Tag: Sentence Reform

Prison Reform On Uncertain Ground In 2018

One has to wonder if Congressional dysfunction has reached a breaking point.

Imagine legislation that was drafted with the help of presidential son-in-law Jared Kushner and, unsurprisingly, supported by President Trump himself. Imagine that this same bill is supported by such stalwarts of “The Resistance” as the Urban League and the Equal Justice Initiative, and also backed by prominent conservative groups such as FreedomWorks and the Faith and Freedom Coalition. The Koch brothers and Grover Norquist are advocates, and so is liberal commentator Vann Jones. In fact, imagine a bill so bipartisan that it passed even this deeply divided House on a 360–59 vote.

That legislation would be the “FIRST STEP Act,” a prison-reform bill. And, this being Washington in 2018, it is almost certainly not going to become law. Indeed, it looks doubtful that the Senate will even vote on it.

The FIRST STEP Act is hardly radical. It doesn’t reduce inmate sentences or otherwise deal with the intensely punitive approach to justice that has given the United States the world’s largest per capita prison population. Nor does it remedy the ongoing racial issues that continue to infect our criminal-justice system.

Instead, it would make a number of extremely modest humanitarian reforms to the way we treat prisoners. For example, it would make female health products more available in federal prisons and all but end the practice of shackling female inmates during childbirth. It would try to keep inmate families together by expanding visits, phone privileges teleconferencing, and opportunities to transfer to prisons closer to home. It would increase mental-health and substance-abuse treatment for inmates.

It would also provide a modest $250 million over five years for new inmate-education and -rehabilitation programs, and establish incentives (including time credits) for prisoners to participate. Prisons would also be required to conduct “risk assessments” of soon-to-be-released inmates and to tailor programs to meet these inmates’ needs.

Over the long run, most experts believe the legislation would save money. For example, studies have shown that every dollar spent providing needed mental-health and substance-abuse treatment to inmates ultimately saves taxpayers $1.27 to $5.47 in reduced crime and incarceration costs. One should always be skeptical of claims that government spending will save money, but this initiative clearly passes the common-sense test. Similarly, keeping families together is likely to reduce future welfare costs as well as crime. And since nearly all prisoners will eventually be released, programs to reduce recidivism are also likely to prove cost-effective.

So why is such a modest and humane bill almost certain to die?

In part, the FIRST STEP Act is a victim of the infighting and turf protection that helps explain Congress’s 18 percent favorability rating. Senator Chuck Grassley (R., Iowa), who as chairman of the Judiciary Committee has jurisdiction over the bill, favors a much more expansive bill, the Sentencing Reform and Corrections Act, which he is co-sponsoring with Sen. Dick Durbin, the Senate’s No. 2 Democrat. Grassley and Durbin are insisting that the FIRST STEP Act be rolled into their bill. But their legislation, which is indeed worthwhile, is being blocked by Senate majority leader Mitch McConnell because the White House won’t sign off on some provisions. In the meantime, prison reform goes nowhere.

An even more significant roadblock is being provided by Senator Tom Cotton (R., Ark.), who opposes nearly all efforts at criminal-justice reform. Senator Cotton, one of the few Americans who believe we have an underincarceration problem, in his words, has mounted an effective guerrilla campaign to undermine the bill’s support on the right. For example, Cotton is reportedly pushing law-enforcement groups to oppose the bill. His efforts have been drawing fruit. Recently the Federal Law Enforcement Officers Association withdrew its endorsement of the bill after being pressured by Cotton’s office. Republicans, always fearful of being called “soft on crime,” will find it difficult to buck law enforcement.

Complaints about congressional gridlock are often exaggerated. The Founders intended legislating to be slow, deliberate, and challenging. But when even commonsense legislation with broad bipartisan support can’t so much as get a vote, one has to wonder if congressional dysfunction has reached a breaking point.

