House Passes Marijuana Decriminalization – Update for April 4, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HOUSE APPROVES MARIJUANA REFORM
Who needs "March Madness" when you have "reefer madness."
Who needs “March Madness” when you have “reefer madness?”

The House of Representatives on Friday passed the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act (H.R. 3617) – sponsored by House Judiciary Chairman Jerrold Nadler (D-NY) — by a 220-204 margin. The vote fell largely along party lines with only three Republicans supporting the measure and two Democrats opposing it.

H.R. 3617 decriminalizes marijuana, expunges the records of people convicted of federal cannabis offenses, and requires resentencing in some cases. It provides that any marijuana conviction will be vacated, and existing sentences modified to eliminate marijuana amounts from drug calculations. The only catch is that any sentence including a Guidelines § 3B1.1 aggravating role will be ineligible.

The Congressional Budget Office estimates that thousands of current inmates would be released early. In the future, decriminalization also would reduce the number of people in federal prisons and the amount of time they serve. CBO estimates that over the 2022-2031 period, H.R. 3617 would reduce time served by current and future inmates by 37,000 person-years.

CBO’s analysis accounts for time served by offenders convicted of marijuana-only crimes and time served by people convicted of offenses in addition to a pot offense. The analysis says the MORE Act would reduce the Federal Bureau of Prisons’ costs by reducing both the number of prisoners and the amount of time they serve. CBO estimates that the provision would result in net savings of about $800 million over the 2022-2031 period.

marijuana160818Passage of MORE is one of several pieces of legislation that underlines the shift in Congress’s attitude — a change that has come about in part because of the way past drug laws have disproportionately hit minority communities. “This Congress represents a sea change,” said Rep. Earl Blumenauer (D-Oregon), a co-chair of the Congressional Cannabis Caucus.

The House passed the EQUAL Act last fall by a margin of 361-66. EQUAL eliminates the federal disparity in prison sentences for crack and powder cocaine offenses. A majority of the House GOP overall joined all Democrats in support.

Recently, Sen Richard Burr (North Carolina) became the 10th Senate Republican to back EQUAL, paving the way for likely passage in the upper chamber. House Majority Leader Chuck Schumer (D-NY) and Sen Joe Manchin (D-WV), a frequent centrist swing vote, also signed on to the bill in recent days.

“I think they understand we’ve got to take a more innovative path. We need to understand addiction. We can’t just incarcerate our way out of these problems. And we sure can’t continue to turn a blind eye to an egregious injustice, like this crack-powder disparity,” said Holly Harris, president of the Justice Action Network.

The lower price of crack cocaine means that historically it has been more easily accessible to people in marginalized lower-income communities, compared to powder cocaine more prevalent in the suburbs.

marijuana-dc211104A nearly identical version of the MORE Act passed in 2020, but it stalled in the Senate. It passed through the sponsor’s panel again this session in September. Now the action moves to the Senate, where leadership is separately preparing to introduce a legalization bill. It remains unclear whether MORE will receive a Senate vote. The White House has not yet issued a statement on whether President Biden supports the legislation. A group of Senate Democrats, including Majority Leader Charles E. Schumer (N.Y.), Sen Cory Booker (N.J.) and Sen Ron Wyden (Oregon), is expected to release draft marijuana legislation later this month.

“We’ve been here before,” Nadler said during a press briefing following the vote on Friday. “Unfortunately, the Senate failed to act. Sometimes I think we’d be better off if we didn’t have a Senate.”

Marijuana Moment, House Approves Federal Marijuana Legalization Bill For Second Time In History (April 1, 2022)

Congressional Budget Office, Estimated Changes in Direct Spending and Revenues Under H.R. 3617, the MORE Act (March 28, 2022)

The Hill, House poised to pass bill legalizing marijuana (March 28, 2022)

H.R. 3617, MORE Act

Marijuana Moment, Lawmakers And Organizations React To Federal Marijuana Legalization Bill’s House Passage (April 1, 2022)

Washington Post, House passes bill decriminalizing marijuana; Senate fortunes unclear (April 1, 2022)

– Thomas L. Root

IT AIN’T QUITE OVER YET – UPDATE FOR MARCH 31, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE SHAPE OF THINGS TO COME

Buried by news last week about Ukraine and Judge Jackson’s nomination, the COVID-19 BA.2 subvariant has quietly become the dominant strain of COVID in America. Two weeks ago, BA.2 comprised an estimated 35% of analyzed samples nationwide; the previous week, it made up 22%. In the week ending March 26, BA.2 accounted for nearly 55% of new cases in the US, while the previously dominant strain – BA.1.1 – accounted for 40.4% of cases.

maxfrost220331Max Frost and the Troopers might have called BA.2 “The Shape of Things to Come.” After all, the variant is now over “Fifty Two Percent.” 

Ominously, BOP inmate COVID numbers – which bottomed out at 99 ten days ago – have slowly climbed to 167 as of last night. Staff cases dropped from 243 to 138 in the same period.

BA.2 is believed to be 30% to 60% more contagious than the earlier omicron subvariant. BA.2, however, doesn’t appear to result in more severe illness than BA.1, and it’s likely that people recently infected with the earlier omicron subvariant will have a decent degree of at least short-term immunity to BA.2. The BOP says 70.9% of staff and 80.7% of inmates have gotten the basic vaccine, but it does not indicate the number of boosters given.

