRST STEP Act

As noted in this post a couple of weeks ago, the expanded good time credits provision in the FIRST STEP Act, which many expected to be applied immediately, problematically got tucked within a section of the Act that is to become effective only when the Attorney General has created "a risk and needs assessment system" later this year.  Now the Washington Examiner has this new article, headlined Drafting error stalls inmate release under Trump plan," about the problem and efforts afoot to address it.  Here are excerpts:

Thousands of prisoners expecting to go home under the First Step Act are stuck behind bars indefinitely due to an apparent drafting error, frustrating families and leaving policy advocates pushing for a White House fix.

The bill, President Trump’s biggest bipartisan policy achievement, passed in December, but a key provision retroactively expanding "good time" credit landed in a section that could delay implementation by seven months.

Three sources who work closely with lawmakers and administration officials say it’s their understanding that the White House is looking for an administrative fix.

White House Counsel Pat Cipollone met with advocates in mid-January to discuss the issue, which is affecting roughly 4,000 people who expected to go home immediately. “I think [Cipollone] really understood the intent,” said a person with direct knowledge of the meeting. “I think they understood this was a key provision. … This was a key part of [legislative] negotiations.”

Present at the meeting were David Safavian of the American Conservative Union and Jessica Sloan of #Cut50, a bipartisan activist group that aims to lower incarceration levels in all 50 states....

The bill expands days off for good behavior from 47 to 54 for each year served. For people serving decades, seven additional days means release months early. Most provisions were not written to apply retroactively. The "good time" expansion was an exception, as was a provision allowing crack cocaine convicts to be resentenced. The crack change was implemented quickly.

It became clear, however, that an immediate “good time” expansion would not happen. The provision was placed in a part of the law that created “earned time” sentence reductions, allowing early transfer to a halfway house or home detention after anti-recidivism classes. The “earned time” provision allows the Justice Department up to 210 days to set up a risk assessment system, which will judge the requirements to participate.

“I think it was just an oversight,” said Kevin Ring, president of Families Against Mandatory Minimums. “People were focused on making sure the good time got increased and that it was retroactive. It ended up getting put in the section with ‘earned time.’”

A few fixes are being discussed. The easiest would be for the White House to order the Justice Department to apply the 54 days of "good time" credit immediately. Other fixes would require legislation — either a unanimous consent motion or a spending bill provision — but legislative gridlock amid a partial government shutdown makes neither likely.

“I don’t think it’s something that gets cleared up quickly,” said Sloan, who declined to comment on the White House meeting but said it’s her position that existing law allows 54 days of good time if the administration decides it does. “I’m hopeful the White House will issue some sort of directive to the DOJ, which will issue a directive to BOP, but there are a lot of administrative [steps] there,” Sloan said....

For people in prison, the delay is a major blow. “He’s ready to come home,” said Veda Ajamu, whose brother Robert Shipp, 46, has served 25 years and expected near-immediate transfer to a halfway house or home confinement, as is typical toward the end of sentences. “We’re talking now 25 years, 4 months, and 10 days for him. It makes me really sad, because I can’t do anything. For a person who's been in prison so long, that’s a hard pill to swallow,” Ajamu said.

Charles "Duke" Tanner, who has served 14 years of a 30-year sentence, does not expect to get out immediately but said other people are anxious to leave. “My cellie was all excited because he was looking at an immediate release. Some men even gave away their property because they thought they were out the door,” Turner said. “I have faith President Trump will fix this,” he added.

I have very little "faith" in anyone inside the Beltway fixing things these days, but it is encouraging that two very effective advocates had the opportunity to address the White House Counsel about potential fixes.

Prior related posts:

January 26, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Friday, January 25, 2019

Will the FIRST STEP Act's crack retroactivity provisions result in many reduced sentences beyond those serving mandatory-minimum terms?

The question in the title of this post is prompted by a notable "Order Reducing Sentence" entered earlier this week in US v. Tucker, No. 3:00-cr-00246-2 (S.D. Iowa, Jan. 23, 2019) (available for download below). A little background is need to explain the question and what seems especially notable about this Tucker order.

