Sunday, May 19, 2024

"A Critical Assessment of the First Step Act’s Recidivism-Reduction Measures"

The title of this post is the title of this new article authored by Raquel Wilson that was recently published.  Here is its abstract:

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually.  The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons (“BOP”) by allowing participants to earn additional time credits that reduce their sentence.  Yet Congress excluded from its incentive program many violent offenders as well as others convicted of non-violent offenses relating to immigration and drug trafficking.  This Article argues that this exclusion was a critical mistake for several reasons: (1) Programming such as cognitive behavioral therapy has been shown to be most effective for offenders who pose the highest risk of recidivism, including violent offenders; (2) Given limited resources in the BOP, incentivizing participation among only non-violent offenders will likely result in less programming for violent offenders; (3) The BOP already exhibits significant shortcomings in its ability to properly calculate release dates, and forcing the BOP to calculate time credits based on a complex list of excluded offenses will only create additional administrative burdens that may result in more inaccuracy in release dates; and (4) In creating a politically-driven list of excluded offenders, Congress missed an opportunity to focus on data-driven reforms to reduce crime and risks to public safety.

A better approach would be a simpler, more straightforward one that would be easier for the BOP to administer and that would incentivize participation of all people in prison who will be released into local communities.  Congress has expert bodies with which it can consult, including the social science arm of the Department of Justice and the United States Sentencing Commission.  Allowing expert bodies to make decisions and recommendations can insulate both Congress and the President from the political backlash that sometimes hampers meaningful criminal justice reform. Finally, federal judges can be trusted with release decisions.  Judges demonstrated strong adherence to Sentencing Commission guidance when ruling on compassionate release motions once Congress allowed people in prison to file for early release under that statutory provision.  Congress should consider creating a second-look provision that would allow federal judges to apply Commission guidance to early release petitions, taking into account successful completion of recidivism-reducing programs.

May 19, 2024 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, April 02, 2024

Various takes on how much time Sam Bankman-Fried will likely serve on his 25-year federal prison sentence

The federal sentencing of FTX founder Sam Bankman-Fried to 25 years in prison for his frauds last Thursday has already generated a lot of discussion in blog comments, in various podcasts and in numerous press pieces.  I have a number of commentaries worth checking out (and worth skipping), but I have found especially interesting some pieces exploring the question in the headline of this Fast Company article, "How much jail time will Sam Bankman-Fried actually serve?"  Here are a few other pieces in the genre:

From Bitrades, "SBF Will Likely Serve Less Than His Full 25-Year Sentence"

From Business Insider, "Sam Bankman-Fried could go to a low-security prison and get out early if he plays his cards right, prison consultants say"

From Decrypt, "SBF Sentenced to 25 Years in Prison — How Many Will He Actually Serve?"

From the New York Post, "Sam Bankman-Fried was sentenced to 25 years in prison — but how much will he actually serve?"

These pieces generally do a reasonable job explaining that SBF will get credit for the nearly eight months he has already been in jail, and also will likely get 15% off for "good time" credit, and also can get "earned time" credits thanks to the FIRST STEP Act.  But the cummulative impact of all these potential credits has clearly been added up differently by different folks as reported in the Bitrades article: "Some experts believe Sam Bankman-Fried could spend between 12.5 and 18.5 years in prison for his crimes at FTX."

Determining precisely how much time SBF "will serve" is challenging in part because the bulk of "earned time" credits from the FIRST STEP Act that he might accrue will not formally reduce his sentence, but will allow his earlier transfer from prison into home confinement.  (The USSC recently created this helpful page about "earned time" credits.)  If SBF were to leave prison, say, after 14 years, but then must be in home confinement for the next four, one perhaps could claim he "will serve" either 14 years or 18 years.  In the end, I suspect most people focus primarily on SBF's actual time spent in federal prison (and there surely will be more press about SBF leaving prison (likley in the late 2030s) than about the official end of his term (likely some time in the early 2040s).

I sense that the entire federal sentencing and correction system is still adjusting to the new realities in time "served" created by the FIRST STEP Act.  And for another SBF-inspired take on how the FSA now alters certain notions of equality in sentencing, Eric Fish has this new Hill commentary headlined "Why is Sam Bankman-Fried treated more leniently than someone facing illegal immigration charges?"

Prior related posts:

April 2, 2024 in Celebrity sentencings, FIRST STEP Act and its implementation, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Friday, March 15, 2024

In notable 6-3 split, SCOTUS rules in Pulsifer that "and" means "or" for application of FIRST STEP safety valve

The Supreme Court this morning handed down its opinion in the sentencing case of this Term I have been watching most closely to date, Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  The Court ruled for the government in an unusual 6-3 split (though a division that was somewhat foreshadowed by the oral argument way back onthe first day of this Term).  Specifically, Justice Kagan authored the opinion for the Court, while Justice Gorsuch filed a dissenting opinion joined by Justices Sotomayor and Jackson.  Here is how the Court's lengthy opinion (available here) gets started: 

The “safety valve” provision of federal sentencing law exempts certain defendants from mandatory minimum penalties, thus enabling courts to give them lighter prison terms.  To qualify for safety-valve relief, a defendant must meet various criteria, one of which addresses his criminal history.  That criterion, in stylized form, requires that a defendant “does not have A, B, and C” — where A, B, and C refer to three ways in which past criminality may suggest future dangerousness and therefore warrant a more severe sentence.  In brief (with details below), A, B, and C are “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.”

The question presented is how to understand the criminal-history requirement. The Government contends that the phrase “does not have A, B, and C” creates a checklist with three distinct conditions.  On that view, a defendant meets the requirement (and so is eligible for safety-valve relief ) if he does not have A, does not have B, and does not have C.   Or stated conversely, a person fails to meet the requirement (and so cannot get relief ) if he has any one of the three.  The petitioner here instead contends that the phrase “does not have A, B, and C” sets out a single, amalgamated condition for relief.  On his reading, a defendant meets the requirement (and is eligible for relief ) so long as he does not have the combination of A, B, and C.  Or put conversely, he fails to meet the requirement (and cannot get relief ) only when he has all three.  Today, we agree with the Government’s view of the criminal-history provision.

Justice Gorsuch's dissent, which runs even longer than the Court's opinion, kicks off:

The First Step Act of 2018 may be “‘the most significant criminal justice reform bill in a generation.’” Brief for Sen. Richard J. Durbin et al. as Amici Curiae in Terry v. United States, O. T. 2020, No. 20–5904, p. 9.  Through the 1980s and 1990s, Congress adopted an ever-increasing number of ever-longer mandatory minimum prison sentences.  In part due to these policies, the federal prison population grew by more than 100% in less than a decade.  In the First Step Act, Congress sought to recalibrate its approach.  It did so by promising more individuals the chance to avoid one-sizefits-all mandatory minimums and receive instead sentences that account for their particular circumstances and crimes.

This dispute concerns who is eligible for individualized sentencing and who remains subject to mandatory minimums after the First Step Act.  Before the Act, a defendant seeking to avoid a mandatory minimum had to satisfy five stringent statutory tests.  After the Act, all those tests remain, only the first is now less demanding.  As revised, it provides that a defendant may be eligible for individualized sentencing if he “does not have” three traits: (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point violent offense.  In lower court proceedings, the government admitted that this new test is “most natural[ly]” read to mean what it says: A defendant may be eligible for individualized sentencing unless he possesses all three listed traits — A, B, and C. Brief for United States in No. 19–50305 (CA9), p. 7 (Government CA9 Brief ); id., at 10–11; accord, Brief for United States in No. 21–1609 (CA8), p. 11 (Government CA8 Brief ).  Despite its admission, however, the government urges us to adopt a different construction. It asks us to read the First Step Act as promising a defendant a chance at individualized sentencing only when he does not have any of the three listed traits — A, B, or C.

If this difference seems a small one, it is anything but.  Adopting the government’s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance — just a chance — at an individualized sentence.  For them, the First Step Act offers no hope.  Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result.  Ordinary meaning is its first victim.  Contextual clues follow.  Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering.  Respectfully, I would not indulge any of these moves.

Though I will need some time to read and re-read these opinions before having firm thoughts, this ruling serves as still more evidence that SCOTUS is no longer one of the most pro-defendant sentencing appeals courts.  I got in the habit of making this point for a number of years following the Apprendi/Blakely/Booker line of rulings during a time when most federal circuit courts were often consistently more pro-government on sentencing issues than SCOTUS (sometimes led by Justice Scalia or Justice Stevens or Justice Kennedy reversing circuit rulings for the government).  But we are clearly in a different time with different Justices having different perspectives on these kinds of sentencing matters.

March 15, 2024 in FIRST STEP Act and its implementation, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14)

Tuesday, March 12, 2024

On Pulsifer watch again after SCOTUS indicates opinions are coming to close this week.

Regular readers likely recall that I have been watching closely the Supreme Court sentencing case of Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  A resolution of the issue in Pulsifer — which can be imperfectly summarized as a question of whether "and" means "and" or "or" in the context of the Act's expansion of the safety-value mandatory minimum exception — has long been needed and has been a long time coming.

Pulsifer was argued before SCOTUS back in early October 2023 on the very first day of its current Term, and it is relatively rare for a lower-profile case from the start of the Term to still be unresolved by now.  That said, the Justices have been notably slow to issue opinions this Term, and all sorts of emergency matters have surely impacted their usual work flow.   Still, today the SCOTUS hopepage includes a notice that the "Court may announce opinions on Friday, March 15."  This is Court-speak alerting us to the fact that they will hand down at least one opinion (and likely more) Friday morning at 10am, though how many and which one are still matters for speculation.

The last time I was on Pulsifer watch, in early February, I correctly speculated it was likely a bit too soon to expect an opinion given that the oral argument in Pulsifer suggested a divided court, with at least a couple Justices appearing to have strong views on each side of the case.  That reality might still caution against getting hopes up for the Pulsifer opinion this Friday.  Also, though long in coming, there is no obvious time urgency to Pulsifer that might lead the Justices to want to relese this opinion on a Friday rather than just wait until the following week.  But with so much work ahead for the Justices, perhaps the Ides of March might prove to be just the right time for this ruling.  As the Bard of Avon migh caution: "beware."

A few prior related posts about SCOTUS Pulsifer case:

March 12, 2024 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, February 26, 2024

Federalist Society webinar to explore "The First Step Act: Is It Working and What’s Next?"

Tomorrow at noon EST, The Federalist Society is conducting this webinar titled "The First Step Act: Is It Working and What’s Next?". Here is the event's description and its speakers:

The First Step Act of 2018, passed as the result of bi-partisan efforts during the Trump administration, aimed to reduce the population of those in federal prison and to limit some federal prison sentences.  Over the years some have contended the act is working well, while others argue it has only partially delivered on its goals or it was flawed from the start.  Now, as the act recently celebrated its 5-year anniversary, join us for a panel discussing the First Step Act, its impact, legacy, and future.


  • Stephanie Kennedy, Policy Director, Council on Criminal Justice
  • Rafael A. Mangual, Fellow and Deputy Director of Legal Policy Contributing Editor, City Journal, The Manhattan Institute
  • (Moderator) Vikrant P. Reddy, Senior Fellow, Stand Together Trust

February 26, 2024 in FIRST STEP Act and its implementation | Permalink | Comments (0)

Monday, February 05, 2024

With possible opinions this week, might SCOTUS soon answer if "and" means "or" in Pulsifer safety valve case?

Regular readers likely recall that I have been watching closely the SCOTUS sentencing case of Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  The unclear statute at issue in Pulsifer became law in 2018, was dividing circuits by 2021,and the Pulsifer cert petition was filed in October 2022 and granted by SCOTUS in February 2023.  (In addition, the US Sentencing Commission felt compelled in 2023 to build guideline amendments around the statutory ambiguity.)  A resolution of the issue in Pulsifer — which can be imperfectly summarized as a question of whether "and" means "and" or "or" in the context of an expansion of the safety value mandatory minimum exception — has long been needed and has been a long time coming.

But the Supreme Court has now indicated that on Thursday, the day the Justices are scheduled to hear oral argument on whether Donald Trump is now constitutionally ineligible to be President, it "may announce opinions."  I think that means we will definitely get at least one opinion, though how many and which one are left as matter of speculation.  So, in this post, I am speculating on the chances that we could get Pulsifer this week.  And though I am wishing hard that the Pulsifer opinion is just days away, and even though the Pulsifer oral argument was the very first of this current Term, I am not getting my hopes up.

The Justices have been notably slow in the release of opinions this Term, and Adam Feldman here at Empirical SCOTUS has some great data and thoughts on opinion pacing.  So, it wil not surprise me if we were to get only one or two opinions this week.   And, historically, the opinions that get handed down "earlier" are those that are unanimous or nealy unanimous.  The oral argument in Pulsifer suggested a divided court, with at least a couple Justices appearing to have strong views on each side of the case.  Though I suspect we will get Pulsifer within the next few months and not have to wait until late June, I would not place a prop bet that it's coming this week.  But it would be cool to be proven wrong with this prognostication.

A few prior related posts about SCOTUS Pulsifer case:

February 5, 2024 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, February 01, 2024

Two new grants of sentence reductions rejecting DOJ's arguments that change in the law an improper ground

A helpful reader made sure I saw two notable new grants of sentencing-reduction motions. I recommend the both full opinions as they covers thoughtfully the legal debate over the US Sentencing Commission's new sentence-reduction guideline. Here are links to the opinion and key snippets from the rulings:

US v. Capps, No. 1:11-cr-00108-AGF (ED Mo. Jan. 31, 2024):

the Government argues that subsection (b)(6) is an invalid exercise of the Commission’s authority.  Specifically, the Government contends that subsection (b)(6) conflicts with § 3582(c)(1)(A) because nonretroactive changes to sentencing law are neither extraordinary nor compelling.  The Government further argues that the subsection raises separation-of-powers concerns because it contradicts Congress’s deliberate choice not to make the change in sentencing law here retroactive.

The Court disagrees. “Congress is not shy about placing [sentencing modification] limits where it deems them appropriate.”  Concepcion, 597 U.S. at 494. In this case, Congress broadly empowered and directed the Commission to issue binding guidance as to what circumstances qualify for potential reduction. See § 3582(c)(1)(A). Nothing in the statute’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction.

The absence of any such limitation is telling. Congress could have drafted such a blanket prohibition into § 3582(c)(1)(A), as it did in 28 US.C. § 994(t) by specifying that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”  See also Concepcion, 597 U.S. at 483 (“Congress has shown that it knows how to direct sentencing practices in express terms.”).  Congress chose not to impose a similar prohibition with respect to nonretroactive changes in the law.

Download United States v. Capps - Grant (2023.01.31) (002)

US v. Padgett, No. NO. 5:06cr13-RH (ND Fla. Jan. 30, 2024):

The government also asserts that reducing a sentence based on a statutory change that Congress did not make retroactive is inconsistent with Congress’s decision not to make the change retroactive.  Not so.  When Congress chooses not to make a change retroactive, it means the change cannot be invoked by every affected defendant.  It does not repeal § 3582(c)(1)(A)(i) or prevent an affected defendant whose circumstances are extraordinary and compelling from invoking that provision.  See Ruvalcaba, 26 F.4th at 27–28.  Congress could rationally decide to change a statute — by changing the criteria for or length of minimum mandatory sentences, for example — and not to make that change a basis for a sentence reduction in a typical case, while still allowing a reduction in extraordinary and compelling circumstances.  And indeed, that is precisely what Congress has done.  Congress has said rehabilitation alone cannot be an extraordinary and compelling reason for a sentence reduction, but Congress has imposed no other limits on those terms. Id. at 25–26.  Neither the Sentencing Commission nor the courts are obligated to read into the statute an exception Congress did not enact. Id. at 26.

Download Foey Padgett Order reducing sentence b6 is legal (002)

February 1, 2024 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

Friday, January 26, 2024

US Sentencing Commission creates helpful information webpage on "First Step Act Earned Time Credits"

In addition to being active in advancing large and small guidelines amendments, the great new US Sentencing Commission has been doing a great new job providing helpful information to the federal criminal justice community (beyond its always terrific and important data publications and analyses).  Specifically, a few months ago, as noted here, the USSC created this terrific webpage collecting information about "problem-solving courts" that have developed through federal court systems.  

This week, the Commission unveiled another helpful new webpage, this one focused on "First Step Act Earned Time Credits."  The Commission's site includes an original infographic and links to other helpful information, and it is introduced this way:

The First Step Act of 2018 (Public Law 115–391) created a system in which some incarcerated individuals can earn time credits for participating in recidivism reduction programming or productive activities. Time credits can later be applied towards early release from secure custody. Eligibility criteria and rules for earning and applying time credits are governed by statute and implemented through BOP program statements and policies.

The Commission has published this page to assist in understanding the First Step Act and its current implementation, relying on primary source documents created by other government agencies. It is for informational purposes only and is not intended as legal analysis. The information does not necessarily represent the official position of the Commission and it should not be considered definitive or comprehensive.

January 26, 2024 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, January 23, 2024

Another FIRST STEP Act sentence reduction for last of "Newburgh Four" defendants involved in "FBI-orchestrated conspiracy"

In this post six months ago, I flagged US District Judge Colleen McMahon's notable opinion in US v. Williams, in which she explained why she was reducing the sentences of three of the "Newburgh Four" defendants using her authority under the FIRST STEP Act's revisions to 18 USC § 3582(c)(1)(A).  The other shoe dropped late last week in this matter, as reported in this AP piece headlined "Judge orders release of ‘Newburgh Four’ defendant and blasts FBI’s role in terror sting."  Here are excerpts from the press account:

U.S. District Judge Colleen McMahon on Friday granted James Cromitie, 58, compassionate release from prison six months after she ordered the release of his three co-defendants, known as the Newburgh Four, for similar reasons. The four men from the small river city 60 miles (97 kilometers) north of New York City were convicted of terrorism charges in 2010.

Cromitie has served 15 years of his 25-year minimum sentence. The New York-based judge ordered Cromitie’s sentence to be reduced to time served plus 90 days.

Prosecutors in the high-profile case said the Newburgh defendants spent months scouting targets and securing what they thought were explosives and a surface-to-air missile, aiming to shoot down planes at the Air National Guard base in Newburgh and blow up synagogues in the Bronx. They were arrested after allegedly planting “bombs” that were packed with inert explosives supplied by the FBI.

Critics have accused federal agents of entrapping a group of men who were down on their luck after doing prison time.

In a scathing ruling, McMahon wrote that the FBI invented the conspiracy and identified the targets. Cromitie and his co-defendants, she wrote, “would not have, and could not have, devised on their own a crime involving missiles that would have warranted the 25-year sentence the court was forced to impose.” “The notion that Cromitie was selected as a ‘leader’ by the co-defendants is inconceivable, given his well-documented buffoonery and ineptitude,” she wrote.

Cromitie was bought into the phony plot by the federal informant Shaheed Hussain, whose work has been criticized for years by civil liberties groups. McMahon called him “most unsavory” and a “villain” sent by the government to “troll among the poorest and weakest of men for ‘terrorists’ who might prove susceptible to an offer of much-needed cash in exchange for committing a faux crime.”

Judge McMahon's full opinion in US v. Cromitie, 09 CR 558-01 (CM) (SDNY Jan. 19, 2024), is available at this link. Here is just one notable passage in an opinion filled with notable passages:

Nothing could be more certain than the fact that Cromitie and his codefendants would not have, and could not have, devised on their own a crime involving missiles that would have warranted the 25-year sentence the court was forced to impose.  See United States v. Cromitie, 727 F.3d 194 (2d Cir. 2013).  Then Chief Judge Jacobs, who would have overturned Cromitie's (and only Cromitie's) conviction on entrapment grounds, said it best: "It is clear that Cromitie in his unmolested state of grievance would (for all the evidence shows, and as the district court found) have continued to stew in his rage and ignorance indefinitely, and had no formed design about what to do.  The government agent supplied a design and gave it form, so that the agent rather than the defendant inspired the crime, provoked it, planned it, financed it, equipped it, and furnished the time and targets. He had to, because Cromitie was comically incompetent, possibly the last candidate one would pick as the agent of a conspiracy." Id. at 230.

Had the Government not contrived its elaborate sting operation, it is highly likely that Cromitie would have lived out his life in Newburgh, quite possibly cycling in and out of jail for a string of petty offenses, but never committing a crime remotely like the ones for which he has been sitting in a federal penitentiary for 15 years.  My misgivings about how the Government ensnared and then arranged things so that these men could be charged with crimes that carried a 25 year mandatory minimum factored significantly in my decision not to sentence them to more than the mandatory minimum (their Guideline, predictably, was life).  I was fully aware, at the time the sentence was imposed, that it did not accord with the so-called "parsimony clause" in 18 U.S.C. § 3553(a); as noted above, I said so.

Prior related post:

January 23, 2024 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Sunday, January 14, 2024

Notable district court ruling that circuit precedent precludes reduction of extreme stacked 924(c) sentence

A helpful reader made sure I saw a notable new denial of a sentencing-reduction motion in US v. Carter, No. 07-374-1 (ED Pa. Jan. 12, 2024) (available for download below).  I highly recommend the full 25-page opinion; it covers thoughtfully the legal debate over the US Sentencing Commission's new sentence-reduction guideline, a debate that is sure to play out in federal district and circuit courts across the nation in the months ahead.  Here is the start of the opinion and the ruling's concluding paragraphs:

Johnnie Carter is currently serving a de facto life sentence — 840 months, or 70 years — for a string of armed robberies he committed in 2007.  The bulk of this sentence was the result of Carter’s conviction on three charges brought under 18 U.S.C. § 924(c), each of which earned him lengthy, mandatory terms of imprisonment that must be served consecutively.  Congress has since enacted the First Step Act, Pub. L. 115-391, 132 Stat. 5222 (2018), which among its many provisions amended Section 924(c) to substantially lower these mandatory minimums going forward.  As a result, the Government agrees that Carter “is serving a long sentence that would be significantly lower if imposed under current law.”

Carter now moves to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).  That statute, commonly referred to as the compassionate-release statute, authorizes district courts to reduce an imposed term of imprisonment upon a finding that “extraordinary and compelling reasons warrant such a reduction.”  In support of his motion, Carter points to a recently promulgated policy statement from the U.S. Sentencing Commission, which states that an “unusually long sentence,” coupled with a non-retroactive change in the law, can constitute an extraordinary and compelling reason to modify a sentence. U.S.S.G. § 1B1.13(b)(6).  He further highlights his strong family ties, evidence of rehabilitation, and good conduct while incarcerated as “other circumstances” warranting a reduction.  Id. § 1B1.13(b)(5). The Government opposes the motion, arguing that the Sentencing Commission’s recent policy statement exceeds its statutory authority, and that Carter’s circumstances do not otherwise warrant a reduction....

When considered together, these factors paint a clear picture of a defendant who, while undoubtably having earned himself a significant term of imprisonment for serious and violent offenses, does not deserve to spend his life behind bars.  If permitted to do so, the Court would be inclined to agree with his argument that a shorter sentence would be “sufficient, but not greater than necessary, to comply with the purposes” of federal sentencing. 18 U.S.C. § 3553(a). But, as discussed in Parts II.A and II.B, supra, Third Circuit precedent forecloses a finding that “extraordinary and compelling reasons” warrant compassionate release.  Unless and until that changes, his remedy lies not with the judicial branch, but with Congress — which could make its amendments to Section 924(c)’s mandatory minima retroactive — or the executive — whose clemency power operates as “the ‘fail safe’ in our criminal justice system.” Herrera v. Collins, 506 U.S. 390, 415 (1993).

Carter’s progress towards rehabilitation has been laudable, and the sentence he is serving is both unduly long and grossly disproportionate to the sentence a similarly situated defendant would receive today.  But in light of the Third Circuit’s decision in Andrews, these considerations cannot serve as the kinds of “extraordinary and compelling reasons” required to find him eligible for compassionate release.  As such, his motion must be denied.

Download US v. Carter (E.D.Pa.) - DE417 - Opinion Denying Compassionate Release

I have explained in numerous prior posts why I think rulings like Andrews, the Third Circuit precedent that dictates the conclusion in this case that an "unduly long and grossly disproportionate" sentence cannot be modified, is a misreading of § 3582(c)(1)(A)(i).  As I see it, the plain text of applicable statutes, which state only that "rehabilitation alone" cannot be considered an extraordinary and compelling reason, do not permit circuit courts making its own policy by deeming other factors catergorically insufficient for ever serving as the basis of a sentence reduction.

Notwithsanding what seems like clear statutory text, prior to the Sentencing Commission's revision to guideline 1B1.13, the circuit courts divided almost evenly as to whether so-called "changes in law" could provide a basis for a sentence modification.  This new Carter ruling leads me to suspect we will see a similar pattern of rulings replicated in new rounds of motions and appeals.  At some point, the Supreme Court will need to weigh in. 

January 14, 2024 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, January 11, 2024

US Senate Judiciary Committee hearing set on "Five Years of the First Step Act: Reimagining Rehabilitation and Protecting Public Safety"

I was pleased to discover today that the US Senate Judiciary Committee has announced it will have a full committee hearing next week on this topic: "Five Years of the First Step Act: Reimagining Rehabilitation and Protecting Public Safety."  This official site reports the hearing will be Wednesday, January 17th, 2024, at 10:00am EST, and that site also will stream the event live.

I presume we will find out about the invited witnesses next week, and I am looking forward to seeing both written and live testimony in the days ahead.  

January 11, 2024 in FIRST STEP Act and its implementation | Permalink | Comments (5)

Friday, January 05, 2024

Two new papers examining administrative law issues around USSC's new sentence reduction guideline

Jaden Lessnick has posted to SSRN recently two notable new papers discussing administrative law issues related to the US Sentencing Commission's recent amendment to USSG § 1B1.13, the sentence reduction policy statement. Here are the titles, links and part of the abstracts of these pieces:

"Will Federal Compassionate Release Survive the Death of Chevron?"

This Essay charts an alternate path forward. It offers a theory of compassionate release untethered from the comfortable reliance on Chevron.  By parsing the statutory text and tracing the Court’s Sentencing Commission jurisprudence, this Essay shows why the policy statement binds federal courts even in the absence of Chevron deference.  On this theory, Chevron has only ever been a secondary justification for the application of the recent policy statement.  Whether Chevron lives or dies, courts are duty-bound to yield to the Commission’s determination that some changes in the law are extraordinary and compelling reasons for a sentence reduction.

"Is U.S.S.G. § 1B1.13 an Elephant, and Is § 994(t) a Mousehole? Why the Sentencing Commission’s New Compassionate Release Policy Statement Does Not Violate the Major Questions Doctrine"

This Article debunks the recent suggestion by many that the Commission’s updated compassionate release policy statement violates the major questions doctrine.  After describing the status quo lay-of-the-law, this piece proceeds through the text and statutory history of the sentence-reduction statutes to show why § 1B1.13’s changes-in-the-law provision is unlike the actions invalidated in the Court’s recent major questions cases, such as West Virginia v. EPA and Biden v. Nebraska.  Though the amended policy statement has been the source of recent political controversy, this Article shows that the policy statement actually reflects a narrowing of the Commission’s historical authority.  It concludes by confronting the nascent split among the Court’s conservatives on the status of the major questions doctrine’s clear-statement rule, contending that under either view, the Commission’s actions had clear congressional authorization.

January 5, 2024 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, December 29, 2023

Could Prez Biden really push the BOP to advance thousands more motions for compassionate release?

The question in the title of this post is promped by this new New York Times essay authored by Michael Romano titled "How Biden Can Tackle Mass Incarceration."   I recommend the piece in full, and here are excerpts:

As a candidate, Joe Biden said he would substantially reduce the federal prison population as president. Last week he commuted the sentences of 11 people who he said were serving unjustifiably harsh prison terms for drug offenses and also pardoned people convicted of certain marijuana charges.  Still, the number of people in federal prison has grown during the Biden administration.

Despite historical bipartisan support for sentencing reform, Mr. Biden has failed to fully embrace the momentum of his two immediate predecessors, who made substantial efforts to tackle mass incarceration.  Some have argued that his relative inaction on the issue may hurt him among key voting groups.  But it is not too late....

Mr. Biden can chart his own course by taking advantage of a little-used law that allows prison officials to recommend to federal judges that they re-evaluate sentences of people for “extraordinary and compelling reasons.” This can include people who are facing long sentences and have already served many years behind bars, have shown their commitment to rehabilitation and are prepared for release.

This approach, which could be called administrative clemency, is fairer, more transparent, more comprehensive and less politically complicated than traditional clemency. It is in step with reforms percolating through state legislatures that empower law enforcement agencies and judges to revisit old, unnecessarily harsh prison sentences. It also encourages people in prison to work on themselves through education, vocational training, counseling and drug treatment.

Prison officials are ideally situated to make this evaluation. Prosecutors, judges, the police and even defense lawyers tend to move on to other cases and often do not keep tabs on people sent to prison who have been working to rehabilitate themselves and are hoping for some kind of reprieve. But prison officials and staff members work with them daily and follow and chart their progress. The administrative clemency process empowers prison officials to identify suitable candidates for resentencing based on their behavior and rehabilitation. Those cases would be sent back to court, where a judge would make the final determination on whether a person’s sentence should be reduced.

Unlike clemency, this decision is made in open court, with arguments and evidence by prosecutors and defense lawyers. It also allows courts to consider and impose release plans that maximize public safety. Final determinations are made by federal judges with lifetime tenure who are distant from the politics that influence presidential-level decisions. In short, this process returns the case to where it belongs: in court, with all the legal protections, evidence and consideration criminal cases deserve.

While some people may be justifiably wary of investing so much power in prison officials, a similar process is working in California, which is infamous for having some of the country’s harshest sentencing laws and most overcrowded prisons, as well as what may be the nation’s most powerful prison guard lobby.  Over the past six years, under a program begun by Jerry Brown when he was governor, California state prison officials have recommended 2,200 people for sentencing reductions.  Before any candidates are released, they undergo thorough vetting by prosecutors and defense lawyers, and a judge determines whether continued incarceration is no longer in the interest of justice. There is little litigation because after a person is identified and endorsed by prison officials, it becomes clear that the sentence is unnecessarily long and counterproductive....

Administrative clemency, if the Biden administration pursues it, will not correct fundamental flaws in the criminal legal system.  It will not directly address racism, mental illness and bad social science that can be corrected only through comprehensive reform.  But it is something Mr. Biden can do to address thousands of unfair federal sentences without embroiling himself in the politics of clemency or legislation.  And it’s something he can do today.

Regular readers likely know I am a big fan of so-called second-look/compassionate release sentencing mechanisms — which this essay interestingly calls "adminstrative clemency" and which ought to be formally called a "reduction of imprisonment" process in the federal sysetm since 18 USC § 3582(c)(1)(A) speak to when a judge may "reduce the term of imprisonment."  So I really like the general suggestion that Prez Biden and his Administration seek to "address thousands of unfair federal sentences" through this mechanism.  But there are lots of challenging practicalities that make this essay seem a bit like wishful thinking to me.

For starters, Prez Biden's Department of Justice has, in various ways, opposed broad expanstion of sentence reductions under § 3582(c)(1)(A).  Most notably, DOJ officials have testified before the US Sentencing Commission against the approrpiateness of reductions based on changes in the law.  And, even after the USSC decided to authorize sentences reductions based on changes in the law in narrow circumstances, Biden's DOJ is aguing against the lawfulness of the USSC's new guideline terms.  In other words, with lawyers in Prez Biden's Department of Justice being generally oppositional to many sentence reductions, I would not expect them to be supportive of any efforts by the federal Bureau of Prisons to advance more of these motions.

More broadly, the recent activity surrounding sentence reductions under § 3582(c)(1)(A) over the last five years is the result of the FIRST STEP Act allowing prisoners to bring these motions directly to court without needing a filing by federal prison officials.  Congress was moved to allow prisoners to make these filings directly because BOP has long had a notorious record of almost never supporting a sentence reduction even for gravely ill inmates.  As many note, it seems the culture and practice of decision-mkaing by prison officials makes it much more likely that they will oppose requests for sentence reductions than support or advance them.  Perhaps a directive from Prez Biden could somewhat influence BOP culture and practice in this regard, but that seems like an evolution likely to take a long time to materialize.

Finally, though I do not know much about the California experience, sentencing reductions averaging around 370 persons per year in that jurisdiction actually amounts to less than what the federal system is already achieving on a steady basis based largely on prisoner motions.  The US Sentencing Commission's last compassionate release data report indicates that nearly 500 persons in federal prison secured prison-term reductions from July 2022 through June 2023.  (That data report also shows that nearly 5000 federal prisonsers received sentence reductions in less than four years from October 2019 through June 2023, though these numbers are driven by a COVID-era period that saw over 3000 reductions in about 15 months in 2020 and 2021.)  In other words, even without much help from DOJ and BOP, federal prisoners are already seeking, and federal judges are sometimes granting, sentence reductions on a steady basis.

That all said, it would still be great to see both DOJ and BOP become a lot more supportive of federal prisoner motions for sentence reductions.  The USSC data show that for every sentence reduction granted, there are four more that are denied.  Many of those denials, I suspect, are influenced by DOJ and BOP beig oppositional to the reduction.  If there were a way that Prez Biden could direct DOJ and BOP to be less oppositional to sentence reduction efforts, perhaps we would start to see the kind of culture change needed to really create a dynamic and effective corrective to "address thousands of unfair federal sentences."

December 29, 2023 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Thursday, December 14, 2023

Some early celebrations of the FIRST STEP Act at five

In May 2018, the US House of Representatives under the leadership of House Speaker Paul Ryan (remember him?) voted by a margin of 360-59 to pass the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act or the FIRST STEP Act.   After much debate over the reach of the bill, in mid December 2018, the US Senate under the leadership of Senate Majority Leader Mitch McConnell (remember him?) voted by a margin of 87-12 to pass a somewhat bigger and broader version of the First Step Act.  After the House blessed the new version by a vote of 358-36, the final First Step Act went to the desk of President Donald Trump for signature on December 21, 2018.

I bring up this history because, arguably, the fifth anniversary of the First Step Act might be celebrated at many times.  But, techinically, we are still a week away from the official signing day for this consequental law.  But I have seen various reports of various forms of celebration and commentary as we approach the First Step at five, and I figured I could usefully do a quick round up here:

From the US Senate Judiciart Committe, "Durbin, Booker Celebrate Fifth Anniversary of the First Step Act on Senate Floor"

From Kevin Ring writing in The Hill, "The First Step Act wasn’t a mistake — but criminal justice reformers dropped the ball"

From Puck, "A Night for First Steps"

From Reason, "Colleen Eren: Why Donald Trump Signed the FIRST STEP Act"

December 14, 2023 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Wednesday, December 06, 2023

CCJ releases additional short reports on the impact of the First Step Act on recidivism and time served

I flagged in this post from August this notable new report authored by Avinash Bhati and published by the Council on Criminal Justice (CCJ) titled "First Step Act: An Early Analysis of Recidivism."  Today, CCJ released two new analyses of the FIRST STEP Act's impacts also done by Bhati, and here are the titles, links and introduction:

"Technically Speaking: Accounting for Technical Violations in First Step Act Recidivism"

A previous Council on Criminal Justice report, First Step Act: An Early Analysis of Recidivism, found that people released from prison under the First Step Act (FSA) had a recidivism rate 37% lower than similarly situated individuals (i.e., similar risk levels and time since release from prison) who were released prior to the Act’s implementation. Using newly available data, this brief adds further context to the recidivism analysis by distinguishing recidivism due to technical violations of supervision rules from recidivism attributed to new criminal activity.

"Time Sentenced and Time Served: Exploring the Impact of the First Step Act"

Passed in 2018, the First Step Act (FSA) was designed to reduce reoffending among people leaving federal prisons.  A previous Council on Criminal Justice analysis, First Step Act: An Early Analysis of Recidivism, found that individuals released from Bureau of Prison (BOP) custody under the FSA had lower recidivism rates than similarly situated people who were released prior to the Act’s implementation.  An additional analysis, Technically Speaking: Accounting for Technical Violations in First Step Act Recidivism, further contextualizes the recidivism rate reported for people released under the FSA. It distinguishes recidivism due to technical violations of supervision rules from cases involving new criminal activity.

This analysis examines the impact of the FSA on the amount of time served by people released under the law.  Several provisions of the FSA provide opportunities for eligible people to reduce the amount of time they serve in federal prisons; such opportunities include an expansion of sentence credits and compassionate release, among others. Provisions of the FSA are summarized in a Congressional Research Service brief.

December 6, 2023 in FIRST STEP Act and its implementation | Permalink | Comments (0)

Sunday, December 03, 2023

Notable grant of compassionate release, supported by prosecutors, for drug prisoner serving mandatory life

A helpful reader made sure I saw a notable new grant of compassionate release in US v. Vanholten, No. 3:12-cr-96-RBD-MCR (MD Fla. Dec. 1, 2023) (available here).  The 15-page opinion is worth a full read, and here is the start of the opinion and the heart of the ruling:

Mr. Vanholten is serving a life sentence for trafficking cocaine, in essence, because he sold two dime bags of marijuana, $20 worth, to two undercover police officers when he was nineteen years old.  In January 2012, he was pulled over on I-95 northbound while driving in tandem with another car carrying ten kilograms of cocaine in the trunk.  Investigators linked Mr. Vanholten to the cocaine, leading to his arrest and indictment on one count of aiding and abetting the possession and intent to sell over five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2.  The Government filed a 21 U.S.C. § 851 information advising the Court that Mr. Vanholten had a prior felony drug conviction — a 2006 federal charge for possession of 250 grams of cocaine with intent to distribute — which enhanced the mandatory minimum penalty to twenty years for his crime. He remained in custody after his arrest pending trial.

Plea negotiations broke down because Mr. Vanholten would not say “where [the cocaine] came from and where it was going.”  In turn, the Government amended the § 851 notice to add a second prior drug felony — the previously mentioned 1996 marijuana offense — which upped the mandatory minimum to life in prison. Despite the looming prospect of life behind bars, the case went to trial.  On August 3, 2012, a jury convicted Mr. Vanholten of the indicted charge.

Bound by the § 851 enhancement, this Court imposed a term of life imprisonment on November 19, 2012, to be followed with ten years of supervised release.  In its remarks, the Court expressed it “would not impose a life sentence but would impose a sentence of a significant period of incarceration” if it had any discretion to do so. Mr. Vanholten has remained incarcerated with the Federal Bureau of Prisons (“BOP”) ever since.....

First, extraordinary and compelling reasons exist where the defendant (1) is suffering from a serious physical or medical condition that (2) substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and (3) from which he is not expected to recover. U.S.S.G. § 1B1.13(b)(1)(B)(i). Though he is not at death’s door, Mr. Vanholten’s medical records show that his sarcoidosis is both chronic and persistent, hurting his lungs and pulmonary function....

Second, Mr. Vanholten also presents a combination of circumstances that, considered with his health, are “similar in gravity” to the other reasons explicitly listed in subsections (b)(1)–(4) of the policy statement. See U.S.S.G. § 1B1.13(b)(5) (newly amended catch-all provision). As discussed, his deteriorating health is a serious medical condition. His rehabilitation and clean disciplinary history while incarcerated are remarkable. And it is extraordinary that the Government supports Mr. Vanholten’s release and clemency application. In the words of the parties, these factors, “combined with length of time he has already served in the BOP, and the reduced mandatory minimum sentence he would face today, together are ‘similar in gravity’ to the circumstances of U.S.S.G. § 1B1.13(b)(1)–(4),” and so establish extraordinary and compelling 13 reasons for release.5 (Doc. 96, ¶ 8.)

December 3, 2023 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered | Permalink | Comments (3)

Thursday, November 30, 2023

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected Under the First Step Act, 2023"

Providing another report for prison data junkies, the Bureau of Justice Statistics today released this 26-page report titled ""Federal Prisoner Statistics Collected Under the First Step Act, 2023." Here the report's introduction and some of the "Key findings" that seemed most interesting:

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 specific topics and to report these data annually. BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment programs. In addition, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time credit reductions, and selected facility characteristics including accreditation, on-site healthcare, remote learning, video conferencing, and costs of prisoners’ phone calls.

Collected in 2023, the statistics in this report are for calendar year 2022, which represented the fourth full year of reporting under the FSA. Data for calendar year 2023 will be available from the BOP in 2024. Unless otherwise noted, all counts in this report include persons held in federal correctional facilities operated by the BOP (122 institutional facilities).

  • The federal prison population increased about 1%, from 156,542 at yearend 2021 to 158,637 at yearend 2022.

  • At yearend 2022, there were 8,627 persons with prior military service in BOP facilities, accounting for about 5% of the total federal prison population.

  • The number of non-U.S. citizens in federal prison at yearend 2022 was 24,078, virtually unchanged from 2020 and 2021....

  • Seventy percent of persons in BOP facilities at yearend 2022 had earned a high school diploma, general equivalency degree (GED), or other equivalent certificate prior to their admission to federal prison (110,531), and an additional 3,543 earned their GED credential or equivalent certificate during 2022.

  • In 2022, there were 10,177 instances of persons in special housing units, a 10% increase from 2021 (9,261)....

  • In 2022, 20,880 federal prisoners participated in a nonresidential substance use disorder treatment program, while 12,035 participated in a residential program....

  • In 2022, there were 80,490 prohibited acts committed by persons incarcerated in federal prisons....

  • In 2022, BOP staff were physically assaulted by federal prisoners 965 times, which resulted in serious injuries 19 times and 12 prosecutions of prisoners....

  • The BOP partnered with 1,580 external groups to provide recidivism reduction programming in 122 federal prison facilities in 2022.

  • Sixty percent (947) of the BOP’s partnerships that were in place in 2022 to provide recidivism reduction programming were with faith-based groups.

  • Of the 145,062 persons in federal prison as of December 31, 2022 assessed with the BOP’s recidivism risk tool, the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN), 54% were classified as minimum or low risk for recidivism, 27% were classified as high risk for recidivism, and 19% as medium risk at yearend 2022.

  • In 2022, PATTERN classified a higher percentage of females than males as minimum or low risk for recidivism (81% compared to 52%).

  • As of December 31, 2022, PATTERN classified 61% of black and 59% of American Indian or Alaska Native federal prisoners as a medium or high risk of recidivism, compared to 36% of white and 27% of Asian, Native Hawaiian, or Other Pacific Islander prisoners.

  • In 2022, PATTERN classified 83% of federal prisoners ages 55 to 64 and 93% of those age 65 or older as having a minimum or low risk of recidivism.

  • In 2022, the BOP identified 41 Evidence-Based Recidivism Reduction (EBRR) Programs and 52 Productive Activities (PAs) that persons in federal prison could access for various needs, including antisocial behavior, anger management, substance abuse, parenting skills, and dyslexia.

November 30, 2023 in Data on sentencing, FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners | Permalink | Comments (34)

Sunday, November 19, 2023

You be the political operative: should Donald Trump lean into his sentencing reform record?

The New York Times has this notable new piece, headlined "Pardon Recipients Seek to Sell Trump on His Own Sentencing Law," which prompts the question in the title of this post.  The article meanders a good bit, and it does not really get that deep into either modern sentencing policy and politics.  But, with now less than a year until the 2024 election, it serves as a useful reminder that there will be lots of sentencing policy and politics worth discussing in coming months.  Here are excerpts:

In early July, former President Donald J. Trump received a somewhat unlikely visitor at his golf club and estate in Bedminster, N.J.: Michael Harris, the founder of Death Row Records, who had been imprisoned for drug trafficking and attempted murder, came to meet privately with the man who had pardoned him....

Mr. Harris is the type of high-profile Black celebrity that some Trump associates hope will next year highlight the former president’s signature criminal justice reform law, the First Step Act, which was one of Mr. Kushner’s key priorities during his time as an adviser in the White House.

Although Mr. Harris is not a beneficiary of the sentencing law, having received his pardon on Mr. Trump’s last full day in office after serving decades in prison as part of a series of clemency grants, he has nonetheless become an evangelist for it....

Mr. Harris declined to discuss what took place in their meeting, but he expressed gratitude toward the Trump administration in a statement and praised the sentencing law. “The passing of the First Step Act and similar initiatives surrounding” criminal justice reform “has provided much needed relief for so many deserving individuals and families,” he said....

Not everyone around the former president believes that he should highlight the First Step Act, which Mr. Trump himself soured on soon after signing it. Mr. Trump, who is often influenced by what he thinks his core voters want, felt affirmed in that view after a number of hard-core Republicans began to criticize it in 2021 and 2022 amid a rise in crime. Some of his conservative associates, who see the bill as problematic with Republicans, said privately that they were unhappy that he had met with Mr. Harris....

He has also grown increasingly violent in his rhetoric about crime in America, saying that he admires the freedom that despots have to execute drug dealers and that shoplifters should be shot on the spot.

At the same time, he has made clear that he viewed the law, which, among other things, sought to reduce mandatory minimum sentences for some crimes, as something that should have won him support from Black voters.  “Did it for African Americans,” he wrote to this reporter for a book in 2022 when asked about his repeated expressions of regret about the law. “Nobody else could have gotten it done.  Got zero credit.”...

It remains to be seen how willing Mr. Trump will be, if at all, to speak about the criminal justice law, or whether Mr. Harris might be asked to speak publicly.

The same week that Mr. Harris met with Mr. Trump, the former president received a call from Alice Johnson, whose life sentence on charges related to cocaine possession and money laundering was commuted after a meeting between Mr. Trump and the celebrity Kim Kardashian. Ms. Johnson was the person who recommended to Mr. Kushner and Ms. Trump that Mr. Harris be granted clemency.

“My whole conversation was just encouragement” about the criminal justice reform bill, said Ms. Johnson, who spoke at the Republican National Convention in 2020 and was pardoned by Mr. Trump a short time later. She said no one had asked her to call him or engage in politics for him next year. But, she added, “he actually is proud of that piece of legislation.”

The title of this post reflects my sense that former Prez Trump himself seems to approach sentencing issues (like many others) through the lens of a political operative.  Though a variety of his actions and statements reflect a "tough on crime" posture, Trump proved while he was president that he would be willing to support reforms if he thought there could be potential political advantage therein.  What this exactly this might mean for Trump and the GOP going forward on a wide range of criminal justice issues, especially with Trump himself subject to multiple criminal indictments, remains to be seen.

November 19, 2023 in Campaign 2024 and sentencing issues, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

Monday, October 30, 2023

Detailing yet another challenging detail of earned time credits under the FIRST STEP Act

Walter Pavlo has another effective article in Forbes providing another review of yet another accounting challenge in calculating earned time credits under the FIRST STEP Act. This piece is headlined "Bureau Of Prisons’ Dilemma On First Step Act Credits," and here are excerpts:

The First Step Act (FSA) was signed into law in December 2018. The law allowed prisoners, mostly minimum and low security offenders, to earn a reduction in their sentence for being productive while incarcerated. That productivity is measured by the prisoners’ participation in meaningful programs and having a job while incarcerated. However, nearly five years after the law was enacted, the complexities of the Federal Bureau of Prisons (BOP) ability to comply with the law is still being revealed....

According to the BOP’s own program statement:... "An eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility).”  [But a recent] decision in a federal court in New Hampshire has upended this definition of when FSA Earned Time Credits begins ... [by ruling that] "the date established by the plain language of the FSA upon which [a defendant] is entitled to begin earning FSA time credits is [the date of sentencing]."...

The BOP is in a bad position in that it can either follow the law, which is flawed, because it has no mechanism to measure success under FSA (classes and work assignment) for prisoners not in their custody at the final designated facility. The alternative is that the BOP can follow a judgment from a federal court and award credits to prisoners who have not complied with the programming requirements of FSA.

One solution, or compromise, would be to get prisoners to their final destination in less time, but that does little to those who went through lengthy transportation nightmares getting to their designated facility.  However, even that is outside of the BOP’s power as transportation of prisoners falls under US Marshals.  Another is for the BOP to provide some programming, even a manual, to give to prisoners immediately after sentencing to start the FSA programming and to provide some sort of PATTERN assessment soon after the prisoner is sentenced.  All of these solutions are outside the control of the prisoner who must serve the time with no means to correct the situation other than going to court.

The BOP could change its FSA Program Statement right now to comply with this New Hampshire decision but it has not and it is likely trying to assess how it can comply.  However, the BOP did not appeal the Yufenyuy decision, so many prisoners remain in limbo on this issue. The result is that the FSA continues to experience problems in its implementation and the prisoners and their families are the ones paying the price.

October 30, 2023 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Thursday, October 12, 2023

A couple of early celebrations as FIRST STEP Act approaches its fifth anniversary

Though we are still a few months from reaching a full five years since the enactment of the FIRST STEP Act, this past week I have seen this pair of notable new pieces marking the coming notable anniversary of this notable federal criminal justice reform: 

From Arnold Ventures, "Historic Bipartisan Justice Reform Turns Five."  It begins:

Five years ago, in 2018, then President Donald Trump signed the bipartisan First Step Act into law, finalizing one of the most significant changes to federal sentencing and corrections policy since the 1970s.  Recognizing the social and personal toll from decades of rising jail and prison populations, the bill sought to stem the tide of mass incarceration in America. ​ “Criminal justice reform was no longer a niche cause, but one that responded to a nationally recognized social problem with a movement that had itself gone national — with all the internal divisions we might expect,” writes Colleen P. Eren in a new book, Reform Nation: The First Step Act and the Movement to End Mass Incarceration.

From The Crime Report, "The First Step Act: A Five-Year Review and the Path Forward."  It begins:

Signed into law in December 2018, the First Step Act (FSA) now allows federal inmates to significantly reduce their actual penal custody time.  That fits into the primary goal of The Act, which is to reduce recidivism among nonviolent offenders through greater emphasis on rehabilitation in the Bureau of Prisons.

October 12, 2023 in FIRST STEP Act and its implementation | Permalink | Comments (0)

Tuesday, October 03, 2023

Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case

Regular readers know I have been talking up SCOTUS's first case for oral argument this Term, Pulsifer v. United States, a statutory interpretation case dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  Perhaps because it was the only case on the argument calendar yesterday, the Justice spent almost a full two hours debating the meaning of the word "and" with two capable counsel.  The full oral argument recording and transcript are available here at the SCOTUS website. 

Here are some press discussion of the oral argument in Pulsifer and surrounding realities:

From Courthouse News Service, "Courthouse Rock: Justices play conjunction junction on first day of term"

From The Hill, "Supreme Court opens term with case on prison terms for drug offenders"

From Mother Jones, "Does 'And' Mean 'And'? Or 'Or'? The Supreme Court Will Decide."

From Roll Call, “Congressional conjunction turns Supreme Court argument into grammar class; Justices weigh if ‘and’ means ‘and’ in a criminal sentencing law"

From the New York Times, "On First Day of New Term, Supreme Court Hears Debate Over First Step Act

From Slate, "The Supreme Court’s Oddest Pairing Comes out Swinging on Behalf of Criminal Defendants"

Based on a too-quick listen to the full oral argument, I am inclined to guess that this case will end up with a 5-4 vote in favor of the government's proposed statutory interpretation that would restrict the reach of the FIRST STEP Act's expansion of the statutory safety valve exception to drug mandatory minimum sentencing terms.  But I would not entirely discount the possibility that the four Justices who seemed most favorable toward the defendant's reading, particularly Justices Gorsuch and Jackson, might find a way to peel off a key fifth vote (especially since the Chief was pretty quiet throughout and Justice Kagan hinted toward the end that she might be less sure than she seemed at the outset).  

I suppose I can say with certainty that this case will not be resolved 9-0 and that the ultimate opinions likely will be of great interest to statutory interpretation fans as well as to sentencing fans.  I also would guess that we will get ruling in early 2024, though this one might take quite a while if lots of Justices decide to write on lots of broader statutory interpretation topics (like the reach of the rule of lenity and/or the use of legislative history and/or corpus linguistics).  Fun times!

October 3, 2023 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Monday, October 02, 2023

On first Monday in October, another round of previews for SCOTUS's starting sentencing case, Pulsifer v. US

After a rough weekend for US pro golfers and Ohio's pro football teams, I am glad that a new season officially kicks off today with the Supreme Court hearing its first oral arguments to start its October Term 2023.  Actually, the Term arguably got rolling Friday with cert grants in a dozen new cases (though only a couple involved criminal law issues), and also with this morning's lengthy new order list denying cert in hundreds of cases. 

But, for SCOTUS, the first oral argument on the first Monday in October is something like the throwing of the first pitch on baseball's opening day. (And, speaking of baseball, the MLB playoffs should keep October exciting even if SCOTUS does not.)  As I have noted recently, I am especially excited that SCOTUS's first case for argument is Pulsifer v. United States, a statutory interpretation case dealing with a sentencing provision of the FIRST STEP Act.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FIRST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or."  

In this post last week, I noted a few preview pieces about the case, but now I have see a few more worth flagging:

From Lisa-Legalinfo, "SCOTUS Hears Argument Over Meaning Of “And” In First Step Act

From SCOTUSblog, "Mandatory minimums, payday lending, and voting rights in first session of Supreme Court term"

From Slate, "The Supreme Court’s First Case Is a Brutal Grammatical Test"

LawProf Aaron Tang authored the Slate commentary, and his closing sentiments seek to connect the (little?) Pulsifer case to the (big?) issues swirling around the Supreme Court at the start of a new Term (with links from original):

If the court wants to push back against the partisan trends in recent terms, it can heed the wise advice once offered by Judge Learned Hand, who remarked that “the spirit of liberty is the spirit which is not too sure that it is right.”

By humbly admitting uncertainty on the perplexing issue in Pulsifer, the court can apply a more promising approach to hard cases.  It can rule against whichever side would be best able to avoid the harm of a mistaken ruling — an approach I’ve called the “least harm principle” of judicial decision-making.

Indeed, criminal law already has a doctrine well suited to this principle. It is the “rule of lenity,” or the idea that where criminal statutes are susceptible to multiple reasonable interpretations, the court should adopt the defendant-friendly reading.

The best reason for this rule is that it is virtually always harder for criminal defendants to avoid the harm of mistakenly harsh criminal punishments than for the government to avoid the harm of lenient sentences.  Indeed, even if it loses this very case, the government would still have discretion to ask a trial judge to impose a harsher sentence on Pulsifer if it believes he is particularly dangerous.

In the end, the Pulsifer case will not be the most high-profile case the court decides this year.  But the case will provide important initial insights into how the justices are planning to respond to a disastrous summer for its public legitimacy — not to mention the costly mass incarceration crisis that is decimating our communities.  Here’s hoping it does so with a dose of humility.

A few prior related posts about SCOTUS Pulsifer case:

October 2, 2023 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

Wednesday, September 20, 2023

Notable debate among Sixth Circuit judges as court turns down en banc review of "resentencing retroactivity" after FIRST STEP Act

Hard-core sentencing fans may want to check out the opinions authored by a trio of Sixth Circuit judges concurring and dissenting from the denial of en banc review US v. Carpenter, in No. 22-1198 (6th Cir. Sept. 18, 2023) (available here) (en banc review denial).  In this case, the circuit panel held earlier this year that the defendant could not benefit at a resentencing from the FIRST STEP Act's reduction in the severity of stacked 924(c) gun mandatory minimums because he original sentencing pre-dated passage of the FSA.   

A petition for rehearing en banc followed (and I noticed SCOTUS advocate of great renown, Jeff Fisher, listed as one of the lawyers on the petiton).  The petition then was circulated to the full court, but less than a majority of the judges voted in favor of rehearing en banc.  Judge Kethledge (joined by a few judges) authored a concurrence in the denial of rehearing en banc.  In that opinion, he explains why he thinks the panel reached the right result under applicable law even though "Carpenter’s sentence was extreme by any measure" and even though "the sentence here would never have been imposed" absent the old pre-FSA mandatory minimums.

Judge Griffin (joined by a few judges) authored a substantive dissent which helps explain the particulars in this opening paragraph:

This appeal arises under the First Step Act, which amended several criminal statutes and reduced mandatory-minimum sentences for certain federal crimes.  For defendant Timothy Carpenter, the Act, if applied, “would reduce his mandatory-minimum sentence on his [18 U.S.C.] § 924(c) convictions by 80 years (from 105 years to 25).” United States v. Carpenter, 2023 WL 3200321, at *1 (6th Cir. May 2, 2023).  But despite the Act’s retroactivity provision extending its benefits to defendants awaiting sentencing, and despite the vacatur of Carpenter’s earlier, invalid, pre-Act sentence, the panel here — following circuit precedent — concluded Carpenter must now be resentenced under the old version of the statute with its outdated sentencing scheme. Id. at *2 (citing United States v. Jackson, 995 F.3d 522, 524–25 (6th Cir. 2021)).  In my view, Jackson was wrongly decided, and this case involves a question of exceptional importance.  Accordingly, I respectfully dissent from the denial of the petition for rehearing en banc.

Judge Bloomekatz (joined by a few judges) dissents to add even more context that, perhaps, is an effort to get at least one Justice's attention. Here is her closing substantive paragraph:

The real human costs that this esoteric legal issue presents also should not be overlooked.  Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states.  Carpenter proves this point.  His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the Third, Fourth, and Ninth Circuits. See Dissent at 7.   The resulting sentencing disparity, along with the other reasons I have outlined, should give us pause enough to consider the decision as a full court.  Indeed, the circuit split, the federal government’s position, the dissent from then-Judge Barrett in Uriate, and the dueling opinions on this en banc petition underscore that the scope of the retroactivity provision is far from clear.  See United States v. Uriate, 975 F.3d 596, 606–09 (7th Cir. 2020) (en banc) (Barrett, J., dissenting).

Couple of final notes of possible interest: (1) I am pretty sure the Timothy Carpenter of this case is the same guy who got the Supreme Court to review his Fourth Amendment claim back in 2018 in Carpenter v. US; (2) I am pretty sure this Timothy Carpenter has already served 10+ year in prisons, and so may soon be eligible for a reduction in sentence under the "unusually long sentences" criteria in the US Sentencing Commission's proposed new “Compassionate Release” policy statement.

September 20, 2023 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, September 19, 2023

Effective coverage of particulars of First Step Act and guideline amendment implementation

I have frequently flagged Walter Pavlo's work at Forbes because he always effectively covers lots of the important nitty-gritty in the implementation of various federal sentencing and corrections rules and policy.  And over the past week, he has two more important pieces in this space, which I will cover with links and full headlines:

"What The US Sentencing Commission’s Decision Means For First Time Offenders: The US Sentencing Commission recently passed a motion to allow a 2 point reduction against the Federal Sentencing Guidelines. The effect could mean freedom for many."

"Bureau Of Prisons’ Challenges With First Step Act Release Dates: The Federal Bureau of Prisons has struggled to implement the First Step Act and one big problem still persists ... predicting when someone will leave prison."

Both of these pieces serve as new reminders of the old aphorism, "The devil is in the details."

September 19, 2023 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, August 31, 2023

"Extraordinary Punishment: Conditions of Confinement and Compassionate Release"

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

People experience severe forms of harm while incarcerated including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills.  But civil rights litigation under the Eighth Amendment — the most common vehicle through which people seek to redress these harms — presents significant practical and doctrinal barriers to incarcerated plaintiffs.  Most notably, the Eighth Amendment’s “deliberate indifference” standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials.  Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately redress a specific harm that a person is suffering.  For these reasons, the Eighth Amendment has often fallen far short of providing litigants adequate relief.

At the same time, once a person is sentenced, the original sentencing judge generally has no control over whether a harm suffered in prison is remedied.  However, since the passage of the First Step Act of 2018, people incarcerated in the federal system have a new vehicle for getting these kinds of claims into court: federal compassionate release. Compassionate release motions are heard by the original sentencing judge, who has the authority to reduce a person’s sentence if they can demonstrate, among other things, “extraordinary and compelling” reasons (ECRs) that warrant relief.

In April of 2023, the Federal Sentencing Commission adopted amendments to the Federal Sentencing Guidelines that drastically expanded the ECR definition to include claims based on the types of harms have been traditionally litigated under the Eighth Amendment.  These changes represent a radical and potentially paradigm-shifting reform to federal sentencing law and give district courts enormous discretion to reexamine federal sentences.  Given the challenge of redressing harms under the Eighth Amendment, this Article argues that the expansion of compassionate release ECRs to encompass harmful conditions of confinement makes doctrinal sense and allows for a more appropriate remedy to harms done in prison than traditional civil remedies.

August 31, 2023 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, August 22, 2023

The Sentencing Project releases "The First Step Act: Ending Mass Incarceration in Federal Prisons"

I sense that the upcoming GOP Prez candidate debate, which seems likely to include some discussion of some crime and punishment issues, has prompted a number of groups to complete reports on the First Step Act.  Yesterday brought CCJ's short report on "First Step Act: An Early Analysis of Recidivism."  Today, The Sentencing Project is out with this longer report titled "The First Step Act: Ending Mass Incarceration in Federal Prisons."  This report provides some more background and coverage on various aspects of the First Step Act, and here is how it gets started:

In 2018, Congress passed and then-President Donald Trump signed into law the bipartisan First Step Act, a sweeping criminal justice reform bill designed to promote rehabilitation, lower recidivism, and reduce excessive sentences in the federal prison system.  Lawmakers and advocates across both political parties supported the bill as a necessary step to address some of the punitive excesses of the 1980s and 1990s.

The First Step Act includes a range of sentencing reforms which made the Fair Sentencing Act of 2010 retroactive, enhanced judicial discretion, created earned time credits, increased good time credits, reduced certain mandatory minimum sentences, and expanded the safety valve that allows persons with minor prior convictions to serve less time than previously mandated.

The First Step Act also seeks to expand opportunities for people in federal prisons to participate in rehabilitative programming to support their success after release. The law aims to produce lower odds of recidivism by incentivizing incarcerated individuals to engage in rigorous, evidence-based rehabilitation and education programming.  In exchange and based on a favorable assessment of risk to the community, they may earn an earlier opportunity for release to community corrections.

The Department of Justice (DOJ) reports promising results thus far. The recidivism rate among people who have benefitted from the law is considerably lower than those who were released from prison without benefit of the law. Among the nearly 30,000 individuals whose release has been expedited by the First Step Act, nearly nine in every 10 have not been rearrested or reincarcerated.  This 12% recidivism rate lies in stark contrast to the more typical 45% recidivism rate among people released from federal prison.

August 22, 2023 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (11)

Monday, August 21, 2023

CCJ releases encouraging new short report on "First Step Act: An Early Analysis of Recidivism"

This morning I received an email from the Council on Criminal Justice (CCJ) linking me to this notable new report authored by Avinash Bhati and titled ""First Step Act: An Early Analysis of Recidivism."   This CCJ press release about the short report provides this effective review of its highlights:

Previous comparisons between FSA releases and the overall federal prison population have not accounted for differences in the groups, including levels of risk of reoffending, tracking periods, and other characteristics. The CCJ analysis estimates recidivism rates among individuals released from the federal Bureau of Prisons (BOP) prior to the FSA who had similar risk profiles and were tracked for similar periods of time (“similarly situated”) as those released under the FSA.

According to data published by the U.S. Department of Justice, 29,946 people were released from BOP facilities under the FSA from 2020 to 2022.  The Council’s analysis of this data finds that, when compared to similarly situated individuals released from the BOP prior to the Act’s implementation, individuals released under the FSA have:

  • An estimated 37% lower recidivism rate. According to BOP data, the recidivism rate for FSA releases is 12.4%, compared to an estimated recidivism rate of 19.8% for similarly situated pre-FSA releases.
  • An estimated 3,125 fewer arrests incurred. With a recidivism rate of 12.4%, the people released under the FSA over three years could have accounted for between 3,712 and 4,330 arrests. With an estimated recidivism of 19.8%, an equal number of similarly situated pre-FSA releases could have accounted for between 5,918 and 7,455 arrests over the same three-year period.

August 21, 2023 in Data on sentencing, FIRST STEP Act and its implementation, National and State Crime Data | Permalink | Comments (23)

Wednesday, August 16, 2023

Split Fourth Circuit panel reverses denial of sentence reduction motion and orders 20-year reduction based on stacked § 924(c)

A helpful reader made sure that I did not miss a notable Fourth Circuit ruling today in US v. Brown, No. 21-7752 (4th Cir. Aug. 16, 2023) (available here). The majority opinion for the court begins this way:

On July 30, 2014, a jury convicted Kelvin Brown on seven counts, including two counts of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). At the time of Brown’s sentencing, his two § 924(c) convictions carried a five- and twenty-five-year mandatory minimum sentence, respectively. The district court thus sentenced Brown to thirty years in prison for his § 924(c) convictions, and, together with his other five convictions, to fifty-seven years’ imprisonment total.

In July 2020, Brown moved for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Brown primarily argued that his release was warranted because he was at risk of serious illness from COVID-19 and because, under the First Step Act’s amendment to § 924(c) sentencing, he would only be subject to a combined ten-year mandatory minimum for his two § 924(c) convictions if sentenced today.  The district court twice denied Brown’s motion, each time without addressing the disparity between his § 924(c) sentence and the much shorter mandatory minimums the First Step Act now prescribes.

We hold that the district court abused its discretion by denying Brown’s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the § 3553(a) sentencing factors overwhelmingly favor a sentence reduction.  We therefore reverse and remand with instructions to rectify that disparity and reduce Brown’s prison sentence by twenty years.

The majority opinion concludes with some explanation for why it orders a 20-year sentence reduction rather than another remand:

“Ordinarily, we understand that district courts wield broad discretion in deciding compassionate release motions.” Malone, 57 F.4th at 177.  So, in a different case, we might remedy the district court’s error by remanding for the district court to consider Brown’s disparate sentence in the first instance.  Yet the district court here has already had two opportunities to review Brown’s compassionate release motion: its initial denial of Brown’s motion in July 2020, and its second denial in December 2021 after we remanded Brown’s case for further consideration.  Each time, the district court neglected to address Brown’s disparate sentence. That neglect persisted despite our express recognition in our previous remand order that McCoy — and its holding that disparate § 924(c) sentences can constitute “extraordinary and compelling reasons” for release — “is relevant to this case.” Brown, 2021 WL 4461607, at *2 n.4.

The dissent, authored by Judge Quattlebaum, starts this way:

In an extraordinary and, in my view, regrettable decision, the majority reverses the district court’s order denying Brown’s motion for compassionate release.  It does so only by imposing a standard for explaining decisions that is more demanding than what the Supreme Court recently established. Concepcion v. United States, 142 S. Ct. 2389, 2405 (2022) (“All that is required is for a district court to demonstrate that it has considered the arguments before it.”).  But the majority does not stop there. It then usurps the district court’s assigned responsibility by stepping in to re-weigh the sentencing factors, substitute its judgment for that of the district court and order a 20-year sentence reduction.  The majority may well be troubled by the length of Brown’s original sentence.  But our ordered system of justice requires that appellate courts apply standards set forth by the Supreme Court. And it requires that discretionary sentencing decisions be made by district court judges.  The majority today does neither.  I dissent.

August 16, 2023 in FIRST STEP Act and its implementation, Gun policy and sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

Monday, July 31, 2023

FIRST STEP Act sentence reduction used to address "FBI invented" conspiracy in which feds were "the real lead conspirator"

The FIRST STEP Act's procedural changes to sentencing reduction motions pursuant to 18 USC § 3582(c)(1)(A) continue to provide not only a critical mechanism to address excessive federal prison sentences, but also a fascinating window on a wide array of problematic aspects of the federal criminal justice system.  Many so-called "compassionate release" motions are often efforts to reduce injustices as much they are efforts to increase compassion in our federal sentencing system.  The latest example of this dynamic story comes from New York federal courts as reported in this AP piece headlined "Judge orders release of 3 of ‘Newburgh Four’ and assails FBI’s role in a post-9/11 terror sting."  Here are the basics:

Three men convicted in a post-9/11 terrorism sting have been ordered freed from prison by a judge who deemed their lengthy sentences “unduly harsh and unjust” and decried the FBI’s role in radicalizing them in a plot to blow up New York synagogues and shoot down National Guard planes.

Onta Williams, David Williams and Laguerre Payen — three of the men known as the “Newburgh Four” — were “hapless, easily manipulated and penurious petty criminals” caught up more than a decade ago in a scheme driven by overzealous FBI agents and a dodgy informant, U.S. District Judge Colleen McMahon said in her ruling Thursday.

“The real lead conspirator was the United States,” McMahon wrote in granting the men’s request for compassionate release, effective in three months. She said that it was “heinous” of the men to agree to participate in what she called the government’s “made for TV movie.” But, the judge added, “the sentence was the product of a fictitious plot to do things that these men had never remotely contemplated, and that were never going to happen.”

She excoriated the government for sending “a villain” of an informant “to troll among the poorest and weakest of men for ‘terrorists’ who might prove susceptible to an offer of much-needed cash in exchange for committing a faux crime.” The U.S. attorney’s office declined to comment on the judge’s decision. A message seeking comment was sent to the FBI.

Citing concerns for the men’s health and her own qualms about the case, McMahon cut the 25-year mandatory minimum sentences she imposed on them in 2011 to time served plus 90 days. She said that would allow time for probation officials to prepare and for Payen’s lawyer to line up supportive housing for the man, who has a severe mental illness.

Judge McMahon's full opinion in US v. Williams, N. 09 CR 558 (CM) (SDNY July 27, 2023), is available at this link.  Here is just one notable passage in an opinion filled with notable passages:

For our purposes, suffice it to say the following: non-moving defendant Cromitie, the lead defendant in this case, was the object of a lengthy sting operation conducted by the FBI with the aid of a most unsavory “confidential informant,” Shaheed Hussain....  Over the course of the next few weeks, at Hussain's direction, he recruited David and Onta Williams and Laguerre Payen, to serve as “lookouts” while Cromitie planted “bombs” manufactured by the FBI at a synagogue and community center in Riverdale.  None of these three defendants had any history as terrorists; like Cromitie, they were impoverished small time grifters and drug users/street level dealers who could use some money. Payen in particular was of questionable mental acuity.  The three men were recruited so that Cromitie could conspire with someone; the real lead conspirator was the United States, but Cromitie could not conspire with the Government.

Nothing about the crimes of conviction was defendants' own doing.  The FBI invented the conspiracy; identified the targets; manufactured the ordnance; federalized what would otherwise have been a state crime (the Bronx “bomb” plot) by driving three of the four men (Onta Williams was not available) into Connecticut to view the “bombs” and “stinger missile launchers” that would be used in the operation; and picked the day for the “mission” (which was filmed in real time so it could be shown on television news the night the men were arrested). On May 20, Hussain drove the four men to Riverdale (they had no way to drive themselves); “armed” the “bomb” (because the hapless Cromitie, despite his “training,” could not figure out how to do it); and told Cromitie how to place the device while David Williams, Onta Williams and Payen performed lookout duty. As soon as the fake device was left by the community center door, law enforcement arrested the four men.

July 31, 2023 in FIRST STEP Act and its implementation, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (23)

Monday, July 03, 2023

"The First Step Act is a conservative, constructive approach to strengthening public safety"

The title of this post is a line from this new Hill commentary authored by Timothy Head and David Safavian. The piece is a response, of sorts, to the various attacks on the FIRST STEP Act by some GOP Prez candidates (discussed here and here), and here are excerpts:

[O]n occasion, Congress comes to its senses to pass impactful legislation.  And those moments of sensibility are often rooted in conservative principles.  Take the First Step Act, for example — a criminal justice bill supported by large majorities in the House and Senate and signed into law by then-President Trump in 2018.  The bill helped nonviolent prisoners earn shorter sentences through education and work, and it lowered certain mandatory minimum sentences that lacked any public safety benefit.  Data shows that the bill is reducing recidivism, which makes our communities safer.

But as the political season swings into full gear, the law has become the target of criticism from those who believe that a harsh criminal justice system is more effective in reducing crime.  Indeed, some have called for repeal of the legislation.  This is not only ill-informed, but it is also a short-sighted mistake.  Now is not the time to shy away from improving the criminal justice system; instead, we should build upon the First Step Act’s success....

The First Step Act is a conservative, constructive approach to strengthening public safety while giving those in prison a pathway to earning back the public’s trust.  Indeed, we helped craft the legislation in collaboration with public safety leaders and agencies, victims’ rights organizations, stakeholders in state legislatures, and everyday Americans impacted by our criminal justice system.

And the legislation has delivered positive results — not the least of which is a far lower recidivism rate for those who benefitted from the bill.  Because every instance of re-offending means another criminal case with another victim, recidivism is a key indicator of the performance of our criminal justice system.  When measured by recidivism, the benefits of the First Step Act are undeniable....

The First Step Act isn’t the only reform of the justice system that has been successful.  Conservatives also delivered smart but tough policies in the passage of the CARES Act in March 2020, near the onset of the COVID-19 pandemic.  The CARES Act was known primarily for its economic relief designed for individuals and small businesses affected by the shutting down of the economy.  But the media has virtually ignored another aspect of the CARES Act, which helped almost 12,000 minimum security federal inmates finish their sentences in home confinement instead of in taxpayer-funded prison cells.  Since its implementation, there has been an astonishingly low recidivism rate of only 0.15 percent — just 17 prisoners committed new crimes.

As conservatives, we want the best for our communities, and part of that includes helping prisoners return home as good spouses, parents, and neighbors while reducing taxpayer costs.  For years, Congress has talked about reducing recidivism and restoring lives. But the successes of the First Step Act and the CARES Act underscore the importance of conservative values in shaping effective legislation that can be enacted.

Instead of trying to score cheap political points, politicians should continue working towards a more effective justice system that cuts crime, makes neighborhoods safer, and offers pathways to rehabilitation.  In doing so, conservatives can continue to earn the American people’s trust for years to come.

I find efforts to brand the FIRST STEP Act as "conservative" to be quite interesting, and I am thinking the line serving as the title of this post could provide the foundation for an interesting question in coming GOP candidate debates (the first of which is slated for next month).  Especially given that Prez Biden has, so far, achieved very little in the criminal justice reform space, I really would find interesting whether and how various GOP candidates (including former Prez Trump) might embrace or assail the FIRST STEP Act as a "conservative" legislative development.

Somewhat relatedly, here are a few other recent commentaries discussing federal justice reform issues and broader political dynamics:

From Forbes, "The Unnecessary Risk Of Incarcerating Minimum Security Inmates"

From The Marshall Project, "Why DeSantis Wants to Kill Trump’s Prison Reform Law"

From the Tampa Bay Times, "Here’s how Gov. DeSantis is trashing criminal justice reform"

Prior related posts:

July 3, 2023 in Campaign 2024 and sentencing issues, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (13)

Wednesday, June 07, 2023

Spotlighting notable sentence reduction for prisoner sexually abused by multiple BOP guards

This new NPR piece, headlined "Prison sexual assault victims can now petition for compassionate release," highlights a recent grant of a sentence reduction under 3582(c)(1)(A) for a prisoner who was repeatedly sexually abused by federal prison guards.  Here are the particulars and some broader context:

For years, Aimee Chavira suffered sexual abuse in a Dublin, Calif., federal prison by the officers responsible for protecting her. Now, thanks to a program known as compassionate release, she is free. And her freedom could help pave a similar path for other people who experienced physical or sexual assault behind bars.

"We are very hopeful that this can lead to more women who were abused at Dublin getting out," said Erica Zunkel, Chavira's lawyer.

Chavira, 44, has been home for less than two weeks after learning her request for compassionate release had been granted by a federal judge. Those petitions allow people in prison the chance to convince a court they should be freed because of extraordinary and compelling circumstances.

Typically, those cases involve terminal illness or other dire medical conditions. In April, the U.S. Sentencing Commission, a federal body that sets advisory guidelines, voted to expand the bases for compassionate release to include sexual and physical assault by prison workers.

Chavira reported her abuse to a psychologist and a warden at the Federal Correctional Institution, Dublin. But they did nothing. The warden later was convicted of sexual abuse and lying to the FBI. Five other officials have been charged with sexually abusing women at the facility, in what became known as a so-called "Rape Club." One of them, John Bellhouse, was convicted this week on charges that include sexual abuse of an incarcerated person.

Chavira said she knows women from the Dublin prison who have been moved to other facilities, where they continue to suffer retaliation and face trauma. "This is just one prison that's coming out to the light," she said. "What's happening in all the rest of the prisons with the rest of the people that don't have any help or a voice?"

Last year, a bipartisan probe by the Senate Permanent Subcommittee on Investigations found widespread sexual abuse by officers in federal prisons with few consequences for those officers....

Zunkel, the associate director of the Federal Criminal Justice Clinic at the University of Chicago Law School, said it's important that Chavira and other survivors of assault get released as soon as possible. "The experts confirm it doesn't matter if you're moved to a different prison, it doesn't matter if they're offered the very best therapy possible, the Bureau of Prisons is a fundamentally unsafe place for a survivor of sexual violence to recover from," Zunkel said.

In Chavira's case, prosecutors did not object to her request for compassionate release....

Chavira said she's determined to speak out for all the people she met in prison who are still experiencing abuse and poor conditions behind bars. "There is no help, if you went in in one piece, you're coming back out in a million pieces, because you're beyond broken," she said. For now, she said she intends to get stronger emotionally and "show everybody, you know, I went through this, and I got out of it."

The short ruling granting compassionate release is available here and the detailed motion filed by Erica Zunkel on behalf of Aimee Chavira is available here.

June 7, 2023 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (32)

Monday, June 05, 2023

A long-form account of one small part of modern stories about compassionate release for dying federal prisoners

Anyone interested at all in the topic of compassionate release should be sure to make time to read this extended account of one federal prisoner's quest to help fellow prisoners secure end-of-life sentence reductions. This piece by Anna Altman for The Atavist Magazine is fully titled "The Quality of Mercy: Gary Settle has helped dozens of federal prisoners get compassionate release. Will it ever be his turn to go home?". Here is one small snippet of very long piece that is worth the time to read in full:

Compassionate release is grounded in the idea that changes to a person’s health may weaken the justification for their incarceration.  What reason is there for imprisoning someone with Alzheimer’s when he no longer understands that he is being punished?  When someone with late-stage liver disease can’t get out of bed and is no longer a threat to society?  When “rehabilitation” is no longer feasible because a person has advanced cancer?  “We’re not doing any social good, if we were in the first place, in keeping them locked up,” [FAMM's Mary] Price said.  “And we can do a great deal of good in terms of helping people repair relationships and comfort each other and say goodbye.”

There is also a financial calculus that works in the BOP’s favor, one noted prominently in a 2013 DOJ report on compassionate release: It’s almost always cheaper to release sick people than to keep them locked up until they die.  One study found that the annual cost of caring for just 21 seriously ill prisoners in California was almost $2 million per person, while the median per capita cost of nursing home care in the state was $73,000 per year.

After a judge allowed [terminal cancer patient R.] Smith to go home, Settle noticed a shift at Butner.  He later wrote an email to FAMM, trying to put into words what he was witnessing.  “In this place of death and dying, among incarcerated men who are holding on to life with nothing but more cells, more keys, more misery in their future, your efforts are having real, tangible results.  Your efforts are giving hope,” he wrote.  “You are giving life back to people, and you are giving them the most precious gift of all, time. Time to heal old wounds, to take a last breath of freedom and to leave this world with peace and dignity.”

FAMM worked closely with Settle through the summer and fall of 2019 to help people at Butner.  “We didn’t appoint him,” Price said. “He appointed himself.”  Settle made copies of FAMM’s newsletter and distributed them to his neighbors.  He kept an eye out for people whose health was worsening and approached those he thought might qualify for compassionate release.  He told them what he knew about the First Step Act, which he had studied, and about the Compassionate Release Clearinghouse.  He spent six to eight hours a day requesting medical records, addressing envelopes, and updating his contacts on the outside about various cases.  Settle read medical records, cross-referencing terms with a diagnostic manual and a medical encyclopedia he’d ordered, so he could send the most pertinent information about sick prisoners to their lawyers.  Before long his cell was covered with piles of paper.

Settle also relayed information from incarcerated individuals to their family members.  He helped people who were too sick to make it to a computer, those who had been transferred off-site for care, and others who had never learned to read or write.  Sometimes he wrote compassionate release requests himself, parroting the language he had seen in other applications.  The ones that went to the BOP were all but certain to be rejected or ignored, but that was part of the process: For a prisoner to file a motion directly with a judge, they first had to “exhaust administrative remedies,” in legal parlance.

Word got around Butner about what Settle was doing.  He would leave his cell after a nap to find four or five guys gathered outside, some of them in wheelchairs with paperwork in their laps.  He was willing to assist just about anyone — he said he only refused people convicted of sex crimes.  “Gary is able to form relationships with all kinds of people,” said Juliana Andonian, an attorney who used to work at FAMM.  “He didn’t want to make himself the center of the story.  That was really notable, the lack of ego.”

It isn’t uncommon for people in prison to help one another with legal matters.  Jailhouse lawyers — some with legal training, some without—review statutes in a prison’s law library, file paperwork, and perform other tasks for fellow prisoners, often for a fee or some other form of compensation.  “Someone less sincere could make a lot of money or do a lot of harm,” Andonian said.  Settle refused payment, even to cover the cost of emails he sent and phone calls he made.  The mother of a man Settle helped go home remembered sending him a thank-you note.  “That’s about all he let me send him,” she said.

One day a thought dawned on Price.  “He is doing this job that the Bureau of Prisons should be doing,” she said.  “They should be moving heaven and earth to be sure that people are connected to family and loved ones when they’re near the end of their lives.”

June 5, 2023 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, June 04, 2023

Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve

Though we still await opinions in a number of criminal justice cases this SCOTUS Term (which all should be decided in the next few weeks, some details here), I am already excited for the fascinating little sentencing case the Justices already have on tap for next Term.  As flagged here, the Justices in late February granted certiorari in Pulsifer v. United States.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FRIST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or." 

As I have noted before, federal criminal justice practitioners and sentencing fans should be following Pulsifer closely because its resolution will impact how thousands of drug defendants are sentenced in federal courts every year.  And statutory construction gurus should also be interested in how Pulsifer addresses statutory issues related to textualism, plain meaning and the rule of lenity.  

Though SCOTUS oral argument in Pulsifer will not be scheduled until October of November, the first set of briefs were filed in the last few weeks.  Specifically, SCOTUSblog has assembled on this Pulsifer case page the merits brief filed by Mark R. Pulsifer as well as four distinct amici briefs (three in support of Pulsifer and one in support of neither party).  The briefs all make for interesting reads and reinforce my sense that Pulsifer will be a fun one at oral argument and beyond.

June 4, 2023 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, June 02, 2023

US Sentencing Commission releases a few updated "Quick Facts" and latest "compassionate release" data

The US Sentencing Commission has recently released some new sentencing data reports.  Long-time readers have long heard me praise the USSC for producing insightful little data documents in the form of its "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  The USSC recent posted these four new entries:

There are so many notable and interesting little data items in these little documents, and I hope to find time to mine a few data notes in the days ahead.  In addition, the USSC's website promises "more updated Quick Facts coming soon."

In addition, the USSC also recently published this updated "Compassionate Release Data Report." This report, which has information covering from October 2019 through March 2023, includes new data on sentence reduction motions under section 3582(c)(1)(A) filed with the courts and decided during the first two quarters of fiscal year 2023. Not surprisingly, this data report shows continued month-over-month declines in the number of sentence reduction motions filed and granted since the heights of the COVID pandemic. And yet, the USSC data show that there are still more of these motions being filed and being granted in recent times than was being granted before the pandemic.

June 2, 2023 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation | Permalink | Comments (3)

Saturday, May 27, 2023

New GOP Prez candidate DeSantis pledges to repeal FIRST STEP Act

I noted in this post a few month ago a press report that Florida Gov Ron DeSantis was planning to assail former Prez Trump for his support of the FIRST STEP Act back in 2018. And, sure enough, with days of announcing his candidacy for President, Gov DeSantis has attacked Trump's signature criminal justice reform achievement. This Fox News piece, headlined "Ron DeSantis rips Trump over First Step Act, vows to repeal it: 'Basically a jailbreak bill'," provides these details:

Republican presidential candidate and Florida Gov. Ron DeSantis vowed Friday to seek a repeal of President Trump's signature First Step Act, a bipartisan criminal justice reform bill that aimed to reduce recidivism, allowed a pathway for non-violent prisoners to shorten their sentences, and reduced mandatory minimum sentences.

"Under the Trump administration — he enacted a bill, basically a jailbreak bill, it's called the First Step Act. It has allowed dangerous people out of prison who have now re-offended, and really, really hurt a number of people," DeSantis said in an interview with the Daily Wire.

"So one of the things I would want to do as president is go to Congress and seek the repeal of the First Step Act. If you are in jail, you should serve your time. And the idea that they're releasing people who have not been rehabilitated early, so that they can prey on people in our society is a huge, huge mistake," he added.

DeSantis voted for the first version of the bill as a member of the House of Representatives in 2018, the same year he was elected as Florida's governor, but had resigned before the final, more moderate version of the bill came to a vote in the chamber.

Trump's campaign responded to DeSantis by pointing to his original vote, and argued he was basically criticizing his own supporters in Congress who also voted for the bill. "Lyin' Ron. He voted for the First Step Act. Would be a shame if there was video of him praising it in an interview with a local FL television station..." Trump campaign spokesperson Stephen Cheung tweeted following the DeSantis' interview.

"DeSantis supporter [Rep. Thomas Massie, R-Ky.] voted for the bill as well. DeSantis is calling out his own Congressional supporters and throwing them under the bus," he later added in a separate tweet.

May 27, 2023 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (33)

Tuesday, May 02, 2023

Justice Department releases latest annual report on FIRST STEP Act implementation

The US Department of Justice recently released this notable report titled simply "First Step Act Annual Report, April 2023." Here is the 50+-page report's simple introduction:

The First Step Act of 2018 (“First Step Act,” “FSA,” or “Act”) was the culmination of a bipartisan effort to improve criminal justice outcomes and reduce the size of the federal prison population, while maintaining public safety. Under Section 101 of the Act, now codified in 18 U.S.C. § 3634, the Attorney General is required to submit a report beginning two years after the date of enactment, and annually thereafter for a period of five years.  The Department of Justice (the Department) submitted its last such report to Congress in April 2022.  This is the third Annual Report submitted pursuant to Section 3634.

What follows is an extraordinary amount of information and data about FIRST STEP Act implementation on many fronts, and here is just one of a half-dozen items of note that is flagged in the report's executive summary:

Enhance the use of home confinement and prerelease custody.  Consistent with the FSA’s emphasis on transitioning individuals to a community setting, the Department has expanded the use of home confinement for individuals who do not pose a danger to the community.  As of January 28, 2023, 13,501 individuals have been released from Residential Reentry Centers (RRCs), home confinement (HC), and secure facilities pursuant to credits earned under the First Step Act.  On April 4, 2023, the Department also issued a final rule granting discretion to the Director of the Bureau of Prisons to allow individuals placed in home confinement under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to remain in home confinement after the expiration of the covered emergency period.  The final rule provides the Bureau the discretion and flexibility to impose proportional and escalating sanctions for individuals who commit infractions, including returning them to prison.  It also allows the Bureau to move individuals into RRCs when needed, including instances when the home residence is no longer viable or due to either minor accountability issues or non-significant disciplinary issues.  Consistent with the final rule, the Director of the Bureau of Prisons also instructed that any individual placed on home confinement under the CARES Act will remain on home confinement under the CARES Act for the remainder of their sentence, provided that they are compliant with the rules and regulations of community placement.  Since the enactment of the CARES Act on March 26, 2020, the Bureau of Prisons has placed more than 12,000 individuals in home confinement under CARES Act authority.  Of those, only a fraction of one percent has been returned to secure custody due to new criminal conduct.

May 2, 2023 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Wednesday, April 26, 2023

Eighth Circuit panel seemingly misreads the US Sentencing Commission's sentence reduction guideline amendment

I have previously blogged here and here about the US Sentencing Commission's decision to amend the so-called commpassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A) (policy statement)."  There are lots of intricate elemens to this amendment, and one key provision concerned the authority of judges to consider "changes in the law" as a basis to satisfy the statutory requirement of finding "extraordinary and compelling reason" for a sentence reduction. 

This issue was the only one clearly dividing the new Commissioners: four Commissioners voted for a new provision -- § 1B1.13(b)(6) -- that expressly states that, in certain circumstances, "changes in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances."  Three other Commissioners voted againt this provision because they did not believe  the USSC should ever allow "changes in the law" to be considered in determining whether a defendant presents and "extraordinary and compelling reason" for a sentence reduction.

A helpful reader sent me an Eighth Circuit opinion, US v. Rodriguez-Mendez, No. 22-2399 (8th Cir. April 25, 2023) (available here), that seems to misread just what the USSC has done with this amendment to the reduction-in-sentence guideline.  In this case, the panel first explains that the Eighth Circuit had pervious "held that a non-retroactive change in law regarding sentencing ...  cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A)."  Then the panel rejects the defendant's argument that the Supreme Court's opinion in Concepcion v. US, 142 S. Ct. 2389 (2022), required changing that prior holding.  (I disagree with that reading of Concepcion, as explained here, but a number of courts have adopted it.)  

Then, in the last few paragraphs of this new Rodriguez-Mendez opinion, the Eighth Circuit panel mentions that the Sentencing Commission’s proposed amendment to § 1B1.13.  But after quoting key provisions of the amendment, the panel states (with my emphasis added): "It thus appears that the Commission proposes to adopt (or to express more clearly) that nonretroactive changes in sentencing law may not establish eligibility for a § 3582(c)(1)(A) sentence reduction, as we held in Crandall, but may be considered in exercising a court’s discretion whether to grant compassionate release relief to an eligible defendant, consistent with the Supreme Court’s decision in Concepcion."   But this seems flatly wrong because, as noted above, the new language of § 1B1.13(b)(6) expressly states that, in certain circumstances, "changes in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason."  In other words, the Commission in this new guideline is providing that nonretroactive changes in sentencing law CAN establish eligibility for a § 3582(c)(1)(A) sentence reduction in some circucumstances.  (And, notably, the defedant in this case, Rodrigo Rodriguez-Mendez, might well meet the circumstances the Commission set forth for "change in the law" to provide the basis for a sentence reduction.)

I have argued in this post that the new amended provision of "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)" could and should be seen to now overrule prior circuit rulings that changes in law cannot provide a basis for a sentence reduction.  But some may reasonably claim that the amendment to § 1B1.13 only should be given effect after November 1, 2023, which is when all the new guideline amendments will become effective.  But I do not think anyone can reasonably claim, as the Eighth Circuit panel seems to do here, that the new amended guideline serves to codify the claims of some circuits that changes in law can never provide a basis for a sentence reduction.

April 26, 2023 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (12)

Tuesday, April 18, 2023

Notable new Roll Call review of congressional views of US Sentencing Commission's debate over sentence reductions

Roll Call has this notable new piece discussing the debate over the new federal sentencing guidelines for sentence reduction motions.  The article mostly discusses the politics surrounding reform rather than all the particulars of the legal reforms, and I am not sure it breaks any new ground.  But it is still a useful read for those keeping up on these matters, even though the text and even the headline of the piece is a bit off legally.  Here are excerpts:

A federal agency has given judges a new tool to reduce unusually long sentences for some prisoners if there is a change in a law, an approach Republican senators warned will hamper, if not destroy, the possibility of future criminal justice legislation.

The policy approved this month by the low-profile U.S. Sentencing Commission is deep in the legal weeds, giving guidance for federal judges on how to interpret a section of a sweeping bipartisan overhaul of the federal criminal justice system passed in 2018.  But the debate on that approach, which goes into effect in November unless Congress disapproves it, offers an inside look at the negotiations and challenges for lawmakers who want to take more steps to address racial inequality in the criminal justice system through sentencing changes...

In the 2018 criminal justice law, Congress allowed federal inmates to directly ask courts to release them from prison for extraordinary and compelling reasons. Judges released thousands of inmates through that mechanism during the COVID-19 pandemic.

Under the sentencing guidance the commission adopted this month, a change in a law could be potential grounds for reducing a defendant’s sentence. Specifically, judges could consider reducing the sentence of an inmate who has served 10 years of an “unusually long sentence” if there is a “gross disparity” between their sentence and sentences imposed under new law.

Senate Majority Leader Mitch McConnell of Kentucky and Sen. Charles E. Grassley of Iowa, who was the lead Republican on the push for the 2018 law, warned the commission that the guidance would cause problems for future bills that would reduce prison sentences. McConnell in a February letter to the commission said that no issue was more controversial during the debate on the 2018 law than whether it would be applied retroactively to those already in prison. Congress is extremely careful with use of retroactivity — if lawmakers want something to be retroactive, they typically say so clearly in the law — and so guidance that approves of judges doing so would “poison the well” in Congress, he said....

The guidelines went through changes following the comments from Senate Republicans and Democrats, but the thrust of the provision remained the same and the commission voted for guidelines that approve of judges retroactively considering certain sentences.

I am inclined to dicker with the very first clause of the article — "A federal agency has given judges a new tool to reduce unusually long sentences for some prisoners if there is a change in a law" — because it was Congress who created the tool to reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) and Congress did so way back in 1984.  In addition, as this article notes, the FIRST STEP Act of 2018 (another act of Congress) allowed this tool to function more effectively by allowing prisoners to make motions directly in court for sentence reduction without awaiting a filing by the Bureau of Prisons. 

Moreover, since passage of the FIRST STEP Act, many circuits have ruled that a change in law could be potential grounds for reducing a defendant’s sentence in any and every case, whereas the new guidelines promulated by the US Sentencing Commission significantly restricts the circumstances under which a change of law can be the basis for a sentencing reduction.  Thus, I think a more accurate openning line might have been something like: "A federal agency has narrowed the reach of a long-standing tool that Congress provided to judges as a means to reduce sentences which had become far more widely used after passage of the bipartisan FIRST STEP Act."

April 18, 2023 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, March 21, 2023

GAO releases big report concluding "Bureau of Prisons Should Improve Efforts to Implement its Risk and Needs Assessment System"

The US Government Accountability Office (GAO) has released this big new Report to Congressional Committees fully titled "Federal Prisons: Bureau of Prisons Should Improve Efforts to Implement its Risk and Needs Assessment System."  The full report runs over 100 pages, but it starts with "Highlights" that include this text:

Why GAO Did This Study

Approximately 45 percent of people released from a federal prison are rearrested or return within 3 years of their release.  The First Step Act included certain requirements for DOJ and BOP aimed to reduce recidivism, including requiring the development of a system to assess the recidivism risk and needs of incarcerated people.  It also required BOP to provide incarcerated people with programs and activities to address their needs and if eligible, earn time credits.

The First Step Act required GAO to assess the DOJ and BOP’s implementation of certain requirements.  This report addresses the extent to which DOJ and BOP implemented certain First Step Act requirements related to the (1) risk and needs assessment system, (2) identification and evaluation of programs and activities, and (3) application of time credits.

GAO reviewed legislation and DOJ and BOP documents; analyzed 2022 BOP data; and interviewed DOJ and BOP headquarters officials and BOP’s employee union.  GAO also conducted non-generalizable interviews with officials from four BOP regional offices facilities, selected to ensure a mix of different facility characteristics.

What GAO Found

Since the enactment of the First Step Act of 2018, the Department of Justice (DOJ) developed a risk assessment tool to measure an incarcerated person’s risk of recidivism.  In addition, the Bureau of Prisons (BOP) modified its existing needs assessment system to identify incarcerated people’s needs, that if addressed may reduce their recidivism risk. However, BOP does not have readily-available, complete, and accurate data to determine if assessments were conducted within required First Step Act and internal timeframes. As of October 2022, BOP plans to implement monitoring efforts to assess First Step Act requirements, but has not determined if these efforts will measure whether assessments are completed on time.  Without such data and monitoring, BOP is not in a position to determine if staff complete assessments on time, which are necessary for earning First Step Act time credits.  These time credits may allow incarcerated people to reduce the amount of time they spend in a BOP facility.

BOP created a plan to evaluate its evidence-based programs, as required by the First Step Act.  However, the plan did not include quantifiable goals that align with certain First Step Act requirements, or have clear milestone dates.  By including such elements in its plan, BOP will be better positioned to ensure its evaluations are conducted in a timely manner, and align with the First Step Act.  BOP has some data on who participates in its programs and activities, but does not have a mechanism to monitor if it offers a sufficient amount. Without such a mechanism, BOP cannot ensure it is meeting the incarcerated population’s needs.  Further, while BOP offers unstructured productive activities for which incarcerated people may earn time credits, BOP has not documented a complete list or monitored them.  Without doing so, BOP cannot ensure it provides transparent information.

BOP’s procedure for applying time credits has evolved over time.  Initially, BOP did not have data necessary to track time credits and developed an interim approach in January 2022.  Subsequently, BOP implemented an automated-calculation application for time credits that took into account factors the interim procedure did not.  As a result, some incarcerated people may have had their time credits reduced.  In November 2022, BOP issued its First Step Act Time Credits program statement, with new procedures.

What GAO Recommends

GAO is making eight recommendations for BOP to improve its implementation of the First Step Act, including collecting data, ensuring its evaluation plan has goals and milestones, having monitoring mechanisms, and tracking unstructured productive activities. BOP concurred with six recommendations, but did not concur with two.  GAO continues to believe these are valid.

March 21, 2023 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Wednesday, March 08, 2023

Highlighting the continuing challenges of calculating FIRST STEP Act earned time credits

At Forbes, Walter Pavlo has this new piece, headlined "The Bureau Of Prisons Evolving Calculation Of First Step Act," on the continuing challenges of applying a key aspect of prison reform part of the big federal criminal justice reform bill passed back in 2018.  I recommend the piece in full, and here are excerpts:

Since January 2022, the Federal Bureau of Prisons (BOP) has been trying to determine how to calculate how the First Step Act (FSA), a law signed by President Donald Trump in December 2018.  As we enter March 2023, there still is no clear direction on the calculation and the frustration has grown among prisoners and families who are anxiously waiting on a determination of when a federal prison term will end....

The premise of FSA is to reward federal prisoners’ participation in meaningful classes meant to return a better citizen to society and, hopefully, reduce the chances of them returning to prison.... The BOP initially calculated the FSA credits manually beginning in January 2022 when the Federal Register published the Final Rule on FSA. The initial BOP calculations for minimum level offenders with minimum chances of recidivism was that 15 days per month started from the beginning of the prison term, something more generous than what was even stated in the FSA law. Prisoners across the country were released based on this calculation.  This initial and interim manual calculation was used through August 2022 when the BOP rolled out a new auto-calculator.  That auto-calculator had a major interpretation that was not a part of FSA either, which stopped all credits from being earned once the prisoner was 18 months from release. This was particularly hard on those prisoners with shorter sentences.

As December 2022 came to a close, the BOP’s auto-calculator interpretation came under scrutiny from U.S. Senators Dick Durbin and Chuck Grassley, the law’s biggest proponents. Suddenly, the BOP changed course and another calculation was promised and it landed with yet another interpretation that is limiting the amount of credits prisoners can earn.

The BOP is now in its third iteration of FSA calculation and this is just as confusing as its first.  Now the BOP is stating that prisoners can only earn 10 credits per month for the first year of incarceration....

Prisoners across the country are taking their cases to federal court asking for relief and for federal judges to get involved in determining the duration of the prison sentence.  In a case in the District of Maryland (Sreedhar Potarazu v BOP, Case No. 1:22-cv-01334) the case manager for the plaintiff gave his own interpretation of how credits were applied by the BOP, giving Mr. Potarazu 10 credits per month for nearly 3 years of his sentence.  There was no basis for the calculation which did not cite specific policy on which the calculation was based, providing even more confusion among both prisoners and staff across the BOP.  Previously, the BOP has used declarations, which were similarly not based on a specific policy, from executives at its Central Office.

It is becoming increasingly apparent that the FSA will be finally determined by a federal court decision and not by what should be a simple interpretation of the law by the BOP. However, many prisoners who await the outcome from court decisions will have spent weeks or months in prison unnecessarily.

March 8, 2023 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Friday, March 03, 2023

Former BOP director talks up need for second step to follow up FIRST STEP Act

Hugh Hurwitz, who served as Acting Director of the Federal Bureau of Prisons from May 2018 to August 2019, has this notable new Hill commentary headlined "First Step Act was only half the job; now a ‘Second Step’ is needed." It is worth reading in full, and here are  excerpts:

The First Step Act (FSA) was a landmark achievement in the area of criminal justice reform.  It came at a time of partisan politics and a divided Congress and was the only significant bi-partisan legislation passed during the Trump administration....  I had a unique viewpoint at this time: I was Acting Director of the Bureau of Prisons (BOP) during the negotiations and ultimate passage of the FSA....  But how successful is it?  I argue it was a small start, hopefully, on the way to something bigger.

The FSA had two primary goals: 1) to reduce the overcrowded prison population in the BOP and 2) to provide incentives for people in prison to take recidivism reducing programs which will increase the likelihood that they will succeed upon their release and not return to prison.  In my opinion, the FSA succeeded wildly in number 1, and failed miserably in number 2.  So, in short, yes, we definitely need something bigger: a second step.

While up-to-date data has not been made available, it appears that somewhere between 10,000 and 20,000 people have already been released early under the FSA, with thousands more in the queue.  BOP is still calculating how people earn time credits, and they continue to release more in batches.  Based on those numbers alone, it is hard to argue that the FSA was not successful in reducing the prison population.

The primary incentive offered under the FSA is time credits for completion of recidivation reducing programs. Application of these time credits will allow some people to complete their sentence early and transfer to supervised release, and others to transfer early to halfway houses or home confinement.  The problem with the FSA is that while it incentivizes people to take recidivism reducing programs, the only people eligible for the coveted time credits are those already deemed to be minimum- or low-risk for recidivating.  Said another way, only people assessed as minimum- and low-risk for recidivism are eligible to earn time credits leading to early release. But those are not the people we should be incentivizing to take recidivism reducing programs.  The ones who truly need these programs are those deemed to be of medium or high risk of recidivating.  Aren’t those the people we should be focusing on?  But the FSA does not allow these people to earn time credits....

Let me be clear: I am not saying the FSA is a bad law.  On the contrary, it has resulted in increased program opportunities and other changes to our federal prison system, and it has reduced the number of people in federal prisons.  What I am saying is that the need for a Second Step is great, as people deemed medium or high risk of recidivating are released without the benefit of critical recidivism reducing programs.

About 95 percent of the people currently in our nation’s prisons will be released to our communities. They will be our neighbors.  Isn’t it imperative that we do all we can to ensure that upon release they have the skills, tools, and resources to be productive, law-abiding members of society?  We need Congress to act now, in another bi-partisan effort, to pass laws that will ensure everyone incarcerated today is incentivized and given access to programs that will help reduce their recidivism risk.

March 3, 2023 in FIRST STEP Act and its implementation, Reentry and community supervision, Who Sentences | Permalink | Comments (3)

Monday, February 27, 2023

SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve

As predicted in this post a couple days ago, sentencing fans now get to turn their attention to the Supreme Court for the next chapter of a fascinating FIRST STEP Act statutory interpretation issue.  Specifically, in this morning's SCOTUS order list, one of the two cases receiving certiorari grants was Pulsifer v. United States.  Here is the (lengthy) question presented as set forth in the defendant's cert petition:

The “safety valve” provision of the federal sentencing statute requires a district court to ignore any statutory mandatory minimum and instead follow the Sentencing Guidelines if a defendant was convicted of certain nonviolent drug crimes and can meet five sets of criteria.  See 18 U.S.C. § 3553(f)(1)–(5).  Congress amended the first set of criteria, in § 3553(f)(1), in the First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221, broad criminal justice and sentencing reform legislation designed to provide a second chance for nonviolent offenders. A defendant satisfies § 3553(f)(1), as amended, if he “does not have — (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1) (emphasis added).

The question presented is whether the “and” in 18 U.S.C. § 3553(f)(1) means “and,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense (as the Ninth Circuit holds), or whether the “and” means “or,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, or (C) a 2-point violent offense (as the Seventh and Eighth Circuits hold).

Notably, as regular readers know, the circuit split on this issue has deepened to include two more circuits on both sides of the debate.  Federal criminal justice practitioners and sentencing fans certainly will be following this case closely because its resolution will impact thousands of drug defendants sentenced in federal courts every year. But statutory construction gurus (and isn't that everyone) will also surely be interest in the debates this case can present about textualism, plain meaning and the rule of lenity. Stay tuned.

February 27, 2023 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, February 24, 2023

Split over reading of the FIRST-STEP-amended safety valve provision appears ready for SCOTUS review

In this post a couple of days ago, which discussed the latest notable circuit opinion interpreting the language Congress used in the FIRST STEP Act to expand the statutory safety valve enabling more federal drug defendants to be sentenced below mandatory minimum terms, I suggested it was only a matter of time before SCOTUS takes up the statutory interpretation dispute that has deeply divided lower courts.  And this new Relist Watch post by John Elwood at SCOTUSblog suggest it may actually be only a matter of days before cert is granted on this issue:

The Supreme Court will meet this Friday to consider whether to grant review in a group of around 95 petitions and motions. They will be considering eight cases for the second time....

Under the “safety-valve” provision of federal sentencing law, a defendant convicted of certain nonviolent drug crimes can obtain relief from statutory mandatory minimum sentences if, among other things, her criminal history satisfies criteria in 18 U.S.C § 3553(f)(1): she “does not have — (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

Pulsifer v. United States and Palomares v. United States present the question of how that provision should be read: whether a defendant is ineligible for relief from the mandatory minimum if her criminal history runs afoul of any one of the disqualifying criteria in subsections (A), (B), or (C), or is ineligible only if her criminal history runs afoul of all three disqualifying criteria, subsections (A), (B), and (C).  The government agrees that the circuits are divided and review is warranted, and recommends that the court take Pulsifer, which it says is the better vehicle.  Counsel for Palomares and Pulsifer trade barbs in their reply briefs about which is the better vehicle.  Probably at least one will get the grant.

I share the view that, if the Justice Department is advocating for review, we ought to expect a grant on one of these cases perhaps as early as Monday.  My understanding is that a grant now would set the case up for Fall 2023 argument and likely no decision from SCOTUS until early 2024. 

February 24, 2023 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, February 22, 2023

Fourth Circuit panel joins minority of circuits giving broad reading to FIRST-STEP-amended safety valve provision

I have noted in a handful of prior posts some of the notable circuit rulings concerning the complicated language that Congress used in the FIRST STEP Act to expand the statutory safety valve enabling more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  A helpful reader made sure I did not miss the latest opinion on this topic, this one coming from a Fourth Circuit panel in US v. Jones, No. 21-4605 (4th Cir. Feb 21, 2023) (available here).  Here is how the opinion starts and concludes:

The safety valve provision found in the First Step Act allows a district court to impose a sentence without regard to a mandatory minimum if certain criteria are met.  Relevant here, the court must find that the defendant “does not have . . . more than 4 criminal history points, . . . a prior 3-point offense, . . . and a prior 2-point violent offense” (the “criminal history characteristics”). 18 U.S.C. § 3553(f)(1) (emphasis added).  Cassity Jones has more than four criminal history points but does not have a prior three-point offense or two-point violent offense.  The district court concluded that a defendant must have all three criminal history characteristics to be ineligible for relief and applied the safety valve in sentencing Jones.  The sole issue on appeal is whether the word “and” in § 3553(f)(1) connecting the criminal history characteristics applies conjunctively or disjunctively.  We conclude that “and” is conjunctive and affirm the district court’s decision....

Ultimately, whether or not this is a prudent policy choice is not for the judiciary to decide: that determination lies solely with the legislative branch.  And “[t]he [G]overnment’s request that we rewrite § 3553(f)(1)’s ‘and’ into an ‘or’ based on the absurdity canon is simply a request for a swap of policy preferences.” Lopez, 998 F.3d at 440.  We cannot “rewrite Congress’s clear and unambiguous text” simply because the Government believes it is better policy for the safety valve to apply to fewer defendants. Id. “The remedy for any dissatisfaction with the results in particular cases lies with Congress and not with this Court.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982); see also id. (“Congress may amend the statute; we may not.” (citations omitted)).

Accordingly, we are persuaded that the plain text of § 3553(f)(1) requires a sentencing court to find that a defendant has all three of the listed criminal history characteristics before excluding a defendant from safety valve eligibility.

Helpfully, a footnote early in the opinion details the circuit split over whether "and" means "and" or "and" means "or" in the context of this FIRST STEP Act revision of the application statute:

The circuits are split on this issue.  Compare United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en banc) (concluding that only a defendant with all three criminal history characteristics is ineligible under § 3553(f)(1)), and United States v. Lopez, 998 F.3d 431 (9th Cir. 2021) (same), with United States v. Palomares, 52 F.4th 640 (5th Cir. 2022) (concluding that having any one of the criminal history characteristics renders a defendant ineligible under § 3553(f)(1)), United States v. Pace, 48 F.4th 741 (7th Cir. 2022) (same), United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022) (same), and United States v. Haynes, 55 F.4th 1075 (6th Cir. 2022) (same). We find the Eleventh and Ninth Circuits’ decisions convincing and join those circuits.

This split make plain that it is only a matter of time before SCOTUS takes up this matter. And I would hope that SCOTUS would move quickly: according to US Sentencing Commission data, thousands of federal drug defendants each year are being subject to different laws and treated differently at sentencing based on this statutory conflict.