In the last two weeks, the BOP announced four more inmate COVID deaths, one at Coleman Medium (Florida), one at Victorville (California), and the other two at FCC Butner (North Carolina). Two occurred in February and two in the last week. Two of the four had previously recovered from COVID. In the last 12 months, 56% of BOP inmates dying of COVID had previously caught the virus with milder symptoms.

death200330At least 310 federal inmates in the BOP and private prisons have died of COVID in the two-year period since April 2020. In the prior 19 years, an average of 42 federal inmates a year died in custody. Over the past two years, the number from COVID alone averaged 154.

L.A. Times, Omicron subvariant BA.2 spreading rapidly in L.A. and across the nation (March 25, 2022)

Quartz, The BA.2 covid sub-variant is now dominant in the US (March 29, 2022)

Bloomberg, Earning Early Release Under the First Step Act (March 22, 2022)

BOP, Inmate Death at USP Coleman I (March 22, 2022)

BOP, Inmate Death at FMC Butner (March 22, 2022)

BOP, Inmate Death at FCI Victorville II (March 28, 2022)

BOP, Inmate Death at FCI Butner Medium I (March 28, 2022)

– Thomas L. Root

So Who Ties Ted Cruz’s Shoes? – Update for March 30, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THREE TAKEAWAYS FROM THE JUDGE JACKSON HEARING

shoelaces220330Judge Ketanji Brown Jackson endured hours listening to stupidity spoken by power at last week’s Senate Judiciary Committee hearing on her nomination to a Supreme Court seat.

But for federal prisoners, there are three takeaways worth remembering:

First, the Republicans intend to pound on the Democrats in this year’s mid-term elections as being soft on crime.

Senate GOP leaders said in February that they’d scrutinize Jackson’s role as a former public defender, member of the Sentencing Commission, and as a district judge. But with an increase in crime making headlines this year, the Republican strategy ultimately crystallized around painting Jackson as soft on crime.

At one point, Senator Tom Cotton (R-Ark) blasted Jackson for granting compassionate release to a crack defendant who’d been hammered by a mandatory minimum. Senators Ted Cruz (R-TX) and Josh Hawley (R-MO) both accused Jackson of “a pattern of letting child pornography offenders off the hook for their appalling crimes, both as a judge and as a policymaker,” citing seven cases where, as Hawley put it, “Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors requested.”

bullshit220330It was all crap, of course. Judiciary Committee Chairman Richard Durbin (D-IL) pointed out that ABC News, CNN, and The Washington Post have defended Jackson’s sentencing read as being mainstream. Andrew McCarthy, a former federal prosecutor, writing in the conservative National Review, called Hawley’s claims “meritless to the point of demagoguery… Judge Jackson’s views on this matter are not only mainstream; they are correct in my view. Contrary to Hawley’s suggestion… she appears to have followed the guidelines, at the low end of the sentencing range, as most judges do.”

The “Republicans have rhetorically abandoned those reformist ways and instead have returned to their tough-on-crime roots to attack her credentials for the high court,” the Washington Post said. “Far from the party that followed Grassley, and President Donald Trump, into a new approach to crime, this week’s hearings signal a GOP that is ready to return to the days of Willie Horton.”

For anyone interested in significant criminal justice reform from this Congress, that’s bad news.

Second, Jackson has the credentials and background to be a worthy successor to Justice Breyer, whose seat she is taking. Breyer was one of the Guidelines’ creators, and was the Supreme Court’s dean of criminal sentencing. Jackson has more time as a district court judge (over 8 years) than Justice Sonia Sotomayor (6 years). None of the other seven Justices was served a day on the trial bench.  And no one on the Supreme Court other than Jackson was ever a public defender, although at least two of them are former prosecutors. On top of that, Jackson was a staff attorney for the Sentencing Commission and later one of the five commissioners, the only one at the Supreme Court to have such experience.

She responded to attacks on her below-Guidelines child porn sentences in a way that provides a glimpse into her sentencing philosophy:

pervert160728“Congress has decided what it is that a judge has to do in this and any other case when they sentence,” she said. “That statute doesn’t say look only at the guidelines and stop. That statute doesn’t say impose the highest possible penalty for this sickening and egregious crime… [Instead] the statute says [to] calculate the guidelines but also look at various aspects of this offense and impose a sentence that is ‘sufficient but not greater than necessary to promote the purposes of punishment’.”

Third, the child pornography mandatory minimums and Guidelines ranges – especially in non-contact cases – are absurdly high.

In a 2014 case involving a defendant who was caught with 1,500 child pornography images on his computer, Northern District of Ohio federal Judge James Gwin, asked the jurors what they thought an appropriate sentence would be. They recommended a prison term of 14 months – far shorter than the 5-year mandatory minimum, the 20 years demanded by prosecutors, and the 27 years recommended by the Guidelines. Taking the jurors’ view to heart, Gwin sentenced the defendant to the 5-year mandatory minimum.

Reason magazine reported that Northern District of Iowa federal Judge Mark W. Bennett “likewise found that jurors did not agree with the sentences that Hawley believes are self-evidently appropriate. ‘Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,’ Bennett told The Marshall Project’s Eli Hager in 2015, ‘every time – even here, in one of the most conservative parts of Iowa… – they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that’s baloney’.”

Former federal prosecutor McCarthy agreed: “But other than the fact that Congress wanted to look as though it was being tough on porn, there’s no good reason for the mandatory minimum in question — and it’s unjust in many instances.”

