Sentencing Commission Gives Career Offenders a Lump of Coal – Update for December 12, 2016

We’re still doing a weekly newsletter… we’re just posting pieces of it every day.  The news is fresher this way…


              Did the Sentencing Commission whiff?

For those who hoped the Sentencing Commission would propose to eliminate drug trafficking as offenses that support application of “career offender” status, last Friday’s meeting was a disappointment.

A December USSC meeting to consider proposals for the next year’s rounds of amendments is highly irregular, and the tin-hat people were buzzing: the Commission had an earth-shaking proposal, everyone’s running scared because of President Trump and a completely Republican congress, the earth is about to end… In the end, it turned out that the early meeting was most likely held because the 6-year tenure of USSC Chairwoman Patti B. Saris (whose day job is Chief Judge of the U.S. District Court for the District of Massachusetts) ends on December 31.

Last summer, the Commission said its policy priorities for the coming year would include a proposal to study whether to drug trafficking convictions as predicates for the Guidelines Chapter 4 “career offender” enhancement. Last summer, the Commission delivered a report to Congress that found that defendants with multiple drug convictions were much different, and considerably less tough to manage, than were those with two or more crimes of violence as predicates for career offender status. The Report suggested that drug offense perhaps should not count against defendants for career offender status.

Last week’s meeting, the Commission mentioned not a word about the career offender status, suggesting that nothing will happen to change “career offender” in 2017 unless the Supreme Court does it in Beckles v. United States.

Will the suggestion to narrow the definition of career offender go anywhere?
Will the suggestion to narrow the definition of career offender go anywhere?

Instead of addressing “career offender,” the Commission voted to put out for public comment proposals to reduce sentencing ranges for first-time offenders, defined as those without any criminal history points whatsoever. The Commission wants to encourage federal courts to impose more alternative sentences that do not require incarceration.

Also, the Commission proposed changing how criminal history scores are calculated to eliminate the counting of juvenile convictions, and to propose a downward departure where a defendant was convicted as an adult for an offense committed before 18 years old. Additionally, the Commission proposed that parole and supervised release revocation sentences not be counted as extending prior periods of conviction, an important issue for a lot of defendants who have very old convictions that – because of a late revocation – suddenly fall within the 15-year look-back period.

The Commission proposed a two-year study on MDMA (“ecstasy”) and synthetic drugs, and said it would update its study – now before Congress – to reduce mandatory minimum sentences.

There was no discussion whatsoever of retroactivity for existing Guidelines or for the proposals set out for public comment. This is not usual: in the rare cases when a Guidelines change becomes retroactive, the proposal to do so comes only after the Guideline change has become effective.

Gridlock in the Commission's future?
           Gridlock in the Commission’s future?

The composition of the Commission is about to change dramatically. Last Friday’s meeting was the final one for three of the seven members, Chief Judge Saris, Judge Charles R. Breyer and Dabney L. Friedrich. By statute, commissioners are appointed to 6-year terms by the President and confirmed by the Senate. At least three must be federal judges and no more than four may belong to the same political party. Other Commissioners include Circuit Judge William H. Pryor, Jr., Commissioner Rachel E. Barkow, Commissioner J. Patricia Wilson Smoot (ex-officio, U.S. Parole Commission), and Commissioner Michelle Morales (ex-officio, U.S. Department of Justice). The Commission must have at least four voting Commissioners for a quorum, and thus will be unable to act until new members are appointed and confirmed.

U.S. Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Preliminary) (Dec. 9, 2016)


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