As many readers know, Section 404 of the enacted version of the FIRST STEP Act retroactively applies the Fair Sentencing Act of 2010. I have assumed this section entailed only that (many) federal prisoners still serving crazy-long mandatory minimum sentences for crack offenses could get their sentences reduced.  I figured the retroactivity benefits would be confined to those serving crack mandatory-minimum terms, rather than guideline sentences, because the US Sentencing Commission had already reduced the crack guidelines and made those reduced guidelines retroactive.

But, interestingly, though Logan Tucker was convicted and sentenced in 2001 for a crack offense, his original sentence of of nearly 22 years (262 months) was driven not by a statutory mandatory minimum provision, but rather by the career-offender provisions of the (then mandatory) guidelines.  Though Tucker's sentence for a crack offense was driven by the guidelines rather than a statutory mandatory minimum provision, he was not previously eligible for a reduced sentence based on retroactive crack guideline reductions because of his career offender status. 

But now, thanks to the FIRST STEP Act, Tucker can benefit according to the analysis of US District Judge Robert Pratt.  Specifically, because Tucker was originally sentenced under a "covered offense" and also because the Fair Sentencing Act the lowered the statutory maximum he would have faced which, in turn, lowered his guideline level under the career-offender guideline, Judge Pratt concludes he can and should impose a reduced sentence for Tucker set at "188 months, the low end of the new Guidelines Range" (which, in turn, entails "a sentence reduction of seventy-four months, more than enough to warrant immediate release").

In addition to the notable outcome, I think it important and notable that federal prosecutors in this case conceded that the FIRST STEP Act authorized Judge Pratt to impose a reduced sentence (though they did urge Judge Pratt to exercise his discretion not to reduce Tucker's original sentence).  In other words, federal prosecutors in this case did not claim that FIRST STEP retroactivity benefits must be confined only to those serving crack mandatory-minimum terms, rather than guideline sentences.

So, in addition to spotlighting this interesting echo of the FIRST STEP Act's crack retroactivity provisions, I am eager to hear if lots of other courts are now considering sentence reductions for lots of other crack defendants whose terms are not directly tethered to crack mandatory-minimum terms.  I would guess that this kind of "career offender" situation may be most likely to arise, but perhaps there are other important ways in which persons sentenced to long crack terms who missed prior retroactivity opportunities now can benefit.

Download Tucker sentence reduction order 07712866067  

UPDATEIt dawned on me after I did this post that the high-profile case of Matthew Charles, who secured release just a few days after the enactment of the FIRST STEP Act, is another example of a defendant sentenced under the career offender guideline getting retroactive relief.  Thus this Tucker ruling is not itself ground-breaking, but it further highlights the sorts of folks now able to benefit from a key sentencing provision that was added to the original prison-reform-only version of FIRST STEP.

January 25, 2019 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, January 23, 2019

What arguments are being made by defendants on direct appeal seeking to benefit from the FIRST STEP Act's sentencing reforms?

In this post not long after the passage of the FIRST STEP Act, I noted that Congress directly spoke to so-called "pipeline cases" by saying expressly that defendants who have not yet been sentenced, are clearly to get the benefits of the new and lowered mandatory minimums (section 401) and would avoid stacked 924(c) charges (section 403).  But, asks a lawyer who corresponded with me recently, could there still be a way for a defendant who has been sentenced, but whose case is now on direct appeal, to also get the benefit of the FIRST STEP Act's provisions?   

I have seen a recent brief filed in the Third Circuit that argues that the FIRST STEP Act ought to apply to cases on direct appeal given the "long-standing rule" that a sentence is not final until fully reviewed on appeal.  And perhaps other are developing distinct arguments as this important issue arises presumably in dozens, if not hundreds, of cases current on direct appeal around the country.  I welcome links to or copies of filed briefs on this issue; I will add them to this post if helpful.

