Tuesday, March 24, 2020

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

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

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

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

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

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

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

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

Monday, March 23, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 23, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, March 20, 2020

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

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

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

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

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

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

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

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

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

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

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

Monday, March 09, 2020

"Data Collected Under the First Step Act, 2019"

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

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

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

Key findings....

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

March 9, 2020 in Data on sentencing, FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

Thursday, March 05, 2020

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

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

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

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

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

I think the first paragraph of the filing is effective:

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

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

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

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

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

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

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

Prior related posts:

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

Wednesday, February 26, 2020

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Wednesday, February 19, 2020

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

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

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

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

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

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

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

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

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

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

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

Download Maumau.DistrictCourtOpinion.Feb18.2020

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

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

Monday, February 17, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Monday, February 10, 2020

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

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

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

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

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

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

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

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

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

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

Wednesday, February 05, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, February 03, 2020

US Sentencing Commission publishes latest FIRST STEP/FSA resentencing data

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

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

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

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

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

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

Sunday, February 02, 2020

Prez Trump's reelection campaign premieres ad focused on criminal justice reform during Super Bowl

As reported in this Washington Times article, headlined "'Trump got it done': Trump's Super Bowl ad highlights criminal-justice reform," there was one especially notable ad during the big game for sentencing fans.  Here are the details and context:

President Trump’s reelection campaign aired a surprise TV ad on criminal-justice reform during the Super Bowl Sunday night featuring the president’s grant of clemency for former inmate Alice Johnson.

Trump campaign manager Brad Parscale contrasted the president’s leadership on criminal-justice reform with NFL players who previously knelt during the Star-Spangled Banner to protest injustices in the legal system. “President Trump strongly disagreed with how some in the NFL chose to disrespect our flag, our country, and the people who serve it, just to express their views of the criminal justice system,” Mr. Parscale said. “The Super Bowl is the perfect place to debut this ad, because it clearly communicates how President Trump expressed his concerns about the issue – he acted and he helped improve people’s lives.”

The 30-second spot in black and white showed Mrs. Johnson, a grandmother who is African-American, expressing jubilation and gratitude to Mr. Trump upon her release from prison after serving 21 years for a first-time drug offense....

The ad states that “politicians talk about criminal justice reform. President Trump got it done. Thousands of families are being reunited.” The campaign had kept the ad under wraps until it aired. The president’s re-election team also paid for a 30-second spot highlighting his efforts to keep America secure and prosperous.

Mr. Trump commuted the sentence for Mrs. Johnson in June 2018. Six months later, he signed into law the First Step Act, which is aimed at providing thousands of prison inmates with a second chance. The law provides inmates with opportunities to take part in vocational training, education, and drug treatment programs to help them gain their release and obtain jobs.

I think all supporters of criminal justice reform should find this ad heartening in the wake of some reports suggesting Prez Trump had soured on reform and viewed the issue now as a political liability (see here).  It seems that at least some folks on Prez Trump's reelection team view criminal justice reform as a winning political issue. 

At the same time, it is a darn shame that Prez Trump is promoting his clemency work when he has still granted relatively few commutations.  Regular readers likely recall that, back in 2018, Prez Trump talked grandly about considering thousands of clemency requests and Alice Marie Johnson potently advocated that the President free "thousands more" federal prisoners like her.  I never really expected Prez Trump to grants thousands of commutations, but I had hoped he would do many more than the six that he has done so far.

February 2, 2020 in Campaign 2020 and sentencing issues, Clemency and Pardons, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (2)

Tuesday, January 21, 2020

Former AG (and now Senate candidate) Jeff Sessions laments some of the sentence reductions in the FIRST STEP Act

In large part due to Prez Trump's support for the FIRST STEP Act, even the usual suspects in the "tough-and-tougher" crowd are disinclined to be too critical of this law.  But, given that former Attorney General Jeff Sessions spent much of his time as AG seeking to block the Act from getting passed with any sentencing reform provisions, I suppose I was not surprised to see this local press piece headlined "Sessions ‘uneasy’ about parts of Trump’s criminal justice reform bill — ‘Some of the sentence reductions went too far’."  Here are the details:

Former U.S. Attorney General Jeff Sessions appeared in Montgomery on Monday, where he discussed the criminal justice reform bill President Donald Trump has repeatedly championed. Sessions was asked by Yellowhammer News what he thought of the bill. At first, the candidate for his old seat in the U.S. Senate said he supported parts of the bill, but he also told the assembled reporters, “I did think some of the sentence reductions probably went too far.”

“I was uneasy about that,” he added on the question of some of the sentencing reforms.

Sessions, who was speaking at a press conference flanked by law enforcement officials who had just endorsed him, praised some aspects of the bill that is formally known as the First Step Act. “I supported much in that bill, particularly funds for education pre-release, preparation for people to be more successful when they leave,” Sessions remarked.

“There were some reductions in sentences that were legitimate. I previously supported two bills that reduced crack-cocaine sentences,” Sessions intoned. Sessions’ support for crack-cocaine sentence reduction presumably refers to his vote in favor of bills like the Obama-era Fair Sentencing Act that alleviated disparities in the penalty for possessing crack-cocaine and powder cocaine. “People shouldn’t serve any more time than necessary,” Sessions told the audience.

One of the statistics Sessions cited as relevant was the pre-existing drop in federal prison populations from 2013-2018, the year the bill was passed by Congress. In 2013, the federal government held 219,298 incarcerated people, and by 2018, it had reduced that number to 179,898, an 18% reduction in the five years before the First Step Act became law.

In just a few months after the First Step Act was made law, the federal government released an additional 3,100 inmates due to a change in how good behavior is calculated....

“I hope we don’t find that to be true,” Sessions said of his suspicion that the sentencing reforms went too far. “We’ll see how it plays out.”

Since it sounds like Sessions is here endorsing the retroactive application of lower crack sentences, I am not entirely sure exactly what he thinks were the sentence reductions that "probably went too far."   Perhaps Sessions has in mind the increased good-time credits, which impacted tens of thousands of current federal prisoners, but they mostly amount to a few week or months  off for most defendants.  Perhaps Sessions is referencing the reductions in a few mandatory minimums, the reduced impact of 924(c) stacking, and the expanded MM safety-valve (detailed in this USSC document), but there are also all pretty weak sentencing-reform tea, with only the expanded safety-valve impacting more than a few dozen cases each year.

January 21, 2020 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (3)

Wednesday, January 15, 2020

Justice Department announces new FIRST STEP Act developments and data

Via this press release, titled "Department of Justice Announces Enhancements to the Risk Assessment System and Updates on First Step Act Implementation," DOJ reported today on various new FIRST STEP realities. Here are excerpts from the press release:

The Department of Justice announced several significant developments in the implementation of the First Step Act (FSA) in a report published today [which is available here]...

Some of the key developments are described here:

  • In accordance with the First Step Act and due on Jan. 15, 2020, all inmates in the Bureau of Prisons (BOP) system have received an initial assessment using the Justice Department’s risk and needs assessment tool known as the Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN). Initially released last July, the tool is designed to measure risk of recidivism of inmates.
  • As of Jan. 15, 2020, inmates will be assigned to participate in evidence-based recidivism reduction programs and productive activities based on an initial needs assessment conducted by BOP. Participation and completion of those assigned programs and activities can lead to placement in pre-release custody or a 12-month sentence reduction under the First Step Act. A list of these programs will be published on the BOP’s website.
  • In response to the public comments received and in coordination with the Independent Review Committee (IRC), the Justice Department has made changes to PATTERN that enhance its effectiveness, fairness and transparency....
  • The department will also begin a pilot program to publish recidivism data and other First Step Act updates on a quarterly basis....

Implementation Progress, New and Expanded BOP Programs Under FSA.

The FSA provides for eligible inmates to earn time credits if they participate and complete assigned evidence-based recidivism reduction programs or productive activities. It also provides for the expansion of existing programs that allow for compassionate release and home confinement.

Releases for Good Conduct Time.  In July 2019, over 3,100 federal prison inmates were released from the Bureau of Prisons’ custody as a result of the increase in good conduct time under the Act.

Retroactive Resentencing.  The Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 2,471 orders for sentence reductions.

Compassionate Release.  The BOP updated its policies to reflect the new procedures for inmates to obtain “compassionate release” sentence reductions under 18 U.S.C. Section 3582 and 4205(g).  Since the Act was signed into law, 124 requests have been approved, as compared to 34 total in 2018.

Expanded Use of Home Confinement.  The FSA authorizes BOP to maximize the use of home confinement for low risk offenders.  Currently, there are approximately 2,000 inmates on Home Confinement.  The legislation also expands a pilot program for eligible elderly and terminally ill offenders to be transitioned to Home Confinement as part of a pilot program.  Since enactment of the law, 379 inmates have been approved for participation under the pilot program.

Drug Treatment.  The BOP has always had a robust drug treatment strategy. Offenders with an identified need are provided an individualized treatment plan to address their need.  In FY 2019, approximately 14,800 offenders enrolled in Residential Drug Abuse Program (RDAP), almost 21,000 offenders enrolled in Non-residential drug treatment, and almost 23,000 offenders participated in Drug Education.

Medication Assisted Treatment (MAT).  The FSA requires BOP to assess the availability of and the capacity to treat heroin and opioid abuse through evidence-based programs, including medication-assisted treatment.  In the wake of the opioid crisis, this initiative is important to improve reentry outcomes.  Every inmate within 15 months of release who might qualify for MAT has been screened.

Effective Re-Entry Programming.  FSA implementation includes helping offenders successfully reintegrate into the community -- a critical factor in preventing recidivism and, in turn, reducing the number of crime victims.  Finding gainful employment is an important part of that process.  In furtherance of this goal, the BOP launched a “Ready to Work” initiative to connect private employers with inmates nearing release under the FSA.

Other BOP programs directed towards the full implementation of the FSA include the operation of twenty pilot dog programs, the development of a youth mentoring program, the identification of a dyslexia screening tool, and issuance of a new policy for its employees to carry and store personal weapons on BOP institution property.

January 15, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (1)

Friday, January 10, 2020

Reviewing uncertainty still surrounding earned-time credits created by the FIRST STEP Act

Alan Ellis, Mark Allenbaugh, and Nellie Torres Klein have this new Bloomberg Law piece headlined "The First Step Act — Earned Time Credits on the Horizon." The piece is an important reminder that, even a full year after the enactment of the FIRST STEP Act, there is still uncertainty surrounding the operation of one of the biggest part of the legislation.  Here are excerpts:

One of the remaining programs to be implemented under the First Step Act is set to begin shortly, enabling some prisoners to earn time credits. But some impediments still exist. As of January, all inmates in the Bureau of Prisons (BOP) custody will have undergone an initial assessment pursuant to implementing a new risk and needs assessment program pursuant to the First Step Act.

By January 2022, it is anticipated the BOP will begin providing all eligible inmates recidivism reduction programming based on their identified needs.  As an incentive for participating in such programming, the First Step Act directs that eligible inmates be able to earn time credits which, while not expressly reducing their sentence, under some circumstances can be used toward increasing pre-release custody (e.g., halfway house and/or home confinement).  The BOP has stated it will post available programming opportunities on its website soon....

In theory, these time credits can then be redeemed by eligible inmates for early transfer into a halfway house, home confinement, or supervised release.  Earned time credits thus do not reduce a prisoner’s sentence, per se, but rather allow eligible prisoners to serve their sentence outside prison walls.

Importantly, potentially large categories of inmates will not be eligible to receive earned time credits based on the crime they committed.  Additionally, non-citizens with immigration detainers will not be able to benefit.... Offenders who complete rehabilitative programs serving sentences for offenses not eligible to receive earned time credits are nonetheless eligible for other incentives including increased telephone and email time, expanded visitation and more options at the commissary.  Incentives for privileges will be decided by individual wardens at each institution.

The current limits on time in a halfway house (up to 12 months) and home confinement (six months or 10% of the sentence, whichever is less) will not apply to earned time credits.  Thus, a person can be released to a halfway house and/or home confinement even earlier, meaning, inmates can spend more than 12 months in a halfway house or more than ten percent of their sentence in home confinement after accumulating earned time credits....

If properly implemented, this aspect of the First Step Act could not only significantly lower the number of inmates in an already over-crowded and under-staffed system, but actually reduce recidivism and thereby provide important insights to criminal justice professionals and legislators on best practices for keeping people out of prison.  As of now, no one can earn time credits for completing the program or productive activities until the DOJ completes and releases PATTERN, and the BOP creates or expands existing evidence-based programming or productive activity.  As a result, earned time credits received prior to the implementation of the Risk Assessment Tool will not be eligible for redemption until the Tool is implemented.

Unfortunately, the ability to start earning credits may not actually come for most prisoners until even later than that, depending on how long it takes the BOP to apply PATTERN and create programming and productive activities and assign prisoners to them.  PATTERN was the subject of a House Judiciary Committee Oversight Hearing where some experts expressed concern about its “racial bias and lack of transparency, fairness, and scientific validity.” 

The DOJ has been somewhat circumspect as to how close PATTERN is to being finalized, stating only that it “is currently undergoing fine-tuning.”  Nonetheless, indications are that inmates will begin being scored under a preliminary version soon.

Another potential impediment to full implementation will be the availability of half-way house beds.  In certain parts of the country, there is a shortage of available half-way house beds for federal inmates.  The act did not mention any additional funding or resources for the BOP to implement this program.  This obviously could potentially delay or otherwise limit the implementation of other aspects of the program.  Congress’ intent under the First Step Act is well-intentioned, but without adequate funding, it may not benefit qualifying inmates it was designed to serve.

January 10, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Monday, December 30, 2019

Seeing the human stories behind the reform numbers one year after passage of the FIRST STEP Act

In this post a few days ago, I noted some notable metrics as we hit the one-year anniversary of the FIRST STEP Act becoming law.  Though numbers provide an important perspective on what the FIRST STEP Act has (and has not) achieved, the human stories behind these numbers are surely what is most significant and poignant.  To that end, I was pleased to see that the folks at #cut50 have assembled a set of materials here highlighting "the human impact of the FIRST STEP Act." 

Included in the #cut50 materials is this notable report titled "#HomeForTheHolidays: A Celebration of Freedom Made Possible by the FIRST STEP Act."  I recommend the report in full because it tells the individual human stories, with pictures, of just a few of the "thousands of people have been freed from federal prisons, reunited with their families, and are contributing back to their communities."  

Another way to get some sense of just some of the individual FIRST STEP Act stories is through a review of some notable posts from my FIRST STEP Act and its implementation archive.  After a full year, of course, there are far too many stories to review effectively in this space.  Nevertheless, here is a round-up of particular posts from 2019 that report on a few especially interesting individuals stories resulting from the passage of the FIRST STEP Act:

December 30, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Monday, December 23, 2019

Alice Marie Johnson and Mark Holden provide their perspective on FIRST STEP and next steps

Alice Marie Johnson and Mark Holden, two figures who surely played a major role in helping to get the FIRST STEP Act to the finish line, have this new Fox News commentary under the headline "First Step Act working — now here are the next steps in criminal justice reform."  Here are excerpts:

The pursuit of criminal justice reform has done what some might have thought unthinkable in this bitter political environment. Only this could bring together the likes of Snoop Dogg with Donald Trump, Democratic Sen. Cory Booker with Republican Sen. Mike Lee, Kim Kardashian West with a grandmother from Tennessee serving a life sentence for a first-time nonviolent offense, and thousands of families in communities across the United States.

 In the last 12 months, more than 4,000 individuals have rejoined their communities thanks to the First Step Act, and more than 1,600 who were not part of the Fair Sentencing Act of 2010 have had their federal prison sentences reduced.

More than 600,000 people return home and rejoin their communities each year.  They face a myriad of challenges, from acquiring proper identification to finding a job to securing housing and building a supportive network of family, friends and community partners....

We need people in our communities, in groups such as Americans for Prosperity, Cut50, the American Civil Liberties Union, and Prison Fellowship, to unite over where they can make a difference, not on their differences.  That is why we are both working with Stand Together to unite with anyone who seeks to improve our justice system.

We also need partners in business to help individuals take the next step as productive members of society. Across the nation, companies like Koch Industries, Butterball, Uber and others have partnered with the Society for Human Resource Management (SHRM) on the Getting Talent Back to Work initiative, which aims to help businesses recruit, train and hire qualified applicants who might not otherwise get an opportunity with a record.

Criminal justice reforms like the First Step Act have enhanced public safety and reduced crime and recidivism across the country.  Look at Pennsylvania and Utah, where lawmakers recently enacted clean slate legislation that has enabled millions of eligible people to have their records expunged.  Other states are considering similar proposals, with the potential to open opportunities for millions more.

States that have implemented data-driven prison and sentencing reforms, from Michigan to Georgia to South Carolina to Texas and beyond, have reduced crime while giving people opportunities to improve their lives and their communities.  In the Lone Star State alone, crime rates have dropped to some of their lowest since the 1960s while saving taxpayers $3 billion.    They may have come for the savings, but they’re staying for the salvation.  Together, we can take the next step, and we must.

December 23, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (2)

Saturday, December 21, 2019

Some (incomplete) metrics as we reach the one-year anniversary of the FIRST STEP Act becoming law

Today marks exactly one year since Prez Donald Trump signed the FIRST STEP Act into law.  To celebrate the occasion, I will begin by just linking to just a few posts from last year around this time:

I could have linked to a dozen more post-enactment posts to provide a fuller flavor for the range of implementation issues (and commentary) that swiftly followed this historic bill becoming law.  But just the titles of the half-dozen posts above provide a useful reminder of the tumult that preceded congressional passage as well as various hiccups created by the subsequent government shutdown and some confusing provisions in the Act.

A year later, there are some obvious metrics for highlighting the first-year impact of FIRST STEP Act.  For example, this Federal Bureau of Prisons page reports on this "FSA Numbers" as of today:

In addition, the US Sentencing Commission in October released this detailed report on "First Step Act of 2018 Resentencing Provisions Retroactivity Data."  That report states that the mean decrease in months for retroactive resentencings has been 70 months.  Multiplying this number by the 2443 resentencing grants results in a total of 171,010 months of reduced prison time.  That is roughly 14,250(!) reduced years of years of federal imprisonment saved by just the crack statutory retroactivity provision of the FIRST STEP Act.

This Federal Register notice states that the Fiscal Year 2018 "cost of incarceration fee" per inmate was $37,449 per year.  Multiplying this number by the 14,250 years of reduced prison time suggests that the the crack statutory retroactivity provision of the FIRST STEP Act has saved US taxpayers around $533,680,000, that is over half a billion dollars.  This calculation  leaves out savings from many the other significant prison-time-saving provisions of the FIRST STEP Act (especially the good-time credit expansion and coming earned-time opportunities).  I do not think it improper to assert that FIRST STEP will ultimately result in billions of taxpayer dollars saved by reducing excessive prison time.

But, of course, prison years converted to taxpayer savings is a very incomplete metric for judging the impact of the FIRST STEP Act.  Smiles on the faces of families of persons benefiting from the reform are likely too numerous to calculate, and it is hard to quantify the impact and import of the hope that the Act should help spread among all justice-involved individuals.  And a new focus on prisoner rehabilitation, the significant echo effects on state-level reform efforts, and the evolution of political and social discussions around the criminal justice are also huge part of the first-year legacy of the FIRST STEP Act.

In the coming days, I may try to do a round up of notable posts from my FIRST STEP Act and its implementation archive.  In the meantime, I welcome any and all input on useful reflections or reviews as we mark this notable federal sentencing reform anniversary.

December 21, 2019 in FIRST STEP Act and its implementation | Permalink | Comments (0)

Wednesday, December 18, 2019

After serving more than 13 years in federal prison, former WorldCom CEO Bernie Ebbers secures compassionate release thanks to FIRST STEP Act

Regularly readers know that I have been regularly extolling the significance of the FIRST STEP Act's changes to the so-called compassionate release provisions of federal law. In many prior posts I have stressed the provision which now allows federal courts to directly reduce sentences under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons; this provision is such a big deal because, if applied appropriately and robustly, this provision could and should enable many hundreds, and perhaps many thousands, of federal prisoners to have excessive prison sentences reduced.

Today, as reported in this Bloomberg piece, the highest-profile defendant to date has benefited from this FIRST STEP Act change: "Bernard Ebbers, the former WorldCom Inc. chief executive officer, was ordered freed from prison, almost eight years before he was due to be released." Here is more from the press piece:

A federal judge in Manhattan on Wednesday granted compassionate release to Ebbers, who is serving a 25-year sentence for an $11 billion fraud that bankrupted the company. U.S. District Judge Valerie E. Caproni said Ebbers’s health is failing and that letting him out early doesn’t minimize the impact of his punishment.

Relatives of the 78-year-old reacted with jubilation in court. “We’re elated and just very grateful not only for Mr. Ebbers but especially for his family,” lawyer Graham Carner said after the hearing. “All they wanted was for him to live out his time with them.”

Ebbers has served more than 13 years for overseeing the fraud, which was the biggest in U.S. history at the time. He was scheduled to be released in July 2028 with credit for good behavior. It isn’t immediately clear when he will leave prison.

Attorneys for Ebbers asked Caproni in September to free him due to his many medical problems, including macular degeneration that has left him legally blind and a heart condition that makes him vulnerable to cardiac arrest. The U.S. Bureau of Prisons had denied a request from Ebbers’s daughters for compassionate release under the 2018 First Step Act, which allows some federal inmates to be released if they are over 60 years old and face terminal illnesses.

While Caproni noted that records “suggest some exaggeration of his mental condition” that led her to believe Ebbers was trying to manipulate her, she also expressed concern that he’s malnourished and appears to have lost almost 60 pounds since last year.

Some of many prior related posts:

December 18, 2019 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, December 17, 2019

Fifth Circuit joins others saying offense of conviction, not claims about underlying conduct, determines eligibility for retroactive relief under FIRST STEP Act

A helpful reader made sure I did not miss a notable opinion from a Fifth Circuit panel yesterday in US v. Jackson, No. 19-20346 (5th Cir. Dec. 16, 2019) (available here).  The defendant in Jackson ultimately loses in his battle to benefit from the Fair Sentencing Act retroactivity provision of the FIRST STEP Act, but in so doing the Fifth Circuit addresses an important eligibility war that has been ranging in courtrooms nationwide.  Here is part of the panel's discussion:

The first inquiry in evaluating a motion under section 404 is whether the defendant has a “covered offense.”  See FSA, § 404(a).  The FSA defines such an offense as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3, 2010.” Id.

The government’s view of the meaning of “covered offense” is less than clear.  At the district court, the government appeared to contend that Jackson’s offense wasn’t covered because the presentence investigation report (“PSR”) found him responsible for 402.2 grams of crack, meaning that he exceeded even the new 280-gram requirement.  But the government’s briefing on appeal seems to concede that Jackson’s offense is covered.

