Monday, September 14, 2020

Bureau of Justice Statistics reports encouraging crime declines in release of results of 2019 National Crime Victimization Survey

As reported in this press release and as fully detailed in this 53-page report, the Bureau of Justice Statistics has just published the results from its annual survey of households about their experiences with crime. Notably, most other reports about crime rates are based on crimes reported to police, but this annual survey in different: "TheNCVS is the nation's largest crime survey and collects data on nonfatal crimes both reported and not reported to police." Here are some of the statistical highlights via the press release:

After rising from 1.1 million in 2015 to 1.4 million in 2018, the number of persons who were victims of violent crime excluding simple assault dropped to 1.2 million in 2019, the Bureau of Justice Statistics announced today. Statistics on crimes that have occurred in 2020, during the coronavirus pandemic, are being collected now and will be reported next year....

The rate of violent crime excluding simple assault declined 15% from 2018 to 2019, from 8.6 to 7.3 victimizations per 1,000 persons age 12 or older.  Among females, the rate of violent victimization excluding simple assault fell 27% from 2018 to 2019, from 9.6 to 7.0 victimizations per 1,000 females age 12 or older.  Violent crimes other than simple assault are those that are generally prosecuted as a felony.

From 2018 to 2019, the portion of U.S. residents age 12 or older who were victims of one or more violent crimes excluding simple assault fell from 0.50% to 0.44%, a 12% decrease.  There were 880,000 fewer victims of serious violent or property crimes (generally felonies) in 2019 than in 2018, a 19% drop. From 2018 to 2019, 29% fewer black persons and 22% fewer white persons were victims of serious crimes.  Victims of serious crimes are those who experienced a serious violent crime or whose household experienced a completed burglary or completed motor-vehicle theft.

This year, BJS provides new classifications of urban, suburban and rural areas, with the goal of presenting a more accurate picture of where criminal victimizations occur. Based on the NCVS’s new classifications, the rate of violent victimization in urban areas declined from 26.5 victimizations per 1,000 persons age 12 or older in 2018 to 21.1 per 1,000 in 2019, a 20% decrease from 2018 to 2019.

Nationally, rape or sexual assault victimizations declined from 2.7 per 1,000 persons age 12 or older in 2018 to 1.7 per 1,000 in 2019. Across all crime types, victimizations reflect the total number of times people or households were victimized by crime. Based on the 2019 survey, less than half (41%) of violent victimizations were reported to police. The percentage of violent victimizations reported to police was lower for white victims (37%) than for black (49%) or Hispanic victims (49%).

In 2019, there were 5.4 million total violent incidents involving victims age 12 or older. The portion of violent incidents involving black offenders (25%) was 2.3 times the portion involving black victims (11%), while the portion involving white offenders (50%) was 0.8 times the portion involving white victims (62%) and the portion involving Asian offenders (1.0%) was 0.4 times the portion involving Asian victims (2.3%).

The 2019 survey found that an estimated 12.8 million U.S. households experienced one or more property victimizations, which include burglaries, residential trespassing, motor-vehicle thefts and other thefts. The rate of property crime declined 6% from 2018 (108.2 victimizations per 1,000 households) to 2019 (101.4 per 1,000).

This decline in property crime was partly due to a 22% decrease in burglary from 2018 to 2019 (from 15.0 to 11.7 burglary victimizations per 1,000 households). Moreover, the rate of burglary victimization declined to the lowest level since the NCVS was redesigned in 1993.

In addition to being eager to celebrate this report of important crime declines in 2019, I am tempted to highlight that the FIRST STEP Act became law at the very tail end of 2018 and was in effect for all of 2019.  I do not want to seriously claim, based only on this data, that there is likely a cause-and-effect relationship between modest federal sentencing and prison reforms in December 2018 and national crime declines in 2019.  But I still think it quite notable given that some prominent critics of criminal justice reform loudly called part of the Act a "foolish ... jailbreak that would endanger communities" or regularly asserted that this "leniency legislation inevitably would lead to more crime."  As long-time students of crime and punishment know well, it is almost impossible to make simple and accurate predictions about what kinds of sentencing legislation will or will not end up having an impact (positive or negative) on crime.

September 14, 2020 in FIRST STEP Act and its implementation, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Wednesday, September 09, 2020

Ugly details from federal defenders' latest fact sheet on COVID-19 and federal detention

Sentencing Resource Counsel for the Federal Public Community Defenders has just released this new two-page fact sheet dense with information and links on "The COVID-19 Crisis in Federal Detention."  I recommend the full document, and here are some of the details (absent the links):

COVID-19 is ripping through the Federal Bureau of Prisons (BOP), infecting incarcerated individuals at a rate 4 times the general population, and causing deaths at nearly twice the national rate. BOP is “making it worse,” said Joe Rojas, the regional vice president of the American Federation of Government Employees Council of Prison Locals. “They’re making the virus explode.”

There have now been 126 reported deaths of incarcerated individuals, an incalculable loss.  They were parents, siblings, and children.  They were us.  Some of their deaths were surely preventable.  BOP’s press releases reveal that the majority — 93 — were at higher risk of complications from COVID-19 and BOP knew it.  At least a quarter of those who have died in BOP’s care were seventy or older.  Last month, BOP told the Washington Post that at least 18 individuals died while their requests for compassionate release were pending.  To date, we have identified 19 individuals who died in BOP custody after filing — and in some cases, even after being granted — requests for release....

BOP and DOJ have ignored the tools Congress gave them to lower prison populations safely.  The bipartisan CARES Act authorized AG Barr to dramatically expand the use of home confinement to protect the most vulnerable from COVID-19.  But in response, AG Barr and BOP have issued restrictive guidance and memos, each “more confusing than the next,” that together establish a “complex set of procedural and logistical hurdles to home confinement.”  To date, BOP has approved for transfer to home confinement only 4.4% of the 174,923 who were in custody on February 20.  The DOJ OIG examined BOP’s response to COVID-19 at one of BOP’s hardest-hit facilities, Lompoc Federal Correctional Complex, and found that BOP’s use of home confinement at FCC Lompoc was “extremely limited.”  The Department of Justice (DOJ) has not released demographic data on the individuals BOP has approved for home confinement, despite congressional demands.  At a time when transparency is more important than ever, the federal incarceration system is a black box. “The problem is that prisons in the U.S. are not accustomed to oversight and transparency.”

Thanks to the First Step Act of 2018, individuals no longer must depend on BOP to initiate a motion for compassionate release. Post-FSA, defendants may file a motion directly with the court 30 days after the warden’s receipt of a request.  But during the COVID-19 crisis, this 30-day delay, coupled with DOJ’s routine opposition, prevents vulnerable defendants from obtaining critical relief.  At FMC Carswell, a medical facility that houses the most medically vulnerable women in BOP, “fewer than 20 women” have reportedly received compassionate release.  Based on a survey of defense attorneys representing clients across the country, we are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection.

September 9, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Monday, September 07, 2020

Reviewing how much and how little the FIRST STEP Act has achieved

Jacob Sullum has this great new Reason piece that spotlights key data from this recent US Sentencing Commission report on the first year under the FIRST STEP Act.  The full headline details the themes: "The FIRST STEP Act Has Reduced Prison Terms for More Than 7,000 People. While that's nothing to sneeze at, it is a modest accomplishment in the context of a federal prison system that keeps more than 150,000 Americans behind bars." I recommend the piece in full, and here are snippets (with links from the original):

During the first full calendar year in which the law applied, it resulted in shorter sentences for more than 4,000 drug offenders. While that is nothing to sneeze at, it is a modest accomplishment in the context of a federal prison system that keeps more than 150,000 Americans, including more than 68,000 drug offenders, behind bars....

In 2019, the USSC report says, 2,387 already imprisoned crack offenders qualified for shorter sentences under the FIRST STEP Act's retroactivity provision. The average reduction was 71 months, making the average sentence for this group 187 months (more than 15 years), down from 258 months (more than 21 years).... The second most significant FIRST STEP Act sentencing reform in 2019 (again, measured by the number of people affected), was its widening of the "safety valve" that allows low-level, nonviolent drug offenders to avoid mandatory minimums they otherwise would receive. The USSC reports that 1,369 defendants benefited from that expansion in 2019....

The law also expanded the "good time" credits that allow prisoners to be released early. Although the USSC report does not analyze the impact of that provision, the Justice Department reported last year that more than 3,100 prisoners had benefited from it. 

By the end of last year, then, more than 7,000 people either had been released from prison earlier than they otherwise would have been or were serving sentences that will end sooner than would have been the case before the FIRST STEP Act took effect. That is a meaningful accomplishment. Thousands of people will spend less time behind bars, and more time with their families, friends, and neighbors, thanks to this law, and that number will rise each year.

At the same time, the law's beneficiaries at this point represent less than 5 percent of the federal prison population, less than 11 percent of drug offenders in federal prison, and less than 10 percent of federal criminal cases each year. And while a crack offender who serves 15 years rather than 21 years in prison surely is better off, the reduced penalty is still draconian, especially if you think peaceful transactions involving arbitrarily proscribed intoxicants should not be treated as crimes to begin with.

Prior recent related posts:

September 7, 2020 in Data on sentencing, Drug Offense Sentencing, FIRST STEP Act and its implementation | Permalink | Comments (2)

Thursday, September 03, 2020

Spotlighting remarkable (but still cursory) data on "compassionate release" after FIRST STEP Act

Regular readers are surely familiar with the big deal I have long made about the statutory changes to the so-called compassionate release provisions in federal law via the FIRST STEP Act.  In posts here and here way back in February 2019, I was talking up these changes as the "sleeper provisions" in the Act because it now let persons in prisons move directly in court for a sentence reduction.  By May 2019, I was wondering aloud here about whether anyone was collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act.  From the get-go, I have tried to flag notable rulings granting sentence reductions under 3582(c)(1) since the passage of the Act, but the coronavirus pandemic created so much jurisprudence in this space that I was ultimately only able to do lengthy postings like this one of grants on Westlaw.

Against this backdrop, I was so very pleased to see that the US Sentencing Commission's big new report on "The First Step Act of 2018: One Year of Implementation" (discussed here, available here) includes a final section discussing "Compassionate Release" (at pp. 46-49).  Somewhat disappointingly, this section is quite brief and the data provided is not especially rich or detailed.  But some data is better than nothing and certainly worth reviewing:

During Year One, 145 motions seeking compassionate release were granted, a five-fold increase from fiscal year 2018 (n=24)... [and] of those motions granted during Year One, 96 (67.1%) were filed by the offender and 47 (32.9%) were filed by the BOP.... 

Offenders who benefited from compassionate release in Year One received larger reductions and served more time when compared to those granted release in fiscal year 2018. The average length of the reduction in sentence was 68 months in fiscal year 2018; sentences were reduced, on average, by 84 months in Year One.  The average months of time served at the time of release also increased, from 70 months to 108 months.  The average age at the time of release increased by ten years, from 51 years old at the time of release to 61 years old....

In Year One, most (81.4%) compassionate release grants were also based on medical reasons.  Of the 145 compassionate release motions granted, 118 were based on the medical condition of the defendant, 15 were based on age, two were based on family circumstances, and 15 were based on other extraordinary and compelling reasons.  Of the 118 granted for medical reasons, 75 were based on terminal illness, 31 based on a condition or impairment that substantially diminishes the ability of the defendant to provide self-care within the correctional facility environment, and in 12 the type of medical reason was not further specified.

An additional appendix (Appendix 4 on p. 71) provides a break-down of the guidelines under which these persons receiving sentence reductions were initially sentenced.  These data look somewhat comparable to the general federal prison population, as about half of the recipients were sentenced under the drug guideline.  But it seems white-collar guidelines and the robbery guideline may be somewhat over-represented, though that may reflect that these offenders are more likely to be older and/or subject to more extreme sentencing terms for various reasons.  Other than knowing that a lot more sentence reduction motions were granted in the first year after the FIRST STEP Act and that most were for medical reasons, these "raw" data do not tell us that much more about this interesting little part of the sentencing world.  (Notably, the USSC does not report at all, and may not be collecting, data on how many sentence reduction motions have been brought to, and have been denied by, district courts.  Grants only tells us only so much, though even grant data could and should be subject to some more detail analysis to help Congress and other assess whether this mechanism was working as intended in 2019.)

Critically, as the USSC report makes clear, its data here are from just the first full calendar year the First Step Act was in effect (“First Step Year One”) running from December 21, 2018 through December 20, 2019.  In other words, this report concerns entirely pre-COVID data, and that is HUGELY important because there has been, roughly speaking, about a nearly 20-fold(!) increase in sentence reductions grants over the last six months of our COVID era.  Specifically, the BOP is now reported at this FSA page that there have been "1,498 Approved" total post-FIRST STEP Act "Compassionate Releases / Reduction in Sentences."  Doing the math, this seems to mean that while there were 145 motions granted in First Step Year One, there have been 1,353 more motions granted since that time (nearly all of which, I think, have been over the last six months).  Framed another way, we can say that, on average, in the year after passage of the FIRST STEP Act, roughly a dozen sentence reductions motions were granted each month, and now in the COVID-era, more than 220 are being granted each month!  

I sincerely hope the USSC is planning to do a more detailed and informative accounting of its First Step Year One data, as I think a lot could and should be learned from how judges responded to these motions before COVID.  But I am now even more interested to see data from the COVID era, as the number of cases (and probably the number of reasons for grants) has increased so dramatically.  At the same time, the relative rarity of these sentence reductions should not be forgotten.  With a federal prison population of around 175,000 through 2019, the USSC data show that less than 0.1% of all federal prisoners benefited from a sentence reduction that year.  With all new COVID grants, we still have well under 1% of the federal prison population receiving so-called compassionate release.  That still does not seem anywhere close to a lot or enough compassion to me.

September 3, 2020 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, August 31, 2020

US Sentencing Commission issues big new report on "The First Step Act of 2018: One Year of Implementation"

Download (25)I am extremely pleased to see that the US Sentencing Commission this morning released this big new report (and this infographic) providing data and analysis on the impact of the First Step Act over the period it calls “First Step Year One” running from December 21, 2018 through December 20, 2019.  Importantly, though the report is titled "The First Step Act of 2018: One Year of Implementation," this document only examines key sentencing provisions and not all the prison reforms and other elements of the First Step Act. (As the start of the report explains: "This report examines the impact of five provisions of the First Step Act of 2018 related to sentencing reform.") 

In addition, and I think valuably, the report cover an entirely pre-COVID period and thus sets an interesting and important baseline for understanding the impact of the First Step Act before the pandemic may have changed things.  The most obvious change brought about by COVID was a sharp increase in the number of motions for compassionate release/sentence reduction, but I suspect there will be other impacts that will be reflected in future data.

With all that background, here are some "Key Findings" from the Introduction of the full USSC report:

REDUCING DRUG RECIDIVIST PENALTIES

Enhanced recidivist penalties imposed pursuant to 21 U.S.C. § 851 applied to fewer offenders in First Step Year One, as a result of the First Step Act’s narrowing of qualifying prior drug offenses. When enhanced penalties did apply, they were less severe than in fiscal year 2018.
• The number of offenders who received enhanced penalties decreased by 15.2 percent, from 1,001 offenders in fiscal year 2018 to 849 offenders in First Step Year One.
• The new 15-year enhanced mandatory minimum penalty, which was reduced from 20 years by the First Step Act, applied to 219 offenders in First Step Act Year One. By comparison, the 20-year enhanced mandatory minimum penalty applied to 321 offenders in fiscal year 2018....

EXPANDING SAFETY VALVE 

Offenders were more likely to receive relief from a mandatory minimum penalty or a reduction in sentence as a result of the First Step Act’s expansion of the safety valve eligibility criteria at 18 U.S.C. § 3553(f).
• In First Step Act Year One, of 13,138 drug trafficking offenders convicted of an offense carrying a mandatory minimum penalty, 41.8 percent (n=5,493) received statutory safety valve relief from the mandatory minimum penalty. By comparison, in fiscal year 2018, of 10,716 drug trafficking offenders convicted of an offense carrying a mandatory minimum penalty, 35.7 percent (n=3,820) received statutory safety valve relief.
• In First Step Act Year One, of 19,739 drug trafficking offenders, 36.1 percent (n=7,127) benefited from the safety valve, either by receiving relief from a mandatory minimum, a
guideline reduction, or a variance based on the new expanded eligibility criteria. By comparison, of 18,349 drug trafficking offenders, 32.1 percent (n=5,885) benefited from the safety valve in fiscal year 2018....

LIMITING 924(c) “STACKING”

The 25-year penalty for a “second or subsequent offense” under 18 U.S.C. § 924(c) applied less frequently in First Step Year One, as a result of the First Step Act’s limitation of the penalty to section 924(c) offenders with a final prior firearms conviction, as opposed to those with multiple section 924(c) charges in a single case....

RETROACTIVELY APPLYING THE FAIR SENTENCING ACT OF 2010

Since authorized by the First Step Act, 2,387 offenders received a reduction in sentence as a result of retroactive application of the Fair Sentencing Act of 2010....

COMPASSIONATE RELEASE

In the first year after passage of the First Step Act, 145 offenders were granted compassionate release under 18 U.S.C. § 3582(c)(1)(A), a five-fold increase from fiscal year 2018, during which 24 compassionate release motions were granted.

A lot could be said about these data and lots more in the report, but my short take away is that the sentencing revisions in the First Step Act largely achieved their intended goals and impacted a lot of cases, though they still have a relatively small impact on a massive federal criminal justice system.  For example, even though these data show that the First Step Act's expanded safety valve provision served to benefit roughly 1250 more federal drug defendants at sentencing, any system-wide benefit would seem to be largely eclipsed by the fact that the federal government brought roughly 1400 more drug cases into the federal system during First Step Year One.  When some federal drug sentences go down slightly, but the overall number of defendants being sentenced for drug cases goes up (and especially if the federal caseload increase involves mostly lower-level offenders), it is hard to get too excited about the impact of reform.

I do not want to throw cold water on the good news that this new USSC report represents.  Rather, I just want to stress that there is still a WHOLE lot more reform work needing to get done.  (There is also a whole lot more work needed to be done in analyzing this report, which I hope to be able to do in some subsequent posts.)

August 31, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, FIRST STEP Act and its implementation | Permalink | Comments (0)

Friday, August 07, 2020

Effective review of messiness of federal compassionate releases amidst COVID

BuzzFeed News has this great lengthy new piece on the messy realities of federal compassionate release realities during the pandemic. The full headline of the piece, which I recommend in full, provides a summary: "'I Had Hit The Lottery': Inmates Desperate To Get Out Of Prisons Hit Hard By The Coronavirus Are Racing To Court: With little legal precedent for a global pandemic, judges are deciding on a case-by-case basis how to weigh the risks of COVID-19 in prisons."  Here is an excerpt:

A BuzzFeed News review of more than 50 cases filed in the federal district court in DC showed that with little precedent for a flood of release requests during a pandemic, decisions about who gets out of prison and who does not can appear arbitrary. Prisoner advocates and defense lawyers say these cases can come down to the luck of the draw, with some judges proving to be more sympathetic than others.

Judges are making medical assessments about how much of a threat COVID-19 poses to an individual inmate and then deciding how to balance that against the public safety risk of sending that person back into the community; inmates are usually released to home confinement or under the supervision of a probation officer. And judges are reaching different conclusions about how to measure an inmate’s risk of exposure in state and federal prisons, which have seen some of the worst clusters of COVID-19 cases nationwide.

Boykin is one of more than 800 inmates who have been granted compassionate release by a federal judge since March, according to data from the Federal Bureau of Prisons. Another 7,000 federal inmates have been released by the BOP to home confinement in the same period, after Attorney General Bill Barr directed the bureau to prioritize using its own release power for eligible inmates to minimize the spread of COVID-19. More than 150,000 federal inmates remain incarcerated.

Thousands of inmates are still exploring options to get out. Families Against Mandatory Minimums, just one of the groups that connect inmates with pro bono legal assistance, has fielded more than 3,000 requests for help since the start of the pandemic. They’ve been able to match approximately 1,200 inmates and family members with lawyers.

“We were hoping ... that judges would not want to be a party to this ongoing, slow massacre in the prisons. And they’re not, and that’s good,” said FAMM President Kevin Ring. However, he said, when it comes to how judges are analyzing release requests, “it’s not consistent across jurisdictions — there are some judges who have been stricter and some who have been more lenient.”

August 7, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, August 01, 2020

Noticing problems with crack sentence reduction retroactivity, especially when certain judges are discretionarily disinclined

The New York Times has this effective new article highlighting the ugly underbelly of the FRIST STEP Act's efforts to make sure the Fair Sentencing Act's reduction of crack sentences was fully retroactive.  The headline and subheadline of the piece serves as a summary: "Law to Reduce Crack Cocaine Sentences Leaves Some Imprisoned: Critics say the First Step Act is being applied too arbitrarily by judges who are taking a hard line when it comes to revisiting nonviolent drug sentences."  Here are excerpts from a piece worth reading in full:

By and large, the First Step Act has met its goal of reducing federal sentences for nonviolent drug offenders, addressing a longstanding disparity in which crack cocaine convictions in particular led to far harsher penalties than other drug offenses and disproportionately increased imprisonment of Black men.

Thousands of inmates across the country, predominantly people of color, have been released or resentenced under a provision of the new law that allowed changes to the sentencing provisions to be applied retroactively.  As of January, 2,387 inmates had their sentences reduced under the provision that allows some crack cocaine offenders to be resentenced, out of 2,660 that the United States Sentencing Commission estimated in May 2018 were eligible.

But the law gives judges discretion in reducing sentences, leaving some inmates like Mr. Maxwell without much recourse when their applications are rejected. In those cases, activists and defense lawyers worry that the First Step Act gives too much authority to judges to determine who does and does not deserve early release.  “It’s like the luck of the draw,” said Sarah Ryan, a professor at Wesleyan University who has analyzed hundreds of First Step Act resentencing cases.  “You’ve got people sitting in prison during a pandemic, and it’s not supposed to come down to who your judge is.  It’s supposed to come down to the law.”

The simple enactment of the bill was no guarantee for inmates.  This provision of the bill did not mandate that the judges must resentence eligible offenders; Congress specified that “nothing in this section shall be construed to require a court to reduce any sentence.”...

The section of the act that governs resentencing for crack cocaine convictions is just four sentences long.  It made retroactive the 2010 Fair Sentencing Act, which reduced sentencing disparities between crack and powder cocaine.  Courts have been relatively slow to determine some of the ambiguities of the act, including whether to consider behavior behind bars or other concurrent charges as factors in the decision.

Many public defenders — who handle most of these applications — in the toughest districts declined to speak on the record for fear of upsetting the judges who oversee their cases. Parks Small, a federal public defender in Columbia, S.C., said an imperfect First Step Act was still better than nothing, calling the bill a “godsend” for many inmates.  He added that judges varied as to the importance they placed on the original offense or the inmate’s behavior behind bars.  “You give it to different judges, they’re going to come up with different opinions,” Mr. Small said.  “It’s frustrating.”

August 1, 2020 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, July 21, 2020

"Open Risk Assessment"

The title of this post is the title of this recent paper authored by Brandon Garrett and Megan Stevenson. Here is its abstract:

As criminal justice actors increasingly seek to rely on more evidence-informed practices, including risk assessment instruments, they often lack adequate information about the evidence that informed the development of the practice or the tool.  Open science practices, including making scientific research and data accessible and public, have not typically been followed in the development of tools designed for law enforcement, judges, probation, and others.  This is in contrast to other government agencies, which often open their processes to public notice and comment.

Lack of transparency has become pressing in the area of risk assessment, as entire judicial systems have adopted some type of risk assessment scheme.  While the types of information used in a risk tool may be made public, often the underlying methods, validation data, and studies are not.  Nor are the assumptions behind how a level of risk gets categorized as “high” or “low.”  We discuss why those concerns are relevant and important to the new risk assessment tool now being used in federal prisons, as part of the First Step Act.  We conclude that a number of key assumptions and policy choices made in the design of that tool are not verifiable or are inadequately supported, including the choice of risk thresholds and the validation data itself.  Unfortunately, as a result, the federal risk assessment effort has not been the hoped-for model for open risk assessment.

July 21, 2020 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, July 19, 2020

Back by popular demand, another VERY long list of federal sentence reductions using § 3582(c)(1)(A)

It has now been a full two wees since I set out this holiday weekend listing of new grants of federal sentence reductions using § 3582(c)(1)(A).  The delay in producing a new list is not because of a lack of grants.  In fact, the updated numbers on this BOP page on the FIRST STEP Act suggests that roughly 70 sentence reductions are being granted by federal district courts each week: BOP reported 706 grants of "Compassionate Releases / Reduction in Sentences" three weeks ago, then reported 774 total grants as of two weeks ago, and it now reports 916 total grants. 

Only a portion of these sentence reduction grants end up on Westlaw, but I have heard from a number of readers that my listings are still appreciated.  So, without further ado, I am pleased to highlight dozens and dozens of additional recent grants here.  Because it has been two weeks since my last list, this one will be quite lengthy:

United States v. Grant, No. 16-30021-001, 2020 WL 4036382 (CD Ill. July 17, 2020)

United States v. Burton, No. 18-cr-00094-JSW-1, 2020 WL 4035067 (ND Cal. July 17, 2020)

United States v. Hendry, No. 2:19-cr-14035-ROSENBERG, 2020 WL 4015487 (SD Fla. July 16, 2020)

United States v. Watkins, No. 15-20333, 2020 WL 4016097  (ED Mich. July 16, 2020) 

United States v. Mabry, No. 14 CR 116-1, 2020 WL 4015315 (ND Ill. July 16, 2020)

 

United States v. Kirschner, No. 1:10-cr-00203-JPH-MJD, 2020 WL 4004059 (SD Ind. July 15, 2020)

United States v. Burt, No. 90-80492, 2020 WL 4001906 (ED Mich. July 15, 2020)

United States v. Calimer, No. DKC 02-0177, 2020 WL 4003288 (D Md. July 15, 2020)

United States v. Arceo, No. 5:09-cr-00616-EJD-1, 2020 WL 4001339 (ND Cal. July 15, 2020)

United States v. England, No.CR 18-61-GF-BMM, 2020 WL 4004477 (D Mont. July 15, 2020)

 

United States v. Mines, No. 4:18-cr-00552, 2020 WL 4003048 (ND Oh. July 15, 2020)

United States v. Edwards, No. 5:15-cr-00339, 2020 WL 4003050 (ND Oh. July 15, 2020)

United States v. Fluellen, No. 1:15-cr-00435, 2020 WL 4003039 (ND Oh. July 15, 2020)

United States v. Neal, No. 5:15-cr-00339, 2020 WL 4003049 (ND Oh. July 15, 2020)

United States v. Berry, No. 09-CR-90-JPS, 2020 WL 4001932 (ED Wisc. July 15, 2020)

 

United States v. Hayes, No. 17-20292, 2020 WL 4001903 (ED Mich. July 15, 2020)

United States v. Anello, No. 2:12-cr-00131-RAJ, 2020 WL 3971399 (WD Wash. July 14, 2020)

United States v. Torres, No. 19-cr-20342-BLOOM, 2020 WL 4019038 (SD Fla. July 14, 2020)

United States v. Collins, No. 15-10188-EFM, 2020 WL 3971391 (D Kan. July 14, 2020)

United States v. Evans, No. 18-cr-00308-WHO-1, 2020 WL 3971620 (ND Cal. July 14, 2020)

 

United States v. Mitchell, No. 4:13-cr-20468, 2020 WL 3972656 (ED Mich. July 14, 2020)

United States v. Pompey, No. CR 97-0638 RB, 2020 WL 3972735 (D N.M. July 14, 2020)

United States v. Amaro, No. 16 Cr. 848 (KPF), 2020 WL 3975486 (SDNY July 14, 2020)

United States v. Furlow, No. 2:06-CR-20020-01, 2020 WL 3967719 (WD La. July 13, 2020)

United States v. Fletcher, No. TDC-05-0179-01, 2020 WL 3972142 (D Md. July 13, 2020)

 

United States v. Fortson, No. 1:18-cr-00063-TWP-MJD, 2020 WL 3963729 (SD Ind. July 13, 2020)

United States v. Osborne, No. 1:07CR00019-002, 2020 WL 3958500 (WD Va. July 13, 2020)

United States v. Reed, No. 09-160 (PAM), 2020 WL 3960251 (D Minn. July 13, 2020)

United States v. Barajas, No. 18-CR-736-04 (NSR), 2020 WL 3976991 (SDNY July 13, 2020)

United States v. White, No. CCB-09-369, 2020 WL 3960830 (D Md. July 10, 2020)

 

United States v. Leal, No. 12-20021-05-KHV, 2020 WL 3892976 (D Kan. July 10, 2020)

United States v. Van Praagh, No. 1:14-cr-00189-PAC-1, 2020 WL 3892502 (SDNY July 10, 2020)

United States v. Hernandez, No. 10-CR-1288-LTS, 2020 WL 3893513 (SDNY July 10, 2020)

United States v. Collins, No. 10-cr-00963-1, 2020 WL 3892985 (ND Ill. July 10, 2020)

United States v. Smith, No. 04-CR-2002-CJW-MAR, 2020 WL 3913482 (ND Iowa July 10, 2020)

 

United States v. Paz, No. 92-172, 2020 WL 3958481 (D N.J. July 10, 2020)

United States v. Spencer, No. 04 Cr. 1156 (PAE), 2020 WL 3893610 (SDNY July 10, 2020)

United States v. Jones, No. 13-cr-577-2, 2020 WL 3892960 (ED Pa. July 9, 2020)

United States v. Croft, No. 95-496-1, 2020 WL 3871313 (ED Pa. July 9, 2020)

United States v. Gonzalez Quiroz, No. 18-CR-4517 (DMS), 2020 WL 3868751 (SD Cal. July 9, 2020)

 

United States v. Crawford, No. 2:18-cr-00075-3, 2020 WL 3869480 (SD Oh. July 8, 2020)

United States v. Davis, No. 3:10-cr-99 (SRU), 2020 WL 3843682 (D Conn. July 8, 2020)

United States v. Grubbs, No. CR16-228 TSZ, 2020 WL 3839619 (WD Wash. July 8, 2020)

United States v. Devine, No. 3:17cr228 (JBA), 2020 WL 3843716 (D Conn. July 8, 2020)

United States v. Gutierrez, No. 98-279(8) (JRT/AJB), 2020 WL 3839831 (D Minn. July 8, 2020)

 

United States v. Steffey, No. 2:12-cr-0083-APG-GWF, 2020 WL 3840558 (D Nev. July 8, 2020)

United States v. Jelinek, No. 15-20312, 2020 WL 3833125 (ED Mich. July 8, 2020)

United States v. Barnes, No. 3:13-CR-117-TAV-HBG-1, 2020 WL 3791972 (ED Tenn. July 7, 2020)

United States v. Erickson, No. 18-245(3) (DWF/HB), 2020 WL 3802823 (D Minn. July 7, 2020)

United States v. McRae, No. PJM 10-0127, 2020 WL 3791983 (D Md. July 7, 2020)

 

United States v. Mueller, No. 2:08-cr-00139-AB-1, 2020 WL 3791548 (ED Pa. July 7, 2020)

United States v. Bradley, No. 2:14-CR-00293-KJM, 2020 WL 3802794 (ED Cal. July 7, 2020)

United States v. Reyes-De La Rosa, No. 5:18-CR-55, 2020 WL 3799523 (SD Tex. July 7, 2020)

United States v. Mishler, No. 19-cr-00105-RS-2, 2020 WL 3791590 (ND Cal. July 7, 2020)

United States v. Tate, No. 17-cr-30037, 2020 WL 3791467 (CD Ill. July 7, 2020)

 

United States v. Ramsey, No. 18-CR-163, 2020 WL 3798938 (ED Wisc. July 7, 2020)

United States v. Hayes, No. 09 CR 1032, 2020 WL 3790615 (ND Ill. July 7, 2020)

United States v. Adeyemi, No. 06-124, 2020 WL 3642478 (ED Pa. July 6, 2020)

United States v. Adams, No. 3:04-CR-30029-NJR, 2020 WL 3639903 (SD Ill. July 6, 2020)

United States v. Bennett, No. 15-260(10) (PAM/TNL), 2020 WL 3638696 (D Minn. July 6, 2020)

 

Some of many prior recent related posts on CR grants:

July 19, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, July 15, 2020

An ever-timely offer for compassionate release help from one who was recently released

I suspect a number of readers know the name Chad Marks, perhaps from these prior recent posts about his case:

As the second of this posts details, Chad secured a significant sentence reduction this year, allowing him to leave prison last month.  My understanding that Chad quite selflessly helped a number of his fellow prisoners with legal claims and filings while he was incarcerated, and I saw from this new Facebook posting that he is eager to continue to do so:

With COVID-19 ramping back up in our prison system if you and your loved ones need help with preparing a 3582 motion, or if you need help with a 2255 contact me at www.myfreedomfighters.com

Posted by Chad Marks on Wednesday, July 15, 2020

Because I get a lot of inquiries about getting help with compassionate release motions, I wanted to here be able to share this important and insightful human resource.  Chad welcomed my suggestion of posting his Facebook offer, and I am grateful he has.

July 15, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Tuesday, July 07, 2020

Highlighting just one way that, even after the FIRST STEP Act, "Justice Still Eludes Crack Offenders"

Sarah E. Ryan has this notable new Crime Report commentary headlined simply "Why Justice Still Eludes Crack Offenders." I recommend the whole piece, and here are excerpts:

In early 2007, Carl Smith sold 1.69 grams of crack, less than half a teaspoon.  He also sold a teaspoon of powder cocaine.  A New Hampshire federal judge sentenced him to seventeen-and-a-half years imprisonment, the lowest end of the sentencing guidelines recommendation.

Last spring, Smith sought a sentence reduction under the First Step Act.  The district court denied the request because he was convicted under a statutory subsection unaffected by the new law. In essence, he had sold too little crack to go free.  According to an early 2020 analysis by the U.S. Sentencing Commission, the New Hampshire district courts granted just four sentence reductions under the First Step Act.  The district of Rhode Island granted four times more reductions; the district of Connecticut granted five times as many.

Nationally, the average sentence reduction was 71 months.  As a result, many defendants had served their time and could be released from incarceration.  But not Carl Smith. He remained locked up during a pandemic.  He appealed, arguing that the First Step Act covered his conviction.

After analyzing more than 500 First Step Act cases, including 90 relevant circuit court opinions, I know two things: this area of law remains in disarray and the circuit courts have largely dodged the tough issues.  They remain complicit in a decades-old mass incarceration scheme.

The now-familiar history of the crack laws omits one key fact: Congress knew early on that the drug laws were disproportionately affecting Black defendants.... In 1995, the Sentencing Commission told Congress that Black defendants accounted for nearly 90 percent of crack cocaine convictions and that most of their customers were white.  In 1996, the Bureau of Justice Statistics (BJS) reported the changing nature of the federal prison population using bold-faced sub-headers such as: “An increasing percentage of the Nation’s prisoners are black or Hispanic.”  In 1999, the BJS reported that the length of federal prison sentences had increased 40 percent. 

By the mid-1990s, lawmakers understood that dealers like Carl Smith were serving prison terms usually reserved for second-degree murder, or intentional murder demonstrating an extreme indifference to human life.  Yet Congress provided no relief, for decades.

In 2010, Congress raised the quantity necessary for future statutory minimum sentences in the Fair Sentencing Act; the law did not help defendants sentenced at the height of the drug war.  A few thousand people remained incarcerated under the old crack laws.  Their only hope was an historic reform amounting to an admission of Congressional guilt. The First Step Act was that law.  A bipartisan coalition heralded the First Step Act as the end of the draconian drug laws.  The Act gave sitting judges the authority to reopen the old crack cases and impose more appropriate sentences.... The intent of the law was clear, but some judges wavered.

There are two plausible ways to read the resentencing section — section 404 — of the First Step Act: as a small fix to the Fair Sentencing Act of 2010 or a broad mandate to rectify thousands of unjust sentences.  The broad reading is historically, legally and morally correct.  But hundreds of hearings in, the nation’s district courts remain divided on the law’s most basic tenets, like which defendants can be resentenced or what Section 404 empowers judges to do.

Some judges apply Section 404 narrowly.  A subset dismiss cases involving too little or too much crack without a review of the other facts.  Still others review all cases implicating a Fair Sentencing Act statute, but only to perform a new mathematical calculation.  They do not consider a defendant’s post-sentencing conduct or intervening changes in the law, even favorable state and federal supreme court rulings.  Their narrow interpretations of the law unnecessarily depress the length of sentence reductions.

Other judges construe Section 404 broadly.  They view the First Step Act as a gateway to relief.  Some find that they can revisit the sentences of small-time dealers or inmates serving hybrid sentences for interconnected drug and weapons crimes.  Some believe that they may consider a defendant’s good conduct, prison coursework and recent high court rulings.  Broad-view judges find that Congress empowered them to mitigate the damage of the old crack laws.  Their proof? The text of the law, including the word “impose” as a mandate to issue an independent sentence — and the testimony of a dozen or more senators, of both parties, characterizing the First Step Act as redress for the old drug laws.

Recently, the First Circuit adopted a broad view in Carl Smith’s case [opinion here]. That appellate opinion is reason for hope that the circuit courts will raze the remains of the old crack laws.  This summer, the appellate courts should adopt a broad reading of the First Step Act.  That reading should require sitting judges to issue meaningful sentence reductions, including ‘timed served’ in many cases.

And, it should hold sitting judges accountable for the continued incarceration of non-violent drug dealers who have served a decade or more.  Amidst global protests for freedom, liberation and justice for Black citizens, and a raging pandemic, the courts must fully enact the First Step Act as Congress intended.

I am pleased to see this new commentary calling out lower courts for not giving full effect to remedial aspects of the FIRST STEP Act.  But this analysis should not leave out the problematic role of the Justice Department.  I surmise that DOJ has consistently argued for narrow and limiting approaches to the application of Section 404.  Decades ago, DOJ could reasonably contended that its arguments for severe application of federal sentencing laws were consistent with congressional intent.  Now, DOJ arguments for severe application of federal sentencing laws often clearly fly in the face of congressional intent.

July 7, 2020 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, July 05, 2020

Celebrating freedom with another long list of federal sentence reductions using § 3582(c)(1)(A)

After a holiday weekend all about celebrating freedom in this great country, I am excited to provide another listings of new grants of federal sentence reductions using § 3582(c)(1)(A).  These lists represent a special kind of freedom for federal prisoners and those that care about them, and I am pleased to have nearly three dozen recent grants to report here:

United States v. Johnson, No. CR H-96-176, 2020 WL 3618682 (SD Tex. July 2, 2020)

United States v. Young, No. 14-CR-30024-2, 2020 WL 3605025 (CD Ill. July 2, 2020)

United States v. Browne, No. CR 14-10369-LTS, 2020 WL 3618689 (D Mass. July 2, 2020)

United States v. Tubbs-Smith, No. CR 18-20310, 2020 WL 3618511 (ED Mich. July 2, 2020)

United States v. McCalla, No. CR 11-452 (FLW), 2020 WL 3604120  (D N.J. July 2, 2020) 

 

United States v. Hanson, No. 6:13-CR-00378-AA-1, 2020 WL 3605845 (D Ore. July 2, 2020)

United States v. Fitch, No. 2:04-CR-262 JCM (PAL), 2020 WL 3620067 (D Nev. July 2, 2020)

United States v. Chargualaf, No. CR 95-00054, 2020 WL 3619007 (D Guam July 2, 2020)

United States v. Plank, No. 17-20026-JWL, 2020 WL 3618858 (D Kan. July 2, 2020)

United States v. Seals, No. CR 13-00653 SOM (11), 2020 WL 3578289 (D Haw. July 1, 2020)

 

United States v. Nealy, No. 3:12-CR-154(RNC)2, 2020 WL 3577299 (D Conn. July 1, 2020)

United States v. Heyward, No. 17-CR-527-PWG, 2020 WL 3547018 (D Md. June 30, 2020)

United States v. Burnett, No. 06-CR-00034-PB-2, 2020 WL 3545159 (D N.H. June 30, 2020)

United States v.Tillman, No. 12-CR-2024-CJW-MAR, 2020 WL 3578374 (ND Iowa June 30, 2020)

United States v. Garcia, No. CR 13-00884 HG-01, 2020 WL 3547933 (D Haw. June 30, 2020)

 

United States v. Gakhal, No. 15 CR 470-1, 2020 WL 3529904 (ND Ill. June 30, 2020)

United States v. Rachal, No. CR 16-10043-NMG, 2020 WL 3545473 (D Mass. June 30, 2020)

United States v. Pina, No. 18-CR-179 (JSR), 2020 WL 3545514 (SDNY June 29, 2020)

United States v. Harris, No. 06-CR-30058, 2020 WL 3483559 (CD Ill. June 26, 2020)

Woodard v. United States, No. 2:12-CR-105, 2020 WL 3528413 (ED Va. June 26, 2020)

 

United States v. Yellin, No. 3:15-CR-3181-BTM-1, 2020 WL 3488738 (SD Cal. June 26, 2020)

Cotton v. United States, No. CR 16-20222-8, 2020 WL 3488752 (ED Mich. June 26, 2020)

United States v. Shannon, No. 13 CR 535, 2020 WL 3489491 (ND Ill. June 26, 2020)

United States v. Arango, No. 15-CR-104 (JMF), 2020 WL 3488909 (SDNY June 26, 2020)

United States v. Champagne, No. 4:97-CR-089, 2020 WL 3472911 (D N.D. June 25, 2020)

 

United States v. Thompson, No. 92-30065-001, 2020 WL 3470300 (CD Ill. June 25, 2020)

United States v. Danson, No. CR 10-0051 (PLF), 2020 WL 3467887 (D D.C. June 25, 2020)

United States v. Gaitan, No. 18-CR-4662-BAS-1, 2020 WL 3469395 (SD Cal. June 25, 2020)

United States v. Fabris, No. 17-CR-00386-VC-2, 2020 WL 3481708 (ND Cal. June 25, 2020)

United States v. Ollie, No. CR 1:12-09, 2020 WL 3469754 (WD Pa. June 24, 2020)

 

United States v. Schaffer, No. 13-cr-00220-MMC-1, 2020 WL 3481562 (ND Cal. June 24, 2020)

United States v. Arroyo, No. EP-6-CR-479-PRM-1, 2020 WL 3512964 (WD Tex. June 24, 2020)

As I have mentioned repeatedly, some rulings do not appear on Westlaw right away and others do not show up at all.  Indeed, this BOP page on the FIRST STEP Act has updated its reporting of total grants of "Compassionate Releases / Reduction in Sentences," and it now reports 774 grants when last week the page reported 706 grants.  These data continue to confirm my sense that less than half of all the granted motions end up on Westlaw.

One final note: though there surely are lots of fascinating stories within all these grants, I was especially intrigued to see the name  David Kent Fitch as a grant recipient.  That name is familiar to me because I previously blogged about Mr. Fitch's case when he was sentenced to an extra 15+ years of federal imprisonment after a district judge decided at sentencing that he committed a murder for which was never charged. (The details are discussed in these prior posts: Punished (twice?!?) for an uncharged murder in federal court and Split Ninth Circuit affirms huge upward departure based on uncharged murder.)  

Some of many prior recent related posts on CR grants:

July 5, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, June 30, 2020

"Judicial Authority under the First Step Act What Congress Conferred through Section 404"

The title of this post is the title of this notable new article authored by Sarah Ryan now available via SSRN. Here is its abstract:

The First Step Act of 2018 promised relief to inmates serving disproportionately long sentences for cocaine base distribution. Section 404, the focus of this article, seemed straight-forward.  But in the spring and summer of 2019, district judges began reviewing § 404 cases and reaching dissonant results.  Appeals followed, focused on four questions of judicial authority: (1) Who may judges resentence?; (2) May judges engage in plenary resentencing or merely sentence reduction?; (3) May judges resentence all concurrent criminal convictions or only crack cocaine convictions?; and (4) Must judges adopt the operative drug quantity from the original sentencing?

Today, the law of § 404 remains incomplete in every circuit.  This article reviews the legislative history, text, and legal context of § 404.  It finds that Congress intended broad judicial authority in § 404 resentencings.

June 30, 2020 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, June 17, 2020

Though only mid-week, another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

I hope readers are not yet getting bored of my listing of COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A).  I have recently made a habit of assembling these lists on the weekends (see recent examples here and here).  But last week I put together this post with more than two dozen grants on a Friday because there were so many new sentence reductions being reported on Westlaw.  And, as this trend continues, I now felt a need to do a mid-week review of recent grants recently appearing on Westlaw.  So:

United States v. Lynn, No. 89-0072-WS, 2020 WL 3229302 (SD Ala. June 15, 2020)

United States v. Liew, No. 11-cr-00573-JSW-1, 2020 WL 3246331 (ND Cal. June 15, 2020)

United States v. Miller, No. 3:15-cr-132-2 (VLB), 2020 WL 3187348 (D Conn. June 15, 2020)

United States v. Head, No. 2:08-cr-00093-KJM-2, 2020 WL 3180149 (ED Cal. June 15, 2020)

United States v. Rivera, No. 3:13-cr-71-1 (VLB), 2020 WL 3186539 (D Conn. June 15, 2020)

 

United States v. Acevedo, No. 18 CR. 365 (LGS), 2020 WL 3182770 (SDNY June 15, 2020)

United States v. Lavy, No. 17-20033-JAR, 2020 WL 3218110 (D Kan. June 15, 2020)

United States v. Patel, No. 3:17cr164 (JBA), 2020 WL 3187980 (D Conn. June 15, 2020)

Segars v. United States, No. 16-20222-3, 2020 WL 3172734 (ED Mich. June 15, 2020)

United States v. Madrigal, No. 5:18-cr-00356-EJD-3, 2020 WL 3188268 (ND Cal. June 15, 2020)

 

United States v. Knox, No. 2:16-cr-00116-MHH-JHE-3, 2020 WL 3207799 (ND Ala. June 15, 2020)

United States v. Reed, No. 12-CR-161 YGR, 2020 WL 3128904 (ND Cal. June 13, 2020)

United States v. Bikundi, No. 14-30-2 (BAH), 2020 WL 3129018 (D D.C. June 12, 2020)

United States v. White, No. 2:17-cr-00198-4, 2020 WL 3244122 (SD W. Va. June 12, 2020)

United States v. Heitman, No. 3:95-CR-0160(4)-G, 2020 WL 3163188 (ND Tex. June 12, 2020)

 

United States v. Fields, No. 2:05-CR-20014-02, 2020 WL 3129056 (WD La. June 11, 2020)

United States v. Halliburton, No. 17-cr-20028, 2020 WL 3100089 (CD Ill.  June 11, 2020)

United States v. DeBartolo, No. 14-016 WES, 2020 WL 3105032 (D R.I. June 11, 2020)

As I have mentioned repeatedly, some rulings do not appear on Westlaw right away and others do not show up at all.  As of this writing (mid-afternoon of June 17), this BOP page on the FIRST STEP Act is reporting 650 total grants of "Compassionate Releases / Reduction in Sentences."  The same BOP page reported less than 150 such grants before the COVID era began, so I think we can now confident state that there have been over 500 federal sentence reductions grants in the just the last three months.  Some of those grants are detailed in some of the posts below, and I am hopeful the US Sentencing Commission or someone else "official" might have a truly comprehensive report on these matters before too long.

Prior recent related posts since lockdowns:

June 17, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, June 09, 2020

Big new Heritage report takes stock of DOJ's risk and needs assessment system resulting from FIRST STEP Act

The Heritage Foundation has this week released this new 30-page report authored by Charles Stimson that takes a close look at the risk and needs assessment system created by the Justice Department as required by the FIRST STEP Act.  The title of the report captures its basic theme: "The First Step Act’s Risk and Needs Assessment Program: A Work in Progress."  Here is a summary from this Heritage webpage:

The First Step Act is a significant achievement. It was a rare moment in time when a bipartisan congressional delegation and an Administration supported meaningful and comprehensive criminal justice reform. Stakeholders from across the ideological spectrum came together to get behind much-needed legislation. A key pillar to that reform ultimately succeeding is the creation and implementation of a 21st-century risk and needs assessment system. To date, the Department of Justice has risen to part of the challenge by publishing PATTERN, its risk assessment tool. No doubt, PATTERN will continue to be refined, as any modern risk assessment program is only as good as the latest science and research.

And here is the conclusion of the full report:

The First Step Act is a significant achievement.  It was a rare moment in time when a bipartisan congressional delegation and an Administration supported meaningful and comprehensive criminal justice reform.  Stakeholders from across the ideological spectrum came together to get behind much-needed legislation.

A key pillar to that reform ultimately succeeding is the creation and implementation of a 21st-century risk and needs assessment system.  To date, the DOJ has risen to part of the challenge by publishing PATTERN, its risk-assessment tool.  In short order, it refined PATTERN after taking into consideration a wide variety of viewpoints.  No doubt, PATTERN will continue to be refined, as any modern risk-assessment program is only as good as the latest science and research.

With respect to developing a new and improved needs-assessment program under PATTERN, the DOJ has so far fallen short, but has acknowledged an ambitious time frame in which to publish that program.

As PATTERN matures, and more data becomes available, we will be able to ascertain how accurate PATTERN is in predicting recidivism and whether, in its application, it proves to be both race and gender neutral and an effective tool.  The DOJ should continue to be prudent in studying the data as it accrues and considering a wide variety of feedback on PATTERN, and should base future decisions based on fact and the best science available, not political considerations or outcome-based desires.

June 9, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, May 27, 2020

Council on Criminal Justice releases big new reform report titled "Next Steps: An Agenda for Federal Action on Safety and Justice"

I noted in this post this last summer the notable new group working toward criminal justice reform called the Council on Criminal Justice (CCJ).  I flagged here the CCJ's great set of papers and resources taking a close look at the 1994 Crime Bill (which I had a chance to contribute to as noted here); I also flagged here from December a big CCJ report on "Trends in Correctional Control by Race and Sex."  Today, I am excited to see and report on the CCJ's latest (and arguably most important) work, this big new report titled "Next Steps: An Agenda for Federal Action on Safety and Justice."  This press release provides a useful summary of the report and its major recommendations:

Well before COVID-19 surfaced, the Council on Criminal Justice (CCJ) established an independent task force to chart a course for federal action on criminal justice reform.  The pandemic has underscored the urgency of that effort, and today the Task Force on Federal Priorities released a report detailing 15 achievable, evidence-based proposals for change.  If fully implemented, key recommendations would:

  • Eliminate mandatory minimum sentences for federal drug crimes, reducing the prison population
  • Establish a “second look” provision allowing people serving longer sentences -– many of them elderly and infirm –- to ask courts for a sentence reduction
  • Help formerly incarcerated people succeed by sealing certain criminal records from public view
  • Create independent oversight of the federal prison system to improve conditions for incarcerated people and staff, strengthen reentry planning and other services, and hold employees accountable for misconduct
  • Resolve the federal-state conflict over recreational and medical cannabis by providing federal waivers to states that have legalized it
  • Dedicate millions of grant dollars to reducing victimization and trauma in cities most affected by violence...

The 14-member Task Force was established in June of 2019 to build on federal reforms adopted under the FIRST STEP Act, which passed with strong bipartisan support at the end of 2018.  While crime and incarceration rates have dropped, there is broad agreement across the political spectrum that more must be done to make communities safe and guarantee justice — not just by states and localities, where most criminal justice happens, but also by the federal government, which runs the country’s largest correctional system and helps set the tone of the national conversation.

Through their vigorous deliberations, Task Force members zeroed in on reforms that not only target critical needs, but also are politically viable and hold the potential to make the greatest improvements in safety and the administration of justice. Reflecting the commitment of Task Force members to bipartisan, data-driven solutions, all 15 proposals are accompanied by a policy rationale, detailed implementation steps, and a summary of the research and evidence that support them.

Task Force members represent a broad cross-section of stakeholders: former federal prosecutors and defenders; a former mayor and a veteran police leader; experts in prisoner reentry, substance use, and victim rights; and advocates and formerly incarcerated people. Task Forces are strictly independent of CCJ and solely responsible for the content of their reports.  Members are asked to join a consensus signifying that they endorse the general policy thrust and judgments reached by the group, though not necessarily every finding and recommendation.

Regular readers will not be surprised to hear that I am a big fan of a lot of these recommendations, and I actually like this full list of all 15 recommendations even more than those summarized in the press release. In a few subsequent posts, I hope to give particular attention and scrutiny to the various key sentencing recommendations.  For now I will be content to say, good work CCJ!

May 27, 2020 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Offense Characteristics, Recommended reading, Who Sentences | Permalink | Comments (2)

Tuesday, May 26, 2020

"Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out"

The title of this post is the headline of this significant new ProPublica piece discussing yet another ugly example of how the Department of Justice acts more like a Department of Incarceration.  I recommend the piece in full, and here are excerpts:

Even as the Justice Department announced that federal prisons would release vulnerable, nonviolent inmates to home confinement to avoid the spread of COVID-19, the agency was quietly adopting a policy that makes it harder for inmates to qualify for release, not easier. The result has been that more than 98% of inmates remain in federal custody, while a handful of celebrity inmates, like former Trump campaign chair Paul Manafort, have been released to home detention.

In two memos, one in late March and a second in early April, Attorney General William Barr directed the Federal Bureau of Prisons, which is part of the Justice Department, to begin identifying inmates who could safely be released to home confinement — essentially house arrest. They instructed prison officials to grant “priority treatment” to inmates deemed to present minimal risk to the public.

Separately, however, the Bureau of Prisons had drafted a 20-page policy document this year that altered a standard adopted only a year ago and made it harder for an inmate to qualify as minimum risk.

ProPublica obtained a copy of the document, which does not appear to have been finalized, and its existence surprised and baffled lawyers, prison reform advocates and inmates interviewed for this article....

The Bureau of Prisons’ reliance on the unpublished policy document has exacerbated widespread puzzlement about how the agency is implementing Barr’s home-confinement order. “There’s been nothing but confusion,” David Patton, the chief federal public defender for the New York City area, said. “We’ve received a steady stream of questions from clients about their scores, and we have no answers, because BOP doesn’t give us any.”

Fewer prisoners have been released than was expected when the attorney general made his announcement, lawyers say. About 3,050 inmates have been moved to home confinement as of May 21, Bureau of Prisons records show. That’s around 1.8% of the people under the bureau’s supervision. That figure is significantly smaller than the roughly 20% of inmates who fall into the minimum risk category (though it’s not automatic that all of them would qualify for release) under the 2019 rules.

The slow pace of prisoner releases has begun to attract attention. On May 19, a federal judge accused officials at the Elkton Federal Correctional Institution in Ohio — the site of a deadly coronavirus outbreak cited by Barr in his order — of moving too slowly to release inmates and “thumbing their noses” at Barr’s directive. He instructed them to expand the class of inmates eligible for home confinement by including inmates not only with minimum-risk scores, but also those said to have a low risk. The Justice Department has asked the Supreme Court to halt the order.

At the urging of Sens. Dick Durbin, D-Illinois, and Chuck Grassley, R-Iowa, who co-authored the First Step Act, the Justice Department’s inspector general has agreed to examine the scope of Barr’s directive as well as the Bureau of Prisons’ compliance with it and the agency’s overall response to the pandemic.

May 26, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Monday, May 18, 2020

Reviewing the emerging jurisprudence around FIRST STEP Act resentencings

Writing al Law360, Emma Cueto has this notable new piece headlined "With First Step, Courts Diverge In Filling In The Law's Gaps."  Here are excerpts:

More than a year after the passage of the First Step Act — which, among other things, made certain sentencing reforms retroactive — courts have continued to work out the procedural questions surrounding how the act should be applied and what judges must consider when resentencing federal offenders.  And some courts have come to very different conclusions, putting defendants on disparate footing depending on where they are based.

In the most recent case examining a First Step Act resentencing, the Sixth Circuit ruled on May 7 that defendants are entitled to appeal a judge's resentencing decisions based on reasonableness, though the courts reiterated a previous decision that trial courts are not required to give defendants a holistic, or what's known as a plenary, review.  The result was that the appellate court upheld the resentencing decision of Benjamin Foreman, who had been convicted of several drug-related crimes, even though it affirmed his right to appeal the sentence....

In the initial wake of the First Step Act, courts spent some time hashing out questions of who, precisely, was eligible to have their sentences recalculated.  With those questions largely resolved, courts have turned now to pinning down the details of what approach judges should take to resentencing under the new law, with different federal appellate courts coming to different conclusions.

The Fourth Circuit, in a case decided in April, issued a more defendant-friendly decision in USA v. Chambers, in which it concluded in a split decision that the trial court should have taken a broader view and could consider a wider-ranging set of factors, including the conduct of Brooks Chambers, who had been convicted of a drug offense, while incarcerated.

The court stopped short of requiring a plenary resentencing, which would give defendants additional rights, such as the right to an in-person hearing, and which Chambers did not explicitly request in the appeal. However, the decision did send a message that judges should consider a wide variety of factors in First Step Act cases, rather than focusing solely on a few select criteria....

At the other end of the spectrum, the Fifth Circuit ruled in 2019 that the First Step Act does not allow for a plenary resentencing. In that case, USA v. Hegwood, Michael Hegwood also objected to his designation as a career offender during resentencing, arguing that since his conviction in 2008, there had been changes to the law that meant he would not be a career offender if sentenced today.... The Fifth Circuit, however, disagreed, saying that when the court recalculates a sentence it should only make the changes specifically triggered by the First Step Act, and should not consider other changes to the law since the original sentence was imposed....

The difference in opinions between the circuit courts may eventually wind up before the U.S. Supreme Court, which is the final authority in deciding circuit splits.  In the meantime, however, defendants and their attorneys find themselves trying to make the most of the existing frameworks.

"To me, a lot of these doctrines don't matter so much as who your judge is," said Michael Holley, a federal public defender in Tennessee, which is part of the Sixth Circuit.... Some judges choose to consider a wide range of factors when recalculating a sentence, including post-sentencing behavior or changes in the law since the sentence was first imposed, which can result in larger reductions. Others choose to take a more narrow approach, keeping sentences from coming down as much.

May 18, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, May 17, 2020

Still more grants, so why not yet another listing of COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

In recent posts here and here and here and here and here and here and here and here more linked below, I have highlighted a number of the many, many COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).   I keep receiving positive feedback concerning these prior posts from various quarters, and so I will keep reporting on these kinds of rulings every time I discover a dozen or more.   

I have noticed that new ruling from the prior week often appear on Monday and Tuesday, so this list is likely just a partial accounting of recent grants of sentence reductions to show up on Westlaw this morning.  Still, I like to do a round up before the latest list of new grants of sentence reductions gets too long, and so here is a list based on rulings since my last posting from just last Wednesday: 

United States v. Brooks, No. 07-cr-20047-JES-DGB, 2020 WL 2509107 (CD Ill. May 15, 2020)

United States v. Gonzalez, No. 3:17-cr-00062 (JAM), 2020 WL 2511427 (D Conn. May 15, 2020)

United States v. Lopez, No. 18-CR-2846 MV, 2020 WL 2489746 (D N.M. May 14, 2020)

United States v. Mattingley, No. 6:15-cr-00005, 2020 WL 2499707 (WD Va. May 14, 2020)

United States v. Williams, No. 06 CR 451-10, 2020 WL 2494645 (ND Ill. May 14, 2020)

United States v. Ginsberg, No. 14 CR 462, 2020 WL 2494643 (ND Ill. May 14, 2020)

United States v. Handy, No. 3:10-cr-128-8 (RNC), 2020 WL 2487371 (D Conn. May 14, 2020)

United States v. Arey, No. 5:05-cr-00029, 2020 WL 2464796 (WD Va. May 13, 2020)

United States v. Kubinski, No. 3:93-CR-28-1H, 2020 WL 2475859 (ED N.C May 13, 2020)

United States v. Sedge, No. 16-cr-537(KAM), 2020 WL 2475071 (EDNY May 13, 2020)

United States v. Gutman, No. RDB-19-0069, 2020 WL 2467435 (D Md. May 13, 2020)

United States v. Cassidy, No. 17-CR-116S, 2020 WL 2465078 (WDNY May 13, 2020)

United States v. Scott, No. 95-202-CCB-2, 2020 WL 2467425 (D Md. May 13, 2020)

I have mentioned in a number of prior posts that I am confident that these Westlaw listings likely do not represent all sentence reductions being granted by federal courts these days. Proof of this reality comes via this new Law360 article headlined "Manafort's Release Helps Spring Ex-NFL Lineman From Prison." Here is the start of this article reporting on a ruling not (eyt?) on Westlaw:

Citing the compassionate release of former Donald Trump campaign chairman Paul Manafort, a federal judge said Friday that a former NFL lineman should be able to serve the rest of his prison sentence for a $2.5 million real estate fraud scheme in home confinement to protect him from COVID-19.

U.S. District Judge Mark L. Wolf's bench ruling puts Robert "Bubba" Pena in line to be released from Federal Medical Center, Devens, the central Massachusetts prison. Pena has argued his age, 70, and the fact he is black make him more likely to face serious complications if he contracted the virus.  Pena has pointed to research showing that black Americans are dying at a disproportionately high rate from the virus, likely due to underlying economic and health factors.

Prior recent related posts since lockdowns:

UPDATE: I mentioned above that new rulings from the prior week often seem to appear on Westlaw on Monday.  Sure enough, here are a few more grants I noticed as of Monday morning:

United States v. Pomante, No. 19-20316, 2020 WL 2513095 (ED Mich. May 15, 2020)

United States v. Sholler, No. 17-cr-00181-SI-1, 2020 WL 2512416 (ND Cal. May 15, 2020)

United States v. Young, No. 4:16-40036-TSH, 2020 WL 2514673 (D Mass. May 15, 2020)

United States v. Lee, No. 19-cr-00419-SI-1, 2020 WL 2512415 (ND Cal. May 15, 2020)

May 17, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, May 16, 2020

Sixth Circuit panel finds district judge gave insufficient justification for not reducing crack sentence after congressional reductions

A little opinion yesterday from a Sixth Circuit panel in US v. Smith, No. 19-5281 (6th Cir. May 15, 2020) (available here), has a lot of noteworthy elements.  For starters, the defendant appealed pro se and prevails. And he did so on a claim that the district court's failure to reduce his crack sentence following passage of the Fair Sentencing Act and FIRST STEP Act was problematic. Here is some of the backstory and the heart of the ruling from the panel opinion:  

In 2006, Smith pleaded guilty to conspiracy to distribute more than 50 grams of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 845, 851.  Because he had a prior felony drug conviction, he faced a mandatory-minimum sentence of 20 years of imprisonment, even though his advisory sentencing range under the United States Sentencing Guidelines would otherwise have been 168 to 210 months.  The district court sentenced him to the mandatory minimum: 240 months of imprisonment plus ten years of supervised release.

In 2018, Smith filed a letter with the district court asking for counsel to be appointed to review whether the First Step Act applied to his sentence.... The district court construed Smith’s letter as a motion seeking a sentence reduction under 18 U.S.C. § 3582(c).  The court determined that Smith was eligible for a reduction under § 3582(c) and the First Step Act, but declined to grant one.  United States v. Smith, No. CR 6:06- 021-DCR-1, 2019 WL 1028000 (E.D. Ky. Mar. 4, 2019).  Smith now appeals....

The district court acknowledged that under the current sentencing regime, Smith’s guideline range after applying the retroactive guidelines amendments would be 77 to 96 months of imprisonment and he would be subject to a 10-year mandatory-minimum sentence.  Smith, 2019 WL 1028000, at *3.  However, the district court denied Smith’s motion for a reduction, concluding that his original 20-year sentence remained appropriate....

The variance in this case is certainly a major one.  It is twice the maximum of the guideline range set by the statute, and two-and-a-half times what the guideline would otherwise be without the statutory minimum.  Moreover, the fact that Congress was the actor that reduced Smith’s guideline range through the passage of the First Step Act, rather than the Sentencing Commission, if anything increases rather than decreases the need to justify disagreement with the guideline....

The district court’s explanation for denying Smith’s motion for a reduction does not adequately explain why Smith should not receive at least some sentence reduction.  After reciting Smith’s criminal conduct that resulted in his 2006 conviction, the district court recalled that it had examined the § 3553(a)(2) sentencing factors and had explained why a sentence of 20 years’ imprisonment was appropriate during Smith’s original sentencing in March 2007.  Beyond relying on the court’s analysis at the original sentencing hearing, the court briefly discussed the nature and circumstances of Smith’s offense and the need to protect the public — two of the § 3553(a) factors.  The court pointed to the scale and harm of Smith’s criminal conduct and determined that Smith has a high risk for recidivism based on statistical information of people who, like Smith, have a significant criminal history.  However, these considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress.  See 28 U.S.C. § 991(b); Rita v. United States, 551 U.S. 338, 348–49 (2007).  This is especially true when the district court previously found the at-guideline range sentence to be appropriate.

Ultimately, the district court failed to provide a sufficiently compelling justification for maintaining a sentence that is now twice the guideline range set by Congress. We are confident on remand that the district court can determine whether, in its discretion, a sentence less than 20 years is appropriate after considering the § 3553(a) factors with reference to the purposes of the First Step Act and Fair Sentencing Act.

I am pleased to see that the Sixth Circuit panel was able to see problems with the ruling below without the help of counsel, but I find jarring and disturbing that the district judge here got this matter started by construing a letter requesting counsel as a motion seeking a sentence reduction that the judge then denied seemingly without any briefing. As readers may recall, just last week the Supreme Court dinged the Ninth Circuit in Sineneng-Smith for taking over a case from the parties, and I think the Sixth Circuit might have reasonably assailed the district judge for similarly problematic behavior here.

Last but not least, it should be noted that the district judge in this matter is Danny C. Reeves, who just happens to be one of the two remaining active members of the US Sentencing Commission.  There is a particular irony in the Sixth Circuit panel needing to remind a member of the USSC about which "considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress."

May 16, 2020 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Wednesday, May 13, 2020

With lots more new grants, time for another timely review of the latest COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

In recent posts here and here and here and here and here and here and here and more linked below, I have highlighted a number of the many, many COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  As mentioned before,  I have received positive feedback concerning these prior posts from various quarters, and so I will continue to report on these kinds of rulings every time I discover a dozen or more of these kinds of notable sentencing ruling.  (And, as I have also mentioned before, these Westlaw listings likely do not represent all sentence reductions being granted by federal courts these days.) 

Though it is only midday on Wednesday, May 13, a whole lot of new rulings and many new grants of sentence reductions dated May 12 were made available on Westlaw this morning.  Thus, before the latest list of new grants of sentence reductions gets far too long, here is a list based on rulings since my last lengthy listing from just last Friday: 

United States v. Ullings, No. 1:10-cr-00406, 2020 WL 2394096 (ND Ga. May 12, 2020)

United States v. Al-Jumail, No. 12-20272, 2020 WL 2395224 (ED Mich. May 12, 2020)

United States v. Barber, No. 6:18-cr-00446-AA, 2020 WL 2404679 (D Ore. May 12, 2020)

United States v. Ramirez, No. 17-10328-WGY, 2020 WL 2404858 (D Mass. May 12, 2020)

United States v. Hunt, No. 18-20037, 2020 WL 2395222 (ED Mich. May 12, 2020)

United States v. Rivernider, No. 3:10-cr-222 (RNC), 2020 WL 2393959 (D Conn. May 12, 2020)

United States v. Velencia, No. 15 Cr. 163 (AT), 2020 WL 2319323 (SDNY May 11, 2020)

United States v. Simpson, No. 11-cr-00832-SI-3, 2020 WL 2323055 (ND Cal. May 11, 2020)

United States v. Reddy, No. 13-cr-20358, 2020 WL 2320093 (ED Mich. May 11, 2020)

United States v. Foreman, No. 3:19-cr-62 (VAB), 2020 WL 2315908 (D Conn. May 11, 2020)

United States v. Connell, No. 18-cr-00281-RS-1, 2020 WL 2315858 (ND Cal. May 8, 2020)

United States v. Joseph, No. 18-cr-00350-BLF-1, 2020 WL 2315806 (ND Cal. May 8, 2020)

United States v. Pena, No. 15-cr-551 (AJN), 2020 WL 2301199 (SDNY May 8, 2020)

United States v. Barrenechea, No. 92-cr-00403-MMC-3, 2020 WL 2315638 (ND Cal. May 7, 2020)

I cannot help but notice that a number of these latest rulings are coming from the same judicial district though from different judges within that district.  I wonder if this is pure coincidence or whether some courts might be developing more of a culture of granting these kinds of motions (or whether Westlaw is just more likely to put orders from certain courts into its databases).

Prior recent related posts since lockdowns:

May 13, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered | Permalink | Comments (2)

"The First Step Act and the Brutal Timidity of Criminal Law Reform"

The title of this post is the title of this notable new piece authored by Mark Osler and just posted to SSRN.  The title and author make me especially excited to have this new read, and here is its abstract:

It took decades to partially correct the egregiously wrong 100-1 ratio between crack and powder cocaine in federal law. Marijuana is still a Schedule I narcotic, despite universal condemnation of that categorization.  Even when we get it, criminal law reform comes achingly slowly and with brutal timidity, at a stunning cost in lives and freedom.  This article explores the grim history of this dynamic in the modern United States, explores the causes, and suggests solutions. It will appear in the New England Law Journal with responses from a variety of legal analysts.

May 13, 2020 in FIRST STEP Act and its implementation, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, May 12, 2020

Judge Breyer rejects plea agreement seeking to restrict defendant's statutory authority to pursue compassionate release

Amidst my review of the many federal sentence reductions under § 3582(c)(1)(A) that appear each day on Westlaw, a notable new opinion emerged from a notable judicial author.  Specifically, US District Judge Charles Breyer yesterday issued a 10-page "Order rejecting plea agreement" in US v. Funez Osorto, No. 19-cr-00381-CRB-4 (ND Cal. May 12, 20202) (available here).  For sentencing fans, Judge Breyer is notable in part because he is one of only two remaining active US Sentencing Commissioners (others might also think it notable that he is Justice Stephen Breyer's brother).  And the Funez Osorto opinion is notable for its rejection of a plea agreement based on a provision that is especially relevant in these pandemic days. 

I recommend the full Funez Osorto opinion, and here is a small taste including its start and finish:

Must a term of imprisonment be set in stone, no matter what happens after it is imposed?  Should a court be able to reduce a sentence when unforeseeable tragedies change its consequences?  What if the defendant’s children are effectively orphaned by the death of their other parent?  What if a debilitating injury makes it impossible for the defendant to care for him or herself in prison, or recidivate outside of it?  What if a terminal diagnosis turns a brief term of imprisonment for a minor crime into a life sentence?  What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail?  When should a court be able to consider such events and revise a previously imposed sentence accordingly?  How difficult should it be for a defendant to request this type of relief?

Congress has provided one set of answers to these questions, in the First Step Act ..... The United States attorney’s office has very different answers in this case, for this defendant.  Because those answers undermine Congressional intent and all but foreclose this defendant’s ability to request a critical form of relief, the Court rejects the proposed Plea Agreement....

The point is this: while the Plea Agreement leaves open a path to compassionate release, it is hardly wider than the eye of a needle. It is far narrower than the avenues to relief provided by § 3582(c)(1)(A), and too narrow to provide meaningful relief in many of the circumstances that would render Funez Osorto eligible for relief.  And there is no doubt the Government would rely on the waiver provision to deny Funez Osorto compassionate release. It has recently attempted to do exactly that in another case before this Court.  That result is unacceptable for two reasons.  First, it undermines Congress’s intent in passing the First Step Act.  Second, it is inhumane....

It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table.  See Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413, 1414–15 (2010).  As to terms such as this one, plea agreements are contracts of adhesion.  The Government offers the defendant a deal, and the defendant can take it or leave it.  Id. (“American prosecutors . . choose whether to engage in plea negotiations and the terms of an acceptable agreement.”).  If he leaves it, he does so at his peril.  And the peril is real, because on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on.  See Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Judicature Soc’y 18, 18 (1940).  Now imagine the choice the Government has put Funez Osorto to.  All that power — and the all too immediate consequences of opposing it — weighed against the chance to request release in desperate and unknowable circumstances that may not come to pass.  That Faustian choice is not really a choice at all for a man in the defendant’s shoes.  But the Court has a choice, and it will not approve the bargain.

That leaves only one question, which is why?  Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?  Defendants released through the compassionate release program are less than a tenth as likely to recidivate as the average federal prisoner.  Inspector General Report at 49–50.  And the Department of Justice itself estimates that broader use of compassionate release could save taxpayers millions and free desperately needed space in BOP facilities.  Id. at 45–48. The waiver of compassionate release is senseless.

Judge Breyer asks a lot of good questions throughout this great opinion, but the final one seems to me to be depressingly easy to answer. He asks: "Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?".  The answer, as I see it, is that so many prosecutors get so accustomed to exercising their tremendous discretion in this way that it now seems to be a professional expectation.

May 12, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Sunday, May 03, 2020

Still more of the ever-growing number of COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

In recent posts (examples here and here and here and here and here and more linked below), I have highlighted more than four dozen rulings involving COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) that I have found via Westlaw.  (And, as I keep mentioning, these Westlaw listings likely do not represent all sentence reductions being granted these days).  before the start of a new work week, I figured I would do yet another round-up of new grants of sentence reductions that emerged on Westlaw from the end of last week.  It is heartening to again see these types of rulings from coast-to-coast and lots of places in-between:

United States v. Etzel, No. 6:17-cr-00001-AA, 2020 WL 2096423 (D Ore. May 1, 2020)

United States v. Lacy, No. 15-cr-30038, 2020 WL 2093363 (CD Ill. May 1, 2020)

United States v. Rivera, No. 86 Cr. 1124 (JFK), 2020 WL 2094094 (SDNY May 1, 2020)

United States v. Peters, No.3:18-cr-188 (VAB), 2020 WL 2092617 (D Conn. May 1, 2020)

United States v. Pinkerton, No. 15-cr-30045-3, 2020 WL 2083968 (CD Ill. Apr. 30, 2020)

United States v. Lucas, No. 15-CR-143, 2020 WL 2059735 (WDNY Apr. 29, 2020)

United States v. Dunlap, No. 1:02cr165-1, 2020 WL 2062311 (MD NC Apr. 29, 2020)

United States v. Saad, No. No. 16-20197, 2020 WL 2065476 (ED Mich. Apr. 29, 2020)

United States v. Harper, No. 7:18-cr-00025, 2020 WL 2046381 (D Conn. Apr. 28, 2020)

United States v. Mel, No. TDC-18-0571, 2020 WL 2041674 (D Md. Apr. 28, 2020)

In addition to this encouraging additional set of sentence-reductions grants using § 3582(c)(1)(A) accelerated by COVID concerns, there have also been a few grants based primarily on other factors that I hope to find time to cover in future posts.  In the meantime, I continue to be pleased to see (some) judges recognizing that 3582(c)(1)(A) motions can and should provide a means to correct (some) past unjust federal sentences.  The COVID crisis and the threat it poses to vulnerable prisoners is surely increasing the willingness of judges to review swiftly those past sentences that may no longer serve any sentencing purpose.  

Prior recent related posts since lockdowns:

May 3, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, April 28, 2020

A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns

In recent posts here and here, I highlighted some of the COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) available via Westlaw.  (And, as I keep mentioning, I think these Westlaw listings do not represent all sentence reductions being granted these days).  Though a new week is just getting started (with Westlaw only showing rulings through April 27), I have spotted lots of new grants of sentence reductions since my last posting.  It is heartening to see these rulings from coast-to-coast and lots of places in-between:

United States v. Robinson, No. 18-cr-00597-RS-1, 2020 WL 1982872 (ND Cal. Apr. 27, 2020)

United States v. Gorai, No. 2:18-CR-220 JCM (CWH), 2020 WL 1975372 (D Nev. Apr. 24, 2020)

United States v. Coles, No. 00-cr-20051, 2020 WL 1976296 (CD Ill. Apr. 24, 2020)

United States v. Thorson, No. 5:16-CR-00017-TBR, 2020 WL 1978385 (WD Ky. Apr. 24, 2020)

United States v. Williams, No. 3:17-cr-121-(VAB)-1, 2020 WL 1974372 (D Conn. Apr. 24, 2020)

United States v. Park, No. 16-cr-473 (RA), 2020 WL 1970603 (SDNY Apr. 24, 2020)

United States v. Walls, No. 92-80236, 2020 WL 1952979 (ED Mich. Apr. 23, 2020)

United States v. Jackson, No. 4:14-CR-00576, 2020 WL 1955402 (SD Tex. Apr. 23, 2020)

United States v. Curtis, No. 03-533 (BAH), 2020 WL 1935543 (DDC Apr. 22, 2020)

United States v. Bess, No. 16-cr-156, 2020 WL 1940809 (WDNY Apr. 22, 2020)

United States v. Sanchez, No. 18-cr-00140-VLB-11, 2020 WL 1933815 (D Conn. Apr. 22, 2020)

In addition to this encouraging dozen of sentence reductions grants using § 3582(c)(1)(A) accelerated by COVID concerns, last week also brought a remarkable ruling that focused on pre-COVID concerns.  In United States v. Haynes, No. 93 CR 1043 (RJD), 2020 WL 1941478 (EDNY Apr. 22, 2020), the court granted relief to a fellow who, back in the early 1990s, got 40 years of extra mandatory prison time based on stacked gun charges brought by prosecutors after he turned down a plea deal calling for around an eight-year term.  As the court now explained: "Haynes has served almost 27 of the 46½ years to which he was sentenced.  To put that in context, he has served more than three times the length of the high end of the sentence he would have received had he pled guilty."  With that background and after some extended discussion of relevant precedent, the court added:

The Court readily concludes, on the facts as detailed above — including the brutal impact of Haynes’s original sentence, its drastic severity as compared to codefendant Rivers’s ten-year term, its harshness as compared to the sentences imposed on similar and even more severe criminal conduct today, and the extent to which that brutal sentence was a penalty for Haynes’s exercise of his constitutional right to trial — that the FSA’s elimination of the § 924(c) sentencing weaponry that prosecutors employed to require that sentence is an extraordinary and compelling circumstance warranting relief under § 3582(c).  For an individual like Haynes, with three pre-amended § 924(c) counts in a single indictment, the change spells the difference between thirty years in or out of prison.

I continue to be pleased to see (some) judges recognizing that 3582(c)(1)(A) motions can and should provide a means to correct (some) past unjust federal sentences.  The COVID crisis and the threat it poses to vulnerable prisoners is surely increasing the willingness of judges to review swiftly those past sentences that may no longer serve any sentencing purpose.  But, the sad reality of prison is that it is often bad, even in normal times, for the health of both inmates and the broader community.  Judge (and prosecutors and lawmakers) ought always be carefully checking and double-checking and triple-checking whether the considerable tax dollars used to keep persons incarcerated are sound public safety investments.

Prior recent related posts since lockdowns:

Some (of many) pre-COVID posts on § 3582(c)(1)(A) after FIRST STEP Act:

April 28, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Mandatory minimum sentencing statutes, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (1)

Friday, April 24, 2020

Some exhausted musings on the so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A)

I tend to start many mornings these COVID-tainted days on Westlaw checking out new district court opinions responding to motions by persons in federal prison seeking a sentence reduction under § 3582(c)(1)(A).  A dozen or more new opinions appear each day now, but many deny relief simply on the basis of the so-called "exhaustion" procedural requirement in § 3582(c)(1)(A).  A few weeks ago, I discussed in this post the sloppy Third Circuit panel dicta on this issue in Raia, and it is frustrating (but not surprising) that many district courts nationwide are now citing Raia when rejecting motions under § 3582(c)(1)(A) on this procedural ground.  At the end of another long week, I wanted to explain why it seems to me misguided, on various grounds, to interpret this "exhaustion" procedural requirement as an absolute bar to courts considering the merits of sentence-reduction motions under § 3582(c)(1)(A). 

First, the statutory basics. The text now of § 3582(c)(1)(A), after amendment by the FIRST STEP Act (in bold), provides: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment..."  In other words, this text provides that a sentence reduction motion can be acted upon by the court (1) immediately if brought by BOP, or (2) as soon as a defendant requests such a motion and that request is formally/finally denied by BOP or 30 days has lapsed, "whichever is earlier." 

Based on the text alone, I can understand why courts read this provision as precluding consideration of a prisoner's sentence-reduction motion until at least 30 days after a BOP request is made by the defendant.  As I explained in my Raia post, this provision is pretty clearly not jurisdictional because the language and structure make it much more what the Supreme Court calls a "nonjurisdictional claim-processing rule."  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  Still, even as a claim-processing rule, the text is seemingly clear and mandatory: "The statute provides no exceptions to the exhaustion requirement, and the Supreme Court has clearly stated that courts may not manufacture exceptions where they do not exist." United States v. Miamen, No. 18-130-1 WES, 2020 WL 1904490 (D RI Apr. 17, 2020).  Further, as another court has put it: "the administrative exhaustion requirement for compassionate release motions serves important policy functions [because the] BOP is often in the best position to evaluate the scope of an inmate’s medical condition, the adequacy of the release plan, and any danger posed to the community if they are released."  United States v. Gamble, No. 3:18-cr-0022-4(VLB), 2020 WL 1955338 (D Conn Apr. 23, 2020).

Though this basic textual and policy analysis is not misguided, it largely looks past all the reasons that Congress in the FIRST STEP Act enabled district judges to consider the merits of a sentence reduction under § 3582(c)(1)(A) without awaiting even full consideration of a request by BOP.  For years, BOP failed to use its authority to seek reductions even in the most compelling of cases, and Congress decided to district courts could and should assess sentence-reduction requests without BOP serving as any kind of gatekeeper.  Critically, with the FIRST STEP Act revision, Congress did not actually require defendants to exhaust the BOP motion-request process before turning to the courts — which would have made sense if Congress still trusted the BOP process to some extent; Congress added, critically, that a sentence-reduction motion could be considered after "the lapse of 30 days from the receipt of such a request."  Put another way, this statute actually does have an express exception to a true exhaustion requirement in the form of the "lapse of 30 day" provision.

But, so the argument might go, even though Congress did create an exception to BOP exhaustion in the form of a "30 day" lapse requirement, why should courts even consider short-circuiting that express timeline?  Well, in the midst of a pandemic, a timeline intended by Congress to give a prisoner quick access to the court sensibly can and should be sped up consistent with the overall goals of § 3582(c)(1)(A).  In the word of one court:  "The question therefore becomes whether applying equitable exceptions to section 3582(c)(1)(A) would be incompatible with Congressional intent .... [and] this Court agrees with Judge Rakoff that 'Congress cannot have intended the 30-day waiting period ... to rigidly apply in the highly unusual situation in which the nation finds itself today'."  United States v. Bess, No. 16-cr-156, 2020 WL 1940809 (WDNY Apr. 22, 2020). 

Especially important here seems to be a consideration emphasized in this New York Times editorial: "Releasing these prisoners during this crisis is not just an act of mercy to protect prisoners’ health, [it also serves] the health of the prison staff.  Fewer sick inmates means less strain on the already burdened prison hospital system."  Does it really make sense to believe Congress would want courts to refuse to consider (for a few weeks) a request for a sentence reduction when any delay will further imperil prison staff as well as inmates?  In normal times, the procedural requirement of § 3582(c)(1)(A) shows some respect for BOP officials; in COVID times, rigid application may inadvertently cost the lives of some BOP officials.

Last but not least, at a time when at least 24 federal inmates have died from COVID and in a week in which a federal judge has found that federal inmates in one facility "have demonstrated a likelihood of success on the merits" of an Eighth Amendment claim, an equitable exception to the procedural requirement of § 3582(c)(1)(A) arguably has a strong constitutional foundation.  I say this because, in order to prevail substantively, a defendant seeking a sentence reduction under § 3582(c)(1)(A) must make the case that "extraordinary and compelling reasons warrant" a reduction with consideration given also to "the factors set forth in 3553(a)."  In other words, the only persons who are ultimately impacted by so-called "exhaustion" requirement are those who can make a truly compelling case to a federal judge that, consistent with congressional sentencing purposes, a shorter sentence is now justified.  Amidst a pandemic which has already killed dozens of federal prisoners, to deny deserved substantive relief on questionable procedural grounds strikes me as quite constitutionally suspect. 

April 24, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, April 23, 2020

In praise of (split) Fourth Circuit panel prioritizing sentencing fitness over finality

A few years ago, I wrote this article, titled "Re-Balancing Fitness, Fairness, and Finality for Sentences," in which I urged policy-makers and judges to be "less concerned about sentence finality, and to be more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences."  The article came to mind as I reviewed a new (split) panel ruling from the Fourth Circuit in US v. Chambers, No. 19-7104 (4th Cir. Apr. 23, 2020) (available here).  Here is how the majority opinion gets started:

Erroneously sentenced as a career offender, Brooks Tyrone Chambers is currently serving an almost 22-year prison sentence on a pre-2010 crack-cocaine offense.  In 2019, he moved to reduce his sentence to time served under the First Step Act.  Because the First Step Act gives retroactive effect to sections 2 and 3 of the Fair Sentencing Act of 2010, his statutory minimum would drop from 20 years to 10 years.  In his motion, he asked the district court to apply retroactive intervening case law, under which he would not be a career offender.  Without the enhancement, Chambers’s Guidelines range would also drop to 57 to 71 months; with it, his Guidelines range would remain the same — 262 to 327 months.

The district court determined that Chambers was eligible for a sentence reduction under the First Step Act, but it proceeded to perpetuate the career-offender error when recalculating the Guidelines.  Nor did it exercise its discretion to vary downward.  Instead, the court denied Chambers’s motion to reduce his custodial sentence, though it granted the motion as to his supervised release term.  Because the First Step Act does not constrain courts from recognizing Guidelines errors, and because the district court seemingly believed that it could not vary from the Guidelines range to reflect post-sentencing information, we vacate the district court’s resentencing order.  Additionally, we now hold that any Guidelines error deemed retroactive, such as the error in this case, must be corrected in a First Step Act resentencing.

Here is how the dissent gets started:

Modification of a final sentence requires express congressional authorization.  The majority’s decision sidesteps this statutory imperative and instead reasons that district courts are free — and here, required — to modify final sentences unless specifically prohibited from doing so.  Congress enacted Section 404 of the First Step Act to retroactively reduce disparities between the crack and powder cocaine sentencing schemes; the statute is silent about other changes to a defendant’s final sentence.  The majority finds in this silence an implicit grant of authority to retroactively correct Sentencing Guidelines errors based on intervening law, an authority this Court has rejected in the context of collateral challenges to final sentences.  I would instead conclude that 18 U.S.C. § 3582(c)(1)(B) authorizes only the modification “expressly permitted” by the First Step Act, which does not include reevaluating a defendant’s career-offender Guidelines designation in light of a post-sentencing change in the law.

Since a judge at any full resentencing is now obligated to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in 18 USC 3553(a)(2), it really ought not matter too much what sentencing range gets spit out in a guideline calculation.  But because many judges still focus a lot on guideline calculations, I am pleased to see the majority here is eager to make sure the district court is focused on a correct guideline calculation.

April 23, 2020 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, April 22, 2020

Another round of recent COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A)

In this post late last week, I noted ten COVID-influenced grants of sentence reductions using § 3582(c)(1)(A) that showed up on Westlaw.  (I also once again noted my belief that my Westlaw listings surely do not represent all sentence reductions being granted these days).  Though today we are now just mid-week (with Westlaw only showing ruling through April 21), I have spotted enough new grants of sentence reductions that I figured another listing was in order: 

Poulios v. United States, No. 2:09-cr-109, 2020 WL 1922775 (ED Va. Apr. 21, 2020)

United States v. Scparta, No. 18-cr-578 (AJN), 2020 WL 1910481 (SDNY Apr. 20, 2020)

United States v. Atwi, No. 18-20607, 2020 WL 1910152 (ED Mich Apr. 20, 2020)

United States v. Gileno, No. 3:19-cr-161-(VAB)-1, 2020 WL 1916773 (D Conn. Apr. 20, 2020)

United States v. Turner, No. 3:09-cr-00018, 2020 WL 1917833 (WD Va. Apr. 20, 2020)

United States v. Asaro, No. 17-cr-127 (ARR), 2020 WL 1899221 (EDNY Apr. 20, 2020)

United States v. Joling, No. 6:11-cr-60131-AA, 2020 WL 1903280 (D Ore. Apr. 17, 2020) 

United States v. Atkinson, No. 2:19-CR-55 JCM (CWH), 2020 WL 1904585 (D Nev. Apr. 17, 2020) 

Prior recent related posts:

April 22, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 21, 2020

Chad Marks, high-profile "prison lawyer" subject to extreme stacked 924(c) term, gets his sentence reduced from 40 to 20 years via § 3582(c)(1)(A)

Readers may recall this post from last year about a remarkable four-page order entered in US v. Marks, No. 03-CR-6033 (WDNY March 14, 2019).  I am happy to have an update to this story.  First some background, then the latest chapter.

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 federally sentenced years ago to 40 mandatory prison years due to stacked § 924(c) firearm charges.  The March 2019 order by US District Judge David Larimer, which reviewed the unfairness of Marks' sentence and his extraordinary good works in prison, urged the local federal prosecutor to "carefully consider exercising his discretion to agree to an order vacating one of Marks two Section 924(c) convictions" in light of congressional modifications of this provision in the FIRST STEP Act.

At the time of the March 2019 order in the Marks case, I noted that Judge Larimer did not "have 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)."  Reading the March 2019 Marks order, it seemed to me that Judge Larimer had already essentially concluded that Chad Marks had  established "extraordinary and compelling reasons" to warrant a sentencing reduction under § 3582(c)(1)(A).

Fast forward just over 13 months, and now we have a new order in US v. Marks, No. 03-CR-6033L, 2020 WL 1908911 (WDNY April 20, 2020) (available for download below).  This order now runs 39 pages, and here are a few highlights:

The United States Attorney never formally responded to the Court’s Order and suggestion, but the Government’s position is crystal clear from its filings and steadfast opposition to Marks’s motion.  Given the Government’s continued, unyielding characterization of Marks as “a dangerous and violent man,” (Dkt. #503 at 1), and “a liar, perjurer and an obstructer of justice,” id. at 2, who “remains a criminal,” id., and its position that Marks “is not entitled to and does not deserve any more mercy,” id. at 23, it is obvious that the Government will never consent to vacating one of Marks’s § 924(c) convictions, or to any other relief for Marks.  It seems highly unlikely that the Government ever took seriously this Court’s request that it “carefully consider” doing so.

Be that as it may, that avenue of relief is thus foreclosed in this case.  Absent the Government’s consent (or some other independent ground), this Court has no authority to vacate any of Marks’s convictions....  But that does not necessarily mean that Marks is barred from all relief.  In addition to his pro se motion to reduce his sentence, he has also filed a motion, through counsel, to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(I). (Dkt. #498.)  That motion is based in large part on the First Step Act of 2018, which is discussed below....

There is growing authority from district courts throughout the country that find extraordinary and compelling circumstances under circumstances very similar to Marks’s.  First, Marks was subject to the “stacking” of offenses under 18 U.S.C. § 924(c)(1)(C)....  Congress has also stated that “rehabilitation ... alone” may not be considered an extraordinary and compelling reason for reduction of sentence. While that clearly forecloses relief based solely on a defendant’s efforts toward rehabilitation, it implies that rehabilitation is a factor that a court may consider, in conjunction with other relevant circumstances....

[The Government's argument] puts Marks in a “Catch-22” situation.  If he had spent his free time in prison doing little but visiting the weight room, or sitting in his cell reading comic books, the Government would likely point to that as evidence of his incorrigibility or indolence.  Yet having taken consistent, years-long efforts to better his life and the lives of those around him, Marks finds himself accused of a cynical attempt to play on the Court’s sympathies.  The Government is apparently unwilling even to consider the possibility that Marks’s efforts have been sincere.  In the Government’s view, there is no place for redemption.  I do not share that view....

Furthermore, the mere fact that some self-interest may have been involved is hardly remarkable, and is not a reason to disregard Marks’s accomplishments since then. Whatever motives may have initially prompted Marks to undertake rehabilitative efforts, the fact is that he has followed that path for many years, by all appearances to the benefit of himself and others.  If actions speak louder than words, then Marks’s actions have spoken volumes.  To ignore those efforts would only serve to discourage prisoners from making any efforts at rehabilitation, which is presumably not what Congress had in mind when it gave prisoners the ability to seek direct relief from the courts.

It is undisputed that at one point in this case, during plea negotiations, the Government floated the idea of a straight 20-year plea....  Clearly, then, at one time the Government was open to the idea of Marks being released from prison after twenty years.  As explained above, I see no reason why Marks is more dangerous now than he was then.  The evidence before the Court indicates quite the contrary.  The Court is not suggesting that a defendant can refuse a plea offer, and then years later, having received a stiffer sentence than what he was offered, retroactively “accept” the offer.  The point is that the Government’s prior willingness to consider a 20-year plea deal undercuts its present argument that Marks is too dangerous to be released before the end of his current 40-year sentence....

Having weighed the relevant circumstances, in light of the evidence and the law, I conclude that the appropriate relief here is to reduce Marks’s sentence to an aggregate term of twenty years’ imprisonment, followed by an eight-year term of supervised release.... In reaching this conclusion, the Court notes that even twenty years is more than that imposed on Marks’s codefendants, who received sentences of 13 years (Richard Ross, Dkt. #142), 15 years and one month (Nathan Brown, Dkt. #256), and 12 years and seven months (Tommy Hardy, Dkt. #276).  None of those codefendants were minor participants in the offense.  I recognize that those defendants pleaded guilty, while Marks elected to proceed to trial. The point is that his sentence remains a hefty one, and for all the reasons stated above, in my discretion, I find that it is appropriate here.

Download W.D.N.Y. 03-cr-06033 dckt 000536_000 filed 2020-04-20

Though I am quite pleased to see Judge Larimer exercise his discretion to cut two excessive decades off Chad Marks' prison term, I am still put off just a bit by the fact that the court here decided that the arbitrary round number of "20 years" originally proposed by federal prosecutors was the "right" sentence now.  Especially since it appears none of Marks' co-defendants got more than 15.1 years, it still seems that the court is essentially indicating that five extra years in prison for exercising the right to go to trial is fitting even after it is clear that those five extra years are not needed for the defendant's rehabilitation.  For all the virtues of this opinion, it still closes with a not-so-subtle conclusion that it is proper for this defendant to be given an extra half-decade in prison for exercising his constitutional right to put the government to its burden of proof.

That all said, because of time already served and good time credits, I think the new 20-year term for Chad Marks still means he should be released from federak prison relative soon (rather than in the year 2037, as the BOP inmate locator says as of this writing).  Congrats to both Chad and to his lawyers (including, according to a footnote in this new opinion, former federal Judge John Gleeson).

Some (of many) prior related posts on (COVID-free) sentence reductions:

April 21, 2020 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Friday, April 17, 2020

Additional COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A)

I am pleased to be able to report that I have found this week on Westlaw a good number of COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  I just have enough time this morning to list all the rulings here.

Samy v. United States, No. No. 16-20610-1, 2020 WL 1888842 (ED Mich Apr. 16, 2020)

United States v. Hammond, No. 02-294 (BAH), 2020 WL 1891980 (DDC Apr. 16, 2020)

United States v. Coker, No. 3:14-CR-085, 2020 WL 1877800 (ED Tenn. Apr. 15, 2020)

United States v. Cosgrove, No. CR15-230-RSM, 2020 WL 1875509 (WD Wash. Apr. 15, 2020)

United States v. Kataev, No. 16 Cr. 763-05 (LGS) 2020 WL 1862685 (SDNY Apr. 14, 2020) 

United States v. Wen, No. 6:17-CR-06173, 2020 WL 1820520 (WDNY Apr. 13, 2020) 

United States v. Smith, No. 12 Cr. 133 (JFK), 2020 WL 1849748 (SDNY Apr. 13, 2020) 

United States v Ben-Yhwh, No. 15-00830 LEK, 2020 WL 1874125 (D. Hawaii Apr. 13, 2020)

United States v. Tran, No. CR 08-00197-DOC, 2020 WL 1820520 (CD Cal. Apr. 10, 2020)

United States v. Burrill, No. 17-cr-00491-RS-1, 2020 WL 1846788 (ND Cal. Apr. 10, 2020)

As I have said before, I am fairly confident that this list does not represent all, and I suspect it does not even capture most, of the sentence reductions that have been granted by federal district courts over the past week.  Readers are encouraged to use the comments or to send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

UPDATE: I noticed this afternoon a couple of useful press pieces discussing  some of this litigation as it is playing out in federal courts:

From Forbes, "Federal Prosecutors Across The Country Oppose Many Common Sense Motions For Compassionate Release"

From Law360, "Inmates Seeking COVID-19 Release Face Uneven Legal Terrain"

April 17, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, April 15, 2020

Two notable new § 3582(c)(1)(A) sentence reductions to remedy extreme stacked 924(c) sentences reformed by FIRST STEP Act

As long-time readers know, in the pre-COVID world, I made much of the FIRST STEP Act provision now allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  In our current COVID world, many more sentencing reduction motions are being brought by federal prisons based on the distinct health threat the virus poses.  As highlighted by posts here and here and here, I have lately been assembling some of the COVID-based sentence reduction rulings. 

As I reviewed on Westlaw today recent rulings, I was pleased two great new district court rulings using § 3582(c)(1)(A) as a means to undo the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  Both rulings deserve to be read in full in order (a) to take in the ridiculousness and injustice of (post-trial) sentences that had to be imposed by judges under mandatory sentencing provisions, and (b) to appreciate how the FIRST STEP Act has help restore at least a little sanity and justice in this dark part of the federal sentencing world.

To begin, the first case in Westlaw appears as US v. Defendant, but I think is should be US v. Wade, No. 2:99-CR-00257-CAS, 2020 WL 1864906 (CD Cal. Apr. 13, 2020). Here is some of the backstory and parts of the analysis (with most cites removed):

In 1997, Wade was 34 years old and the single parent of three children working at a K-Mart in Los Angeles.  Knowing that Wade's employment gave her insights into the standard layout and operation of K-Mart stores, and that Wade was struggling financially, a “friend” (and future codefendant) approached Wade with the proposition that she help several other individuals rob K-Mart stores and share in the proceeds.  “Out of desperation” and “guaranteed that no one would get hurt” Wade accepted the proposition.  The ensuing five armed robberies were serious, but Wade's involvement was limited....In total, Wade and her co-defendants stole $189,998 from K-Mart. Wade never brandished a gun, and never entered any of the targeted K-Mart stores except the first one, where she worked and posed as a victim. No K-Mart employees reported any injuries.

On August 19, 1999, a jury found Wade guilty on all counts. Although she did not personally possess, use, or carry a firearm during any of the robberies, Wade was convicted on the § 924(c) counts as a coconspirator pursuant to Pinkerton v. United States, 328 U.S. 640 (1946). On December 21, 1999, the Honorable Lourdes G. Baird sentenced Wade to 877 months (or 73 years and one month) of imprisonment, plus 36 months of supervised release. The vast majority of that prison sentence — 780 months (or 65 years) — resulted from the four “stacked” mandatory minimum consecutive sentences under § 924(c)....

Although it is clear that Wade's rehabilitation alone would not qualify her for a sentence reduction as a matter of law, see 18 U.S.C. § 994(t), the Court concludes that the combination of factors raised by her motion establishes extraordinary and compelling conditions that do.... A number of other district courts .... have also found that the drastic reduction in § 924(c) sentences with its elimination of stacking ... in combination with other circumstances may warrant a modification of the defendant's sentence.

In 1999, Wade received a mandatory-minimum sentence — one amounting to life in prison — that Congress has since determined to be exceedingly inhumane and profoundly unfair. But instead of dwelling on that injustice, Wade has spent the past 20-plus years serving her sentence as a recognized example to her peers, and as a model for what rehabilitative programming can achieve for incarcerated individuals who strive for self-improvement.

The backstory in the other case US v. McPherson, No. CR94-5708RJB, 2020 WL 1862596 (WD Wash. Apr. 14, 2020), is not fully developed and may not be quite so compelling.  But some of the court's language certainly is:

In October 1995, Defendant, age 57, was sentenced to 392 months (32.6 years) in prison upon convictions after jury trial... Defendant’s co-defendant Wilson was sentenced to 170 months (about 14 years) following pleas of guilty under the terms of a plea agreement....

In considering the government’s argument — that the non-retroactivity law in the First Step Act purposely left this defendant’s sentence in place — we need to look at all the laws, including 18 U.S.C. § 3582(c)(1)(A), together.  Section 3582 (c )(1)(A) provides a safety valve against what otherwise would be a harsh, unjust, and unfair result stemming from a non-retroactivity clause.

So we have here Mr. McPherson, sentenced to over 32 years in prison for what is now probably a 17-year crime.  His sentence was 15 years beyond what is now deemed a fair penalty by our law, and he has already served 26 years of that now clearly unfair sentence.  It is extraordinary that a civilized society can allow this to happen to someone who, by all accounts, has long since learned his lesson.

Some (of many) prior related posts:

April 15, 2020 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, April 13, 2020

"Tips For Prisoner Release Requests During Pandemic"

The title of this post is the title of this timely new Law360 piece authored by William Athanas, JD Thomas and Charles Prueter.  Here are excerpts:

This article reviews the legal framework applied to assess compassionate release requests seeking relief based on the pandemic, and endeavors to extract guiding principles from 70 of the decisions issued by federal courts in the past three weeks in an effort to inform eligibility determinations and increase the likelihood of success of future motions....

Defendants began to file motions for compassionate release premised on COVID-19 fears in the third week of March. In reviewing 70 of the orders issued in response to these motions since March 17, it is interesting to note that only one was filed by an inmate actually suffering from the disease. Instead, those seeking relief premised their requests on risk of harm that would result were they to become infected.

A review of decisions issued as of April 10 reveals a number of guiding principles:

  • Exhaustion of administrative remedies is the key factor.  In all but three of the 43 cases where courts denied relief, failure to exhaust administrative remedies was the primary reason given.  In the 24 cases where relief was granted, the defendant was found to have exhausted administrative remedies, or the court determined that an exception to the exhaustion requirement existed.
  • Government consent is an important, but not essential, factor.  To be sure, a defendant’s ability to secure government consent to the motion was valuable.  Compassionate release was granted in all of the cases where the government consented to the relief sought.  But even in the remaining cases where the government objected to the motion, compassionate relief was granted in 13 instances (note that it was unclear whether the government opposed relief in the remaining cases).
  • Types of health conditions matter.  As one would expect, motions filed by inmates with significant respiratory issues were granted most frequently.  Success was not limited to inmates experiencing those conditions, however, as courts also granted compassionate release for those suffering from diabetes, hypertension, Crohn’s disease, and other instances where inmates suffered from chronic conditions which left them immunocompromised.  Note that not all inmates suffering from such conditions have been deemed eligible for relief, however, if they failed to exhaust administrative remedies.
  • Length of sentence remaining was not a determinative factor.  While many of the defendants successful in gaining release had a relatively short amount of time left before completing their sentences, courts have not required deemed that a perquisite.  In fact, of the defendants whose motions have been granted, 10 had a year or more left to serve.
  • Presence of the virus in the facility.  Several courts which granted relief cited this factor as evidence of “extraordinary and compelling reasons,” including one which distinguished cases denying relief on the grounds on the fact those defendants were not housed in facilities where “where COVID-19 was spreading.”  At least half the cases made no mention of this factor, however, suggesting that it is not a necessary prerequisite. In one instance, relief was granted even though the defendant had already been released to a residential reentry center....

The number of compassionate release motions premised on COVID-19 is likely to increase as pandemic worsens in the days and months to come.  Because the law governing evaluation of such motions is so recent, those seeking relief on the basis of “extraordinary and compelling reasons” are well served by understanding which factual scenarios and legal arguments best position those requests for successful outcomes.

Prior recent related posts:

April 13, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, April 09, 2020

A few more COVID-influenced grants of sentence reductions using § 3582(c)(1)(A)

As highlighted via posts here and here, there is a growing number of federal court decisions granting sentence reductions using § 3582(c)(1)(A) because of the "extraordinary and compelling" public health crisis created by COVID-19.  But, as the as the number of requests for sentence reductions using § 3582(c)(1)(A) are growing, so to are rejections or deferrals of these motions (many of which are now based on the procedural issue flagged in this post).  Because I cannot provide a comprehensive accounting of all these rulings, I will here just report a few more of the sentence reduction orders I found on Westlaw from this week so far:

United States v. McCarthy, No. 3:17-CR-0230 (JCH), 2020 WL 1698732 (D. Conn. Apr. 8, 2020) ("Thus, in light of the urgency of McCarthy’s request, the likelihood that he cannot exhaust his administrative appeals during his remaining 26 days of imprisonment, and the potential for serious health consequences, the court waives the exhaustion requirement of section 3582(c)(1)(A).... The defendant’s age and medical condition, taken in concert taken in concert with the COVID-19 public health crisis, constitute an extraordinary and compelling reason to reduce McCarthy’s sentence.")

United States v. Hansen, No. 07-CR-00520 (KAM), 2020 WL 1703672 (EDNY Apr. 8, 2020) ("Mr. Hansen’s medical risk from the COVID-19 pandemic, taken alone, arguably constitutes 'extraordinary and compelling' circumstances justifying his release.  As discussed above, however, Mr. Hansen’s circumstances are 'extraordinary and compelling' without regard to risks associated with the COVID-19 pandemic.... Requiring Mr. Hansen to serve out the rest of his sentence, which, in any event, may amount to no more than seven additional months, would be 'greater than necessary to serve the purposes' of 18 U.S.C. § 3553(a)(2).")

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UPDATE on morning of 4/10Westlaw now has one additional sentence reduction grant, and I also received another one via email last night:

United States v. Trent, No. 16-cr-00178-CRB-1, 2020 WL 1812242 (ND Cal. Apr. 9, 2020) ("Trent suffers from a number of serious physical or medical conditions including HIV/AIDS, diabetes, and obesity, from which he is not expected to recover. The Court finds that in the context of the COVID-19 pandemic, these medical conditions, which render Trent uniquely vulnerable to serious illness if he contracts COVID-19, substantially diminish his ability “to provide self-care within the environment of a correctional facility.”)

United States v. Plunk, No. 3:94-cr-36-TMB (D Alaska Apr. 9, 2020) (available here) ("In this case, Defendant qualifies for compassionate release due to his medical conditions and age, particularly in light of the ongoing coronavirus (COVID-19) pandemic, and time spent in custody, as well as his remarkable history of rehabilitation while in custody and several prior recommendations by his wardens, the U.S. Probation office, and Judge Sedwick to reduce or commute his sentence."): Download Plunk Compassionate Relief order

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In this prior post, I also flagged United States v. Decator, No. CCB-95-0202, 2020 WL 1676219 (D. Md. April 6, 2020) and United States v. Millan, No. 91-CR-685 (LAP), 2020 WL 1674058 (SDNY April 6, 2020), neither of which is focus on COVID issues, but both of which are rulings in favor of the defendant and now appear in Westlaw.  Also, a helpful reader sent me this "string cite" of just some of the pro-defendant rulings last week:

See United States v. Williams, No. 04-cr-95, Dkt. No. 91 (N.D. Fla. April 1, 2020) (granting § 3582(c)(1)(A)(i) motion “in light of [the defendant’s] serious deterioration in physical health and the increasing health risks that the current global pandemic of coronavirus (COVID-19) poses to incarcerated persons, particularly those with underlying health conditions.”); United States v. Gonzales, No. 18-cr-0232, 2020 WL 1536155 (E.D. Wash. Mar. 31, 2020) (“Defendant is the most susceptible to the devastating effects of COVID-19. She is in the most susceptible age category (over 60 years of age) and her COPD and emphysema make her particularly vulnerable . . . The Court was aware of Defendant’s underlying medical condition and took that into consideration at the time of sentencing. In normal times, Defendant’s condition would be manageable. These are not normal times, however.”); United States v. Marin, No. 15-cr-252, Dkt. No. 1326 (E.D.N.Y. Mar. 30, 2020) (granting § 3582(c)(1)(A)(i) motion based on defendant’s “advanced age, significantly deteriorating health, elevated risk of dire health consequences due to the current COVID-19 outbreak, status as a non-violent offender, and service of 80% of his original sentence.”); United States v. Muniz, No. 09-cr-199, Dkt. No. 578 (S.D. Tex. Mar. 30, 2020) (releasing defendant serving 188-month sentence for drug conspiracy in light of vulnerability to COVID-19: “[W]hile the Court is aware of the measures taken by the Federal Bureau of Prisons, news reports of the virus’s spread in detention centers within the United States and beyond our borders in China and Iran demonstrate that individuals housed within our prison systems nonetheless remain particularly vulnerable to infection.”); United States v. Powell, No. 94-cr-00316 (D.D.C. Mar. 28, 2020) (granting § 3582(c)(1)(A)(i) motion in light of COVID-19 pandemic for a “[d]efendant [who] is 55-years-old, suffers from several respiratory problems (including sleep apnea and asthma), and has only 3 months remaining on his 262-month sentence.”); United States v. Campagna, No. 16-cr-78-01, 2020 WL 1489829 (S.D.N.Y. Mar. 27, 2020) (“Defendant’s compromised immune system, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify to Defendant’s sentence . . . .”).