In addition to seeking information on pipeline litigation, I must note the broader reality that the international norm is to allow past offenders to benefit from ameliorative changes in criminal laws and punishments.  Specifically, a colleague of mine pointed me to third clause of paragraph 1 of Article 15 of the International Covenant on Civil and Political Rights: "If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby."  The United States is a party to ICCPR, but it lodged this key reservation: "because U.S. law generally applies to an offender the penalty in force at the time the offence was committed, the United States does not adhere to the third clause of paragraph 1 of article 15."

Prior related post:

January 23, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

FAMM writes extended letter to Prez Trump to "strongly discourage" re-nomination of Bill Otis to US Sentencing Commission

As reported in this prior post, back in March 2018 Prez Trump announced this notable slate of nominations to the US Sentencing Commission.  Though it is usually only hard-core sentencing nerds like me who pay much attention to USSC nominations, this slate of nominees, especially the nomination of Bill Otis, prompted considerable critical commentary from various sources (which I covered in posts here and here).  Perhaps in part because these nominees were controversial, the Senate never acted on them in 2018 and the nominations lapsed when the "old" Senate officially adjourned.

It is fairly common, once a new Senate is in place, for a President to simply renominate many past nominees who were not acted upon by a prior Senate.  The folks at FAMM, however, are now actively advocating that Prez Trump not follow this tradition in the case of Bill Otis.  Specifically, this new FAMM press release reports that "FAMM sent a letter to President Donald J. Trump discouraging the re-nomination of William Otis to the U.S. Sentencing Commission."  Here are some passages from the start and end of the four-page letter, which is authored by FAMM President Kevin Ring:

I am writing to strongly discourage you from nominating William Otis to serve on the U.S. Sentencing Commission. Mr. Otis’s long and controversial record, marked by hostility to evidence-based criminal justice reform, contradicts your administration’s leadership in passing the First Step Act....

Given these roles the Commission is expected to play, it is vital that the individuals appointed to serve on the Commission approach their job with an open mind and a willingness to consider fully all of the data and evidence available to them.  Over the years, FAMM has disagreed with the policy views held by nominees to the Commission, but we did not oppose their confirmation because we believe that, once confirmed, they would be persuaded and guided by data and evidence.

The very extensive public record of Mr. William Otis gives us no such hope.  Mr. Otis is an ideologue who seems impervious to evidence and data....

When you nominated Mr. Otis last year, FAMM broke its 27-year-long policy against taking a position on nominees to the Commission.  We believed then, and continue to believe today, that Mr. Otis would damage the Commission’s ability to tackle initiatives in a collaborative and thoughtful way.

We do not wish to silence Mr. Otis and his views. Mr. Otis certainly has a place in the public policy debate on criminal justice policy.  That place, we respectfully submit, is not one of the seven seats on the U.S. Sentencing Commission, where an openness to evidence and data is crucial.  Please do not nominate him again.

The final paragraph of this letter really struck me because of two practical ironies.  First, the decision by Prez Trump to nominate Bill Otis to the USSC actually did serve to effectively silence him as he stopped blogging at Crime & Consequences and did not make any public statements amidst all the debates over federal criminal justice reform that raged in 2018.  Second, because there are currently only two active Sentencing Commissioners and four are needed to form a quorum, the US Sentencing Commission is itself effectively silenced right now with respect to making any changes to the sentencing guidelines until at least two more members are nominated by the President and confirmed by the Senate.

Prior related posts:

January 23, 2019 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

Monday, January 21, 2019

Challenges facing federal prisons and prisoners ... from FIRST STEP Act implementation to shutdown dynamics

It is pure coincidence that the day Prez Trump signed the FIRST STEP Act into law was also the last day the federal government was fully funded before the current government shutdown. That day was December 21, 2018, which means today marks officially one month into both the shutdown and the implementation of the FIRST STEP Act.  Though I have done a few prior FIRST STEP Act implementation posts here and here and here and here, I figured it would be timely to do this round-up of some recent articles and commentary about both FIRST STEP implementation and shutdown echoes:

January 21, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Friday, January 18, 2019