February 22, 2023 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, February 21, 2023

A glass-half-empty look at federal compassionate release data since FIRST STEP Act

Extrapolating based on the latest data from the US Sentencing Commission, since passage of the FIRST STEP Act in December 2018, nearly 5000 persons have secured a reduced term of imprisonment for "extraordinary and compelling reasons" pursuant to so-called "compassionate release" motions under 3582(c)(1)(A).  This number, which amounts to an average of roughly 100 sentence reduction grants per month, is a 50-times increase from the average of two such reductions per month in the year before the FIRST STEP Act made it possible for prisoners to get their motions directly to courts.  (COVID is a big part of this story: USSC data show many hundreds of grants each month during the second half of 2020 and first part of 2021; grants have average closer to 50 per month through 2022.)

But while sentence reductions grants are much more common since passage of the FIRST STEP Act, they are still not common.  After all, roughly 400,000 persons have served federal prison sentences over the last five years, so only just over 1% of all federal prisoners have secured relief under 3582(c)(1)(A).  And this new NPR piece, headlined "Frail people are left to die in prison as judges fail to act on a law to free them," stresses data detailing how many are not securing relief.  Here are excerpts:

[D]ata from the U.S. Sentencing Commission shows judges rejected more than 80% of compassionate release requests filed from October 2019 through September 2022. Judges made rulings without guidance from the sentencing commission, an independent agency that develops sentencing policies for the courts.

The commission was delayed for more than three years because Congress did not confirm Trump's nominees and President Joe Biden's appointees were not confirmed until August.  As a result, academic researchers, attorneys, and advocates for prison reform said the law has been applied unevenly across the country. 

Later this week, the federal sentencing commission is poised to hold an open meeting in Washington, D.C. to discuss the problem. They'll be reviewing newly proposed guidelines that include, among other things, a provision that would give consideration to people housed in a correctional facility who are at risk from an infectious disease or public health emergency....

The First Step Act brought fresh attention to compassionate release, which had rarely been used in the decades after it was authorized by Congress in the 1980s.  The new law allowed people in prison to file motions for compassionate release directly with federal courts.  Before, only the director of the Federal Bureau of Prisons could petition the court on behalf of a sick prisoner, which rarely happened....

The number of applications for compassionate release began soaring in March 2020, when the World Health Organization declared a pandemic emergency.  Even as COVID devastated prisons, judges repeatedly denied most requests....  Data suggests decisions in federal courts varied widely by geography.  For example, the 2nd Circuit (Connecticut, New York, and Vermont) granted 27% of requests, compared with about 16% nationally.  The 5th Circuit (Louisiana, Mississippi, and Texas) approved about 10 %. Judges in the 11th Circuit (Alabama, Florida, and Georgia) approved roughly 11% of requests. In one Alabama district, only six of 141 motions were granted — or about 4% — the sentencing commission data shows....

Sentencing commission officials did not make leaders available to answer questions about whether a lack of guidance from the panel kept sick and dying people behind bars.  The new sentencing commission chair, Carlton Reeves, said during a public hearing in October that setting new guidelines for compassionate release is a top priority.

Interestingly this NPR piece, though seemingly about denials of sentence reductions, focuses on a drug offender with stage 4 cancer who did secure compassionate release last year.  I cannot help but wonder if the reporter was not quite able to find a compelling case in which a sentence reduction was denied for a "frail [person] left to die in prison," though I am sure there are such cases.

February 21, 2023 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, February 11, 2023

New CRS explores "When Is a Mandatory Minimum Sentence Not Mandatory Under the First Step Act?"

The Congressional Research Service has this notable new "Legal Sidebar" discussing how the statutory "safety valve" allowing sentences below federal mandatory minimum terms operate.  The four-page document highlights the new legal debates resulting from FIRST STEP Act reforms, and here are excerpts:

Congress created the safety valve for certain drug offenses carrying mandatory minimum penalties after becoming concerned that the mandatory minimums could result in equally severe penalties for both more and less culpable offenders.  The Commission “worked directly with Congress to enact new legislation that would address the impact of mandatory minimum penalties on low-level drug-trafficking offenders.”  These efforts culminated in the first safety valve, which was introduced as part of the Violent Crime Control and Law Enforcement Act of 1994.  Under this statute, to be eligible for the safety valve, a federal judge could impose a sentence below a drug-related mandatory minimum if the federal defendant satisfied five criteria, including not having “more than one criminal history point, as determined under the Sentencing Guidelines.”... The Commission adopted a corresponding Sentencing Guideline provision, allowing for a two-level reduction in the Guidelines offense level based on the same 1994 criteria.

In 2011, the Commission reported to Congress that the safety valve was underinclusive.  The Commission therefore urged Congress to expand the safety valve to encompass “certain non-violent [drug] offenders who receive two, or perhaps three, criminal history points under the [G]uidelines” and “low-level, nonviolent offenders convicted of other offenses carrying mandatory minimum penalties.”...

The First Step Act addressed mandatory minimums in multiple ways.  In addition to reducing the mandatory minimum penalties for certain drug-trafficking offenses, the act expanded eligibility for safety-valve relief to defendants with more significant criminal histories.  Whereas federal defendants with one or zero criminal history points under the Sentencing Guidelines could receive relief under the prior law, the act made drug offenders with minor criminal records eligible for the safety valve provision....

Due to the current judicial divide over the scope of the First Step Act’s safety valve, whether a defendant may receive relief from a mandatory minimum sentence under the act may depend upon the happenstance of geography: a defendant may be disqualified in one circuit when that same defendant might be eligible for relief in a different circuit.  Given that sentencing disparities may appear at odds with the stated statutory policy of promoting consistency and uniformity in federal sentencing outcomes, Congress may wish to consider amending the safety valve to clarify whether the criminal history criteria are disjunctive or conjunctive.

In addition, the Sentencing Commission is exploring revisions to the Sentencing Guideline provision that is analogous to the act’s safety valve: the Commission identified two options under consideration.  One option would not make any change to the Guidelines and thus would permit courts to interpret the Guideline disjunctively or conjunctively.  A second option would adopt the disjunctive approach.  Regardless of which option the Commission approves, Congress always has the opportunity to review and revise any amendments to the Guidelines.

February 11, 2023 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes | Permalink | Comments (0)

Friday, February 03, 2023

Notable new grant of sentence reduction for California medical marijuana operator given nearly 22 years in federal prison back in 2008

I was pleased to learn late last night about a notable new ruling out of a federal district court in US  v. Scarmazzo, No. 1:06-cr-000342 DAD (E.D. Ca. Feb 2, 2023) (available for download below).  The case involves Luke Scarmazzo, a California medical marijuana dispensary operator who was federally prosecuted in the mid-2000s and was sentenced to 262 months in federal prison back in 2008.  As detailed in the 29-page opinion posted below, the federal district judge decision to reduce his sentence to time served (already more than 14 years).  The who sentence merits a full read for a host of reasons, and here are just a few key concluding passages: 

Having considered the parties’ briefing and reviewed the relevant case law, the undersigned’s current view is as follows.  This court clearly has the authority to reduce a mandatory minimum sentence in granting compassionate release.  Halvon 26 F.4th at 570. However, where, as here, the minimum mandatory sentence is still authorized by Congressionally enacted federal law that has not been subsequently subject to even non-retroactive amendment, the district court should not grant compassionate release based solely upon its conclusion that the originally imposed mandatory minimum sentence was unduly harsh.  See Thacker, 4 F.4th 569, 574. Nonetheless, this court has broad discretion to consider the harshness of the sentence in light of the current landscape in combination with other factors in determining whether extraordinary and compelling circumstances warrant the granting of compassionate release in a given case. Concepcion, 142 S. Ct. at 2396; Chen, 48 F.4th at 1095; Aruda, 993 F.3d at 802; Jones, 980 F.3d at 1111....

When considering the unique confluence of all of these circumstances — changes in the legal landscape with respect to federal enforcement of laws relating to distribution of marijuana in California; the significant disparity in the sentence actually served by co-defendant Montes and the 14+ years already served in prison by defendant Scarmazzo; defendant’s good behavior, meaningful employment, volunteer work, pursuit of educational opportunities during his imprisonment; defendant’s solid release plans including job offers and family support; the lack of danger posed to the community were he to be released; and defendant Scarmazzo’s difficult family circumstances that have developed during his imprisonment — the court is persuaded that the granting of the requested relief is appropriate at this point and is supported by both extraordinary and compelling circumstances and consideration of the sentencing factors set forth at 18 U.S.C. § 3553(a).

Download CR opinion in Scarmazzo case

February 3, 2023 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, January 01, 2023

Gearing up for a new federal sentencing year that might finally bring some new guideline amendments

Branch by branch, there are a lot of federal sentencing stories to watch as we start a new year.  The last Congress made (halting) progress on some statutory sentencing reforms, but nothing major made it all the way to the President's desk.  With the House of Representatives in GOP control in the new Congress, legislative dynamics have changed in ways that might diminish the prospects for any big reforms in 2023.  But with murder rates ticking down a bit in 2022 and crime narratives seemingly not having a huge midterm poitical impact, perhaps some modest consgressional reform could still happen in the coming year.

On the executive front, I will be watching closely for early impacts of Attorney General Garland's new charging and sentencing memos (basics here).  It will be particular interesting to see the effect of AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses."  And, with Prez Biden having used his clemency powers a few times in 2022 (with grants in April, October and December), maybe executive grace as well as prosecutorial discretion will continue to impact federal sentencing realities in the coming year.

The judicial branch is the arena in which I am expecting the most action in this new year.  Focusing the courts, we may see in the coming weeks if the Supreme Court is finally ready to address acquitted conduct sentencing enhancments (details here).  Other notable sentencing issues may also make their way to the SCOTUS docket because circuits are split on important topics like deference to the guidelines and application of a key part of the FIRST STEP Act.  Other notable sentencing issues are sure to keep gurgling in district and circuit courts in the year ahead.

But I can most confidently predict judicial branch sentencing action in 2023 because the US Sentencing Commission, which is located in that branch, is finally now fully loaded and is hard at work on potential guidelines reforms.  The Commission has now officially announced that it will have a public meeting on January 12, 2023 with an agenda to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Though we should not expect the USSC to advance amendments on all the topics mentioned in its ambitious list of priorities, we are sure to get some notable and impactful proposals to start the year from the Commission.

Notably, though the USSC's work is primarily focused on the sentencing guidelines, the agency can have real impact on other aspects of the justice system.  This new Forbes article by Walter Palvo, headlined "A Federal Public Defender Challenges U.S. Sentencing Commission To Help Fix The Bureau Of Prisons," highlights Steve Sady's new article in the Federal Sentencing Reporter urging the USSC to "make recommendations regarding the Bureau of Prisons’ execution of Guidelines sentences."  Here is an excerpt from the Forbes piece:

I recently spoke to Stephen Sady, Chief Deputy Federal Public Defender for the District of Oregon about a paper he wrote that was critical of the BOP but stated that the United States Sentencing Commission (USSC) could encourage the BOP to balance long guideline sentences by implementing ameliorative statutes that reduce actual prison time. As Sady told me, “The BOP has failed to adequately implement critical legislation to improve the conditions of people in prison.”

As Sady points out, even as Congress has repeatedly provided options and directives that would reduce the time defendants spend in prison, the BOP has failed to implement the full scope of the available authority, resulting in expensive and pointless over-incarceration. The most important of these can be put into six categories, 1) Increase the availability of community corrections commensurate with repeated statutory directives for greater use of residential reentry centers and home confinement (18 U.S.C. § 3624(c)), 2) Expand eligibility and availability of sentence reductions under Residential Drug Abuse Program (RDAP), 3) Eliminate computation rules that create longer sentences, 4) Implement broader statutory and guideline standards to file compassionate release motions any time extraordinary and compelling reasons exist, 5) Revive the boot camp program to provide nonviolent offenders sentence reductions and expanded community corrections and 6) Fully implement the First Step Act’s earned time credit program (18 U.S.C. §§ 3632(d) and 3624(g)). No new legislation would be required for any of these reforms. “It’s a pragmatic approach,” Sady said, “that uses the laws already in place to do what the BOP should already be doing. This is not a stretch.”

Interesting times as we start a new year.

January 1, 2023 in FIRST STEP Act and its implementation, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Tuesday, December 27, 2022

Some early commentary on notable end-of-year federal criminal justice reform developments

I hope and expect that the new charging and sentencing memos issued by AG Garland (basics here), as well as the failure of the out-going Congress to pass any significant criminal justice reforms, will garner extended attention and analysis in the weeks and months ahead.  Usefully, I have already seen some first-cut accountings from a variety of sources:

From Filter, "The Limits of AG’s Guidelines Against Crack-Powder Sentencing Disparity"

From LISA-Legalinfo, "Blue Christmas for Criminal Justice Reforms"

From MSNBC, "Racist war on drugs is the real winner of Congress’s massive spending bill"

From Reason, "The Failure To Enact Marijuana Banking and Crack Sentencing Reforms Is a Window on Congressional Dysfunction"

From San Diego Union-Tribune, "Creating different punishments for crack and powder cocaine never made sense, unscientific"

Looking forward, the practical impact of AG Garland's charging and sentencing memos, the continued implementation of the FIRST STEP Act, and especially the coming work of the newly, fully-staffed U.S. Sentencing Commission will be topics to watch closely in the weeks and months ahead.  So, I am tentatively hopeful that the lack of much lasting federal criminal justice reform in 2022 is just a precursor to a big 2023 ahead.

December 27, 2022 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, December 23, 2022

En banc Sixth Circuit clings to anti-textual limits on what factors can be consider in § 3582(c)(1)(a) motions

The Supreme Court's ruling in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), seemed to be a fairly clear direction to circuit court that it was not their job to make up non-textual limits to how district courts exercised sentencing discretion.  Here are just some of the key quotes, first discussed in this post, from the Supreme Court's opinion in Concepcion

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

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

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

Because Concepcion seemingly makes plain that the "only limitation" on "the type of information a district court may consider in modifying a sentence" are those limits in the Constitution or that Congress has expressly set forth, motions for sentence reductions pursuant to § 3582(c)(1)(a) -- so-called compassionate release motions -- could certainly include consideration as a general matter all sorts of information about changes in laws and well as changes in fact that might justify a sentence reduction.  After all, Congress has only expressly provided in statutory text that one factor could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a):  "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).

But, today the en banc Sixth Circuit has decided to double-down on its anti-textual approach to § 3582(c)(1)(a) by stating another categorical limit on what can be considered an extraordinary and compelling reason under 3582 in US v. McCall, No. 21-3400 (6th Cir. Dec 22, 2022) (available here).  The majority opinion in the split en banc ruling start and ends this way: 

David McCall, a federal prisoner with a long drug-dealing career, pleaded guilty to a conspiracy charge involving heroin possession and distribution in 2015.  Five years into his 235-month sentence, McCall moved for compassionate release under 18 U.S.C. § 3582(c)(1).  Although he cited several “extraordinary and compelling reasons” justifying a sentence reduction under that statute, the heart of his motion rested on our opinion in Havis.  Invoking that opinion, McCall argued that if he were sentenced today, he would receive a shorter sentence than he received in 2015.  The district court denied his motion, reasoning that a nonretroactive change in sentencing law could not amount to an “extraordinary and compelling” reason for a sentence reduction. We agree and affirm....

Nonretroactive legal developments do not factor into the extraordinary and compelling analysis. Full stop.

As I noted when discussing a prior Sixth Circuit panel ruling to this effect, there is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that nonretroactive legal developments cannot ever factor into or generally constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  The majority here, presumably based on its own sense of policy, is seemingly eager to invent an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.  In other words, this is judicial lawmaking that is flagrantly disregarding both the statutory text enacted by Congress and the instructions of the Supreme Court in Concepcion.  Full Stop.

December 23, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)