There is one possible way that this innovative bill could make it through Congress and onto the President’s desk. If determined members of the Senate refuse to vote in the upcoming confirmation of the candidate to fill the current Supreme Court vacancy there may be enough pressure to move the opposition out of the way.  Senators Cotton and McConnell both have vested interest in seeing a smooth confirmation hearing, and stand to lose critical local support in their home states and from the administration if their actions cause unnecessary delays or, worse, derail the confirmation entirely.

It’s a weak foundation  for prison reform advocates to stand on, but uncertain ground is better than having no place to stand at all.

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United States Sentencing Commission Drops The Ball … Again

For the last several months the United States Sentencing Commission has taunted and teased non-violent 1st time federal offenders with the possibilty of relief from some of the more onerous sentencing restrictions that have been placed on their ability to return to their communities in a timely and meaningful way.

Created by Congress in 1984 to lay down “guidelines” for federal judges to follow when imposing sentences on federal defendants, the Commission had long been criticized for its punative and often seemingly racist approach to sentencing.

In more recent years the Commission has slowly innovated and retooled the Guidlines, making decisions which have brought proportionality and common sense back into federal sentencing.

It had been thought that, given President Trumps’ campaign promises, this trend might continue into the new administration.

The Guidelines are reviewed and amended annually, and indeed, at the beginning of the most current amendment cycle, it seemed that the Commission was poised to finally address – as so many states have – the painful absence of leniency available for non-violent 1st time federal offenders, many of whom face extended incarceration for things like minor misunderstandings of our voluminous tax code.

Several ideas were floated publicly, and the Sentinel watched the Commission’s hearing today with great interest.

Alas, it was not to be.

Rather than adopting, or even discussing, any one of several possible amendments to grant a greater range of sentencing options to federal judges for non-violent and often harmless defendants, the Commission failed to discuss the issue at all.

In what is likely their shortest public hearing to date, the Commission breezed through several other proposed amendments and adjorned before the subject could even be raised,  let alone discussed, as it had been in prior meetings, tabling the issue for another year, possibly forever.

The Sentinel is not pro-inmate.  Nor are we pro-law enforcement.  The Sentinel is pro-America!

America suffers when we pay up to $250,000 a year* to incarcerate non-violent 1st time offenders, for years on end, when they should be working in our communities, paying restitution for their crimes, and learning (or returning to) productive roles in society.

Isolating these men and women away for years harms them, destroys families and costs us, the American taxpayer, billions of dollars a year.  We’re paying to house, feed and provide medical care for them, when they could and should be supporting themselves and repaying their victims, whether those victims be (and often are) federal agencies like the IRS, or investors who lost money in some ill-advised scheme.

Countless states have figured this out, are saving money and reducing recividism in the process.

Sooner or later, Congress and the Commission will have to follow suit.

Text of the Commissions’ official press release appears below.

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U.S. SENTENCING COMMISSION UNANIMOUSLY ADOPTS 2018 GUIDELINE AMENDMENTS

WASHINGTON, D.C. (April 12, 2018) — The United States Sentencing Commission unanimously voted on a slate of new amendments to the Guidelines Manual. Among other actions, the Commissioners voted to update the federal sentencing guidelines to address evolving challenges related to the distribution of synthetic drugs. The amendments reflect a collaborative, detailed, and data-driven approach to federal sentencing policy.

At the public meeting, Circuit Judge William H. Pryor Jr., acting chair of the Commission, remarked, “I would like to acknowledge the unique challenge that the Commission faced during this current amendment cycle. The Sentencing Reform Act of 1984 contemplates that there will be seven voting members on the Commission, appointed by the President and confirmed by the Senate. While setting sentencing policy is always difficult—because it impacts the liberty of our fellow citizens—reaching consensus was particularly challenging and critical this amendment cycle. Under the statute, we need an affirmative vote of four Commissioners to approve any pending amendments.”

At the meeting, the Commissioners approved a multi-part synthetic drugs amendment. The amendment draws upon public comment, expert testimony, and data analysis gathered during a multi-year study of synthetic drugs. Before today’s actions, many new synthetic drugs were not referenced in the federal sentencing guidelines. As a result, courts have faced expensive and resource-intensive hearings. The Commission’s actions reflect the evolving nature of these new drugs and will simplify and promote uniformity in sentencing these offenders.