As I have said before, I am fairly confident that this list does not represent all, and I hope it does not even capture most, of the sentence reductions granted by federal district courts in the last few days.  Readers are encouraged to use the comments or to send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

April 9, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Federal prison population, due seemingly to COVID responses, hits another modern low (which is still very high)

2020-04-09Every Thursday morning, one can see at this webpage an official refreshed count of the total number of federal inmates as calculated by the Federal Bureau of Prisons. That page also has a chart and data on the total number of federal inmates for each fiscal year going back to 1980.  A quick look at these data show that in FY 2013 the federal prison population hit a modern high of 219,298.

But this morning, we are down to a federal prison population of "only" 173,686 inmates.  I put "only" in quotes because back in 1980 we had only 24,640 federal prisoners.  But the next 30+ years, through the heart of the "tough-and-tougher," the federal prison population grew by 900% as both Democratic and Republican administrations invested more and more money on more and more federal prosecutions while generally asking for longer and longer sentences for those who were federally convicted.

But, after 2013, a range of political, social and practical realities helped create a new and steady trend of reduced federal incarceration levels.  Notably (though not often noted), data here from the US Sentencing Commission shows there were roughly 20,000 fewer offenders being sentenced in the federal system between 2011 (when 86,201 persons were sentenced in federal courts) and 2017 (when "only" 66,873 persons were sentenced).  In addition, retroactively applied reductions in crack sentences and then in all drug sentences contributed to further federal decarceration. 

But, starting in 2018, the number of offenders being sentenced in the federal system started to tick back up; in 2019, according to the USSC, we were all the way back up to 76,538 sentenced federal offenders.  Yet, working the other way, the new good-time credit flowing from the FIRST STEP Act and other reforms in that Act helped to thwart a complete reversal in the downward trends of the total number of persons in federal prison.  I commented in this post back in July 2019 that, thanks in part to Obama era developments and the FIRST STEP Act, the federal prison population had dropped under 180,000 prisoners for the first time since way back in FY 2003.  At that moment, I was truly unsure how various cross-cutting trends might impact the federal prison population in the months and years to come.  I made these concluding points in that prior post:

I have been following these numbers closely for a number of years, and I have been especially focused on week-to-week changes during the years of the Trump Administration because I feared that an uptick in federal prosecutions and various new sentencing directives begun under then-Attorney General Jeff Sessions might reverse the trend of prison population reduction that started during the second part of the Obama Administration.  But it seems that a lot of forces worked in various ways to kept the federal prison population at just over 180,000 inmates for much of the last three years.  And now, thanks to the FIRST STEP Act's "good time fix" finally kicking in, we are this week significantly below that 180,000 inmate threshold.

I would love to be able to predict that the FIRST STEP Act will ensure that the federal prison population keeps going down, but I am not sure that would be a sound prediction.  It is possible that the continued robust implementation of various components of the FIRST STEP Act will keep the downward trends moving.  But continued increases in the number of cases prosecutors by the Justice Department could get us back to an era of federal prison population growth (though that growth would likely be relatively modest).

Of course, we are in a whole new world of federal crime and punishment now.  We are in a COVID world.  It is waaaaaaay too early to make any long-term predictions.  But I wanted to flag today that we are at a new modern low with the federal prison population at "only" 173,686 inmates.  Just two weeks ago, before judges were starting to reduces sentences in response to compassionate release motions and before Attorney General Barr urged the Bureau of Prisons to move more offenders into home confinement, this population count was over 175,000.  Given this new COVID trend, I am inclined to predict we will see the federal population below 170,000 before the end of this month (though we should all know now how uncertain all COVID-related predictions must be).

Long term, as my prior comments are meant to highlight, what will likely matter most for the federal prison population is how many new offenders are getting sentenced and for how long.  Will federal prosecutors be bringing thousands more federal fraud and firearm prosecutions in the months ahead?  Will they be bringing thousands fewer federal drug and immigration prosecutions?  Will federal sentencing judges be inclined to be more lenient (or less lenient) in a COVID world?  As we see these prosecution and sentencing trends develop, we will know if the modern trend of federal decarceration will keep unfolding.

April 9, 2020 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Monday, April 06, 2020

Exciting new (COVID-free) reduction of LWOP sentence, based in part on "sentencing disparity," using § 3582(c)(1)(A) in US v. Millan

In this post a few weeks ago, just before the COVID-19 outbreak became the urgent basis for lots of sentence reductions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A), I flagged a number of new positive rulings granting sentencing reductions using 3582(c)(1)(A) on various grounds.  I am now pleased to be able spotlight another great ruling that adds to the list of reasons (other than COVID) that have now served as the basis for a sentence reduction, even of a life sentence. 

I must disclose that this new ruling, in US v. Millan, No. 91-CR-685 (LAP) (SDNY April 6, 2020) (download below), is especially meaningful to me because I had the honor of helping Harlan Protass a bit with the motion papers.  But I think all those working on sentence reduction motions will find value in the 45-page Millan opinion's discussion of the factors that justified reducing Eric Millan's sentence from LWOP to time served of 28 years.  I recommend the opinion in full, and the opening and closing paragraphs highlight the essentials:

Before the Court is Eric Millan’s motion, pursuant to 18 U.S.C. § 3582(c)(1)(A), for an Order reducing his life sentence (of which he has already served more than 28 years) to time served.1 The Government opposed the motion, and the parties filed additional letters. For the reasons that follow, the motion is granted....

Mr. Millan’s extraordinary rehabilitation, together with his remorse and contrition, his conduct as model prisoner and man of extraordinary character, his leadership in the religious community at FCI Fairton, his dedication to work with at-risk youth and suicide prevention, and the support of BOP staff at FCI Fairton, including their opinion that if released, Mr. Millan would be a productive member of society and no danger to others, and the sentencing disparity that would result from further incarceration all constitute extraordinary and compelling reasons justifying a reduction in sentence.  Accordingly, for all of the foregoing reasons, pursuant to 18 U.S.C. § 3582(c)(1)(A), Eric Millan’s motion for a reduction of sentence is granted, and his life sentence is reduced to time served.

Download US v. Millan 91-CR-685 (LAP). Order Granting Compassionate Release

As the title of this post highlights, I think it is especially notable and important that the court stressed "the sentencing disparity that would result from further incarceration" as one of the bases for finding that this case involved "extraordinary and compelling reasons justifying a reduction in sentence."  Many persons who are serving the most extreme federal sentences have often been subject to a mandatory minimum term or a trial penalty or some other case-processing sentencing reality that has resulted in a much longer sentence for one defendant than has been served by a number of similarly situated defendants.  Given that Congress stressed to judges in § 3553(a)(6) "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," this kind of application of § 3582(c)(1)(A) seems to be a sound and sensible way to remedy problematic sentencing disparities in appropriate cases like Eric Millan's.

UPDATE: I learned this afternoon of another (COVID-free) sentence reduction ruling today in US v. Decator, No. CCB-95-0202 (D. Md. April 6, 2020) (download below).  Here is how this opinion starts and some key passages:

Kittrell Decator is a federal prisoner who is serving a 633-month sentence for convictions stemming from his participation in several armed bank robberies in the early 1990s. To date, Decator has served over 25 years of his sentence. Now pending is Decator’s motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (the “compassionate release” statute). The government opposes the motion, and Decator has replied. For the reasons explained below, the motion will be granted and Decator’s sentence reduced to time served....

Multiple district courts have reasoned that “the First Step Act’s change in how sentences should be calculated when multiple § 924(c) charges are included in the same indictment constitutes an extraordinary and compelling reason under 18 U.S.C. § 3582(c)(1)(A).” See United States v. Owens, No. 97-CR-2546-CAB, ECF 93 at 4 (S.D. Cal. Mar. 20, 2020) (collecting cases). The court agrees with this reasoning. The fact that Decator, if sentenced today for the same conduct, would likely receive a dramatically lower sentence than the one he is currently serving, constitutes an “extraordinary and compelling” reason justifying potential sentence reduction under § 3582(c)(1)(A)(i)....

The court acknowledges that Decator’s offenses were indeed serious. While no one was physically injured, Decator’s actions caused psychological pain to his victims. The court believes that the 25-plus years in prison Decator has already served reflect the seriousness of his conduct and demonstrate the need for deterrence, public safety, and respect for the law. But Decator’s continued incarceration would be both disproportionate to the seriousness of his offense and to what Congress now deems appropriate for this kind of conduct.

Download Decator Decision

April 6, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, April 04, 2020

Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A)

In many prior posts since the FIRST STEP Act was enacted, I have made much of the provision that allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without needing a formal motion brought and supported by the Bureau of Prisons.  Well before anybody had heard of COVID-19, this provision seemed so very significant because, if applied appropriately and robustly, it could enable many hundreds (and perhaps many thousands) of federal prisoners to have their excessive federal prison sentences reduced.

Of course, as I have highlighted in recent posts here and here, sentence reduction motions under § 3582(c)(1)(A) have become hugely important in the coronavirus world of federal sentencing.  As SDNY Chief Judge Coleen McMahon astutely stated this week in US v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) (download here), "releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19."   As noted in this post, FAMM has wisely urged tens of thousands of federal prisons to consider pursuing sentence reduction motions under § 3582(c)(1)(A) during this terrible time when any federal prison term can become a potential death sentence.

But, importantly, a procedural issue can complicate sentence reduction motions under § 3582(c)(1)(A) because the text now now provides: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment..."  In other words, this text provides that a sentence reduction motion can be acted upon by the court (1) immediately if brought by BOP, or (2) as soon as a defendant requests such a motion and that request is formally/finally denied by BOP or 30 days has lapsed, "whichever is earlier."  Because the Director of the Bureau of Prisons rarely brings motions on behalf of prisoners and because BOP's administrative process for reviewing requests is historically quite slow, this provision has often functionally meant that courts would consider these motions 30 days after a BOP request is made by the defendant.

Under normal circumstances, this procedural provision struck me as a reasonable way to give the Bureau of Prisons a first opportunity to consider supporting a sentence reduction motion before the defendant heads to court. (That said, I have heard various ugly reports about the BOP treating an inmate poorly in various ugly ways after he has requested  a sentence reduction motion).  But in a COVID-19 word in which every day brings increasing positive cases and deaths among federal inmates and staff, waiting 30 days to rule on a compelling sentence reduction motion under § 3582(c)(1)(A) could literally have deadly consequences for an inmate and others he comes into contact with.  (It was only roughly 30 days ago that the US had its first COVID death, we could be over 10,000 US deaths by the end of this weekend.)   Consequently, I was not surprised to see, in US v. Perez, No. 17 Cr. 513-3 (AT) (SDNY Apr. 1, 2020) (download here), a federal judge waive the "30-day lapsing" requirement based on the determination that, for the defendant, "remaining incarcerated for even a few weeks increases the risk that he will contract COVID-19," and so "requiring exhaustion ... would be directly contrary to the purpose of identifying and releasing individuals whose circumstances are 'extraordinary and compelling'."  

This extended discussion is a prelude to noting a troubling opinion handed down by a Third Circuit panel in United States v. Raia, No. 20-1033 (3d Cir. Apr. 2, 2020) (available here).  This case involved a 68-year-old New Jersey politician given a three-month sentence who reported to a federal prison on March 3 while the government was pursuing an appeal of his sentence as to low.  With his appeal pending, the defendant first "asked BOP to move for compassionate release on his behalf. But before BOP responded, and before thirty days passed, Raia filed his own motion with the District Court for compassionate release given the present pandemic caused by COVID-19. The district court dismissed the motion because it decided the "pending appeal divested it of jurisdiction," but it also indicated it would grant the motion if it could.

In the Third Circuit, Raia did not appeal this order but instead "filed a motion asking this Court to decide his compassionate release motion [or] to return jurisdiction to the District Court by dismissing the government’s appeal without prejudice [under FRAP 3(a)(2)." In response, the Third Circuit panel starts on solid ground: "We cannot decide Raia’s compassionate-release motion in the first instance. Section 3582’s text requires those motions to be addressed to the sentencing court." That strikes me as right not only as a matter of statutory text, but also as a matter of sound policy: district motions for sentence reductions ought to be addressed in the first instance by sentencing courts, not appeals courts. Continuing to address points raised by Raia, the panel then says (cites and quote removed): "Nor can we dismiss the government’s appeal under Rule 3(a)(2). Rule 3(a)(2) dismissal is a sanction for failing to comply with procedural rules. Here, there is nothing the government has failed to do."

Having addressed are rejected claims by the appellant, things go sideways as the Third Circuit panel says the following (which I am calling dicta it does not respond to claims actually brought by the litigant):

We could, however, remand the case to the District Court while retaining jurisdiction over the government’s appeal under Rule 12.1.  That would allow the District Court to consider Raia’s compassionate-release request in the first instance.

But any remand would be futile.  As noted, Raia failed to comply with § 3582(c)(1)(A)’s exhaustion requirement: BOP has not had thirty days to consider Raia’s request to move for compassionate release on his behalf, nor has Raia administratively exhausted any adverse decision by BOP.  Although the District Court’s indicative ruling did not mention the exhaustion requirement, it presents a glaring roadblock foreclosing compassionate release at this point.

Accordingly, since Rule 3(a)(2) is inapt and since remanding the matter under Rule 12.1 would be futile, we will deny Raia’s motion outright.

This "futile" language here creates the problematic impression that "30-day lapsing/exhaustion" language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion.  But the language and structure of this requirement makes it appear much more like what the Supreme Court calls "nonjurisdictional claim-processing rules."  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions.  In other words, if and when the "30-day lapsing/exhaustion" language is properly understood by courts as a claim-processing rules, then courts can (1) ask federal prosecutors if they are willing to waive/forfeit the requirement in a particular case, and courts may be able (2) on their own, as in the Perez case, to decide that the requirement need not be meet given the equities of a particular case.

I hope that counsel might be seeking reconsideration or even an emergency rehearing en banc in Raia.  Because it is not at all clear that a remand would be futile, and especially because the Third Circuit panel here spun off some misguided dicta on an issue that appears not to have even been briefed, this portion of the opinion ought to be retracted at least until a court considers these (now life-and-death) issues with the assistance of full briefing.

UPDATE: I just noticed that the same panel that decided Raia also handed down last week a more defendant-friendly COVID opinion in United States v. Roeder, No. 20-1682 (3d Cir. Apr. 1, 2020) (available here).  Here is how this (unpublished) opinion starts and ends:

Calvin Roeder filed an emergency appeal seeking review of the District Court’s denial of his motion to postpone his self-surrender date in light of the COVID-19 pandemic. We reversed the District Court’s denial on March 29, 2020. We now provide the reasons for our order....

Under ordinary circumstances, it would be our preference to vacate the District Court’s order and permit it to provide substantive conclusions concerning the merits of Roeder’s motion.  These are not, however, ordinary times.  In light of the exigent circumstances surrounding the COVID-19 pandemic and the timing of our ruling (less than 24 hours before Roeder’s scheduled surrender date), we were compelled to grant relief and reverse the District Court’s order — even though the existence of a widespread health risk is not, without more, a sufficient reason for every individual subject to a properly imposed federal sentence of imprisonment to avoid or substantially delay reporting for that sentence.
While the COVID-19 pandemic has given rise to exceptional and exigent circumstances that require the prompt attention of the courts, it is imperative that they continue to carefully and impartially apply the proper legal standards that govern each individual’s particular request for relief.  If, in the future, Roeder seeks an additional modification of his self-surrender date, we expect that the District Court will provide an adequately reasoned decision so that, if an appeal follows, we may engage in a thorough appellate review.

April 4, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, April 03, 2020

Pleased to see growing number of COVID-influenced grants of sentence reductions using § 3582(c)(1)(A)

As highlighted in this post from just two days ago, earlier this week I had only found a handful of court decisions granting sentence reductions using § 3582(c)(1)(A) because of the "extraordinary and compelling" public health crisis created by COVID-19.  But, as the reports of positive COVID-19 cases and even deaths grow in the federal prisons system, so too are the the COVID-influenced grants of sentence reductions using § 3582(c)(1)(A).  Here are some sentence reduction orders I found on Westlaw and via emails from just the past few days:

United States v. Jepsen, No. 3:19-cv-00073(VLB), 2020 WL 1640232 (D. Conn. Apr. 1, 2020) ("Mr. Jepsen is in the unique position of having less than eight weeks left to serve on his sentence, he is immunocompromised and suffers from multiple chronic conditions that are in flux and predispose him to potentially lethal complications if he contracts COVID-19, and the Government consents to his release.  The Court finds that the totality of the circumstances specific to Mr. Jepsen constitute 'extraordinary and compelling'reasons to grant compassionate release.")

United States v. Williams, No. 3:04cr95/MCR (ND Fla. Apr. 1, 2020) (download here) ("Williams' cardiovascular and renal conditions compromise his immune system, which, taken with his advanced age, put him at significant risk for even more severe and life threatening illness should he be exposed to COVID-19 while incarcerated.... Based on these facts, the Court finds that Williams’ deterioration in physical health is sufficiently serious to satisfy the medical criteria for a reduction in sentence."): Download US v. Andre Williams (ND FL 4.1.20)

United States v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) (download here) ("Releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19"): Download Resnick covid order  (Now also at 2020 WL 1651508).

United States v. Brannan, No. 4:15-CR-80-01 (SD Tx. Apr. 2, 2020) (download here) (though not reflected in order, emergency motion was granted on same day of filing for prisoner who had served only 9 months of a 36-month sentence for fraud at FCI Oakdale and had not exhausted BOP remedies): Download 15cr80 Order for Compassionate Release

United States v. Colvin, No. 3:19cr179 (JBA), 2020 WL 1613943 (D. Conn. Apr. 2, 2020) ("She has diabetes, a 'serious ... medical condition,' which substantially increases her risk of severe illness if she contracts COVID-19.... Defendant is 'unable to provide self-care within the environment of' FDC Philadelphia in light of the ongoing and growing COVID-19 pandemic because she is unable to practice effective social distancing and hygiene to minimize her risk of exposure, and if she did develop complications, she would be unable to access her team of doctors at Bridgeport Hospital. In light of the expectation that the COVID-19 pandemic will continue to grow and spread over the next several weeks, the Court concludes that the risks faced by Defendant will be minimized by her immediate release to home, where she will quarantine herself.")

United States v. Foster, No. 1:14-cr-324-02 (MD Pa. Apr. 3, 2020) (download here) ("The circumstances faced by our prison system during this highly contagious, potentially fatal global pandemic are unprecedented. It is no stretch to call this environment 'extraordinary and compelling,' and we well believe that, should we not reduce Defendant’s sentence, Defendant has a high likelihood of contracting COVID-19 from which he would “not expected to recover.” USSG § 1B1.13. No rationale is more compelling or extraordinary."): Download MDPa Foster JonesJ MemOrd GrantRIS e040320

As I have said before, I am fairly confident that this list does not represent all, and I hope it does not even capture most, of the sentence reductions granted by federal district courts in the last few days.  Readers are encouraged to use the comments or to send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

UPDATE: Here are a few more sentence reductions granted by federal district courts in the last few days that just showed up online or were sent my way:

United States v. Edwards, No. 6:17-cr-00003, 2020 WL 1650406 (D. Conn. Apr. 2, 2020) ("Defendant presented a strong case for compassionate release on account of his incurable brain cancer even before the outbreak of the COVID-19 pandemic. But Defendant's request was further substantiated with a particularized showing that he is susceptible to contracting COVID-19, and that he is at high risk if he contracts it. The Court finds that Defendant has demonstrated an extraordinary and compelling reason for his compassionate release.")

United States v. Zukerman, No. 16 Cr. 194 (AT) (SDNY Apr. 3, 2020) (download here) ("First, the Court holds that Zukerman’s exhaustion of the administrative process can be waived in light of the extraordinary threat posed — in his unique circumstances — by the COVID-19 pandemic.  Second, although the sentence imposed on Zukerman was wholly warranted, the Court holds that the threat posed by COVID-19, in light of his age and medical status, constitutes an extraordinary and compelling reason to modify Zukerman’s sentence.") Download Order granting Zukerman reqest for compassionate release

April 3, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, April 01, 2020

A few (too few) recent COVID-influenced grants of sentence reductions using § 3582(c)(1)(A)

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

A few weeks ago before the COVID-19 outbreak became the most urgent of stories, I was starting to notice on Westlaw a growing number of rulings granting sentencing reductions using 3582(c)(1)(A).  I listed some of these pre-COVID positive cases in this March 23 post.  While writing that prior post, I was thinking it might be only a matter of days before a lot more courts granted a lot more sentence reductions using § 3582(c)(1)(A) because of the "extraordinary and compelling" public health crisis created by COVID-19.  Somewhat disappointingly, I have only so far been able to locate a handful of recent COVID-influenced grants of sentence reductions using § 3582(c)(1)(A):

United States v. Campagna, No. 16 Cr. 78-01 (LGS), 2020 WL 1489829 (SDNY Mar. 27, 2020) ("Defendant’s compromised immune system, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify to Defendant’s sentence on the grounds that he is suffering from a serious medical condition that substantially diminishes his ability to provide self-care within the environment of the RCC.")

United States v. Powell, No. No. 1:94-cr-00316 (ESH) (DDC Mar. 28, 2020) (available here) ("Defendant is 55-years-old, suffers from several respiratory problems (including sleep apnea and asthma), and has only 3 months remaining on his 262-month sentence. The government does not oppose the relief sought. In addition, the Court finds that requiring defendant to first seek relief through the Bureau of Prisons’ administrative process would be futile because defendant has an open misdemeanor case in Superior Court which the Bureau of Prisons has advised defense counsel renders defendant ineligible for home confinement.")

United States v. Muniz, No. 4:09-CR-0199-1, 2020 WL 1540325 (SD Tex. Mar. 30, 2020) ("Because Defendant is at high-risk for severe illness from COVID-19 and because inmates in detention facilities are particularly vulnerable to infection, the Court finds that Defendant has demonstrated an extraordinary and compelling reason for compassionate release.")

United States v. Gonzales, No. 2:18-CR-0232-TOR-15, 2020 WL 1536155 (Ed Wash. Mar. 31, 2020) ("Defendant is the most susceptible to the devastating effects of COVID-19. She is in the most susceptible age category (over 60 years of age) and her COPD and emphysema make her particularly vulnerable.... The Court was aware of Defendant’s underlying medical condition and took that into consideration at the time of sentencing. In normal times, Defendant’s condition would be manageable. These are not normal times, however.")

I am fairly confident that this list does not represent all, and I hope it does not even capture most, of the sentence reductions granted by federal district courts in the past week or so.  Readers are encouraged to use the comments or send me emails to supplement this list as new ruling are handed down or become available.

Prior recent related posts:

UPDATE: I am pleased to report that I just received from a helpful reader a copy of a new 24-page opinion handed down just today in United States v. Rodriguez, No. 2:03-cr-00271-AB-1 (ED Pa. Apr. 1, 2020) (available for download below). The start of this new opinion highlights why it is a must-read for anyone working on 3582(c)(1)(A) motions these days:

We are in the midst of an unprecedented pandemic. COVID-19 has paralyzed the entire world. The disease has spread exponentially, shutting down schools, jobs, professional sports seasons, and life as we know it. It may kill 200,000 Americans and infect millions more. At this point, there is no approved cure, treatment, or vaccine to prevent it. People with pre- existing medical conditions — like petitioner Jeremy Rodriguez — face a particularly high risk of dying or suffering severe health effects should they contract the disease.

Mr. Rodriguez is an inmate at the federal detention center in Elkton, Ohio.  He is in year seventeen of a twenty-year, mandatory-minimum sentence for drug distribution and unlawful firearm possession, and is one year away from becoming eligible for home confinement. Mr. Rodriguez has diabetes, high blood pressure, and liver abnormalities. He has shown significant rehabilitation in prison, earning his GED and bettering himself with numerous classes. He moves for a reduction of his prison sentence and immediate release under the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A).  He argues that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §3582(c)(1)(A)(i).

For Mr. Rodriguez, nothing could be more extraordinary and compelling than this pandemic. Early research shows that diabetes patients, like Mr. Rodriguez, have mortality rates that are more than twice as high as overall mortality rates.  One recent report revealed: “Among 784 patients with diabetes, half were hospitalized, including 148 (18.8%) in intensive care.  That compares with 2.2% of those with no underlying conditions needing ICU treatment.”

These statistics — which focus on the non-prison population — become even more concerning when considered in the prison context. Prisons are tinderboxes for infectious disease. The question whether the government can protect inmates from COVID-19 is being answered every day, as outbreaks appear in new facilities. Two inmates have already tested positive for COVID-19 in the federal detention center in Elkton — the place of Rodriguez’s incarceration.  After examining the law, holding oral argument, and evaluating all the evidence that has been presented, I reach the inescapable conclusion that Mr. Rodriguez must be granted “compassionate release.”

Download Rodriguez Memorandum

ANOTHER UPDATE: I am pleased to report that I just received from another helpful reader another new opinion handed down just today in United States v. Perez, No. 17 Cr. 513-3 (AT) (SDNY Apr. 1, 2020) (available for download below).  This opinion includes an important discussion of the need to waiver the exhaustion/30-day requirement for a motion for sentence reduction. Here are excerpts:

On March 26, 2020, Perez submitted to the BOP his application for a sentence modification. ECF No. 96 at 4. To date, the BOP has not acted on that request. The Court holds, however, that Perez’s exhaustion of the administrative process can be waived in light of the extraordinary threat posed—in his unique circumstances—by the COVID-19 pandemic. And the Court agrees with the parties that this threat also constitutes an extraordinary and compelling reason to reduce Perez’s sentence to time served. Accordingly, Perez’s motion is GRANTED....

Here, delaying release amounts to denying relief altogether. Perez has less than three weeks remaining on his sentence, and pursuing the administrative process would be a futile endeavor; he is unlikely to receive a final decision from the BOP, and certainly will not see 30 days lapse before his release date. Perez asks that his sentence be modified so that he can be released now, and not on April 17, 2020, because remaining incarcerated for even a few weeks increases the risk that he will contract COVID-19. He has had two surgeries while incarcerated, and continues to suffer severe side effects such as ongoing pain and persistent vision problems. ECF No. 96 at 4. As the Government concedes, Perez faces a “heightened risk of serious illness or death from COVID-19 due to his preexisting medical issues.” Gov’t Letter at 3. Requiring exhaustion, therefore, would be directly contrary to the purpose of identifying and releasing individuals whose circumstances are “extraordinary and compelling.”

Download Perez-Order-Compassionate-Release

April 1, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Tuesday, March 24, 2020

Bipartisan group of Senators write to DOJ and BOP to urge taking "necessary steps" to protect "most vulnerable" prison staff and inmates

Late yesterday, fourteen US Senators (including some from both political parties) wrote this short letter to Attorney General William Barr and BOP Director Michael Carvajal urging action to protect vulnerable federal prison staff and inmates at this time of the coronavirus outbreak (also available here).   Though the letter runs only five substantive paragraphs, nearly every passage includes language that lawyers might want to utilize in any filings seeking to keep defendants from going in to, or seeking to get inmates out of, federal facilities.  Here is the full letter (with key phrases bolded):

On March 13, 2020, President Trump declared a state of emergency concerning the novel coronavirus disease (COVID-19) outbreak. We write to express our serious concern for the health and wellbeing of federal prison staff and inmates in Federal custody, especially those who are most vulnerable to infection, and to urge you to take necessary steps to protect them, particularly by using existing authorities under the First Step Act (FSA).

We have reviewed the Federal Bureau of Prisons (BOP) COVID-19 Action Plan, which covers health screening, limits on outside visits, staff travel, and inmate transfers, but notably does not include any measures to protect the most vulnerable staff and inmates.  The Centers for Disease Control and Prevention (CDC) has issued guidance indicating that adults over 60 years old and individuals with chronic medical conditions, such as lung disease, heart disease, and diabetes, are at a higher risk of contracting COVID-19 and suffering more severe illness and death.  The CDC has advised these individuals to avoid crowds and stay at home as much as possible.  Conditions of confinement do not afford individuals the opportunity to take proactive steps to protect themselves, and prisons often create the ideal environment for the transmission of contagious disease. For these reasons, it is important that consistent with the law and taking into account public safety and health concerns, that the most vulnerable inmates are released or transferred to home confinement, if possible.

COVID-19 is an unprecedented crisis for our nation, including our inmate population.  However, Congress has equipped BOP and the Department of Justice (DOJ) with tools to use to maximize their efforts to overcome these daunting times.  For example, the FSA reauthorized and expanded the Elderly Home Detention Pilot Program to place eligible elderly and terminally ill inmates in home confinement.  This pilot program permits the Bureau of Prisons (BOP) to transfer nonviolent offenders to home detention if they are sixty years or older and have served 2/3 of their term of imprisonment, among other requirements.  We call on BOP and DOJ to review and expedite the current cases where the Elderly Home Detention Pilot Program would allow for an early transfer – where appropriate – of terminally ill and eligible elderly inmates to home confinement.  Since elderly offenders are the most vulnerable to infection and the least likely to reoffend, we urge BOP’s speedy review and processing of these cases for early release.

In addition, the FSA reformed the compassionate release program for people facing “extraordinary and compelling” circumstances. However, since enactment, BOP has opposed the vast majority of petitions.  According to a report recently filed by BOP, in 2019, 1,735 requests for release were initiated by or on behalf of inmates, of which 1,501 were denied by wardens and 226 were forwarded to the BOP Director.  Of these 226, BOP approved only 55 requests and denied 171 requests.  We urge you to immediately issue guidance requiring that “extraordinary and compelling” circumstances be interpreted more broadly and clarify that such circumstances include vulnerability to COVID-19.

Finally, Section 602 of the FSA directed BOP, to the extent practicable, to transfer lower-risk inmates to home confinement for the maximum amount of time permitted under the law, which is the shorter of 10 percent of the term of imprisonment or six months.  Given the current state of emergency, we urge you to consider the use of this authority to quickly transfer non-violent offenders who are at high risk for suffering complications from COVID-19 to home confinement.

March 24, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, March 23, 2020

Notable recent (pre-COVID) grants of sentence reductions from coast to coast using § 3582(c)(1)(A) ... as FAMM urges thousand more filings in response to coronavirus

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

A few weeks ago before the COVID-19 outbreak became the most urgent of stories, I was starting to notice on Westlaw a growing number of rulings granting sentencing reductions using 3582(c)(1)(A).  I was drafting a detailed post on this topic when COVID started taking up all of my attention, but it now seems wise to just list some of the positive cases from the last few weeks:

United States v. O’Bryan, No. 96-10076-03-JTM, 2020 WL 869475 (D. Kan. Feb 21, 2020)

United States v. Mondaca, No. 89-CR-0655 DMS, 2020 WL 1029024 (S.D. Cal. March 3, 2020)

United States v. Young, No. 2:00-cr-00002-1, 2020 WL 1047815 (M.D. Tenn. March 4, 2020)

United States v. Davis, No. PJM 00-424-2, 2020 WL 1083158 (D. Md. March 5, 2020)

United States v. Perez, No. No. 88-10094-1-JTM, 2020 WL 1180719 (D. Kansas March 11, 2020)

United States v. Redd, No. 1:97-cr-00006-AJT 2020 WL 1248493 (E.D. Va. Mar. 16, 2020)

I felt compelled to post this list tonight because of notable news from FAMM detailed in this press release titled "FAMM urges most vulnerable people in federal prison to immediately apply for compassionate release":

 In response to the worldwide COVID-19 pandemic, FAMM sent a letter to nearly 40,000 federal prisoners today encouraging all federal prisoners who are most vulnerable to immediately apply for early release.  FAMM is working with the National Association of Criminal Defense Lawyers, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs to assist those who apply.

“There are thousands of sick and elderly people in federal prison whose continued incarceration serves no public safety purpose.  This same population is the most vulnerable to coronavirus,” said FAMM President Kevin Ring.  “They were not sentenced to death, and they should be released immediately.”

Ring noted that people in prison cannot take the same precautions that health experts have recommended to avoid contracting the virus.  People in federal prison can’t practice social distancing.  Moreover, the prisons are not clean and many do not have adequate medical care.

The Centers for Disease Control consider the most vulnerable to include people over 65 years old, and people with a condition that affects their lungs, heart, kidney, immune system, or who have another serious chronic medical condition.  There are more than 10,000 people in federal prison who are over 60 years old.  Many are in poor health.

FAMM worked with Congress to expand the compassionate release program in the First Step Act.  One of the most important reforms gave people in prison the right to go to federal court and ask a judge to grant compassionate release if the Bureau of Prisons either denies a request or does not answer a request within 30 days.

“We are urging at-risk people to make the request to their wardens immediately.  That starts the clock.  If Congress and the president don’t act before then, the courts will have the chance to do the right thing,” said Ring.

March 23, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Friday, March 20, 2020

Federal Defenders urge Justice Department to take specific immediate steps in response to coronavirus outbreak

I received this morning a copy of a seven-page letter sent yesterday by the Federal Public & Community Defenders to Attorney General William Barr and other Justice Department officials.  That letter (dated March 19, 20202) can be downloaded below, and here is how it started (with footnotes omitted):

We write on behalf of the Federal Public and Community Defenders.  At any given time, Defenders and other appointed counsel under the Criminal Justice Act represent 80 to 90 percent of all federal defendants because they cannot afford counsel.

The COVID-19 global pandemic has turned our nation’s jails and prisons into ticking time bombs.  These jails and prisons do not provide adequate medical care in the best of times. Many prisons and pretrial detention facilities are dramatically understaffed, and populated by individuals who are older and medically compromised.  Today, the Bureau of Prisons (BOP) confirmed that two staff members were presumed positive for COVID-19, marking the first possible cases in the federal prison system.  They are surely not the last. As BOP has itself acknowledged, the risks of the rapid transmission of contagion in the tight quarters of prisons and jails present major challenges in keeping inmates and staff safe and healthy.  This stark reality has been widely recognized.

Lowering the population of prisons and jails is the simplest and most effective way to disrupt the transmission of COVID-19.  Our clients and other incarcerated individuals — along with the correctional officers, attorneys, and contractors who spend their days moving between prisons and the public — are in grave and imminent danger.

We urge you to use existing authority to take immediate and decisive action to both reduce the number of people entering federal detention and release individuals who are already incarcerated.  Failure to do so may well be a death sentence for many.

It is imperative that the Department of Justice immediately take the following two steps:

1. Direct all United States Attorneys’ Offices to minimize arrests, decline to seek detention of individuals at their initial appearance in court and consent to the release of those already detained except in cases involving a specific and substantial risk that a person will cause bodily injury to or use violent force against the person of another; and

2. Direct BOP to utilize its existing authorities under the First Step Act and Second Chance Act to maximize the use of community corrections and compassionate release.

Download 20200319--Letter to AG Barr et al. re COVID-19

March 20, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (1)

Monday, March 09, 2020

"Data Collected Under the First Step Act, 2019"

The title of this post is the title of this notable new document that the Bureau of Justice Statistics released this morning.  The document reports a range of data about the federal prison system, and here are excerpts from the start of this document:

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

The statistics in this report are for calendar year 2018, which is prior to the enactment of the FSA, and were collected in 2019.  Data for 2019 will be available from BOP in the second half of 2020.  Unless otherwise noted, all counts in this report include federal prisoners held in correctional facilities operated either by the BOP or by private companies contracted by the BOP.  Other reporting required by the FSA, such as the establishment of new methods by BOP to score risk-assessment or recidivism-reduction programs, will be included in BJS’s annual reports when data become available.

Key findings....

  • At year-end 2018, a total of 80,599 prisoners — or 45% of all BOP prisoners — were the parent, step-parent, or guardian of a minor child (dependents age 20 or younger, per BOP definition).
  • At year-end 2018, a total of 51,436 prisoners (about 29% of all BOP prisoners) had not attained a high-school diploma, general equivalency degree (GED), or other equivalent certificate before entering prison.
  • At year-end 2018, a total of 23,567 prisoners identified English as their second language (13% of all BOP prisoners).
  • At year-end 2018, a total of 33,457 prisoners were non-citizens (19% of all BOP prisoners)....
  • In 2018, all 122 BOP-operated facilities had the capability for prisoners to use video-conference technology to participate in judicial hearings, foreign embassy consultations, reentry-related communication from probation offices, pre-reentry preparation, disciplinary hearings, and the Institution Hearing Program....
  • A total of 87,628 prohibited acts occurred in BOP-operated facilities during 2018, of which 39,897 were committed in medium-security facilities (45%).
  • A total of 55,361 individual prisoners committed the 87,628 prohibited acts.
  • During 2018, there were 1,270 physical assaults on BOP staff by prisoners, with 21 of the assaults resulting in serious injury to the staff member.

March 9, 2020 in Data on sentencing, FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners | Permalink | Comments (2)

Thursday, March 05, 2020

Federal prosecutors and hundred of victims write in opposition to Bernie Madoff's compassionate release motion

Last month, as noted in this post, Bernie Madoff filed a motion for compassionate release thanks to a provision of federal law modified by the FIRST STEP Act.  This week, filings in response came from federal prosecutors.  This USA Today piece has the filing and reports on it  starting this way:

Federal prosecutors on Wednesday night objected to Ponzi scheme mastermind Bernard Madoff's bid for release from prison, arguing that the reviled and ailing ex-financier should continue serving his 150-year sentence.

Charging that the 81-year-old convict who ran one of history's biggest scams has "demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims," the U.S. Attorney's Office for the Southern District of New York urged a judge to keep him in prison.

"Madoff's crimes were 'extraordinarily evil.' His sentence was appropriately long. It should not be reduced," Assistant U.S. Attorneys Drew Skinner and Louis Pellegrino wrote in the filing to U.S. Circuit Court Judge Denny Chin, who sentenced Madoff more than a decade ago.

I think the first paragraph of the filing is effective:

The Government respectfully submits this memorandum of law in opposition to defendant Bernard L. Madoff’s request for 92% reduction in his sentence.  The nature of Madoff’s crime — unprecedented in scope and magnitude — wholly justified the 150-year sentence this Court imposed and is by itself a sufficient reason to deny Madoff’s motion.  Furthermore, since his sentencing, Madoff has demonstrated a wholesale lack of understanding of the seriousness of his crimes and a lack of compassion for his victims, underscoring that he is undeserving of compassionate release himself.  Finally, the Section 3553(a) factors weigh heavily against his release.

This CNBC piece report on some of the victim letters opposing Madoff's motion. Here is how this article gets started:

Hundreds of victims of Ponzi scheme kingpin Bernie Madoff really don’t want him to get out of prison despite his claim that he is dying. They recently told a judge their reasons in often-heartbreaking letters.

“Our lives, and not just financially, also emotionally, mentally, and physically . . . were Destroyed,” wrote one victim, who noted that her husband lost $850,000 to Madoff.

Another woman wrote, “I lost all my money and my husband of 40 years committed suicide because of his horrific crimes. As far as I am concerned, he should spend the rest of his life in jail,” she wrote to Judge Denny Chin in U.S. District Court in Manhattan.

Releasing Maddoff, a third victim told Chin, “would be to put another knife in the hearts of his victims.”

Those three letters are among the approximately 520 that Madoff victims sent Chin on the heels of Madoff’s court filing last month seeking early release from his 150-year prison sentence because he has terminal kidney disease.

Prior related posts:

March 5, 2020 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, February 26, 2020

"Madoff Wants Leniency. My Dad Received None. Why should the Ponzi scheme king get out to die, when the judges imprisoned my father with just weeks to live?""

The title of this post is the full headline of this notable new Bloomberg Opinion commentary in which Ian Fisher reflects, in a personal way, on compassion and compassionate release.  I recommend the piece in full, and here are excerpts:

I cannot remember the name of the chaplain who called from the Butner correctional facility, perhaps the nation’s premier federal prison for sick white-collar prisoners. But he was a pro.  He talked slowly, in gentle circles about how my father had been very ill and how they did their best.  This verbal shuffling was all so I could figure out before the chaplain said the actual word that my father, Albert Ernest Fisher III, was dead. He was 78.

So it hit me with unexpected emotion, complicated now as a financial journalist, when I read that Bernie Madoff, 81, my father’s Butner prisonmate, is asking for compassionate release. He says he is dying.  I use “he says” as journalistic distancing and to signal that it may not be wise to believe everything that the engineer of the world’s biggest Ponzi scheme tells you....

After Madoff’s request, I’ve learned that the penal system is trending toward compassion — as well as a more hard-headed desire to unclog prisons and work toward fairness in drug sentencing.  The 2018 First Step Act, passed too late for my father, allows judges more flexibility to release federal prisoners. So when Bernard Ebbers, sent to prison for 25 years for $11 billion in accounting fraud, asked for compassionate release last year, it hardly raised a stir.  He was let out in December and died at home in Mississippi on Feb. 2, just around the time Madoff made his own request.

Still, when your own family life collides with larger forces embodied in First Step, the feelings are less abstract.  My dad was not in Madoff’s league, but there are parallels.  Both ran Ponzi schemes.  The crimes of each caused real damage, from life savings vaporized to student funds for room and board squandered in Bermuda and Neiman Marcus.  Neither was a violent threat to society, but the actions of each incurred a debt to it.  Those actions cost, in explicit ways....

My immediate reaction to Madoff’s request was a personal one: Why should he get out to die, when the judges imprisoned my father with just weeks to live? Madoff’s lawyers say he has maybe 18 months left in him. He’s been in prison nearly 11 years.

I don’t wish to be cruel. I wince seeing the terminally ill suffer in jail, my dad, Madoff or anyone else.  First Step seems like a reasonable attempt at reducing mass incarceration in the United States — case by case, on their merits, under specific guidelines.

But Madoff’s request has unexpectedly forced me to face something basic about being a citizen: Can you live with what you think is abstractly good even if is not good for you personally?  In my case, can I say it’s fine that Madoff may get to die freely when my father could not — even if I believe that people like him should be shown compassion?

Honestly, it’s not going down very well.  To me, Madoff is not a matter of public policy, brushing prison shoulders with my father: a better criminal, richer and more famous, who could glide free simply because times have changed.

Prior related posts:

February 26, 2020 in FIRST STEP Act and its implementation, Offense Characteristics, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0)

Wednesday, February 19, 2020

Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under § 3582(c)(1)(A)

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

I have previously flagged here and here and here  and here some notable examples of judges finding notable reasons sufficient to reduce a sentence.  But I have not blogged lately about any recent § 3582(c)(1)(A) rulings because my Westlaw searches have largely turned up only denials rather than grants of these motions.  Thanks to a helpful reader, though, I learned of a notable recent grant in US v. Maumau,  No. 2:08-cr-00758-TC-11, 2020 WL 806121 (D. Utah Feb. 18, 2020) (also available for download below).  This decision, authored by District Tena Campbell, provides an extended, thoughtful review of recent compassionate release jurisprudence and the changes to § 3582(c)(1)(A) brought by the FIRST STEP Act. 

I recommend review of the Maumau ruling in full for anyone working on or thinking about these isssues.  Here are some excerpts from the opinion that help highlight its importance:

Having reviewed all of the above cases, this court joins the majority of other district courts that have addressed this issue in concluding that it has the discretion to provide Mr. Maumau with relief, even if his situation does not directly fall within the Sentencing Commission’s current policy statement. Under the First Step Act, it is for the court, not the Director of the Bureau of Prisons, to determine whether there is an “extraordinary and compelling reason” to reduce a sentence....

As part of the First Step Act, Congress eliminated the consecutive stacking previously required for violations of § 924(c) [which had led to a 55-year sentence for the defendant for crimes committed at age 20]... When considered together, the court is inclined to find that Mr. Maumau’s age, the length of sentence imposed, and the fact that he would not receive the same sentence if the crime occurred today all represent extraordinary and compelling grounds to reduce his sentence.

The United States points out in its opposition that Mr. Maumau’s request is unlike the vast majority of compassionate release requests because he is not suffering from any medical- or age-related physical limitations.  But the fact that such cases are uncommon does not mean that Mr. Maumau’s request must be denied.  First, the lack of such cases is, at least arguably, part of what spurred Congress to pass the First Step Act.... Finally, and perhaps most importantly here, at least one district court has modified a sentence based solely on the First Step Act’s changes to § 924(c) sentencing.... Like the Urkevich court, this court concludes that the changes in how § 924(c) sentences are calculated is a compelling and extraordinary reason to provide relief on the facts present here.

The United States objects to this conclusion because, it notes, Congress could have made its changes to § 924(c) retroactive but it chose not to do so. See Brown, 2019 WL 4942051 at *5.  While this is a relevant consideration, it ultimately has little bearing on the court’s conclusion. It is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis.  As just noted, that is precisely the approach taken by the Urkevich court.

Based on the above, the court concludes that a combination of factors — Mr. Maumau’s young age at the time of the sentence, the incredible length of the mandatory sentence imposed, and the fact that, if sentenced today, he would not be subject to such a long term of imprisonment — establish an extraordinary and compelling reason to reduce Mr. Maumau’s sentence....

Regarding what type of sentence to impose, Mr. Maumau “urge[s] the Court to ... hav[e] him brought to the district, where he can be interviewed by Probation and perhaps have an opportunity to address the Court.” (Def.’s Reply at 1 (ECF No. 1744).)  The court agrees that this is the best way for the court to determine an appropriate sentence modification.

Accordingly, the court sets this matter for a hearing at 2:00 p.m. on April 7th.  At that time, Mr. Maumau and the United States will be permitted to present their arguments regarding what would be an appropriate sentence for Mr. Maumau in light of the above factors.  The court further orders Mr. Maumau, in advance of the resentencing hearing, to meet with the Probation Office, and for the Probation Office to prepare a new Presentence Report that addresses Mr. Maumau’s character, his danger to the public, his likelihood of rehabilitation or recidivism, the type of sentence he likely would have received had he been charged and convicted after the First Step Act had been passed, and any other relevant considerations.

Download Maumau.DistrictCourtOpinion.Feb18.2020

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

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

Monday, February 17, 2020

Spirited (but problematic?) advocacy for Bernie Madoff to receive compassionate relief

The New York Times has this notable new opinion piece authored by headlined "Let Bernie Madoff, and Many More, Out of Prison: Compassionate release has to apply to unsympathetic prisoners, if we mean what we say about ending mass incarceration."  I think the spirit of this piece is quite sound, but I am not entirely sold on all of its particulars.  Here are excerpts (with a few lines emphasized for comments to follow):

Recently, Mr. Madoff re-entered the news, as he filed for compassionate release from federal prison.  He is entering the final stages of kidney disease and has less than 18 months to live. The Bureau of Prisons denied his petition, as it does to 94 percent of those filed by incarcerated people.  But the reforms provided in the First Step Act of 2018 allow him to file an appeal with the sentencing court.

Even some who claim to detest the ravages of mass incarceration argue that Mr. Madoff should be denied compassionate release.  He is as close to the financial equivalent of a serial killer as one might encounter.  Still, there is a good argument to be made for compassionate release.  It has little to do with Bernie Madoff, though, and how we feel about his horrendous actions.

If our societal goal is to reduce incarceration, we are going to have to confront the inconvenient truth that retribution cannot be our only penological aim, and justice for victims has to be much more extensive than the incarceration of those who have caused them harm.  We desperately need to shift our cultural impulse to punish harshly and degradingly, and for long periods.

The visceral, retributive reactions to Mr. Madoff’s petition, including from liberals who claim to want to end mass incarceration, reveal the obstacles to transformational criminal justice reform.  The truth is, there is only a small number of entirely “sympathetic” people in prisons who could be released without any scruples by the public or affront to their victims.  Those incarcerated for violent offenses compose a vast majority of our prison population, in spite of a false narrative that most people are in there for nonviolent drug offenses.  The pain and harm experienced by their victims is real, and that’s also true for Mr. Madoff’s victims.  But criminal justice policy cannot be constructed in response to our feelings about individual, high-profile cases — the so-called worst of the worst. 

This “worst of the worst” argument, for example, has long undergirded the death penalty, which still stands in 30 states despite its racial and class biases and other flaws that have led hundreds of innocent people to death row.  It is also part of why the Democratic presidential candidates, with the exception of Bernie Sanders, don’t support the enfranchisement of those in prison.  But creating a separate category for Mr. Madoff, sex offenders or those “others” in the criminal justice system will not help end mass incarceration.  There will always be another high-profile case that can impede the implementation of more humane policies.

Those on the left who press for criminal justice reform emphasize “empathy” in their attempts to reframe the conversation about people who have committed crimes. Conservatives use the word “redemption.”  These words carry a profound responsibility: What do they mean for sympathetic and unsympathetic prisoners?  There are 200,000 people over the age of 55 incarcerated in the United States.  The question of compassionate release for Mr. Madoff affects not only him but these others and their victims as well.

Mr. Madoff lost both his sons while incarcerated (one died of cancer) and was unable to attend their funerals; is a social pariah, almost universally condemned; and has spent 11 years in federal prison.  This is not to say he deserves sympathy, but he has been punished.  In Norway, where Anders Breivik was sentenced to 21 years in prison for a horrific mass murder, 11 years would be considered harsh enough.  Our American punitiveness has distorted our sense of what is an adequate sentence for serious offenses.

When considering compassionate release, we also have to ask: Has the person been rehabilitated?  Does the punishment serve legitimate penological objectives (like deterrence and public safety) other than retribution?  (Something to consider, for instance: The number of Ponzi schemes prosecuted went up, not down after Mr. Madoff’s incarceration.)

Criminal justice reform will fall far short of the dramatic institutional changes needed if the dominant impulse continues to be retribution, and if high-profile cases continue to drive policy.  Compassionate release for those who are aging, terminally ill and dying should be assumed after they’ve served at least 10 years.  It was the offenders’ worst impulses that led them to commit their crimes.  Our justice system should appeal to our higher ethical ambitions.

I agree fully that "retribution cannot be our only penological aim, and justice for victims has to be much more extensive than the incarceration of those who have caused them harm." I also agree fully that criminal justice policy should not "be constructed in response to our feelings about individual, high-profile cases — the so-called worst of the worst" and that we should be troubled if "high-profile cases continue to drive policy." And whether a person has been rehabilitated also seem to me to be an important consideration here.  But I am not sure granting compassionate relief to Bernie Madoff furthers these interests, and I worry it could undermine them.

For starters, it is critical at this stage to realize that we are not really dealing with a "policy" matter, as the FIRST STEP Act altered the policy for compassionate relief and did so in a way that included Bernie Madoff and all other federal prisoners.  Though the FIRST STEP Act has some "worst of the worst" carve-outs in other parts of the Act, but its new process for pursuing compassionate relief applies to all federal prisoners (which is one reason I think it is such an important and valuable part of the Act).  in other words, in this context there is no need to worry about creating any "separate category for Mr. Madoff, sex offenders or those 'others' in the criminal justice system."  If a federal judge decided to deny Madoff compassionate relief, after considering all the facts of Madoff's case and all the factors of 3553(a), that judge will be adjudicating and resolving a single case, not creating any broad "criminal justice policy."

As to the facts of Madoff's case, I have seen little evidence that Madoff has been truly remorseful or rehabilitated.  In fact, this 2016 ABC News article reports that "Madoff has done little to express his remorse or regret to the estimated 20,000 investors in his scheme, many of whom lost their life savings in the $64 billion fraud.  Other than a brief reference to his victims during his sentencing hearing, Madoff has spent a lot of his time behind bars in an effort to rehabilitate his own image and actually shift the blame to the investors for expecting unrealistic returns which he claims is why he set up his fraud."   And though surely Madoff's victims may not speak in one voice on these matters, I suspect many are open to a vision of "justice ... much more extensive than the incarceration," but are concerned that they have not seen any other form of extensive justice achieved here (though a whole lot of assets have been recovered after a decade of work).  Madoff not only committed arguably the worst white-collar offense in US history, but it seems he has not really done all that much to try to make amends.

Though I may be getting too nitpicky here, I wanted to comment on this piece because I found one particular sentence to be particularly disturbing: "The truth is, there is only a small number of entirely “sympathetic” people in prisons who could be released without any scruples by the public or affront to their victims."  The truth is, there are tens of thousands, probably hundreds of thousands, of entirely "sympathetic" people in US prisons who could be released without any scruples by the public or affront to their victims.  Just a quick look at "The Whole Pie" of incarceration shows over 275,000 persons imprisoned for drug offenses and another 200,000 in for "public order" offenses.  Not all of these the underlying crimes were victimless, but even if only one of every ten of these prisoners are "sympathetic," that still gets us to nearly 50,000 sympathetic prisons to consider for release.  Mass incarceration is so very troubling in part because there really are quite a large number of sympathetic cases, and I am particularly eager for there to be continued efforts to give voice to, and get relief for, the huge number of sympathetic folks wasting time (and taxpayer resources) in unduly lengthy prison terms.

This piece rightly notes "there are 200,000 people over the age of 55 incarcerated in the United States" and it is rightly concerned that "compassionate release for Mr. Madoff affects not only him but these others and their victims as well."  But these data and my fears tethered to Madoff's failure to demonstrate remorse run the argument the other way in my view: though I hope there would not be a backlash were Madoff to receive compassionate relief, I worry he could become the poster child for restricting this important relief mechanism for tens of thousands of other prisoners who would seem a lot more sympathetic.  That said, I do like imagining a (realistic?) future in which a decision to release Madoff prompts many more federal judges to grant compassionate release to many more federal prisoners.

Prior related post:

February 17, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Monday, February 10, 2020

Notable numbers in "Criminal Justice Reform" fact sheet highlighting part of Prez Trump's proposed budget

President Donald Trump delivered a proposed budget to Congress today, which this Politico article calls "another fiscally conservative dream document lawmakers will largely disregard."  I do not know enough about budget policy, politics or practice to say much about the whole document, but I did notice that the White House has also now released this one-page budget fact sheet titled "Criminal Justice Reform."  Here are excerpts:

On December 21, 2018, President Trump signed into law the First Step Act of 2018 (FSA, or “the Act”), the most significant, bipartisan criminal justice reform legislation in more than a decade....

For 2021, the Budget provides $409 million to Department of Justice’s Bureau of Prisons (BOP) to implement the FSA, an increase of $319 million over 2020 enacted budget. Major new investments in 2021 include:

  • Residential Reentry Center (RRC) Expansion ($244 million):  The FSA requires BOP to have pre-release custody available for all eligible inmates.  The FSA also greatly expands inmate eligibility for pre-release custody by allowing inmates to earn 10 days of pre-release custody time credits for every 30 days of successful participation in an evidence-based, recidivism-reduction program or productive activity.  Prerelease custody usually occurs in an RRC, commonly called a “halfway house.”  BOP currently has about 14,000 RRC beds under contract, and funding provided in 2020 will add 300 more.  The 2021 Budget supports an additional 8,700 beds, bringing the total to 23,000 RRC beds -- a level that is expected to meet the pre-release custody demand under the FSA.
  • Medication-Assisted Treatment (MAT) – Complete Nationwide Expansion ($37 million):  MAT combines behavioral therapy and medication to treat inmates with opioid use disorder. BOP estimates that 10 percent of its population may be eligible for MAT treatment.  BOP is investing sufficient funding in 2020 to expand MAT treatment from a small pilot program to half of all eligible BOP facilities.  The 2021 Budget continues this funding and provides an additional $37 million to complete MAT expansion to all eligible BOP facilities.
  • Recidivism-Reduction Program Expansion ($23 million):  As required by the FSA, BOP will increase access to evidence-based, recidivism-reduction programs.  BOP’s focus will be to add capacity to existing mental health, life skills, special needs, educational, vocational programs, and add new programs as they are identified and evaluated.
  • FSA Staff Support ($15 million): These funds provide for the pay and benefits of additional FSA staff hired to support 2020 investments in MAT and Recidivism-Reduction Programs.

The Budget also recurs $90 million provided in 2020 to support FSA implementation, including:

  • $38 million to expand MAT to the first half of BOP’s institutions in 2020;
  • $19 million to expand evidence-based, recidivism-reduction programs;
  • $14 million for the Innovations in Corrections program to incentivize the development of innovative, evidence-based pilot projects in reentry and recidivism-reduction approaches;
  • $9 million for the initial expansion of 300 RRC beds added in 2020;
  • $6 million for inmate-focused IT, such as upgrading the BOP’s computer-based education network; and,
  • $4 million to evaluate BOP’s recidivism-reduction programs and tools for assessing recidivism risk.

Though these budget proposals still might fall short of what is needed for full, effective implementation of the FIRST STEP Act (e.g., I think Recidivism-Reduction Programs needs a lot more money), this strikes me as a serious effort to put serious money behind the Act (especially with the RRC expansion). Though I will always be hoping for the Trump Administration to do more and more in the arena of criminal justice reform, I am pleased today to see this Trumpian effort to provide needed additional resources in this arena.

Relatedly, and covering a lot more ground, Deputy Attorney General Jeffrey Rosen today delivered these remarks regarding the Department of Justice's overall portion of the FY 2021 Budget Proposal.

February 10, 2020 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Wednesday, February 05, 2020

Terminally ill, Bernie Madoff is latest high-profile fraudster to seek compassionate release from federal prison thanks to FIRST STEP Act

As reported here a few months ago, former WorldCom CEO Bernie Ebbers secured compassionate release from federal prison thanks largely to a provision of the FIRST STEP Act and to a federal judge believing his claim that he was extremely ill.  Though federal prosecutors questioned just how ill Ebbers really was (as noted here), the judge was proven right in this case: Ebbers passed away this past weekend.

Now, as reported here in a lengthy Washington Post piece, another notable high-profile fraudster is seeking compassionate release: "Ponzi scheme king Bernie Madoff, who bilked investors out of billions, seeks medical release from prison."  Here are the details:

The man convicted of the greatest Ponzi scheme in modern American history, guilty of bilking thousands of investors in 49 states and more than 120 countries, is asking a judge to release him from a life sentence so he can die outside prison walls.  Bernie Madoff said he is in the end stages of kidney disease, must use a wheelchair and is in need of round-the-clock help.  At 81, he is too old for a transplant, and he has been moved to palliative care within the Federal Medical Center prison in Butner, N.C.  He is asking for compassionate release so he can die at home.

In phone interviews with The Washington Post, Madoff expressed remorse for his massive fraud, in which he swindled investors out of billions, and said his dying wish is to salvage relationships with his grandchildren.  He has served 11 years of the 150-year sentence he was given in 2009, after pleading guilty to 11 criminal counts, including fraud and money laundering.  “I’m terminally ill,” Madoff said.  “There’s no cure for my type of disease. So, you know, I’ve served. I’ve served 11 years already, and, quite frankly, I’ve suffered through it.”

Relatively few inmates seeking compassionate release have had their petitions approved by the Federal Bureau of Prisons since the federal program was created in 1984.  But a bipartisan criminal justice reform law passed in late 2018 gave prisoners the right to appeal denials to a federal judge, and that is what Madoff is attempting.  His attorney filed a motion late Wednesday in the Southern District of New York.

Madoff’s request will test the justice system’s capacity for compassion weighed against his unprecedented crimes.  His scheme ruined scores of lives, stole the financial futures of thousands and sent many retirees back to work after wiping out their nest eggs.   At least four people connected to Madoff have died by suicide, including his son, Mark, who hanged himself on the second anniversary of his father’s arrest. Madoff’s remaining child, Andrew, died of cancer in 2014.

Others continue to suffer. Gregg Felsen’s savings were wiped out. Now 72, Felsen works as a wedding and event photographer in Palm Springs, Calif., to make a living. He said that he will never be able to retire and that Madoff doesn’t deserve to be granted a compassionate release.   “I never got a break; why should he get a break? He’s terminally ill? I’m terminally broke,” said Felsen, who said he did not receive restitution.  “He ruined a lot of people’s lives and changed them forever. He deserves no leniency whatsoever.”

The Bureau of Prisons acknowledges that Madoff has about 18 months to live, according to his medical records.  A prison doctor diagnosed him with end-stage renal disease, hypertension, cardiovascular disease and hyperparathyroidism, among other ailments.  The Bureau of Prisons said he fits the criteria for compassionate release but rejected his application in December.“His condition is considered terminal with a life expectancy of less than 18 months,” Ken Hyle, general counsel for the Bureau of Prisons, wrote in the rejection letter.  “However, Mr. Madoff is accountable of a loss to investors of over $13 billion.  Accordingly, in light of the nature and circumstances of his offense, his release at this time would minimize the severity of his offense.”...

Madoff said he is on dialysis and takes about 10 medications a day, including amlodipine and diltiazem for high blood pressure, atorvastatin (Lipitor) for high cholesterol, and calcitriol (a man-made form of vitamin D).   He said he has been given a back brace, bed wedge, medical shoes and a lower bunk.  He said that he has pain and cramping in his thighs, hips and knees and that he rarely sleeps more than an hour at a time, often waking from leg cramps.  Prison records indicate that Madoff is Care Level 4, defined as “functioning may be so severely impaired as to require 24-hour skilled nursing care or nursing assistance.”...

Considered the most significant prison rehabilitation law in more than a decade, the First Step Act was highlighted by President Trump in his State of the Union address Tuesday.  But the law has also been criticized by some conservatives who say its leniency was misguided and opened the door for notorious criminals such as Madoff to be released.  At least 124 people were granted compassionate release in 2019, the first full year of the First Step Act, according to the Justice Department, compared with 34 in all of 2018.

Pat Nolan, director of the American Conservative Union Foundation’s Center for Criminal Justice Reform, worked with lawmakers drafting the First Step Act and said society gains nothing by letting people who are losing their physical and mental faculties languish in prison.  With their bodies and minds failing, he said, prison walls become redundant.  “For some, it’s never enough, but none of what he suffers is going to get a dime back to what he swindled or cheated,” Nolan said. “And, again, I don’t minimize at all [what Madoff has done]. But it’s the hallmark of a society to not punish somebody beyond reasonableness.”

Madoff’s attorney, Brandon Sample, said there shouldn’t be a compassionate release program if all prisoners, including Madoff, aren’t eligible.  “What does it say about us as a society? Are we going to be so insistent that it doesn’t matter, let them suffer there in prison? If that’s the case, why do we need compassionate release?” he asked.  “I don’t dispute that his conduct, his offense behavior impacted many, many people’s lives and caused harm.  There’s no dispute. But the question now is, with his present situation, what would that hypothetical jury do today faced with the Bernie Madoff who’s in a wheelchair, who’s on his last legs of life?”

In light of the extraordinary crimes of Bernie Madoff and their extraordinary consequences, I actually think a hypothetical jury might well demand that Madoff spend the rest of his dwindling day behind bars.  But, under federal law, this issue is not one for a jury to decide.  Rather, specifically pursuant to 18 USC 3582(c)(1)(A)(i), a federal judge will have to decide, "after considering the factors set forth in section 3553(a)," if she finds "extraordinary and compelling reasons warrant"  a sentence reduction for Madoff.  (Ivory tower aside: arguably a federal judge might have power to impanel an advisory jury to assist with making this judgment, but only a crazy Apprendi-addled academic like me could ever even imagine such a move.)

Notably, the judge who originally sentenced Madoff to the maximum available term of 150 years, Judge Denny Chin, is no longer a District Judge after his elevation to the Second Circuit by Prez Obama.  Consequently, some other District Judge in the Southern District of New York will resolve Madoff's motion.  I am inclined to predict that a judge may be inclined to embrace the BOP's view that "in light of the nature and circumstances of his offense, [Madoff's] release at this time would minimize the severity of his offense."  But this one will be interesting to watch.

UPDATE: Here is a copy of the motion that was filled in this matter.

February 5, 2020 in FIRST STEP Act and its implementation, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (3)

"Lost in Translation: 'Risks,' 'Needs,' and 'Evidence' in Implementing the First Step Act"

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

In this article, we focus on two highly problematic issues in the manner in which the First Step Act of 2018 is being implemented by the Bureau of Prisons: (1) an uncritical separation of “dynamic risks” and “criminogenic needs” and (2) a spurious reliance on “evidence-based” interventions to reduce recidivism risk.  We argue that if the Act is to live up to its promise of being a game-changing development in efforts to reduce crime while simultaneously shrinking mass incarceration, “needs assessment” must be subject to vastly increased empirical attention, variable and causal risk factors must be identified and validly assessed, and interventions to reduce risk must be rigorously evaluated both for their fidelity of implementation and impact on recidivism.  Rather than further proliferating programs that ostensibly reduce risk, we believe that serious consideration should be given to the Bureau of Prisons offering one signature, well-established cognitive-behavioral program that can simultaneously address multiple risk factors for moderate and high-risk prisoners.

February 5, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, February 03, 2020

US Sentencing Commission publishes latest FIRST STEP/FSA resentencing data

The US Sentencing Commission today released the latest in a series of data reports titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  The introduction to the report provides this context and overview:

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

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through December 31, 2019 and for which court documentation was received, coded, and edited at the Commission by January 29, 2020.

These new data from the USSC show that 2,387 prisoners have been granted sentence reductions, and that the average sentence reduction was 71 months of imprisonment among those cases in which the the resulting term of imprisonment could be determined.  Though this data is not exact and may not be complete, it still seems sound to state that this part of the FIRST STEP Act, by shortening nearly 2400 sentences by nearly 6 years, has now resulted in over 14,000 prison years saved(!).

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation.  But these latest data show yet again how this small piece has had huge impact that can be measure in lots of years of lots of lives.  And, of course, people of color have been distinctly impacted: the USSC data document that over 91% of persons receiving FSA sentence reductions were Black and more than another 4% were Latinx.

February 3, 2020 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (0)