US Sentencing Commission releases two new documents on FIRST STEP Act

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

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

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

Question 1

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

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

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

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

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

Thursday, January 10, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Wednesday, January 09, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, January 06, 2019

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

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

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

The FIRST STEP Act changes the conversation on mass incarceration

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

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

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

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

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

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

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

Friday, January 04, 2019

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Friday, December 28, 2018

Spotlighting how FIRST STEP Act implementation challenges and uncertainty has already begun

A week ago the FIRST STEP Act was signed into law, and my first post celebrating this achievement stressed the challenging and critical work of implementing the law well.  Today, this new Washington Examiner piece, headlined "Prisoners due for release under First Step Act stuck in limbo," spotlights that implementation difficulties have already begun.  Here are excerpts:

President Trump shortened the sentences of thousands of prisoners by signing the First Step Act days before Christmas.  But one week later, inmates and their frustrated families say they are afraid the gift won’t be delivered in time to hasten release dates.

Silence from the Federal Bureau of Prisons is creating fear that foot-dragging will eat into reductions mandated by Trump's most significant bipartisan policy achievement.  The new law gives many prisoners an extra seven days off their sentences for each year of good behavior, but it's unclear when authorities will make the calculations.

“Literally, my brother has packed his stuff and is waiting for the call,” said Veda Ajamu, whose brother Robert Shipp, 46, has served 25 years of a drug sentence. Shipp had a November 2019 release date, but Ajamu believes he may be going home immediately under the new law, which would shave off about 175 days, potentially making him eligible for a halfway house or home confinement, which is typical at the very end of sentences. “I’m thinking to myself, ‘I don’t know what to do. I’m feeling anxious. I don’t want to be at the wrong place when he calls,’” said Ajamu, who plans to pick up her brother.

“Some families have loved ones who they know would be home tomorrow,” said Kevin Ring, president of Families Against Mandatory Minimums and a former executive director for the conservative Republican Study Committee. “People are very concerned about when this is going to get done. Congress has passed this. It's in effect."

Advocates estimate that 4,000 federal prisoners will be released almost immediately under the good-time expansion. A smaller number can petition courts for old crack cocaine sentences to be reduced.

For Craig Steven Houston, 48, the good-behavior change alone could mean 210 days off a 30-year crack cocaine sentence. He had an August release date, but the law means he could get out in just 22 days, on Jan. 19., according to his family. “We want to be prepared and know what's going on,” said Steve Henderson, who was raised with Houston and considers him a brother.

Concerned families are calling the Bureau of Prisons’ Designations and Sentence Computation Center, which calculates sentences. But some say calls haven’t been answered. “When you have an infraction in prison, when they take the time away from you, they calculate it immediately... the next day it is gone,” Henderson said. “You have people across the country who are supposed to be home. All of a sudden DSCC isn't answering their phones.”

It’s unclear what effect the ongoing partial government shutdown is having. Bureau of Prisons spokespeople did not respond to multiple requests for clarification this week. Part of the delay may be explained by lack of implementation guidance. "We are currently reviewing the new legislation to determine implementation guidance for BOP and other DOJ components," said Justice Department spokesman Wyn Hornbuckle. Hornbuckle noted that more than 80 percent of the department workforce is working through the government shutdown, which began hours after Trump signed the First Step Act.

December 28, 2018 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

Thursday, December 27, 2018

"Hello, FIRST STEP Act! Goodbye, Jeff Sessions! The Year in Criminal Justice Reform"

The title of this post is the headline of this new extended Reason piece authored by Scott Shackford. I recommend the piece in full, and here is how it gets started and its headings:

With the passage of the FIRST STEP Act just before Christmas, 2018 has been a banner year for incremental reforms to our awful criminal justice system. We've seen efforts to reduce levels of incarceration and the harshness of prison sentences, particularly those connected to the drug war; further legalization of marijuana in the states; and efforts to constrain the power of police to seize people's property and money without convicting them. While all this was happening, crime mostly declined in America's largest cities.

But we've also seen increased deliberate efforts to crack down on voluntary sex work by conflating it with forced human trafficking.  And, despite learning from the drug war that harsh mandatory minimum sentences don't reduce the drug trade, lawmakers and prosecutors are yet again pushing for more punishment to fight opioid and fentanyl overdoses.

Here are some highlights (and lowlights) of American criminal justice in 2018:

The FIRST STEP Act passed (finally)....

Marijuana legalization continued apace....

Civil Asset Forfeiture under the microscope....

Attorney General Jeff Sessions shown the door....

The war on sex trafficking leads to online censorship, not safety....

Treating opioid overdose deaths as murders....

Reducing dependence on cash bail....

This strikes me as a pretty good list, though it leaves out some notable state-level developments such as Florida's vote to retrench its expansive approach to felon disenfranchisement and lots of state-level work on reducing collateral consequences.

I welcome reader input on other criminal justice reforms (or just events) from 2018 that they think worth remembering.

December 27, 2018 in Collateral consequences, FIRST STEP Act and its implementation, Marijuana Legalization in the States, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Spotlighting the enduring challenges posed by risk-assessment mechanisms built into FIRST STEP Act

LawProf Brandon Garrett has this important new Slate commentary headlined "The Prison Reform Bill’s Implementation Will Be Tricky; Here’s how to ensure it’s a success." I recommend the piece in full, and here are excerpts:

The First Step Act, the federal prison reform bill that President Donald Trump signed into law on Friday, represents a bipartisan and major effort at making the criminal justice system fairer.  This step will only be a baby step, however, if the engine that drives the entire piece of legislation — risk assessments of federal prisoners’ likelihood to reoffend — is not used carefully and with sound scientific and public oversight.

The statute ... allows federal prisoners, who now number about 180,000, to earn credits toward early release based on rehabilitative programs and their risk of reoffending.  The statute states that an algorithm will be used to score every prisoner as minimum, low, medium, or high risk.  But the legislation does not say how this algorithm will be designed. The Senate’s version of the First Step Act, which refers to “risk” 100 times, calls for a “risk and needs assessment system” to be developed in 210 days, and then made public and administered to every federal prison within the following 180 days.

That may not be nearly enough time to carefully study all of the questions raised by creating such a massive system.  Take as an example the experience in Virginia, which has been hailed as a national model and “leading innovator” by the American Law Institute for using risk assessment to divert low-risk offenders from prison.  Virginia spent several years developing its risk assessment system.  The Virginia Criminal Sentencing Commission carefully obtained public input, scientific evaluations, and pilot studies, before implementing it statewide.

But in a recent series of studies of the effort to divert prisoners in Virginia, John Monahan, Alexander Jakubow, Anne Metz, and I have found that there is wide variation in how courts and judges apply this risk assessment....  People are not algorithms.  The statute’s fairness will hinge on the discretion that prison officials exercise, informed by the scores from a risk assessment but also by their own judgment.  The First Step Act’s success will similarly depend on resources for real rehabilitative programs.  It calls for evidence-based evaluation of such programs, but that research will also take time.

While using an evidence-informed tool can be better than simply leaving everything to prison officials’ discretion, there needs to be more than buy-in by the decision-makers — the right tools need to be used.  Michelle Alexander and others have raised concerns, for example, with risk assessments that rely on information about prior arrests or neighborhood information that can produce stark racial bias.  The Senate’s version of the act speaks to the potential for bias and asks the comptroller general to conduct a review after two years to identify “unwarranted disparities.”  The act also calls for an independent review body that includes researchers who have studied risk assessment and people who have implemented it.  These are important steps.  Involvement of scientists and the public will be needed to consider whether invidious and potentially unconstitutional discrimination results — otherwise, protracted constitutional litigation challenging these risk assessments will be a foregone conclusion.

Still, there is much that is positive about the bill’s many provisions dealing with risk.  The First Step Act emphasizes not just recidivism but also programs that support rehabilitation.  It is noteworthy that the legislation calls for re-evaluation of prisoners each year so that risk scores are not set in stone. All prisoners are able to reduce their classification.  This should be taken seriously.  The risk of any person may decline dramatically over time simply as a matter of age, as the U.S. Sentencing Commission documented in a study last year.

The statute also makes the attorney general the risk assessor in chief — with input from the independent scientific reviewers — of the risk assessment used on 180,000 prisoners each year.  That scientific input is critical, and it should be solicited from the broader scientific community.  It’s also worth noting that the Department of Justice has recently shut down key science advisory groups; this law hopefully takes an important first step toward bringing science back in.

December 27, 2018 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, December 26, 2018

Notable pipeline provisions in FIRST STEP Act in the wake of litigation history surrounding FSA of 2010

Long-time readers surely recall the legal uncertainty that followed the last congressional reduction of severe mandatory sentencing provisions in the Fair Sentencing Act of 2010 with respect to "pipeline" cases, i.e., cases in which offense conduct took place, but a sentence had not yet been imposed, before the enactment of the FSA's new crack sentencing provisions.  This legal uncertainty made it all the way up the Supreme Court in Dorsey v. US, 567 U.S. 260 (2012), and here is how the Court's 5-4 majority explained and resolved the issue:

In 2010, Congress enacted a new statute reducing the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1. Fair Sentencing Act, 124Stat. 2372. The new statute took effect on August 3, 2010. The question here is whether the Act’s more lenient penalty provisions apply to offenders who committed a crack cocaine crime before August 3, 2010, but were not sentenced until after August 3. We hold that the new, more lenient mandatory minimum provisions do apply to those pre-Act offenders.

Fast forward to the present day, and Congress this time around has figured out that it can and should address these pipeline issues directly when making statutory sentencing modifications. Specifically, here are the operative pipeline instructions that appear in the FIRST STEP Act with its three important sentencing changes:

SEC. 401. REDUCE AND RESTRICT ENHANCED SENTENCING FOR PRIOR DRUG FELONIES....

(c) APPLICABILITY TO PENDING CASES. This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

SEC. 402. BROADENING OF EXISTING SAFETY VALVE....

(b) APPLICABILITY. The amendments made by this section shall apply only to a conviction entered on or after the date of enactment of this Act.

SEC. 403. CLARIFICATION OF SECTION 924(c) OF TITLE 18, UNITED STATES CODE.... 

(b) APPLICABILITY TO PENDING CASES. This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

Put simply, Congress in the FIRST STEP Act has expressly provided that all cases in the pipeline, as long as a defendant has not yet been sentenced, are to be sentenced in accord with the new and lowered mandatory minimums (section 401) and without stacked 924(c) charges (section 403).  But, in slight contrast, only those pipeline defendants who have not yet been convicted, are able to be sentenced with the benefit of the new and expended safety valve provision (section 402) which allows defendants with a bit more criminal history to avoid the application of otherwise applicable drug mandatory minimums.

I am pleased to see Congress this time around directly addressing pipeline issues and thereby answering the most basic questions about how pending cases are to be handed.  And yet, ever eager to issue spot, I already have some follow-up questions:

  1. Imagine a defendant already sentenced earlier in 2018, but his sentence is reversed on some other ground and now he faces resentencing in 2019.  Can a defendant get the benefit of any new provisions of the FIRST STEP Act upon resentencing?
  2. Or imagine a defendant who might benefit from the broader safety valve and has not yet been sentence but did plead guilty earlier in 2018. Could this defendant move to vacate his plea simply in order to plead guilty anew in 2019 so that his conviction will then be "entered on or after the date of enactment of" the FIRST STEP Act?

The pipeline issues after the Fair Sentencing Act of 2010 impacted perhaps thousands of defendants, whereas the issues I raise above may only impact dozens. But for those particular defendants, what is still left uncertain might still certainly be a very big deal.  (I also suspect there are additional pipeline issues I have not yet imagined, and I welcome input on this issue and all other relating to FIRST STEP Act implementation.)

December 26, 2018 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Bernie Madoff's secretary wants to use new Trump law to get out of jail early"

The title of this post is the juicy headline of this notable new ABC News article about a notable defendant eager of make use of the FIRST STEP Act to seek release from federal prison.  I call the headline juicy in part because of the Bernie Madoff connection, as well as the fact that the FIRST STEP Act is described as the "new Trump law."  Here are excerpts:

One of the five employees of Bernie Madoff convicted in a $20 billion Ponzi scheme is seeking early release from prison based in part on the new criminal justice reform law signed last week by President Donald Trump. Annette Bongiorno, who was Madoff’s longtime secretary, has been in prison since February 2015 and asked the judge to order her release no later than March 2019, more than a year before her scheduled release date.

In a letter to U.S. District Judge Laura Taylor Swain, defense attorneys cited the First Step Act that they contend makes Bongiorno, 70, eligible for home confinement, since she is at an advanced age and has served two-thirds of her sentence. "The new statute permits her to make a direct application to the court for this relief, and Mrs. Bongiorno respectfully makes the application," defense attorney Roland Riopelle wrote.  "She remains an 'old fashioned' family oriented person who would benefit greatly from the release to home confinement that the First Step Act provides," he wrote.

A spokesperson for federal prosecutors in the Southern District of New York was not immediately available to respond to a request for comment on Bongiorno's bid for early release.  The office declined to comment to a similar request for comment by the Associated Press....

Bongiorno was convicted in 2014 after a six-month trial during which she insisted she did not know her boss was running what is widely-seen as the biggest Ponzi scheme in American history.  Madoff, who is now 80, is serving a 150-year sentence following conviction on a fraud that was exposed a decade ago.

In his letter to the judge, Riopelle called Bongiorno a "model prisoner" who has served her sentence at FCI Coleman medium security prison in Sumterville, Florida, "without a disciplinary violation of any kind." Riopelle said she was in decent health and in "generally good spirits" though finds the holiday season "a bit depressing."

Without seeing the filing referenced in this article, it is unclear to me if Bongiorno is seeking so-called "compassionate release" or is seeking relief under an elderly prisoner reentry pilot program.  The FIRST STEP Act has important new provisions making available two different possible means for elderly prisoners to seek release to home confinement or sentence modification, but the legal requirements and process are distinct in important ways.  Bongiorno certainly will not be the only older prisoner looking to take advantage of the FIRST STEP Act, and I expect there could be a lot of interesting jurisprudence emerging in the weeks and months ahead on these fronts.

December 26, 2018 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1)

Monday, December 24, 2018

Lamenting lack of retroactive application of new sentencing changes in FIRST STEP Act (... and so rooting again for robust clemency)

This recent piece from The Guardian, fully headlined "Current inmates feel left behind by Trump's criminal justice reform bill; First Step Act reduces the mandatory sentence for three-strikes offenders but the provisions will not be made retroactive," spotlights how certain inmates have gotten left behind even as the inappropriateness of their sentences inspired key sentencing reforms in the FIRST STEP Act.  Here are excerpts:

On paper, Chris Young seems exactly the kind of person a prison reform bill ought to release from federal custody. In the eight years since he was last free, Young has become an avid reader, taught himself to write computer code and worked as a tutor for fellow prisoners. Right now he’s reading Yuval Noah Harari’s Homo Deus “for fun”.  He also says that since he can’t get real-world practice, he re-reads the same passage of a programming book every day after lunch, to make sure it’s committed to memory.

When he was 22, Young was arrested on a third low-level drug charge. Under so-called “three strikes” laws, he was given a mandatory life sentence.  For decades, in cases involving repeat drug offenders, such laws have stripped federal judges of discretion. The judge who sentenced Young, Kevin Sharp, was so shaken by the experience he retired shortly after.  “What I was required to do that day was cruel,” Sharp tweeted earlier this year.

The bipartisan First Step Act, signed into law by Donald Trump on Friday, softens that “cruel” requirement for federal judges, reducing the mandatory sentence in such cases to 25 years. But it will not do anything for Young.  In one of many compromises made by progressive reform advocates to secure conservative support, this and several other provisions were not made retroactive.  “I’m human and I would have loved to have benefited from the bill, but unfortunately I don’t,” Young told the Guardian from federal prison in Lexington, Kentucky. “I don’t necessarily feel left behind, I just feel [lawmakers] don’t understand what goes on with the … actual humans that their choices and politics affect.”...

Advocates believe [the Act] can be a launching point for state and local reform which could have a much greater impact on the US inmate population. After all, just 10% of people incarcerated in the US are in the federal system.  “I absolutely think that this one is going to be catalytic towards other de-carceration campaigns on the local and state level,” said Glenn Martin, a formerly incarcerated reform advocate who helped bring dozens of former inmate-led groups on board for the First Step Act.

“I think that the Senate — a conservative Republican Senate — has just given permission to conservatives all over the country [to become] engaged in criminal justice reform.” Nonetheless, the lack of retroactivity on a majority of the sentencing reforms was “a tough pill to swallow”.

“It’s one of the concessions that hurts the most,” said Martin. “It’s about fairness, and yet there’s this group of people who continue to be harmed because of the lack of retroactivity.”

That includes people like John Bailey, a 71-year-old inmate of the federal prison in Hazleton, West Virginia which is nicknamed “misery mountain”. Bailey’s brother Oliver said he was struggling to understand the logic of the changes not applying to inmates like John, who was imprisoned in 1992 on a non-violent drug charge. “If you recognize the injustice now,” asked Bailey, “how come it doesn’t apply to those that suffered the same injustice before?”

Advocates who worked on the bill said conservatives and politically vulnerable Democrats opposed retroactivity because of how releasing prisoners early might resonate with voters.

There is one bright spot for the Baileys. One provision of First Step that does apply to current inmates is a requirement that prisoners be housed no more than 500 driving miles from their home. Bailey, who is from St Petersburg, Florida, has spent his prison life in Leavenworth, Kansas and now West Virginia, thousands of miles away. Oliver has not seen John since he was jailed. “At this point something’s better than nothing,” he said. “We need to progress from here.”

It’s a common sentiment. Chad Marks is serving a 40-year sentence on drug conspiracy charges, thanks to another provision First Step will restrict. Marks’ sentence was enhanced by “stacking” language in federal law which dramatically increases a sentence if an offender possesses a firearm in the commission of a drug crime, whether or not it is used. “I don’t understand how lawmakers can say that doing this is wrong,” he said, “and that they are going to fix it, but not apply it retroactively. That was a big blow. What has my focus and attention right now is the fact that lawmakers did something, but my focus is also on a second step coming.”...

Young, Bailey and Marks continue to wait for a second step. While they do, all three must place their primary hope for release in an act of clemency: a pardon or commutation issued by the president. Young’s case has been endorsed by Kim Kardashian, who successfully lobbied for the release of another federal prisoner, Alice Johnson, in June. Marks said he was “more than hopeful that I will find relief through clemency”.

“I am praying that president Trump will find me worthy of mercy and grace,” he said. “I won’t let him down or disappoint him.”

As regular readers know, Prez Trump has been letting me down and disappointing me by having so far failed to make good on all the talk from earlier this year that he was looking at "3,000 names" for possible clemencies. I sincerely hope that Prez Trump and those assisting him on clemency matters are going to give extra attention to persons serving extreme sentences that would no longer be applicable under the new sentencing provisions of the FIRST STEP Act.  (I also think persons serving particularly extreme sentences should file (or seek to re-file) constitutional or other challenges to their sentences that might be emboldened by FIRST STEP Act reforms, but I will discuss this idea in a subsequent post.)

A few of many recent related posts: 

December 24, 2018 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, December 22, 2018

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

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

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

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

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

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

Friday, December 21, 2018

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

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

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

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

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

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

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

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

Thursday, December 20, 2018

Some accounts of what should come after the FIRST STEP Act

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

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

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

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

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

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

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

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

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

HUZZAH!!!

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

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

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

Wednesday, December 19, 2018

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

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

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

Section 101: Risk and Needs Assessment System

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

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

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

Retroactive Impact: Not authorized in bill.

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

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

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

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

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

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

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

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

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