Among today’s actions, the Commissioners voted to adopt a new guideline definition of the term “fentanyl analogue.” The change effectively raises the guideline penalties for fentanyl analogues to a level more consistent with the current statutory penalty structure. To address the severe dangers posed by fentanyl, the Commissioners also voted to adopt a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (which equates to an approximate 50 percent increase in sentence).

The new amendment also establishes drug ratios and minimum offense levels for two new classes of synthetics drugs: synthetic cathinones (often referred to as “bath salts”) and synthetic cannabinoids (including, but not limited to, “K2” or “spice”). Following a multi-year study and series of public hearings with experts, the Commission found that synthetic cathinones possess a common chemical structure that is sufficiently similar to treat as a single class of synthetic drugs. The Commission also found that, while synthetic cannabinoids differ in chemical structure, the drugs induce similar biological responses and share similar pharmacological effects. In setting the new drug ratios, the Commission considered among other factors, the severity of the medical harms to the user, the current ratios applied in similar cases, known trafficking behaviors, and concerns for public safety. In recognition that potencies vary, the Commission also adopted departure language for drugs in a class that are more or less potent.

The Commission also voted to adopt a new application note providing that judges should consider alternative sentencing options for “nonviolent first offenders” whose applicable guideline range falls within Zones A or B. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. This narrowly-tailored amendment is consistent with the directive to the Commission in 28 U.S.C. § 994(j).

Acting Chair Pryor also observed, “Among the four of us here today, the unanimous agreement on this slate of amendments reflects even more collaboration and compromise than in a typical amendment cycle, and I would like to thank my fellow Commissioners for their time and service. We worked together to develop solutions that improve the federal sentencing guidelines in a manner that balances fairness, justice, fiscal responsibility, and public safety. I look forward to working with my colleagues to strengthen and to simplify the guidelines. Together, we will continue our efforts to ensure clear and effective guidance for federal courts across the country.”

At the meeting, the Commission also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes resulting from the Bipartisan Budget Act of 2015. The Commission received valuable comment from the U.S. Senate Committee on Finance, the U.S. House of Representatives Ways and Means Committee, and the U.S. House of Representatives Judiciary Committee as well as the Social Security Administration. Today’s amendment provides for an enhancement and a minimum offense level for individuals who violate certain positions of trust (e.g., health care providers, claims representatives, and others) in a manner that addresses the seriousness and sophistication of these fraudulent schemes.

The Commission also voted to adopt the recommendations made by the Tribal Issues Advisory Group in its May 2016 report. The amendment provides a non-exhaustive list of factors that courts may consider in determining whether a prior tribal court conviction warrants an upward departure from the recommended sentencing range. The amendment also adds a definition for “court protection order” for purposes of applying an enhancement under the aggravated assault, harassment, and domestic violence guidelines. Other technical and miscellaneous amendments were also adopted at today’s public meeting.

The full set of amendments will be transmitted to Congress by May 1, 2018. If Congress does not act to disapprove the amendments, they will go into effect on November 1, 2018

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*While the average “cost of incarceration” published by the Federal Bureau of Prisons is just north of $30,000, the FBOP admits that countless non-violent inmates have medical conditions and/or “personal circumstances” which result in cost to keep them running a quarter of a million dollars or more.

Third Circuit Extends Holding Of Miller v. Alabama To De Facto Life Sentences

April 9th, in United States v. Grant, No. 16-3820, the Third Circuit extended the holding in Miller v. Alabama, 567 U.S. 460 (2012) (holding that only incorrigible juvenile homicide offenders who have no capacity to reform may be sentenced to life in prison without the possibility of parole; otherwise, a non-incorrigible juvenile offender must have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”) to de facto life sentences – that is, a sentence (in years) that meets or exceeds the life expectancy of a juvenile offender. In this case, the sentence was for 65 years, which might make him eligible for release no earlier than at age 72. The court characterized its holding as an “incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders.” The court noted that its holding has been adopted by the Seventh, Ninth, and Tenth Circuits, but acknowledged a contrary holding from the Eighth Circuit.