Jackson made a similar argument. “As it currently stands, the way that the law is written, the way that Congress has directed the Sentencing Commission, appears to be not consistent with how these crimes are committed, and therefore there is extreme disparity.”

congressbroken220330

Ohio State law professor Doug Berman wrote in his Sentencing Law and Policy blog that he has been “quite disappointed by what seemed to me to be a general failure by all of Senators on both sides of the aisle to engage thoughtfully with the deep challenges and profound humanity in any and all sentencing determinations… Critically, in federal child pornography cases, the basic facts are rarely routine, the applicable statutory law is rarely clear, and the applicable guidelines are the very opposite of helpful. In the child pornography setting, applicable statutory law is quite messy – e.g., what is the real difference between child pornography “possession” and “receipt”, how should USSC policy statements be considered here – and the applicable guidelines are widely regarded as badly broken. Those legal realities mean federal sentencing takes on extra layers of challenge in child pornography cases… But, if anything, the senators’ questions highlight Congress’ failures in erecting the sentencing structure that federal judges across the country, including Judge Jackson, operate within. Once the confirmation process is over, the Senate should fix the very system that they criticize judges for following.”

Even Judiciary Committee Chairman Durbin agrees. Last Wednesday, he said Congress was partly to blame for the outdated guidelines. “We have failed in responding to the changing circumstances,” he said, noting that at least 15 years had passed since the body reviewed the child pornography guidelines. “We should be doing our job here.”

Bloomberg Law, Crime Focus at Jackson Hearing Most Intense Since Marshall (March 23, 2022)

Sentencing Law and Policy, In praise of the continued sentencing sensibility of the National Review’s Andrew McCarthy (March 24, 2022)

Washington Post, Republicans, after years of pushing for softer criminal sentences, return to the party’s law-and-order posture in Jackson’s confirmation hearing (March 23, 2022)

Baltimore Sun, Senators questioning of Judge Jackson’s sentencing history during Supreme Court confirmation hearings reveals their own failures (March 25, 2022)

National Review, Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography (March 20, 2022)

Reason, Josh Hawley Absurdly Suggests That Ketanji Brown Jackson Has a Soft Spot for ‘Child Predators’ (March 18, 2022)

Wall Street Journal, Ketanji Brown Jackson Hearings Shine Spotlight on Child Pornography Law (March 25, 2022)

– Thomas L. Root

EQUAL Act Now Has Path To Passage – Update for March 28, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

EQUAL ACT AND MORE ACT MOVING FORWARD IN CONGRESS

It now looks like the EQUAL ACT (S.79), a bill to equalize crack and powder sentences, may have a ready path to passage.

crackpowder160606Last week, Senate Majority Leader Chuck Schumer (D-NY) signed onto the bill as a co-sponsor, although his plans to bring the bill to a floor vote are still not clear. The bill passed the House, 361-66, in September and President Joe Biden, who campaigned on criminal justice reform, is expected to sign the measure when it reaches his desk.

Ten Senate Republicans, including Sen. Richard Burr (R-NC), who added his name last week, are co-sponsoring the bill, that would eliminate the federal sentencing disparity between drug offenses involving crack and powder cocaine. This paves the way for likely passage in the evenly divided Senate chamber, where 60 votes are required to pass most legislation.

It now “looks like you’d get to 60, really,” said Sen. Rand Paul (R-KY), one of the ten GOP EQUAL Act sponsors. “This is the Democrats’ prerogative, it’d be nice if they would bring it to the floor.”

The bill, primarily sponsored by Judiciary Chairman Richard Durbin (D-IL) and Sen. Cory Booker (D-NJ), lowers the punishment for crack cocaine to match the thresholds for powder cocaine. In 2020, the Sentencing Commission found that 77% of crack cocaine trafficking offenders were black and 6% were white. Yet whites are more likely to use cocaine in their lifetime than any other group, according to the 2020 survey. Current law sets an 18-to-1 ratio between crack and powder cocaine, meaning anyone found with 28 grams of crack cocaine would face the same five-year mandatory prison sentence as a person found with 500 grams of powder cocaine.

crack211102Sentencing disparities between crack and powder cocaine were originally created with a 100-to-1 ratio, but in 2010, Congress reduced the sentencing disparity to 18-to-1 in the Fair Sentencing Act, but advocates have fought to further narrow the sentencing gap.

EQUAL is likely to get a vote in the Senate before the midterms given the support of Schumer and the 10 GOP lawmakers, according to the Washington Times. The GOP support means the legislation is able to overcome a filibuster, provided all 50 Senate Democrats unite behind the effort. Sen. Joe Manchin (D-WV), who has been a maverick so far in this Session, also became a cosponsor last week.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that it now seems the EQUAL Act “may have a ready path to passage.”

If enacted, the EQUAL Act would not only level federal sentences for future crack offenses but would retroactively slash prison time for those already doing time. The U.S. Sentencing Commission, which has analyzed the impact of the bill, estimates about 7,600 prisoners – nearly 5% of the federal prison population – would receive a sentence reduction. In most cases, overall crack prison sentences would be cut by at least one-third.

Meanwhile, a marijuana reform newsletter last week reported that a bill to federally legalize marijuana may be coming up for another House floor vote next week, The newsletter’s sources said that “nothing is yet set in stone, despite recent calls to bring the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act to the floor again this month.

marijuana160818Nevertheless, rumors of a floor vote – the second time that the MORE Act reached the full chamber after being approved in 2020 – are rife after congressional Democrats held a private session at a party retreat that included a panel centered on the reform legislation. The bill, which would remove cannabis from the list of controlled substances, cleared the House Judiciary Committee last September.

Bloomberg, GOP Support Clears Senate Path for Bill on Cocaine Sentencing (March 23, 2022)

Washington Times, Schumer joins bipartisan push to cut federal prison time for nearly 7,800 crack cocaine traffickers (March 22, 2022)

Sentencing Law and Policy, Is Congress finally on the verge of equalizing crack and powder cocaine sentences? (March 23, 2022)

Marijuana Moment, Federal Marijuana Legalization Bill May Receive House Floor Vote Next Week, Sources Say (March 23, 2022)

– Thomas L. Root

Procedure Matters… Innocence? Not So Much – Update for March 24, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

IN § 2255 CASES, PROCEDURE MATTERS

procedure220324Over the past three weeks, Russia has been reminded of the truth of General Omar Bradley’s old saw that “amateurs talk strategy, professionals talk logistics.” Likewise, two cases handed down last week underscore the truth that inmates talk substance, judges talk procedure.”

DeMarko Collins pled guilty to being a felon in possession under 18 USC § 922(g)(1). DeMarko’s presentence report determined he had two prior felony convictions for crimes of violence, including a Missouri 2nd-degree robbery, which enhanced his Guidelines advisory sentencing range under USSG § 2K1.1.

Five months before DeMarko’s sentencing hearing, a divided 8th Circuit panel held in United States v. Bell that Missouri 2nd-degree robbery was not a crime of violence, but DeMarko’s attorney goofed and did not cite the decision in opposing the § 2K2.1 enhancement. The district court granted the government’s motion for an upward variance, and sentenced DeMarko to 216 months.

DeMarko appealed his sentence. Relying on Bell, he argued the § 2K2.1 enhancement should not have applied. But while his appeal was pending, the 8th Circuit en banc overruled Bell and held that a Missouri 2nd-degree robbery is a violent felony after all. Because of that, Demarko lost his appeal.

stupidlawyr191202DeMarko then filed a § 2255 post-conviction motion, arguing that his lawyer should have cited Bell, which had been controlling authority and good law at the time of his sentencing. The district court denied the § 2255, finding that even if DeMarko was right that his lawyer should have raised Bell at sentencing, “he cannot demonstrate he was prejudiced by” the error.

Last week, the 8th Circuit agreed, holding that by the time DeMarko on “direct appeal cited Bell in challenging his § 2K2.1 enhancement based on a Missouri 2nd-degree robbery conviction, Bell had been overruled… and this prior conviction was once again a predicate crime of violence under the Guidelines. Strickland prejudice ‘focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair…’ DeMarko was not deprived of a substantive or procedural right to which the law entitles him, so he ‘suffered no legally cognizable prejudice’.”

Meanwhile, in the 9th Circuit, Cesar Gonzalez filed a 28 USC § 2244 application for permission to file a second § 2255 motion. He wanted to argue that his 18 USC § 924(c) conviction for having a gun in furtherance of a crime of violence was invalid because his predicate crime – racketeering – was no longer a categorical crime of violenceunder a new rule of constitutional law announced in the Supreme Court’s United States v. Davis decision.

Last week, the 9th Circuit shot Cesar down, finding that his new Davis argument was not “previously unavailable” as required by 28 USC § 2255(h)(2).

When Davis was handed down, Cesar had filed his § 2255 motion, and the government had responded. Cesar, however, had not yet filed his reply. The 9th Circuit ruled that to show the argument was “previously unavailable” to him, he had to show “that the real-world circumstances that he faced prevented him, as a practical matter, from asserting his claim based on a new rule of law in his initial habeas proceeding.”

The Circuit said it “recognized that pro se prisoners face unique difficulties when litigating habeas relief or anything else, and that language barriers, as Cesar cited in his case, add to those difficulties.” However, the 9th ruled, “nothing in the text or context of AEDPA‘s previously-unavailable-claim requirement suggesting that this limited exception to the otherwise broad prohibition against filing second or successive habeas proceedings was intended to be applied subjectively.”

innocent210504The 9th concluded that Cesar could show that his new Davis argument was unavailable during his initial § 2255, where Davis issued shortly before Cesar filed his reply brief and a few months before the § 2255 was decided. Cesar had the facts that he needed for his claim, the Circuit held, and no systemic or external barrier prevented him from presenting his claim in his initial habeas proceeding.

So it did not matter that Cesar stood convicted of a § 924(c) offense unlawfully, because a hypothetical reasonable inmate would have tried to raise Davis in the nearly-completed § 2255 proceeding.

Substance? Who cares about substance when procedure triumphs?

Collins v. United States, Case No. 20-3662, 2022 U.S. App. LEXIS 6725 (8th Cir., March 16, 2022)

Gonzalez v. United States, Case No 20-71709, 2022 U.S. App. LEXIS 6943 (9th Cir., March 17, 2022)

– Thomas L. Root

COVID Isn’t Over, And Neither Should Be Compassionate Release – Update for March 22, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DON’T GIVE UP ON COMPASSIONATE RELEASE

“A triumphant President Joe Biden all but announced an end to the pandemic in the USA on Sunday… declared that the U.S. had achieved “independence” from the coronavirus…”

deadcovid210914Really? Is COVID over? Well, that quote would suggest it, except that Biden said that about nine months ago. A month after the Prez did his victory dance, COVID Delta blasted through FCI Texarkana, followed by the rest of the BOP. And that was only a prelude to Omicron, that at one point had 9,500 inmates sick at the same time.

As of last week, a surge in the new COVID variant BA.2 in Western Europe had experts and health authorities on alert for another wave of the pandemic in the USA. BA.2, even more contagious than the original strain, BA.1, is fueling the outbreak overseas, and will be here soon, experts say.  Last Sunday’s Times said, “Another COVID surge may be coming. Are we ready for it?”

At the same time, the number of prisoners in Bureau of Prisons custody increased by about 1,150 in the past month alone. Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that he

assumes this new data reflects some ‘return to normal’ operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and many fewer COVID-related releases) producing this significant one-month federal prison population growth. But, whatever the particulars, I will not forget that candidate Joe Biden promised to ‘take bold action to reduce our prison population” and to “broadly use his clemency power for certain non-violent and drug crimes.‘ Fourteen months into his administration, I am unaware of any bold action taken by Prez Biden and he has still yet to use his clemency power a single time, let alone broadly.

quit201208Prisoner numbers are the only thing going up. About 6,200 BOP employees left the agency in the last two years, which works out to almost nine people a day. 8.7 employees departing every day during that time period. The BOP refuses to give precise current numbers, but Insider magazine reported that from July 2021 to March 2022, it hired fewer than 2,000 replacements.

A BOP employee survey last year found that since the pandemic began, the “majority of respondents reported feeling increased stress or anxiety at work and being asked to perform tasks outside their normal duties.” Nearly one in three respondents who answered that they were stressed from the job reported that they have considered leaving the BOP, according to the survey.

Last week, the Dept of Justice released the promised memorandum ordering U.S. Attorneys not to require defendants to waive their right to file compassionate release motions as a condition of getting a plea deal. Notably, the DOJ told U.S. Attorneys that “if a defendant has already entered a plea and his or her plea agreement included a waiver provision of the type just described, prosecutors should decline to enforce the waiver. “

All this means compassionate release probably is far from over, both because of more COVID and as a means of addressing overcrowding. In a lot of places, it has played a role in correcting harsh sentences that could not be imposed today.

But not everywhere. The 11th Circuit is infamous for refusing judges the discretion to use sentences that could not be imposed today as a reason for compassionate release. Last week, the 8th Circuit made clear it had joined the 11th.

Antonio Taylor was convicted of nine offenses, three of which were 18 USC § 924(c) violations. The § 924(c) law at the time required consecutive prisons terms of 5, 25, and 25 years for the violations years. Tony got sentenced to 60 years (720 months).

The First Step Act changed the law so that the harsh consecutive sentences could not be imposed. If James had been sentenced after First Step passed, he would have faced 18 years, not 60. Tony filed for compassionate release in 2020, arguing the harshness and unfairness of his sentence. Similar arguments have won in a number of other circuits, starting with the 2nd Circuit in September 2020’s Brooker decision.

compassionlimit220322The Circuit, following its February decision in United States v. Crandell, held that “that a non-retroactive change in law, whether offered alone or in combination with other factors, cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A).”

As it stands now, a nonretroactive change in sentencing law can win a prisoner a sentencing reduction if he or she was sentenced in federal court in any of nine circuits. As for the other three, the inmate is out of luck. This cries for Supreme Court resolution.

Bloomberg, Biden Declares Success in Beating Pandemic in July 4 Speech (July 4, 2021)

Washington Post, A covid surge in Western Europe has US bracing for another wave (March 16, 2022)

Sentencing Law and Policy, Federal prison population, now at 154,194, has grown by well over 1100 persons in a short month (March 18, 2022)

Business Insider, Federal prison working conditions are getting worse despite Biden’s promise to improve conditions, staffers say (March 18, 2022)

DOJ, Department Policy on Compassionate Release Waivers in Plea Agreements (March 11, 2022)

United States v. Taylor, Case No 21-1627 (8th Cir., March 18, 2022)

– Thomas L. Root

EQUAL Act May Yet Make It – Update for March 21, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DESPITE HEADWINDS, EQUAL ACT MAKING SOME PROGRESS

Those who keep emailing me asking about rumors that Congress has just passed this or that bill favoring inmates should take a deep breath and consider how hard it is for Congress to pass legislation that almost everyone seems to be for. The biggest criminal-justice tease in the current Congress has been the EQUAL Act – which would eliminate federal sentencing disparities between crack and powder cocaine – that passed the House of Representatives overwhelmingly last September but has gone nowhere in the Senate.

Last week, Sen. Jerry Moran (Kansas) became the ninth Republican Senator to sign on as an EQUAL Act co-sponsor. That’s crucial: the bill can count on 50 Democratic Senators voting for it, but in the Senate, a controversial bill needs 60 votes to avoid a filibuster that would block a vote. Sen Moran locks in a 59th vote for EQUAL, increasing the odds that the Senate will bring it to a vote this year.

crack-coke200804EQUAL will make a gram of crack – now considered equal to 18 grams of powder – equal to a gram of cocaine. The change would be retroactive and would likely lead to a dramatic reduction in crack sentences across the board.

When might the EQUAL Act be voted on? Congress doesn’t keep a schedule like that. Often, a decision by leadership to bring a bill to a vote is announced only days or hours in advance and is driven by Congressional perception of public sentiment.

Sentiment might be going in the right direction. Last week, The Nation (which is considerably left of center politically) wrote that “just a few decades ago, the left and the right, politicians and the public, universally embraced the criminalization of drug use. But a new consensus has emerged.”

lifeline210421To the extent public sentiment is driven by facts – often an iffy proposition – a detailed study of federal life and “de facto” life sentences for drug offenses published earlier this month by The Ohio State University Drug Enforcement and Policy Center found that between 1990 and now, “crack cocaine was the most common drug type associated with life sentences imposed for drug trafficking… (48%), followed by powder cocaine (26%) and methamphetamine (14%).” Plus – and this may be the statistic that gets EQUAL passed – the study found what Filter magazine called “stunningly awful racial disparities. Federal life sentences are practically reserved for defendants who are black (62.4 %) or Hispanic (22%). Crack cocaine was the drug involved in roughly half of federal life sentences, yet the disparities held independent of drug type.”

The study also found that defendants who went to trial accounted for what the study called an “astonishing 72% percent of those sentenced to life or de facto life for drug trafficking.”

The phenomenon is usually called the “trial penalty.” I have some doubts about the amount of credence given to this statistic. It may be that people who went to trial were punished with life sentences they otherwise would have avoided without trial. But it is as likely that people whose Guidelines sentencing range – especially in the pre-Booker period when Guidelines sentencing ranges were mandatory – faced life whether or not they pled guilty. If a defendant is bound to get a life sentence whether he pleads guilty or not, he’s got nothing to lose and a chance – however slight – the jury might be crazy enough to acquit. Under those circumstances, the potential sentence drives the trial decision instead of the other way around.

life161207A more troubling statistic to my thinking was this finding: just five of the 94 federal districts – all three Florida districts, one in Virginia, and the District of South Carolina – accounted for 25% of life sentences imposed for drug trafficking during the study period. This is a powerful disparity argument for those sentenced in those districts, although unfortunately, it must be made to the very courts that are the worst offenders.

The study is right: crack sentencing has been a disaster for any notion of justice.

No one knows when the EQUAL Act will come to a vote, if it does at all. But a ninth Republican to sign on as a co-sponsor is a promising sign that common sense might prevail.

WIBW-TV, Moran becomes ninth GOP Senator to cosponsor bill equalizing sentences for crack, powder cocaine (March 18, 2022)

The Nation, How the Drug War Died (March 19, 2022)

Ohio State University, Drug Enforcement And Policy Center, Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020 (March 3, 2022)

Filter, Federal Life Sentences for Drugs: Unconscionable and Massively Biased (March 9, 2022)

– Thomas L. Root

A Moment in Time: Wooden Redefines ‘Occasions’ – Update for March 17, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE OCCASIONAL CRIME

As I reported last week, on March 7, the Supreme Court unanimously reversed a sentence in the case of Dale Wooden, a man who had received an Armed Career Criminal Act-enhanced 15-year sentence for having committed ten prior burglaries. He had broken into a self-storage building and burgled ten separate units all in one hour’s work.

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

The ACCA is a penalty statute. If someone possesses a firearm or ammunition while being prohibited from doing so – 18 USC § 922(g) includes prior felony convictions, being a fugitive, using controlled substances, even having a dishonorable discharge, and a host of other prohibitions – the penalty is up to ten years in prison. But if the defendant has been convicted of three violent felonies or serious drug offenses, and those three offenses were committed on “occasions different from one another,” the penalty jumps to a minimum of 15 years and a maximum of life without parole. Rather harsh…

Dale only had one wild night in a storage facility, when he broke through flimsy drywall walls separating individual storage units and took what he could find. But the state charged him with ten burglaries, which are considered to be violent crimes. Many years later, when a police officer who had stopped by Dale’s house saw a gun in plain sight, Dale was charged as a felon-in-possession. An enterprising U.S. Attorney figured that the ten burglaries had been committed on “occasions different from one another,” because, after all, you can only burgle one storage unit at a time. And that is how Dale became an armed career criminal.

Whether the occasions really were different from one another was the question that made it to the Supreme Court. Interpreting the ACCA’s “on occasions different from one another” language, all nine justices agreed that Dale’s ten burglaries occurred during the same “occasion.” Writing for the court, Justice Kagan first explained that according to its ordinary meaning, an occasion is “essentially an episode or event. If one learned about Wooden’s burglary spree,” Kagan explained, “they would say: ‘On one occasion, Wooden burglarized ten units in a storage facility.’ A person would not say: ‘On ten occasions, Wooden burglarized a unit in the facility.’ Nor would the average person describe Wooden breaking into each separate unit as its own independent occasion. Indeed, one need only turn to the dictionary to confirm this to be true, as the word occasion ‘commonly refers to an event, occurrence, happening, or episode’.”

If the Hamburglar stole them on successive days...
If the Hamburglar stole them on successive days…

Kagan ruled that “by treating each temporally distinct offense as its own occasion,” the government’s interpretation of the word “occasion” essentially collapses “two separate statutory conditions.” Kagan noted that the history of the “occasions” clause supports this interpretation. Congress amended ACCA to include the clause in order to write the Solicitor General’s position in United States v. Petty into law. In Petty, the Solicitor General admitted to the Supreme Court that the ACCA should be triggered only when a person’s prior convictions result from “multiple criminal episodes” even though such a requirement was not founded in ACCA’s text. Kagan explained that Congress amended ACCA to include the “separate occasions” requirement.

Recognizing that courts may struggle to define “separate occasions,” Kagan suggested standards: If offenses are committed “close in time,” they “will often count as part of one occasion; not so offenses separate by substantial gaps in time or significant intervening events.” She explained that in defining an occasion, “proximity of location is also important; the further away crimes take place, the less likely they are components of the same criminal event.” Finally, Kagan noted that “the character and relationship of the offenses may make a difference: The more similar or intertwined the conduct giving rise to the offenses… the more apt they are to compose one occasion.” She said that “applying this approach” will usually “be straightforward and intuitive.

Justices Gorsuch and Sotomayor were unsure how straightforward Kagan’s approach would be, given that different people may have “different intuitions about the same set of facts.” A multifactor balancing test, he wrote, did not give lower courts adequate guidance. “Imagine a defendant who sells drugs to the same undercover police officer twice at the same street corner one hour apart,” he wrote. “Do the sales take place on the same occasion or different ones?”

burglthree160124Gorsuch added that Kagan’s factors did not conclusively answer the question presented in the Wooden case. “When it comes to location, each storage unit had its own number and space, each burglary infringed on a different person’s property, and Mr. Wooden had to break through a new wall to enter each one,” Justice Gorsuch wrote. “Suppose this case involved not adjacent storage units but adjacent townhomes or adjacent stores in a mall. If Mr. Wooden had torn through the walls separating them, would we really say his crimes occurred at the same location?”

In Gorsuch’s view, the rule of lenity – the principle that courts should resolve statutory ambiguities in favor of criminal defendants – should come into play when courts struggle to decide whether crimes were committed as part of a single “occasion.”

Because Wooden’s decision interprets a statute, inmates in many circuits will be able to retroactively apply the decision to their ACCA convictions under the 28 USC § 2255(e) saving clause. It seems likely that the courts will struggle in applying the standards to the movant’s respective facts. Dale Wooden’s case seemed almost nonsensical. But what about (all too common) the guy who sold cocaine on a street corner for three successive days, and was convicted of three state-court distribution counts? Were those the same occasion? Or robs three banks in a week-long drug-addled frenzy?

The lawyers will be busy…

Wooden v. United States, Case No 20-5279, 2022 U.S. LEXIS 1421 (Mar 7, 2022)

SCOTUSBlog, Perhaps defining an “occasion” is not so difficult after all (March 8, 2022)

New York Times, Supreme Court Says 10 Burglaries Can Count as One Offense (March 7, 2022)

– Thomas L. Root

Beware the Ides… and the Rumors They Bring – Update for March 15, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

C’MON, PEOPLE…

caesar220315The Old Farmer’s Almanac reports that the full moon doesn’t happen until the end of the week, so I am unsure what accounts for the email box blowing up with rumors straight from inmate.com. Perhaps the Ides of March? They sure didn’t work for Julius Caesar.

Email 1: “Have you heard any talk about the FBOP or DOJ giving an extra 54 days good time for any reason. From what I understand nothing new has been done but inmate.com is spreading rumors and would like to hear from the expert.”

Email 2: “There is a rumor going around that the bop is giving an extra 54 days to all inmates come March 14 and that all inmates are getting a year off their sentence due to the covid pandemic. Is there any truth to this rumor?”

Email 3:  “How true is it that in some institutions they are giving 10 months of your sentence due to covid-19 lockdowns?”

bidenleprechaun220315Answer: Nope, nope, nope… President Biden is more likely to appear at a press conference dressed in a leprechaun suit than the government is to grant extra good time for COVID. First, neither the Dept of Justice nor the Federal Bureau of Prisons has the power to award more good-conduct time. The 54 days a year is set by Congress in 18 USC § 3624(b)(1). The rumor that either agency will do so is dead wrong.

Second, none of the bills getting any consideration by House or Senate committees proposes more blanket good time because of COVID or for any other reason.

Email 4: “What RIGHTS ‘got’ passed IN CONGRESS last night?”

Email 5:  “I heard Congress is supposed to be voting on something in late Spring, sometime in June, do you know if that’s Equal Act/Criminal Justice Reform?”

Congress votes on things all the time. It just passed a $1.5 trillion spending bill last week. But nothing has been passed on criminal justice reform by the entire Congress in its 14 months of existence. The House did pass the EQUAL Act – which would reduce punishments for crack cocaine to equal those for powder cocaine – but that bill’s stalled in the Senate. Right now, nothing is scheduled for floor time in the House or Senate on criminal justice reform (although that does not mean something won’t be in the future).

Time magazine last week ran a mostly complimentary article about Biden’s criminal justice accomplishments. But even it admitted that his efforts have fallen short: “The President said that he would revamp clemency power and use it for non-violent offenders and those incarcerated on drug crimes; Biden has not commuted or pardoned anyone so far. The US Sentencing Commission, which helps govern and address disparities in federal cases, currently has six open seats; Biden has not nominated anyone for the commission. Reducing the prison population was supposed to be another priority in Biden’s administration; there has not been much follow-through on that: The prison population is at around 1.8 million and while there was a period of decarceration at the start of the COVID-19 pandemic, that has since stalled.”

The article mentioned Biden’s failure to push the George Floyd Policing Act through the Senate, but did not even note the stalled  EQUAL Act, MORE Act, or First Step Implementation Act – all of the highest-profile reform bills now pending in Congress.

grid160411With the midterm elections coming up this fall – where all of the House of Representatives and one-third of the Senate is up for re-election – crime is going to be a major issue, and the Democrats are nervous. That usually means that the kinds of issues important to federal prisoners – retroactivity, EQUAL Act, marijuana reform, fixing First Step – are unlikely to be brought to a vote, because incumbents don’t want to take a stand they might have to defend on the hustings.

Finally, Email 5:  “Over 65 yrs old can release immediately, is it true?”

Oh, c’mon, people…

Time, Criminal-Justice Reform Was a Key Part of President Biden’s Campaign. Here’s How He’s Done So Far (March 7, 2022)

Washington Post, In San Francisco and elsewhere, Democrats fight Democrats over where they stand (February 17, 2022)

– Thomas L. Root

‘Compassionate Release’ is as Arbitrary as it Seems, Sentencing Commission Suggests – Update for March 14, 2022

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COMPASSIONATE RELEASE STATS ALL OVER THE MAP, SENTENCING COMMISSION REPORTS

shocked191024Everyone was shocked, shocked, I tell you, when the US Sentencing Commission reported last week that compassionate release since the passage of the First Step Act in December 2018 through the end of FY 2020 (September 30, 2020, has been largely a geographical crapshoot.

The 1st Circuit (Maine, New Hampshire, Rhode Island and Massachusetts) had the highest compassionate release grant rate at 47.5%, while the 5th Circuit (Texas, Mississippi and Louisiana) was lowest at 13.7%. Second place for compassion went to the 9th at 37.3% with honorable mention to the 7th at 36.6%. The bottom dwellers included the 11th at 19.5% and 8th at 21.3% (although in fairness, no other Circuit came close to the 5th Circuit’s dismal approval rate).

Within all of the circuits, the best places to win compassionate release were Rhode Island (25 compassionate release motions granted out of 32 filed, or 78.1%), Connecticut (49 of 68 granted, for 72.1%), and Oregon (39 of 55 granted, for 70.9%). At the other end of the scale, South Dakota (0 out of 16, for 0.0%), Western District of North Carolina (3 of 172, for 1.7%), and Southern District of West Virginia (1 out of 40, or 2.5%), were the worst places to be.

(I have excluded districts where fewer than 10 motions were filed from this: otherwise, Puerto Rico was the best place, with 8 out of 9 granted (88.9%)).

The national average for compassionate release grants during the 2-year period was 25.7%. Courts granted 1,805 requests in fiscal year 2020 and 145 requests in FY 2019.

Age, original sentence length, and the amount of time already served emerged as the central factors affecting likelihood of a compassionate release grant.

usscgraph220314By contrast, an offender’s race, criminal history category, and offense of conviction generally appeared to have little impact on the likelihood of a compassionate release grant. Still, it is interesting that the offenses most likely to get compassionate release were immigration (50% of compassionate release motions granted), administration of justice (42% granted) and bribery/corruption (37.8%). The offenses with the worst odds were stalking/harassing (12.5%), sexual abuse (13.2%) and kidnapping (13.8%). Someone with a murder conviction was more likely to win compassionate release (19%) than one with a child pornography count (17.6%).

On average, prisoners granted relief had served 80 months and at least half of their sentences. The success rate was 57%for prisoners who had been sentenced to a year or less, 20% for prisoners with sentences between 120 and 240 months, and 30% for those who had been sentenced to 20 years or more. The average compassionate release sentence reduction was 59 months (42.6% of the original sentence).

The pandemic led to a surge in motions from prisoners who worried that they might die from COVID-19 contracted in the crowded conditions of their confinement. Courts received more than 7,000 motions – 96% of which were filed by prisoners – and granted a quarter of them. Judges cited COVID-19 risks in granting compassionate release 72% of the time.

The study makes clear that how federal courts apply 18 USC 3582(c)(1)(A)(i) varies greatly, “underscoring the need to restore the U.S. Sentencing Commission,” Law360 said. “President Joe Biden, after a year in office, has yet to nominate new commissioners, keeping a potentially key player in justice reform on the sidelines.”

Individuals aged 75 or older, who make up a smaller portion of prison populations, were granted compassionate release at the highest rate — more than 60%. Courts granted compassionate release at the lowest rate — less than 20%— to people under the age of 45, according to the report. The most common reason for denying relief was failure to demonstrate an “extraordinary and compelling” reason (two-thirds of denials). Failure to exhaust administrative remedies, cited in a third of cases, was the next most common reason.

Notably, “danger to the public” was cited less than a quarter of the time, “which makes you wonder about the public safety rationale for keeping most of these prisoners behind bars,” Reason magazine said. ‘The ages of many federal prisoners cast further doubt on that rationale, since recidivism declines sharply with age.”

compassion160124

The number of compassionate releases in 2020 was anomalously high because of the pandemic. “After the study period ended,” the USSC notes, “the number of offenders granted compassionate release substantially decreased.” Yet the 1,805 people who were granted compassionate release in 2020 represented just 1% of the federal prison population. Congress, which sets federal penalties, and President Joe Biden, who has the power to free any prisoner whose punishment he deems unjust and promised to “broadly use” that power but has not used it at all yet, might want to consider the possibility that there is room for a bit more compassion.

Law360, Compassionate Release Grants Vary Without Advisory Board (March 10, 2022)

Reason, Compassionate Releases of Federal Prisoners Surged During the Pandemic (March 11, 2022)

US Sentencing Commission, Compassionate Release – The Impact of the First Step Act and COVID-19 Pandemic (March 10, 2022)

Reuters, Conservative U.S. judicial regions less apt to grant inmates compassionate release -commission report (March 10, 2022)

– Thomas L. Root