In other cases, the government has contended that “what counts as a covered offense necessarily turns on facts specific to the defendant’s offense, not limited to what was charged in the indictment.”  United States v. White, 2019 WL 3228335, at *2 (S.D. Tex. July 17, 2019) (quotation marks removed).  On that theory, if the jury convicts on a count requiring a showing of fifty or more grams, but the PSR later finds that, say, 500 grams were involved, then the defendant doesn’t have a “covered offense,” since the drug quantity as stated in the PSR exceeds even the new 280-gram threshold.  See id.

That approach doesn’t comport with the ordinary meaning of the statute, however.  As stated above, a “covered offense” is “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3, 2010.” FSA, § 404(a) (emphasis added). The “penalties clause” is the portion in italics. For the government’s approach from previous cases to work, the penalties clause must modify “violation,” not “Federal criminal statute.” But for at least three reasons, the better reading is that it modifies “Federal criminal statute.”  It follows that whether an offense is “covered” depends only on the statute under which the defendant was convicted....

We thus conclude that whether a defendant has a “covered offense” under section 404(a) depends only on the statute under which he was convicted.  If he was convicted of violating a statute whose penalties were modified by the Fair Sentencing Act, then he meets that aspect of a “covered offense.”  The only other circuits to have confronted these arguments agree.

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

The Sentencing Project publishes short analysis, "One Year After the First Step Act: Mixed Outcomes"

I have been thinking lately about how best to explore and "celebrate" the coming one-year anniversary of the enactment of the FIRST STEP Act.  Helpfully, The Sentencing Project got the party started with the release of this two-pager titled "One Year After the First Step Act: Mixed Outcomes."  Here is how it gets started:

Congress passed and President Donald Trump signed the First Step Act one year ago on December 21, 2018, to limit mandatory minimums for low-level drug offenses, provide retroactive sentence reductions to people imprisoned under the 100 to 1 crack cocaine disparity, and expand rehabilitation in federal prisons. Implementation of the new law has been mixed.

While sentence reductions have been approved by judges, the Department of Justice (DOJ) has attempted to block hundreds of eligible beneficiaries.  There has also been a problematic rollout of the risk and needs assessment tool to determine earned-time credit eligibility and limited programming for rehabilitation.

Since 2013, the federal prison population has declined by almost 43,000 people because of reductions to the federal sentencing guidelines for drug offenses promulgated by the U.S. Sentencing Commission and changes to mandatory minimum sentences for crack cocaine offenses enacted by Congress in 2010.  Full implementation and robust funding for the First Step Act can contribute to further reducing the federal prison population, but Congress and the Department of Justice have more work to do to end overcrowding, ensure fairness in sentencing and improve prison conditions.

On the one-year anniversary of the First Step Act, The Sentencing Project applauds the bill’s achievements but cautions that additional reforms are necessary if we are to see a substantial long-term population reduction.

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

Wednesday, December 11, 2019

Eighth Circuit panel explains the reach of FIRST STEP Act retroactivity eligibility

A helpful readers made sure I did not miss the helpful opinion from an Eighth Circuit panel today in US v. McDonald, No. 19-1221 (8th Cir. Dec. 11, 2019) (available here) concerning the retroactivity provision of the FIRST STEP Act.  I have not consistently kept up with this part of FIRST STEP jurisprudence, but I am consistently pleased when a circuit opinion seeks to bring simple clarity to a complicated issue.  So, here are a few paragraphs from ole McDonald:   

McDonald’s Count 39 conviction is a “covered offense” under § 404 of the First Step Act because (1) it is a violation of a federal statute; (2) the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act; and (3) it was committed before August 3, 2010.  Consequently, McDonald is eligible for a sentence reduction on Count 39: the district court may “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time of the covered offense was committed.”  First Step Act § 404(b). 

It is true, as the district court noted, that McDonald’s base offense level under the Sentencing Guidelines was based on more than 150 kilograms of powder cocaine, not cocaine base.  But this Guidelines calculation does not change the fact that he was convicted on Count 39 for distributing cocaine base in violation of 21 U.S.C. § 841(b)(1)(A)(iii) (1996). The First Step Act applies to offenses, not conduct, see First Step Act § 404(a), and it is McDonald’s statute of conviction that determines his eligibility for relief, see, e.g., United States v. Beamus, No. 19-5533, 2019 WL 6207955, at *3 (6th Cir. Nov. 21, 2019); United States v. Wirsing, No. 19-6381, 2019 WL 6139017, at *9 (4th Cir. Nov. 20, 2019).

The government does not argue that McDonald did not commit a “covered offense.”  Instead, it contends the district court did not abuse its discretion by denying McDonald’s motion because it had already reduced his sentence in 2016.  But the fact that McDonald received a sentence reduction based on a retroactive Guidelines Amendment does not affect his eligibility for a sentence reduction under the First Step Act.  A court considering a motion for a reduced sentence under § 404 of the First Step Act proceeds in two steps.  First, the court must decide whether the defendant is eligible for relief under § 404. Second, if the defendant is eligible, the court must decide, in its discretion, whether to grant a reduction.  That the court might properly deny relief at the discretionary second step does not remedy any error in determining ineligibility at the first step....

Because McDonald is eligible for a sentence reduction under the First Step Act, we remand for the district court to exercise its discretion whether to grant relief.

December 11, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, December 05, 2019

"Who should oversee implementing the First Step Act?"

The question in the title of this post is the headline of this notable Hill commentary authored by Johanna Markind, who served as an assistant general counsel with the US Parole Commission from 2009 to 2014. Here are excerpts from the piece:

During a Nov. 19 Senate Judiciary Committee hearing, committee Chairman Lindsey Graham (R-S.C.) asked Bureau of Prisons (BOP) Director Kathleen Hawk Sawyer: How does the First Step Act differ from parole, and should the federal government reinstate parole?  With respect, the answers are: There’s no real difference, and it already has.  The issue that Sen. Graham implicitly raised is, who should run parole?

The groundbreaking First Step Act, enacted last December, authorizes early release of federal prisoners who have worked to reform themselves and are deemed low-risk.  The legislation requires BOP to perform a needs assessment on eligible prisoners and recommend programming for each.  The evidence-based programs are designed to reduce offenders’ risk of recidivism — that is, of returning to a life of crime — and increase their chances of successfully re-entering society.  Low-risk offenders who complete their programs are eligible for conditional early release (“home confinement”).

This is a reboot of parole.  Before parole was abolished in the federal system, effective 1987, the U.S. Parole Commission used to evaluate new prisoners, informally recommend programming such as drug treatment, and set tentative release dates.  As the proposed release date approached, the Parole Commission would re-evaluate the offenders in light of considerations, including whether they had completed recommended programming.  If it decided to release the prisoner, it would set release conditions.

A few years ago, an aide to one of the Senate co-sponsors of the First Step Act acknowledged to me that the risk-reduction/early release provisions are effectively parole by another name — albeit a new, improved version incorporating evidence-based practices developed during the intervening years.  To implement the act, the Department of Justice (DOJ) released a new risk-assessment tool (PATTERN) last July.

Unfortunately, as Sawyer admitted, BOP has yet to complete its needs-assessment tool. That could be because BOP is undermanned, as Sawyer testified. Recent coverage in The Hill has suggested the problem was that elements within DOJ are trying to undermine the act. Or, the problem could be that deciding when to release prisoners just isn’t what BOP and DOJ are institutionally designed to do.

Congress discovered a similar problem after it first authorized parole in 1910.  Parole was granted/denied at each federal prison by a board consisting of that prison’s warden, its doctor, and a Washington-based prison superintendent.  The system didn’t work very well, likely because prison wardens and superintendents were more focused on keeping prisoners in than on letting them out.  In 1930, Congress established a Board of Parole separate from the prison system. It, and its successor Parole Commission, oversaw parole until 1987....

BOP’s basic mission is “to protect society by confining offenders.”  Without a doubt, many BOP employees are sincerely working to comply with the act.  Nevertheless, deciding when and under what conditions to release offenders isn’t part of BOP’s mission.  If Congress wants the act’s release provisions implemented effectively, it should assign responsibility to an organization whose mission is consistent with that task.

A revamped Parole Commission is one option.  A rump Parole Commission still exists — it oversees release of prisoners sentenced for crimes committed before November 1987, and sanctions parole violations by that same population. It is naturally much smaller than it was when it oversaw parole for the entire federal prison population, but it could scale up.  To assist in that process, it could be given permission temporarily to rehire retired staff, just as Sawyer mentioned BOP is now doing.  Former Parole Commission staffers have a wealth of institutional memory and experience determining what programming offenders need to increase their chances for successful re-entry, as well as weighing the risks of releasing them.

Reviving the remnant Parole Commission is not the only way to implement the First Step Act effectively.  There are other options.  For example, Congress might create an agency for the purpose.  But, whatever Congress does or doesn’t do, history suggests that giving BOP the keys while charging it to bar the door is unlikely to produce optimal results.

Regular readers may recall this short article I penned a few years ago, titled "Reflecting on Parole’s Abolition in the Federal Sentencing System," in which I described the correction reform proposals then in Congress "as a kind of 'parole light'." Consequently, I think this author is spot on, particularly when she suggests players other than DOJ and BOP ought to be directly involved in FIRST STEP implementation.

Of course, there are many part of the FIRST STEP Act that extend beyond just providing for means for conditional early release, and thus a revamped Parole Commission would be, in my view, only one important part of ensuring the Act achieves its goals and potential.  We also need a well-functioning US Sentencing Commission, and one filled with Commissioners eager to give full and robust effect to all the the Act's ameliorative sentencing provisions.  I also think we need an entity tasked with and focused on addressing collateral consequences and other barriers to effective offender re-entry that can work to undermine whatever rehabilitative progress an offender may have made while serving a prison term.  (In another recent article, titled "Leveraging Marijuana Reform to Enhance Expungement Practices," I made the case for  new criminal justice institution, a Commission on Justice Restoration, that could proactively work on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.)

December 5, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (7)

Monday, November 25, 2019

An early review of an eventful first year for the FIRST STEP Act

Though the official one-year anniversary of the passage of the FIRST STEP Act is still four weeks away, I suppose it is not too early for some review and reflection on the eventful year that was.  Here is a new NBC News piece in this spirit which has this lengthy full headline: "The First Step Act promised widespread reform.  What has the criminal justice overhaul achieved so far?  The law's effects are real almost a year later, experts say.  But some are concerned whether the bipartisan alliance that produced it can hold together."  I recommend this lengthy piece in full, and here are excerpts:

Nearly a year after the First Step Act's passage, NBC News spoke to over a dozen people, including former and current elected officials, liberal and conservative advocates, and formerly incarcerated individuals, among others, who championed the reforms. They all agreed that the law's effects are tangible, and many believe the bipartisan coalition that produced it appears durable.

“I think the biggest win is that this is now a safe issue after years and years and years of the two parties trying to use criminal justice as a way to tear each other down,” said Jessica Jackson, co-founder of #cut50, a bipartisan criminal justice reform nonprofit.

However, some are skeptical the alliance can hold. Many of the next steps advocates have underscored as necessary to bring about true change, like reexamining lengthy sentences for violent offenses and restructuring policing practices, may be a tougher sell. "As some people might say, it's easier to kind of agree on some of the low-hanging fruits, but the higher you reach, the more difficult consensus is going to be,” said Tim Head, the executive director for the Faith & Freedom Coalition, a conservative nonprofit that supports the act as well as other criminal justice reform efforts.

More than 3,000 inmates have been released and another roughly 1,700 people convicted of crack cocaine offenses have seen their sentences reduced thanks to the First Step Act, according to data from the Federal Bureau of Prisons and the U.S. Sentencing Commission....

But the effects of the act's other major provision — the relaxing of the notorious "three strikes" rule to mean a 25-year sentence, rather than life in prison, for three or more convictions — are so far difficult to measure. A year in, little data has been collected around how many people had been sentenced under the new guidelines.

The act also a required the development of a new risk assessment tool that aims to determine which inmates are most likely to re-offend if released and to identify ways to assist those who are released. It was completed in July. Meanwhile, roughly 16,000 federal prisoners have enrolled in drug treatment programs created by the act, according to the Justice Department.

The success — or limitations — of the tool and the new programs still remain to be seen, but advocates say the overall represent a major shift in thinking. "It's part of wider system transformation from one that was based on gut instinct and anecdotes and headlines to decisions that are made based on evidence and research," said Adam Gelb, the founder of the Council on Criminal Justice, a bipartisan criminal justice nonprofit.

However, he added, the nuances of implementation matter. "We're talking about human behavior and it's never going to be a perfect assessment of someone's readiness for release nor a perfect judgment about the length of time they deserve to spend behind bars for the purposes punishment," he said.

Head, the executive director of the Faith and Freedom Coalition, said the act's changes, which also include mandating BOP train its 31,000 employees on de-escalation techniques and mental health awareness, intended to shift "the culture of our federal system from pure punishment, to one of at least considering rehabilitation in a much more meaningful way."...

Advocates for the First Step Act, particularly left-leaning ones, described its reforms as historic but modest. True change will require looking to the heart of the system — police interactions and what happens inside courtrooms, experts said. Right now, black Americans are more likely to be arrested for the same activities as white Americans, and more likely to be prosecuted, convicted and sentenced to longer jail terms....

To make a more significant dent in the nation’s prison population, attention must shift toward the roots of mass incarceration, said Tony J. Payton Jr., a Democrat and former Pennsylvania state lawmaker who championed state-level criminal justice reforms. “We’ve got to basically dismantle that entire system,” said Payton, who is now affiliated with the 20/20 Bipartisan Justice Center, a national and bipartisan coalition of black criminal justice reformers.

Payton's list of targets, however, points to some of the remaining contentious matters in criminal justice reform that could threaten the bipartisanship needed to implement them, such as sentencing reform for both non-violent and violent offenders, eliminating mandatory minimums, reforming police departments and eliminating prosecutorial immunity.

November 25, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Friday, November 22, 2019

Sixth Circuit clarifies FIRST STEP creates eligibility for reduced sentence whenever Fair Sentencing Act "modified the statutory penalty"

Section 404 of the FIRST STEP Act of 2018 finally provided for retroactive application of statutory changes to reduce federal crack sentences put in place by the Fair Sentencing Act of 2010.  Simple as that might sound, lower courts are still struggling with all the different permutations of who may be eligible for a reduced sentence under FIRST STEP, and a Sixth Circuit panel addressed this issue in a short and effective opinion yesterday in US v. Beamus, No. 19-5533 (6th Cir. Nov. 21, 2019) (available here).  I recommend the opinion in full, but here is the essence in four paragraphs:

Beamus requested resentencing under the First Step Act.  The district court denied this request without reaching the merits, concluding that because the Sentencing Guidelines classify Beamus as a “career offender[],” he is “ineligible for [a] sentence reduction[] under the First Step Act.” ROA 13 at A-2.  Beamus appeals that determination, and the government concedes error.

Rightly so.  By its terms, the First Step Act permits Beamus to seek resentencing. He was convicted of an offense for which the Fair Sentencing Act modified the statutory penalty, and he has not received a reduction in accordance with that Act or lost such a motion on the merits.  The text of the First Step Act contains no freestanding exception for career offenders. Nor would one expect to see such an exception. It makes retroactive the Fair Sentencing Act’s changes to the statutory range for crack cocaine offenses....

It’s true, as the government notes, that the Fair Sentencing Act’s changes to the statutory penalty for Beamus’s drug offense also would have affected his guidelines range.  But that’s happenstance in this instance.  Beamus is eligible for resentencing because, and only because, the Fair Sentencing Act modified the statutory range for his offense.  That the Sentencing Guidelines also would have applied differently does not affect his eligibility for resentencing.

That Beamus is eligible for resentencing does not mean he is entitled to it. The First Step Act ultimately leaves the choice whether to resentence to the district court’s sound discretion.  See First Step Act of 2018, § 404(b); see also United States v. Hegwood, 934 F.3d 414, 418 (5th Cir. 2019).  In exercising that discretion, a judge may take stock of several considerations, among them the criminal history contained in the presentence report.  How do these considerations play out for Beamus?  That’s a question only the district court can answer.  We reverse and remand to give it the opportunity to do so.

November 22, 2019 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, November 20, 2019

Medical disputes before federal court as high-profile, white-collar prisoner seeks compassionate release

This NBC News article, headlined "NY prosecutors suggest former WorldCom CEO Bernie Ebbers is faking illness to get out of jail time," reports on an interesting dispute as a high-profile defendants seeks a sentencing reduction thanks to the FIRST STEP Act.  Here are the details:

Federal prosecutors say 78-year-old former WorldCom CEO Bernie Ebbers may not be in as bad physical shape as indicated in court filings seeking his early release from prison due to health concerns.

In a letter Monday to U.S. District Judge Valerie Caproni, Assistant U.S. Attorney Gina Castellano cites a note from a prison psychologist who listened in on phone calls between Ebbers and his daughter in recent weeks.  Joy Ebbers Bourne has said in a sworn declaration that her father has dementia.  “In the calls, he was alert, aware and oriented to person, place, time and situation,” the psychologist is quoted as saying, adding that Ebbers was asking about his daughter’s efforts to get him out of prison.  He is being held at the prison medical center in Fort Worth, Texas....

In a response filed in court Tuesday, Ebbers attorney Graham Carner said the alleged discrepancies can be explained by factors that have nothing to do with fakery.  “It is commonly known that people suffering from dementia (which can have many forms) can experience symptom fluctuation (i.e., ‘good days and bad days’),” Carner wrote.

The response, which notes that cognitive issues have not been the focus of Ebbers’ legal motion, cites other parts of his medical records that Carner says demonstrate Ebbers “has a substantially diminished ability to provide self-care in prison.”  Carner noted that Ebbers has suffered multiple falls, and that according to the medical report, he weighed just 148 pounds last week, down from 200 pounds in July.  “Objective medical findings show that his age and medical condition qualify as extraordinary and compelling reasons for compassionate release,” Carner wrote.

Caproni, a judge on the U.S. District Court for the Southern District of New York, had given the government until Monday to supply the additional medical data, most of which were filed under seal.  In addition to asking for any tests as to whether Ebbers was malingering, or faking his memory loss, the judge asked for information on Ebbers’ rapid weight loss — the former bouncer has reportedly withered to around 160 pounds.  Castellano said an abdominal ultrasound performed late last month found “no definitively worrisome or sonographically acute findings,” but further tests are scheduled next month.

Ebbers has served about 13 years of his 25-year sentence for orchestrating the $11 billion accounting fraud by the defunct telecommunications company. With good behavior, he is scheduled for release in 2028.

Before the FIRST STEP Act, Ebbers' request for compassionate release almost surely would have been rejected by the Bureau of Prisons and that would be the end of the matter. Now, thanks to FIRST STEP, Ebbers' can get a federal judge to consider these matters.

November 20, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, November 19, 2019

Lots of interesting discussions of FIRST STEP Act (and Jeffrey Epstein) during Senate Judiciary's BOP oversight hearing

This morning, the US Senate Committee on the Judiciary held an hearing titled "Oversight of the Federal Bureau of Prisons" with a single witness testifying.  That witness was Dr. Kathleen Hawk Sawyer, the new Director of the Federal Bureau of Prisons, and the full two-hour hearing can be watched at this link.  

Dr. Hawk Sawyer submitted this lengthy written statement, and it covers a lot of BOP ground.  It also concludes with an extended discussion of FIRST STEP Act implementation efforts, and here is a snippet from that part of the written testimony:

The Bureau has made great progress in implementing the FSA.  We appreciate the considerable work of the Department of Justice (Department) in the implementation process, as well.  In particular, the Department’s National Institute of Justice has been instrumental in collaborating with us as we move forward aggressively to ensure this important criminal justice reform is appropriately and effectively implemented.  We similarly appreciate the ongoing work of the Independent Review Committee as they advise the Attorney General on the new risk and needs assessment systems required under the FSA.

We have listened to the important comments of the many interested stakeholders — from crime victims to a broad array of advocacy groups.  The statutory timelines in the FSA were formidable, and placed before us many challenges, but I am proud to say that the Bureau and the Department rose to that challenge.  And we continue to remain focused on the full, fair, and balanced implementation of the FSA....

With the President signing the FSA into law on December 21, 2018, several provisions became immediately effective. Despite the government shutdown, the Bureau rapidly developed guidance and policies to ensure appropriate implementation.  The retroactive application of sentence reductions under the Fair Sentencing Act resulted in over 2,300 orders for release, with the release thus far of over 1,600 of those inmates.  Staff also immediately began the challenge of re-programming our Good Conduct Time (GCT) sentence computations to reflect the change.  As a result, on July 19, 2019, when the GCT change took effect commensurate with the Attorney General’s release of the Risk and Needs Assessment System, the Bureau executed timely releases of over 3,000 inmates.

Guidance regarding the expanded Reduction in Sentence (RIS or compassionate release) provisions were issued in January 2019. Since the Act was signed into law, 109 inmates have received Compassionate Release.  The re-initiation of the Elderly Offender Pilot from the Second Chance Act of 2008 was issued in April 2019.  We currently have 358 inmates approved for the pilot, with 273 already on Home Confinement. The balance are pending their Home Confinement placement....

In accordance with the FSA, the Attorney General on July 19, 2019, released the Department’s report on the Risk and Needs Assessment System.  The new Risk Assessment system — the Prisoner Assessment Tool Targeting Estimated Risk and Needs or PATTERN — has been developed by the Department and is currently undergoing fine-tuning as we consider feedback from stakeholders.  In the interim, the BOP has conducted extensive training for its staff on the key elements of the tool such that they are prepared to assess inmate risk in accordance with statutory deadlines.  The Bureau already has in place a robust Needs Assessment system, and we are working with experts in the field and research consultants to further enhance it.

During the hearing, FIRST STEP Act implementation issues were raised by a number of Senators. And lots and lots of other topics were also covered.  This AP article published yesterday, headlined "Federal Prison System Plagued by Abuses," provides a review of the range of BOP management issues were brought up during the hearing.  And this ABC News piece, headlined "Bureau of Prisons director set for grilling on Capitol Hill in wake of Epstein, Bulger deaths," names in its headline some of the high-profile prisoners of concerns to lawmakers.   Not surprisingly, especially with news of charges being brought against two guards for falsifying records, the death of Jeffrey Epstein was raised by a number of Senators.

As criminal justice nerd, I enjoyed all the issues raised throughout the entire oversight hearing, and I was encouraged by both the questions raised by many Senators and the answers provided by Dr. Hawk Sawyer.  And I especially enjoyed the surprising discussion during the early part of the hearing (starting just before minute 34) of Senator Lindsay Graham asking about "reinstituting parole in the federal system."  I am not sure why Senator Graham is now saying that reinstating parole is "something [Congress] should look at," but I am really intrigued by and supportive of any such efforts.  A couple of years ago, in this article titled "Reflecting on Parole’s Abolition in the Federal Sentencing System," I explained why I thought "parole might serve as an efficient and effective means to at least partially ameliorate long-standing concerns about mandatory minimum statutes and dysfunctional guidelines" and why sentencing reformers "ought to think about talking up the concept of federal parole anew."  Here is hoping Senator Graham might become a full-throated champion of giving serious consideration to bringing parole back to the federal system.

November 19, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, November 16, 2019

Another District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing sentence by 40 years under 18 U.S.C. § 3582(c)(1)(A)

I am pleased to be able to report on a great new district court ruling granting a sentence reduction using 18 U.S.C. § 3582(c)(1)(A) in order to under the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  (As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I see this provision as such a big deal because I think, if applied appropriately and robustly, this provision could and should enable many hundreds, and perhaps many thousands, of federal prisoners to have excessive prison sentences reduced.)

This new ruling comes in US v. Urkevich, No. 8:03CR37, 2019 WL 6037391 (D. Neb. Nov. 14, 2019). In this case, Judge Camp begins by noting that because of the severe stacking rules in place at the time of the crime, Urkevich's sentence "(848 months) is forty years longer than the sentence he likely would have received (368 months) if he were sentenced under the law (18 U.S.C. § 924(c)(1)(C)) as it now exists." Then, after noting that the "Government does not dispute that Urkevich has demonstrated post-offense rehabilitation, and the Government does not argue that he poses a current danger to the safety of any other person or to the community," Judge Camp concludes:

If this Court reduces Urkevich’s sentences on Counts III and V to 60 months each, consecutive, he will not be eligible for immediate release.  His sentence would total 368 months, and he would have served somewhat more than half that sentence.  Nonetheless, the Court does not consider the Motion premature.  A reduction in his sentence is warranted by extraordinary and compelling reasons, specifically the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed. A reduction in the sentence at this juncture will help Urkevich and the Bureau of Prisons plan for his ultimate release from custody and may assist him in his pending efforts to seek clemency from the Executive Branch.  This Court will not intervene in that process.

After consideration of all the factors set forth in 18 U.S.C. § 3553(a), especially § 3553(a)(2)(A) (“the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”) and § 3553(a)(6) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”), as well as applicable Sentencing Commission policy statements, the Court finds extraordinary and compelling reasons for a reduction of the Defendant’s sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).  The Court further concludes that the Defendant has demonstrated that he poses no current danger to the safety of any other person or to the community. Accordingly, the Defendant’s sentences on Counts III and V of the Indictment will be reduced to 60 months each, consecutive.

The statement above by Judge Camp that the sentence reduction motion here is not premature is a reference to (and disagreement with) the reasoning of Judge Pratt in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), a similar case noted and lamented in this post.  In Brown, the court seemed to essentially conclude that the movant had demonstrated extraordinary and compelling reasons for a sentence reduction and seemed to conclude the 3553(a) factors justified such a reduction, but the court rejected the motion for a reduced sentence seemingly because conforming a reduced sentence based on the terms of current statutory law would not lead to the defendant's immediate release.  I am quite pleased that this Urkevich case recognizes why a congressionally-authorized sentence reduction that is statutorily justified is always timely.

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

November 16, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Tuesday, November 12, 2019

"Why are bureaucrats undermining the president on criminal justice?"

The question in the title of this post is the headline of this notable new Hill commentary authored by Holly Harris.  The piece laments developments, previously reported here and here, relating to the implementation of one part of the FIRST STEP Act.  Here is are excerpts:

Justice Department bureaucrats have been quietly working to undermine President Trump and Congress by obstructing federal criminal justice reforms.  It is not surprising, and it is not the first time.  But it is a shame....

The Justice Department, according to various reports, is inexplicably spending taxpayer resources trying to find ways of bringing some of the prisoners released under the First Step Act back into federal custody.  An investigation by Reuters found dozens of instances in which the Justice Department argued against releasing these prisoners early, usually basing their new cases on some technicality like “the total amount of drugs that were found to be involved during the investigation, rather than the often smaller or more vague amount laid out in the law they violated years ago.”

It is no secret that the Justice Department zealously opposed the First Step Act, but I remained hopeful when its officials promised to fully and faithfully implement the law.  I applauded when they had issued progress reports on each of the provisions of the First Step Act.  But never once in these reports nor anywhere else did the Justice Department publicly disclose their plan to direct prosecutors to oppose release petitions.

Fortunately, most of those attempts to keep these individuals behind bars, or to reincarcerate them after the fact, have been struck down by federal judges.  But that is not stopping obstructionists within Justice Department ranks from continuing to thwart the will of President Trump, the will of Congress, and the will of the people to implement the First Step Act.

The Justice Department has long acted on an island, separate from the administration and accountable to no one.  The surreptitious obstruction of First Step is just the latest in a long line of unilateral actions aimed at undermining badly needed reforms to our broken criminal justice system.  Others questionable federal actions include reopening for profit prisons, directing prosecutors to charge all defendants with the highest provable offenses, and eliminating the investigations of police departments that repeatedly violate the civil rights of those they are sworn to protect.

Predictably, the latest obstruction of the popular First Step Act is not sitting well with leaders on both sides of the aisle. Democratic Senator Richard Durbin of Illinois told Reuters, “The notion that the Department of Justice is just going to keep nagging at them and appealing these cases is not what we have ever had in mind.”  Republican Senator Mike Lee of Utah likewise told the Washington Post, “It would be a shame if the people working under the president failed to implement the bill as written.”...

In the face of this obstruction, Congress may finally be willing to push back hard against Justice Department attempts to act as a fourth branch of government.  Too many are invested in the success of the First Step Act to overlook attempts to undermine it.  I urge the leaders in the House and Senate to vigorously exercise their oversight authority over an institution that has operated on an island for far too long, and ensure that their own groundbreaking efforts to restore some justice to a broken system is not thwarted by the very officials who pledged to faithfully implement it.

Prior related posts:

November 12, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, November 08, 2019

Spotlighting again how the Justice Department is resisting broad applicability of certain FIRST STEP Act provisions

In this post from July, I noted this Reuters article on some of the court skirmishes over the crack sentencing retroactivity provisions of the FIRST STEP Act.  That piece carried this headline: "As new U.S. law frees inmates, prosecutors seek to lock some back up."  Now the Washington Post has this lengthy piece in a similar vein under this headline: "Trump boasts that his landmark law is freeing these inmates. His Justice Department wants them to stay in prison." I recommend the piece in full, and here are excerpts:

The gathering in April was a triumphant celebration of the First Step Act, the most sweeping overhaul of the federal criminal justice system in a generation. Since its passage nearly a year ago, the law has led to the release of more than 3,000 inmates — including [Gregory] Allen, who was convicted of cocaine trafficking in 2001.

The Justice Department, though, had never wanted to let Allen out of prison. In fact, even as he and Trump shared a joyous embrace on television, federal prosecutors were trying to persuade a judge to put Allen back behind bars.

The president has repeatedly pointed to the First Step Act as one of his administration’s chief bipartisan achievements and one for which he is personally responsible. But cases like Allen’s expose a striking rift between the White House allies who supported the law and the Justice Department officials now working to limit the number of inmates who might benefit from it.

“DOJ is pushing against the will of the people, the will of Congress, the will of the president,” said Holly Harris, a conservative activist and leader of the Justice Action Network who worked with Congress and the White House to pass the law. Harris noted that, before the law’s passage, then-Attorney General Jeff Sessions was a vocal critic of reducing prison sentences. His successor, William P. Barr, expressed similar reservations before his appointment.

The First Step Act aims to lessen long-standing disparities in punishment for nonviolent drug offenses involving crack cocaine. Having five grams of crack, a form of cocaine that is more common among black drug users, used to carry the same mandatory minimum sentence as having 500 grams of powder cocaine, which is more common among white drug users.

But federal prosecutors are arguing in hundreds of cases that inmates who have applied for this type of relief are ineligible, according to a review of court records and interviews with defense attorneys. In at least half a dozen cases, prosecutors are seeking to reincarcerate offenders who have been released under the First Step Act.

The department has told federal prosecutors that when determining whether to challenge an application for early release, they should consider not the amount of crack an inmate was convicted of having or trafficking — but rather the amount that court records suggest they may have actually had, which is often much larger.

A Justice spokesman, Wyn Hornbuckle, defended that interpretation, though he declined to discuss the department’s guidance to prosecutors or to say when it was disseminated. He did not respond to questions about the split between the department and the White House allies who pushed for the law. Hornbuckle said that in years past, prosecutors could secure lengthy prison sentences without having to prove an offender had large amounts of drugs. Under today’s laws, he said, those same offenders would probably be charged with crimes involving larger quantities. “The government’s position is that the text of the statute requires courts to look at the quantity of crack that was part of the actual crime,” Hornbuckle said. “This is a fairness issue.”

In the vast majority of cases reviewed by The Washington Post, judges have disagreed with the Justice Department’s interpretation. Some of the people involved in writing the legislation also disagree, including Brett Tolman, a former U.S. attorney in Utah. He and other supporters of the law note that the text of the legislation does not explicitly instruct courts to consider the actual amount of crack an offender allegedly had. “This is not a faithful implementation of this part of the First Step Act,” said Tolman, who was appointed by President George W. Bush. “At some point, they figured out a way to come back and argue that it wouldn’t apply to as many people.”

Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee, accused the Justice Department at a congressional hearing last month of “trying to sabotage” the law by interpreting it in this way. Sen. Mike Lee of Utah, a key Republican sponsor of the law, declined to comment on the department’s stance on inmate eligibility but told The Post he had concerns about how other aspects of the law are being implemented. “It would be a shame if the people working under the President failed to implement the bill as written,” Lee said in a recent statement to The Post....

“The people that did the deal, including President Trump, wanted to help guys like me,” said Allen, 49, whose case was mentioned in a Reuters story in July about efforts by some prosecutors to clamp down on First Step Act relief. “But on the flip side, you have federal prosecutors who wake up every day trying to keep guys like me locked up.”...

The First Step Act was championed by a bipartisan coalition that spanned the political spectrum, from the conservative megadonor Koch brothers toracial-justice activist Van Jones. The legislation forbids federal jailers from shackling pregnant inmates and grants judges new powers to free sick and elderly prisoners. One of the most consequential parts of the law was the provision allowing federal inmates such as Allen to apply for early release. The mandatory sentencing policies those offenders faced are among the factors that have led the United States to incarcerate more people than any other nation, experts say....

Trump has made criminal justice reform a chief talking point in recent months, and several of his advisers — including Kushner — believe it could play an important role in his reelection bid, said Doug Deason, a prominent donor to the Trump campaign. A senior campaign official added that the Trump campaign plans to tout the First Step Act in the hopes of attracting black voters in key states such as North Carolina and Florida.

The legislation has earned Trump goodwill from unlikely corners, something he craves amid an impeachment inquiry. Last week, he beamed onstage in Columbia, S.C., as he was presented with an award from a bipartisan advocacy group of black elected officials. “I told him, ‘You ought to go and get that award,’” Sen. Lindsey O. Graham (R-S.C.) said in an interview. “There ain’t many people giving you an award these days.”

Backstage, Trump talked up the idea of another such law, asking Steve Benjamin, the city’s mayor, whether he should call it the Second Step Act, the mayor recalled. Yet even as Trump toasts himself for the legislative victory, defense attorneys and advocates are frustrated that the White House is not doing more to ensure that the law is implemented as intended.

“The irony of this administration working against itself is mind-boggling,” said Brittany Barnett, a defense attorney who has worked on several of the First Step Act cases championed by Kardashian. “Especially with lives on the line.”

In the weeks after the bill became law, many federal prosecutors allowed inmate petitions for early release to go unchallenged. Then, at the direction of officials in Washington, prosecutors began to reverse course, court records show. In March, Assistant U.S. Attorney Jennifer Bockhorst asked federal judges in West Virginia to place a hold on more than two dozen applications for relief — some of which she had not previously opposed. She wrote that she expected to oppose at least some of those applications based on new guidance from the Justice Department.

In a brief phone interview, Bockhorst said the government shutdown that began soon after the bill passed and lasted until late January delayed the guidance from Washington. “We didn’t have the benefit of any kind of coordinated position,” she said. Similar reversals took place in New York, where prosecutors agreed in April that certain inmates were eligible — only to change their position in May. In one case, a judge found the reversal striking enough to ask what prompted it.

Prior related post:

November 8, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 04, 2019

US Sentencing Commission releases updated "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report"

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

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

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through September 30, 2019 and for which court documentation was received, coded, and edited at the Commission by October 23, 2019.

These new data from the USSC show that 1,987 prisoners have been granted sentence reductions, and that the average sentence reduction was 70 months of imprisonment among those cases in which the the resulting term of imprisonment could be determined.   Though this data is not exact and may not be complete, it still seems sound to state that this part of the FIRST STEP Act, by shortening nearly 2000 sentences by nearly 6 years, has now resulted in nearly 12,000 prison years saved.

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

November 4, 2019 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Race, Class, and Gender | Permalink | Comments (0)

Sunday, November 03, 2019

"Criminal Justice Reform Is About People, Not Posturing"

The title of this post is the title of this recent Real Clear Politics commentary authored by John Koufos.  I recommend the full piece, and here are excerpts:

It’s a shame that Sen. Kamala Harris sought to politicize a celebration of the historic First Step Act at Benedict College in South Carolina last week.  Criminal justice reform has benefited millions of Americans — most especially the minorities the Democratic presidential candidate says she advocates for.  This reform restores victims, redeems former prisoners and rebuilds communities....

According to the U.S. Sentencing Commission, the First Step Act has overwhelming helped remedy historic injustice to minorities; African Americans make up more than 91% of those released.  It is no secret that minority communities were hurt most by the 1994 Clinton crime bill, which was originally drafted by Sen. Joe Biden.  At Benedict College, the president demonstrated his support for a “second step” of criminal justice reform....

Perhaps the greatest legacy of the First Step Act is its effect on state policy.  States are following the national criminal justice reform trend led by the White House. The president identified recent reforms in Arizona, Florida, Louisiana, Mississippi, Missouri, Michigan, Nevada, Oklahoma, Oregon, and Tennessee, which can be expected to lead to safer streets, increased employment and opportunity, and restored dignity and self-worth.

Goals — and results — like these should not be politicized.  I have seen the commitment of the president and White House first-hand, as part of a bipartisan coalition working on criminal justice reform.  I had the privilege of being in the Oval Office when the First Step Act was signed, and was humbled when the president asked me to speak about criminal justice reform at the White House.  I witnessed Jared Kushner’s leadership, and the commitment of Republican and Democrat legislators.  As I work with governors and state leaders across the country, I see the excitement for criminal justice reform regardless of party.

Criminal justice reform is a nonpartisan idea whose time has come.  President Trump summed it up best at Benedict College when he said: “I knew criminal justice reform was not about politics.  I’m … not sure that what I did was a popular thing or an unpopular thing, but I know it was the right thing to do.”

November 3, 2019 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Tuesday, October 22, 2019

Author and veteran (and bank robber) gets out of federal prison a few months earlier thanks to FIRST STEP Act and sound view of "extraordinary and compelling reasons"

Cherry1Regular readers are likely tired of my many posts about the provision of the FIRST STEP Act that now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  But I am not close to tired of telling all the interesting stories of federal prisoners that now come to light via this provision, and this local press article reports on the latest interesting defendant to secure relief thanks to the FIRST STEP Act through this means.  The article is headlined, "Imprisoned Cleveland-area author moved to halfway house while production commences for movie adaption directed by Russo brothers," and here are the basics:

A federal judge on Thursday ordered a Cleveland-area native who wrote an acclaimed novel while in prison for a rash of bank robberies moved to a halfway house.

Nico Walker, 34, was arrested in 2011 for a series of robberies in Cleveland and the eastern suburbs. An Army veteran who served as a combat medic in Iraq, Walker suffered from post-traumatic stress disorder and other mental health issues that led to drug abuse and the robberies, records show.

Senior U.S. District Judge Donald Nugent sentenced Walker, who hails from Hunting Valley, to 11 years in federal prison. He has spent most of his time at a facility in Ashland, Kentucky.

With Walker nearing the end of his prison sentence because of good time, he asked the judge to allow him to move into a Mississippi halfway house. The judge agreed to do so following a hearing Thursday, moving Walker’s re-entry program start date up from Dec. 10.

Walker wrote the semi-autobiographical novel “Cherry” while he was in prison. The book details the life of an Army medic with post-traumatic stress disorder who robs banks to support his opioid addiction. The book, based in Cleveland, is being made into a movie directed by native sons and “Avengers” directors Anthony and Joe Russo. Tom Holland, who plays Spider-Man in the Marvel Cinematic Universe, is set to star as the main character.

Because of this, Walker was given “an unusual and lucrative job opportunity” to work as an executive producer and assist in production of the movie being filmed in Cleveland, Nugent wrote in an order. However, Walker’s attorney Angelo Lonardo said his client turned down the job offer. Walker also has a contract to write a second book, Nugent wrote.

Nugent wrote that Walker also plans to care for his ailing mother, who is suffering from leukemia, Nugent wrote. The judge issued his order based on the First Step Act, a criminal justice bill President Donald Trump signed in December. Moving Walker to a halfway house and allowing him to occasionally travel to care for his mother “will address the extraordinary and compelling issues raised in his request” and ensure his re-entry will be successful and the community will be safe, the judge wrote.

Lonardo said his client had no disciplinary infractions while in prison. He said Walker taught reading and writing behind bars. “This is a big deal,” Lonardo said. “You want your guys to get out and to have a decent job, and this is an excellent opportunity for him.” He added that his client “has earned this.”

Judge Nugent's six page order is available at this link, and here I especially like how the opinion righly recognizes how a combination of factors can make the case for a sentence reduction:

Taking into consideration Mr. Walker?s history; the circumstances leading up to his crime; his acceptance of responsibility not just with regard to the conviction but as demonstrated through the meaningful use of his time in prison; the failing health of his mother; his extraordinary job opportunity and the good that would allow him to do for his family and his community; and, the minimum time left remaining on his sentence; the Court finds that Mr. Walker has provided sufficiently extraordinary and compelling reasons to justify an alteration of his current sentence.

Last but not least, anyone looking for more evidence of how extraordinary and compelling the story of Nico Walker is, consider checking out these recent press articles about his past and his book:

October 22, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Monday, October 21, 2019

Rounding up various accountings of FIRST STEP Act implementation realities

Today marks exactly 10 months since President Trump signed the FIRST STEP Act into law.  As noted in posts here and here, last week brought the first oversight hearing on the law in Congress. Perhaps because of that hearing, I have recently seen a number of press pieces and commentary discussing FIRST STEP implementation, and here is a round up:

From Filter by Sessi Kuwabara Blanchard, "The Consequences of an Incompetent First Step Act Rollout"

From the Providence Journal, "He was released early from prison in February. Now hes wanted for a murder on Federal Hill"

From the Providence Journal, "Nephew of Providence murder victim: Don't blame First Step Act"

From The Hill by Arthur Rizer and Emily Mooney, "Don't give up on the First Step Act"

From the Washington Times by Brett Tolman, "First Step Act is working, but the criminal justice system is still broken"

From The Crime Report by Ted Gest, "White House Pledges Hard Work on First Step Act"

October 21, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (4)

Thursday, October 17, 2019

All the testimony from House subcommittee hearing on FIRST STEP Act

As noted in this prior post, the US House of Representative's Subcommittee on Crime, Terrorism, and Homeland Security (of the Committee on the Judiciary) this afternoon held an Oversight Hearing on the "Federal Bureau of Prisons and Implementation of the First Step Act."  Now on this House webpage are links to all the witness written testimony. I have not yet had time to review any of this while on the road, but I welcome reader help in identifying highlights:

Panel One

The Honorable Kathleen Hawk Sawyer Ph.D 
Director, Federal Bureau of Prisons, Washington, DC, on behalf of U S Department of Justice

Ms. Antoinette Bacon Esq. 
Associate Deputy Attorney General Office of the Deputy Attorney General, U S. Department of Justice, Washington, DC

 

Panel Two

Mr. David Patton Esq. 
Executive Director, Federal Defenders of New York

Ms. Melissa Hamilton Ph.D 
Reader of Law & Criminal Justice, University of Surrey School of Law

Mr. John Walters 
Chief Operating Officer, Director, Hudson Institute Political Studies, Center for Substance Abuse Policy Research Hudson Institute

Ms. Andrea James Esq. 
Founder and Executive Director, National Council on Incarcerated and Formerly Incarcerated Women

October 17, 2019 in FIRST STEP Act and its implementation | Permalink | Comments (1)

Wednesday, October 16, 2019

House Judiciary subcommittee to hold oversight hearing on "Federal Bureau of Prisons and Implementation of the First Step Act"

As detailed at this link, the US House of Representative's Subcommittee on Crime, Terrorism, and Homeland Security (of the Committee on the Judiciary) has scheduled for the afternoon of Thursday October 17 an "Oversight Hearing on the Federal Bureau of Prisons and Implementation of the First Step Act."  The witness list is available at this link.

I am cautiously hopeful that this hearing will result in some significant new data and other information about FIRST STEP Act implementation effort, although this Bureau of Prisons webpage has been pretty good with some basic numbers.

October 16, 2019 in FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Another LWOP federal drug sentence reduced under § 3582(c)(1)(A) after FIRST STEP Act

Regular readers may already be tired of many prior posts in which I have made much of a key provision of the FIRST STEP Act that now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  But I continue to see value in highlighting developing jurisprudence under this provision largely because I think, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

Last week, I flagged in this post a notable recent ruling in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), which rejected a § 3582(c)(1)(A) motion to reduce an extreme sentence for a federal drug offender.  Today, thanks to seeing this press report headlined "Judge in Oregon grants compassionate release for 76-year-old man serving life sentence for drug conspiracy," I can report on a successful § 3582(c)(1)(A) motion to reduce an extreme (LWOP) sentence for a federal drug offender.  The ruling US v. Soears, No. 3:98-cr-0208-SI-22, 2019 WL 5190877 (D. Ore. Oct. 15, 2019), is well described in the above-linked press piece:

A judge has ordered the release of a 76-year-old man who was sentenced to life and served nearly 21 years behind bars for running a large cocaine distribution ring, finding he meets the “extraordinary and compelling’’ reasons for compassionate release.

Despite objections from prosecutors, U.S. Judge Michael H. Simon found Adolph Spears Sr. suffers from potentially terminal health problems and is no longer a danger to the community. "In light of the age of Spears’ previous convictions, Spears’ age, and Spears’ physical and medical condition, the Court does not find that at this time Spears poses a significant risk to the community," Simon wrote in a 13-page opinion Tuesday.

The judge’s ruling is a direct result of changes to federal law from a criminal justice bill called the First Step Act, which passed late last year and allows federal courts to directly reduce sentences if an inmate meets the criteria for compassionate release....

Because of his medical problems, Spears was moved in May from the federal prison in Sheridan to the Butner Medical Facility in North Carolina. "While he has been at Butner, family members have made regular cross-country visits to see him, believing that each one may be the last," his defense lawyer Lisa Ludwig wrote to the court. "Allowing him to spend the time he has left being cared for by the family who loves him will be an act of compassion to Mr. Spears, but also to the family who cares so deeply for him."

Spears has multiple chronic serious medical ailments, a limited life expectancy and depends on a wheelchair to get around, according to one of his medical experts. He was diagnosed with an aggressive form of prostate cancer in June 2018. He also suffers from poorly controlled diabetes, cataracts, pain from spinal surgery, chronic kidney disease, limited mobility and difficulty swallowing. Three of his daughters, a daughter-in-law and granddaughters have offered to house Spears if he’s released and provide medical and financial support.

Spears submitted his release request to the prisons bureau on Sept. 13, the same day he filed a motion with the court. On Sept. 30, the prisons bureau denied Spears’ request, and said he could appeal or wait until 30 days after his initial request was made to file a motion with the court. The judge said he waited until Tuesday, more than 30 days after Spears made his request to the prisons bureau, to consider the motion.

The judge said Spears’ deteriorating physical health met the requirements for compassionate release, and said it appeared that the federal prisons bureau failed to consider anything beyond whether Spears had a terminal illness. The U.S. probation office, at the judge’s request, approved the home of one of Spears’ daughters for his release, finding her suitable as his caregiver.

Prosecutors had argued that Spears remains a danger, largely because he was convicted of a significant drug conspiracy and he possessed guns during his drug trafficking activities. He also previously was convicted of conspiracy to commit murder and was sentenced to 25 years after he offered a man $500 to burn down an IRS agent’s house while he was being investigated in 1978 for tax evasion, according to court records.

Federal prosecutors argued that Spears’ age and medical condition don’t render him "so incapacitated" that he couldn’t resume his criminal conduct, pointing out he was leading a drug ring in his late 50s. Simon said he took into account Spears’ criminal history but noted that Spears’ most recent drug conviction is more than 19 years old and his last conviction for a crime of violence is more than 40 years old.

It’s unlikely Spears would have faced as serious a sentence today if convicted of the same conduct, Simon noted. He was convicted of distributing crack cocaine when sentences for such drug crimes were much higher and judges had less discretion, Simon wrote. Since then, Congress has made changes to avoid sentencing disparities in such drug cases. The judge said he’ll order new conditions for Spears’ release and a lifetime of federal supervision.

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

October 16, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, October 09, 2019

Another notable (but ultimately disappointing) ruling about sentence reductions under § 3582(c)(1)(A) after FIRST STEP Act

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

But in order for § 3582(c)(1)(A) to have a significant impact, federal judges will need to fully embrace and give full effect to their new authority to "reduce the term of imprisonment" whenever and wherever they find that "extraordinary and compelling reasons warrant such a reduction."  I have flagged here and here and here some notable examples of judges finding notable reasons sufficient to reduce a sentence.  But now I have to note a notable new ruling in which a notable judge seems to conclude there are "extraordinary and compelling reasons" to warrant a sentencing reduction, but then still decides not to grant a reduction for reasons that do not seem justified by the provisions of § 3582(c)(1)(A).

This new ruling comes in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), and it is authored by Senior District Judge Robert Pratt.  Notably, Judge Pratt was the district judge in the Gall case who gave full effect to the Booker ruling and whose non-incarcerative decision there was ultimately vindicated by SCOTUS.  In this new Brown case, Judge Pratt writes an extended, thoughtful opinion about compassionate release and the changes to § 3582(c)(1)(A) brought by the FIRST STEP Act.  In so doing, Judge Pratt states that "much about Defendant's situation is extraordinary and compelling" and yet still "the Court concludes it cannot exercise its discretion to grant release at this time."

The Brown opinion explains the basis on which Daniel Brown claims his situation is "extraordinary and compelling": (a) his behavior for a dozen years in prison was "exemplary," (b) he "suffered a botched surgery while incarcerated" (though he can still care for himself in prison) (c) "his daughter is without a parent" (though an adult who cares for herself) and (d) "he faces a sentence far longer than he would ever receive under modern law."  This last point is a function of Brown having received an extra 300 months (25 years!) because of stacked 924(c) gun counts that would no longer stack now after the FIRST STEP Act.  On this point, Judge Pratt further notes that the judge who originally sentenced Brown "concluded the additional 300 months' imprisonment from the second § 924(c) count was 'far greater than was necessary to achieve the ends of justice'."  And for good measure, as Judge Pratt notes, Brown's "co-defendant, who eventually ran his own drug operation, was released in April 2018."

This all sure seems to me to be "extraordinary and compelling reasons [that] warrant a reduction" under 18 U.S.C. § 3582(c)(1)(A), and Judge Pratt essentially says as much.  But, disappointingly, after making a strong factual record on Brown's behalf, Judge Pratt declines any reduction of Brown's original 510-month sentence with this reasoning: 

In this case, compassionate release nevertheless is premature because even if the First Step Act applied retroactively, Defendant would still be in prison.  With a lone § 924(c) count, Defendant still faced 210 months in prison.  ECF No. 118.  Even rounding up to the nearest month and including good conduct credits, Defendant has served 167 months. That is a long stretch by any measure, and perhaps more than appropriate for Defendant's crimes.  Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an “extraordinary and compelling reason” for compassionate release.  Thus, despite discretion to consider a broad range of factors, the Court declines to grant Defendant's motion at this juncture.

This reasoning seems deeply misguided to me: Daniel Brown has not moved in this case for the First Step Act to be applied retroactively, because (disappointingly) Congress has not provided for the Act to be applied retroactively.  Rather, Brown has moved for a sentence reduction under § 3582(c)(1)(A) because Congress has provided for judges to be able to "reduce [his] term of imprisonment" if and whenever a judge finds "extraordinary and compelling reasons warrant such a reduction."  Judge Pratt suggests Brown has made such a showing and he even suggests that Brown has already served more time than is appropriate for his crimes.  But, still, Judge Pratt refuses to use the legal tool available to him to reduce Brown's sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.

Critically, though 18 U.S.C. § 3582(c)(1)(A) is often called a "compassionate release" provision, there is no requirement in the statute that a judge order a sentencing reduction in the form of a "time served" sentence.  All the statute says is that a judge is authorized to "reduce the term of imprisonment ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that extraordinary and compelling reasons warrant such a reduction."  If Judge Pratt's concern was that section 3553(a) factors did not justify reducing Brown's sentence below 210 months, he still could have granted him relief by reducing his sentence from 510 to 210 months.

Because Judge Pratt used terms like "not yet" and "at this juncture" and "at this time," I am hopeful that Judge Pratt could and would entertain a renewed § 3582(c)(1) from Brown in four years when he has served 210 months of imprisonment.  Notably, there is no clear law right now about whether and when there are limits on how many times a defendant can bring a motion for sentence reduction pursuant to § 3582(c)(1)(A).  But since I think the law clearly supports granting his motion now, I am disappointed Judge Pratt did not exercise his discretion in this case in a manner similar to how he did in Gall.

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

UPDATE:  I was able to secure a copy of the ruling in Brown, which can be accessed here: Download Brown Compassionate release

ANOTHER UPDATEA month after this ruling, another District Judge in Nebraska considering similar facts granted a reduction in sentencing in US v. Urkevich, No. 8:03CR37, 2019 WL 6037391 (D. Neb. Nov. 14, 2019). That ruling is discussed in this post: Another District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing sentence by 40 years under 18 U.S.C. § 3582(c)(1)(A).

October 9, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, September 24, 2019

Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement

This lengthy new Politico piece portends some dark clouds for federal criminal justice reform efforts in the months and perhaps years ahead. The full headline summarizes the essential: "Trump snubs Jared Kushner’s signature accomplishment; The president thinks criminal justice reform is a political loser, and hasn't been shy about saying so."  Here are some extended excerpts:

When President Donald Trump huddled with campaign aides in the late spring to discuss his bid for reelection, White House senior adviser Jared Kushner told his father-in-law he should highlight last year’s historic passage of the First Step Act — a sweeping criminal justice reform bill that eluded previous administrations and has earned celebrity support.

Kushner reiterated the positive selling points of that bill during the Oval Office meeting as Trump campaign officials and White House aides ticked through the president’s achievements, wondering which would resonate most with his adoring base.  But Trump wasn’t interested and told Kushner he didn’t think his core voters would care much about a bipartisan deal for which he’s since accused Democrats of trying to steal credit. “It was clear he thinks it’s a total dud,” said a person familiar with the meeting. “He made it abundantly clear he doesn’t think it’s worth talking about.”

Kushner, whose own father spent more than a year in federal prison, worked closely with Democratic and Republican senators to get the criminal justice reform bill over the finish line last year — often telling his tough-on-crime boss it was worth expending political capital to seize a rare opportunity to overcome the deeply partisan divide on Capitol Hill and solidify his image as a pragmatic deal-maker.

But now, Trump “is telling people he’s mad” at how criminal justice reform has panned out, according to a person close to the president. “He’s really mad that he did it.  He’s saying that he’s furious at Jared because Jared is telling him he’s going to get all these votes of all these felons.”

Indeed, for months, the president has glossed over his son-in-law’s signature legislative achievement at his campaign rallies. If he brings up criminal justice reform, it’s almost always to mock his predecessors for their inability to get it done. Otherwise, as he did at his three most recent campaign events, he skips it entirely, indulging in long-winded rants about unresolved issues like trade and immigration instead of plugging one of the few bipartisan triumphs of his administration.

The subject’s notable absence from Trump’s 2020 stump speech offers a raw look at the president’s political instincts, which strongly veer toward partisan fights and away from the soaring appeals to national unity of past White House incumbents. And it lacks appeal to his base of rural and older white voters, who often respond better to hard-line rhetoric on the topic of law and order.

The nub of the issue for Trump, say White House officials, congressional aides and friends of the president, who were granted anonymity to speak candidly on the matter, is that he no longer sees criminal justice reform as a résumé booster heading into 2020.  He brings it up at official events, in response to reporters, and to religious groups — and it was a key part of Trump’s State of the Union address in January, when he welcomed home the first inmate to be released under the First Step Act — but it’s far from a permanent fixture of his reelection campaign.

“It would be difficult to say it’s a change of heart. I don’t think his heart was ever really in it,” said one White House official, adding that some Trump aides questioned why the president — who once declared himself “the law and order candidate” — endorsed the First Step Act in the first place....  In response to this story, a White House official said, “This false premise is another convoluted contradictory, media-manufactured joke. The president is clearly proud of all of his record-setting accomplishments — including the landmark bipartisan Criminal Justice Reform that data shows will save money, reduce crime and make communities safer.”

During the Oval Office meeting this spring, Trump complained that Democratic co-sponsors of the First Step Act skipped the bill signing at the White House last December (Sen. Sheldon Whitehouse of Rhode Island was the only Democrat to attend) and have refused to give him credit for passing prison reform when his immediate predecessor couldn’t, according to two people with knowledge of the meeting.  He’s said as much publicly in recent days, tweeting earlier this month: “I got it done with a group of Senators & others who would never have gone for it. Obama couldn’t come close.”

The tweet came after NBC’s Lester Holt omitted any mention of Trump’s role in advancing criminal justice reform during a televised town hall on the network. The president felt the televised special was disingenuous and thought singer John Legend, who participated in it, “paraded himself out like he was the great savior of criminal justice reform,” according to a senior administration official....

“He’s been telling Jared, ‘I got nothing from that,’” a person close to the White House said of criminal justice reform, adding that the president feels duped by claims that his popularity has grown and that he is frustrated with Kushner’s attempts to “jawbone” the issue into every speech he delivers.  “Jared has got all these stats like ‘every rapist in Florida is now going to vote Republican,’” quipped the person close to Trump.  “Trump doesn’t believe it and he’s mad Jared sold him this thing,” the same person said. (The First Step Act gives only certain nonviolent offenders a chance to shorten their sentences, and excludes sex offenders from early release.)

Kushner has claimed publicly that more nonviolent ex-felons in Florida, where they recently became eligible to vote, are registering as Republicans than as Democrats. In a rare television appearance in April, he told Fox News’ Laura Ingraham that he found that statistic “very pleasing” and one “that will surprise a lot of people when they see the new coalition that President Trump is building.”  But it is unclear how Kushner and his team procured such data. As of March, more than 2,000 formerly incarcerated felons had registered to vote in Florida, according to a study by the Brennan Center for Justice, which did not disclose the new registrants’ party affiliations. An aide to Kushner did not provide details on the source of the data in time for publication.

Some Trump allies argue that Kushner, who continues to monitor implementation of the First Step Act, is unlikely to persuade media personalities and Democratic lawmakers who support either to credit Trump with working across the aisle to get the measure passed.

“Van Jones was happy with Trump for a day. That’s all Trump got,” said the person close to Trump, referring to the liberal CNN pundit and former Obama adviser, who once described the First Step Act as “a Christmas miracle.”  Jones did attend a White House summit on prison reform this April — months after the bill passed — and recently met with Kushner to discuss its impact.  Jones, who co-founded the bipartisan criminal justice reform nonprofit #cut50, noted that he’s continued to sing Trump’s praises on the topic, including in a recent interview with CNN in which he celebrated Trump’s role in signing the First Step Act into law.... “There’s always been a bunch of people in the building, they didn’t like it before, during or after, and they’ve always been able to leak out anonymous bullshit quotes that then very quickly have egg on their faces because Trump does something else positive in this direction or throws in another line in a speech,” said Jones, who confirmed that Trump has been frustrated with the lack of credit he’s received....

Some Trump allies worry that the more the president talks about criminal justice reform, the more vulnerable he becomes if a prisoner released early under the restructured sentencing guidelines is ever accused of committing another crime.  When Republicans battled over criminal justice reform last fall, a small group of conservative senators who ultimately opposed the bill warned Trump of the dire consequences he could face if an inmate who won early release became a repeat offender.  “You let people out of jail early, commute sentences, something bad happens because of this effort [and] it’s going to be one more egg on their face — or even worse, blood on their hands,” said a former Senate Republican staffer.

Another GOP aide pointed to a negative ad campaign Republican gubernatorial candidate Eddie Rispone recently launched against Louisiana Gov. John Bel Edwards over his support for statewide sentencing reform. The ad accuses Edwards of putting “dangerous” and “violent” ex-felons “back on our streets where they robbed, attacked, [and] murdered.” A person familiar with the ad buy said it was prompted by the September arrest of a Louisiana man on burglary charges who was released early last year as part of a parole reform bill passed by the state Legislature in 2016. “Any smart political person would not go out bragging that they let criminals out of jail,” the GOP aide said.

This reporting is quite interesting, but not really all that surprising in light of Prez Trump's personal and political history. It also has me wondering whether Attorney General William Barr, who seems to be in good with Prez Trump and does not seem inclined to be a big fan of the FIRST STEP Act, might be having some influence on how the Prez thinks about these issues. Most fundamentally, this story serves as yet another reminder of just how fragile political support for criminal justice reform can be and how critical it can be to get reform work done whenever a window of opportunity is open.

September 24, 2019 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (3)

Monday, September 16, 2019

The impact of the FIRST STEP Act as told through one (all-too-typical) case

Jesse Wegman has this notable new New York Times piece headlined fully "‘All You Can Do Is Take Care of Your End’: For one inmate serving a life sentence, a new federal law gave hope where there had been none." I highly recommend the piece in full, and here are some extended excerpts:

Imagine that at the age of 28, you’re told you are going to spend the rest of your life in prison with no chance of release. What would you do with all that time?

There’s no shame in admitting you’d want to throw in the towel.  It’s a rational reaction to a hopeless situation: Why bother working to improve yourself, learning something new or making amends if nothing you do will ever make a difference?

Gary Rhines, now 46, had every reason to choose that route, after receiving a mandatory sentence of life without parole in 2004 for being a repeat drug offender.  As a lifer, Mr. Rhines was last in line for all prison programming; no one cared whether he participated or not.  But that didn’t stop him.  He earned his high school equivalency diploma.  He enrolled in drug-treatment and anger-management programs, learned industrial painting and how to operate a forklift.  He received a certificate in a culinary-arts program and worked in the prison chapel.

“All you can do is take care of your end,” Mr. Rhines told me recently in a telephone interview. “I had a list of things that were very important to my success.” If he didn’t do them, he said, “it was me giving up on myself.”

This summer, all those years of work paid off. At a hearing on July 24 in a Harrisburg, Pa., Federal District Court, Judge John E. Jones III resentenced Mr. Rhines to time served — in his case, 18 years, which includes nearly three years of pretrial detention.

The judge was able to impose that sentence thanks to the First Step Act, a new federal law that alleviates some of the most draconian punishments handed down under a string of federal criminal laws and sentencing guidelines passed in the 1980s and 1990s....

The crime that landed Mr. Rhines in prison for life was relatively minor — he was charged with participating in the sale, in Pennsylvania, of 66 grams of crack cocaine, a little more than the weight of a pack of M&Ms.  The crime involved no weapon and no violence. One of his co-defendants received a sentence of nine to 23 months.  But Mr. Rhines had been convicted of selling small amounts of drugs twice before, and that made all the difference: Under the sentencing laws, a third drug conviction involving more than 50 grams of crack meant a mandatory sentence of life without parole....

In requiring stunningly long sentences, the crime bills took power away from judges to make decisions based on a defendant’s unique circumstances — that is, to judge — at the moment such discretion was most needed.  Mr. Rhines’s judge might have taken into account not only the nonviolent nature of his crime, but also that by the age of 7, he was watching his mother use heroin and get physically abused by multiple boyfriends.  Or that because of her drug addiction, he and his brothers and sisters went for stretches without food, heat, electricity or hot water.  Or that he stopped going to school at 11 to provide for his siblings by working as a bag boy at a grocery store.  Or that at age 12, he was forced to sell drugs in local crack houses to pay off his mother’s drug debts and was warned that she would be beaten if he didn’t. In other words, from the time he was a little boy, Gary Rhines never stood a chance....

Congress finally began to reel in some of its longest and most unjust sentences in 2010, when it passed the Fair Sentencing Act, which reduced a glaring disparity in punishments for crimes involving crack and powder cocaine. That should have been good news for inmates like Mr. Rhines, because under the new law, the amount of crack he was convicted of selling no longer triggered a mandatory life sentence. The problem was that the 2010 law applied only to future cases, not past ones.

This is where the First Step Act comes in.  Signed last December by President Trump, it slashed the length of drug sentences — for example, the top mandatory-minimum punishment for a third-strike drug offense is now 25 years rather than life. The law also gave judges more power to reduce individual sentences and authorized $75 million in annual funding for prison programs that will help prepare inmates for release.  Most important, it made the 2010 sentencing law retroactive, which helps the thousands of inmates, like Mr. Rhines, who have been serving absurdly long sentences under a law that Congress itself said was unjust nearly a decade ago.

At Mr. Rhines’s resentencing hearing in July, where he recounted his brutal childhood, Judge Jones noted the painfully slow evolution of America’s criminal-justice system. “It’s taken essentially a quarter century for policymakers to figure out the fundamental unfairness” of those harsh 1980s and 1990s drug laws, the judge said.  He also noted that the trial judge in Mr. Rhines’s case, James McClure, had been frustrated at having his hands tied by the law. “That deprived Mr. Rhines of the determination of a very fair jurist,” Judge Jones said, “who carefully evaluated every case that came before him.” (Judge McClure died in 2010.)

Finally, Judge Jones took note of Mr. Rhines’s self-rehabilitation in an indifferent environment. “Without any hope,” the judge said, “you participated in a number of these programs, which is very impressive to me.”...

The prosecutor on the case requested that the judge resentence Mr. Rhines to 30 years, which was the term recommended under federal sentencing guidelines. Judge Jones declined. “I just don’t know rationally how anybody can contend with the circumstances of this case, including Mr. Rhines’s personal circumstances,” the judge said, and conclude “that they warrant a 30-year sentence for 66.6 grams of cocaine. That defies credulity and logic, in my view.” In an email further explaining his decision, Judge Jones told me that he considered Mr. Rhines to be “the very face of the First Step Act” and said it was “unjust, and in fact ludicrous, to have this model inmate spend additional time in federal prison.”

As of August, nearly 1,700 people, 91 percent of them black like Mr. Rhines, have gotten new, shorter sentences under the First Step Act, according to a report by the United States Sentencing Commission. The average reduction is nearly six years, bringing the average sentence of these inmates down from about 20 years to 15 — hardly flinging open the prison gates. But it is part of the larger shift toward a more humane criminal-justice system that has swept the country over the past decade and helped shrink the federal prison population to about 180,000 today, from a high of 220,000 in 2013.

This is real progress, and it is why the First Step Act has been praised as a rare bipartisan success story — one all the more remarkable for the political delicacy of its subject matter.  Mr. Trump himself called the older drug sentences “very unfair,” particularly to black inmates like Mr. Rhines.

Still, the law comes up short in important ways. The biggest is that its new reductions of sentences for drug crimes do not apply to past cases. That’s an especially glaring omission given that the First Step Act fixed the identical problem in the 2010 law. In other words, Congress failed to heed its own lesson: If a sentence is determined to be unjust, isn’t it unjust in all situations? Why should it matter when a prisoner was convicted?

This well-told story helps put some more names and faces to what the FIRST STEP Act has helped achieved.  But the piece also highlights just how far we still have to go to truly achieve new attitudes and new approaches to crime and punishment.  I cannot help but still see dark facts in this often bright story: the dark fact that federal prosecutors in 2019 still urged an additional dozen years in federal prison for the sale of less than 2.5 ounces of crack, the dark fact that Congress could not bring itself to include at least modest measure of retroactivity with its modest reforms of extreme mandatory minimums in the FIRST STEP Act, and the dark fact that there are so many human variations on Mr. Rhimes among the tens of thousands of federal prisoners whose stories will not get so well told.

September 16, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2)

Wednesday, September 04, 2019

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

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

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

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

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

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

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

Monday, August 26, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, August 20, 2019

Another perspective on the scope of FIRST STEP Act crack resentencing

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

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

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

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

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

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

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

Prior related post:

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

Saturday, August 10, 2019

Fifth Circuit articulates limiting account of FIRST STEP Act crack resentencing

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

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

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

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

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

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

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

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

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

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

Wednesday, July 31, 2019

"Federal Criminal Risk Assessment"

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

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

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

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

Sunday, July 28, 2019

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

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

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

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

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

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

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

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

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

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

Wednesday, July 24, 2019

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

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

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

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

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

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

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

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

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

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

Tuesday, July 23, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

July 23, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Sunday, July 21, 2019

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

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

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