New Report On Firearms Offense Sentences Released

The United States Sentencing Commission issued a report on March 15th titled Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System.  This is the third publication in the Commission’s series on mandatory minimum penalties, including the 2017 Mandatory Minimum Overview and the 2017 Drug Mandatory Minimum Report.

Yesterday’s Mandatory Minimum Firearms report uses fiscal year 2016 data and focuses on firearms offenses, the second most common federal offenses carrying mandatory minimums after drug offenses.  The report analyzes two statutes carrying minimum mandatory penalties: (1) 18 U.S.C. § 924(c) (relating to using, carrying or possessing firearms in furtherance of a drug trafficking or crime of violence); and (2) 18 U.S.C. 924(e), the Armed Career Criminal Act.  The publication also addresses the impact of these statutes on the Bureau of Prison’s prisoner population.

Here are some highlights from the 81-page report:

1. Firearms mandatory minimum penalties continue to result in long sentences although they have decreased since fiscal year 2010.

2. Offenders charged with and convicted of multiple counts under section 924(c)received exceptionally long sentences as a result of the statutory requirement that the sentence for each count be served consecutively.

3. In addition, other charging and plea decisions also play a significant role in theapplication and impact of firearms mandatory minimum penalties.

4. Statutory relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the government plays a significant role in the application and impact of firearms mandatory minimum penalties.

5. While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum has been stable, the number of offenders convicted of offenses carrying such penalties has decreased significantly since fiscal year 2010.

6. Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group.

 

 

Sentencing Commission Releases 2017 Federal Crime Statistics

Last week the United States Sentencing Commission released its 2017 Annual Report and 2017 Sourcebook of Federal Sentencing. FY2017 encompasses the federal government’s fiscal year October 1, 2016 to September 30, 2017 and includes data on sentencings occurring during this period and reported to the Commission before February 14, 2018.  Together the Report and Sourcebook represent the annual report required by 28 U.S.C. § 997, as well as analysis, recommendations, and accounting referenced in 28 U.S.C. § 994(w)(3).

The 2017 Annual Report provides information on the Commission’s activities, such as conducting research, collecting and reporting sentencing data, sentencing policy development (i.e., guideline amendments), and training and outreach.

The 273-page 2017 Sourcebook contains sentencing statistics on a wide range of variables—such as length of sentences and adjustments for various primary offenses—in each federal judicial circuit and district, reflected in tables, figures, and pie charts.  The information in the Sourcebook is also available in the Commission’s online resource Interactive Sourcebook of Federal Sentencing Statistics. The data in the interactive sourcebook can be tailored to any district or group of districts.  Here are some highlights from the Sourcebook data:

  • In FY 2017, the courts reported 66,873 felony and Class A misdemeanor cases to the Commission. This represents a decrease of 869 cases from the prior fiscal year.
  • The race of federal offenders remained largely unchanged from prior years. In FY 2017, 53.2 percent of all offenders were Hispanic, 21.5 percent were White, 21.1 percent were Black, and 4.2 percent were of another race. Non-U.S. citizens accounted for 40.7 percent of all offenders.
  • Drug cases accounted for the largest single group of offenses in FY 2017, comprising 30.8 percent of all reported cases. Cases involving immigration, firearms, and fraud were the next most common types of offenses after drug cases. Together these four types of offenses accounted for 82.4 percent of all cases reported to the Commission in FY 2017.
  • Among drug cases, offenses involving methamphetamine were most common, accounting for 34.6 percent of all drug cases.
  • Drug sentences remained relatively stable across all drug types in fiscal year 2017. The average length of imprisonment increased slightly from FY 2016 in cases involving methamphetamines, from 90 months to 91 months, and also in marijuana cases, from 28 months to 29 months. In fiscal year 2017, 44.2 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty.