Tag Archives: first offender

Won’t Get Fooled Again by USSC Proposed Priorities – Update for July 5, 2018

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

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IT’S DÉJÀ VU ALL OVER AGAIN AT SENTENCING COMMISSION

fool180705Federal inmates who felt like the U.S. Sentencing Commission left them at the altar last April when the much-ballyhooed First Offender proposal disappeared from the amendments list without so much as a squeak ought to be forgiven for thinking the Commission should have released its set of proposed priorities for 2018-19 amendment cycle last week to the tune of the Who’s “Won’t Get Fooled Again.”

The Commission begins each amendment year by proposing priorities, which the public may comment on prior to adoption, either arguing against the proposals or even suggesting other priorities the commentators believe the Commission overlooked. Last year, the nonprofit prison group Prisology carried public participation in the USSC priorities inquiry to a new level, causing a flood of over 80,000 comments proposing that the USSC adopt a newer, kinder sentencing table.

In an action (or perhaps inaction) that spoke volumes about the contempt the Commission has for the agency rule making process, the Commission not only failed to adopt Prisology’s modest proposal  that revisiting the 30-year old sentencing table, it did so without so much as a single comment about having received 90,000 public comments on a single topic. To be sure, the Sentencing Commission, being a judicial-branch agency and not an executive-branch agency, need not comply with the Administrative Procedure Act, but a layperson (and even a lawyer) could be forgiven for asking what the point is of seeking public participation only to ignore it so completely as not even to acknowledge in a footnote that it ever happened?

futility180705One of last year’s priorities that did get adopted related to a proposed reduction in sentence levels to recognize that there are Criminal History I defendants and then there are Criminal History I defendants. Some Crim I people have a misdemeanor history that garners them one point, still little enough to fall in Crim I (the best criminal history category to land in). Other Crim I people may have done hard time, but did it so long ago that their incarceration ended more than 15 years ago. A few Crim I people have a virginal criminal history, never so much as a speeding ticket.

The USSC proposed to reward the virgins with not just the Criminal History I category, but an extra point or two off their Guidelines offense level score. The suggestion, called the First Offender proposal, made the priorities cut, then even the proposed proposed-amendments cut, only to disappear without a trace when the amendments to the 2018 Guidelines were adopted three months ago.

Unsurprisingly, the new priorities make no reference to the late First Offender proposal, either. It has become the Sentencing Commission version of George Orwell’s “unperson”: not only dead, but abolished, with any identifiable reference to it scrubbed from the record.

Nevertheless, if you are among the dozen or so people in America who think that public comment on the USSC’s priorities exercise  will amount to anything more than flatulence in a hurricane, here are the more interesting proposed priorities:

The Commission proposes considering how to reduce costs of incarceration and overcapacity of prisons by

• looking at the structure of the guidelines post-Booker to promote proportionality and reducing sentencing disparities, and to account appropriately for the defendant’s role, culpability, and relevant conduct;

• continuing to work with Congress to implement its recommendations to revise the career offender directive to focus on offenders who have committed at least one “crime of violence” and mandatory minimum penalties (including mandatory stacking of 18 USC 924(c) penalties; and

• considering possible amendments to the commentary of 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) in light of Koons v. United States, study of the operation of 5H1.6 (Family Ties and Responsibilities (Policy Statement)) with respect to the loss of caretaking or financial support of minors; and study of whether 1B1.13 (compassionate release guideline) effectively encourages the BOP Director to file a motion for compassionate release when “extraordinary and compelling reasons” exist.

Public comments are due by August 10, 2018. After that, the Commission will meet August 23 to select its priorities for the coming cycle. Don’t bet on the final list deviating from the proposed list by as much as a jot or a tittle.

But if you want to comment, knock yourselves out.

U.S. Sentencing Commission, Proposed Priorities for Amendment Cycle (June 28, 2018)

– Thomas L. Root
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Hope Springs Eternal in the New Year – Update for January 2, 2018

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

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WILL 2018 BE THE YEAR FOR SENTENCING REFORM?

Some commentators are predicting that 2018 will be a breakout year for criminal justice reform.

rocket-312767The conservative Washington Examiner said last week that “meaningful bipartisan legislation is poised for success in 2018.” The paper cited the Sentencing Reform and Corrections Act, the CORRECTIONS Act, and the Mens Rea Reform Act – all currently in front of the Senate Judiciary Committee – as demonstrating a bipartisan desire to see reform enacted In the House, Rep. Doug Collins, R-Georgia, introduced the Prison Reform and Redemption Act last July.

“We remain focused on comprehensive reform of the criminal justice system,” Mark Holden, senior vice president and general counsel at Koch Industries, told the paper. “It remains to be seen what Congress will be amenable to doing. However, both Speaker [Paul] Ryan and Senators Cornyn, Grassley, Lee and [Illinois Sen. Dick] Durbin have shown that they hope to pursue reforms in the coming year.” Holden and Koch Industries have been prime movers behind sentencing reform for several years. “Given the seemingly strong support for prison reform and re-entry reform,” he said, “this may be a starting point for criminal justice reform in 2018 which will hopefully lead to other reforms as well,” he said.

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

Rep. Collins’ bill would require Attorney General Jefferson Beauregard Sessions III to develop a risk and needs assessment system for criminals, while giving them incentives to lower their risk of recidivism. “Last year we saw both sides of the aisle and both ends of Pennsylvania Avenue hone in on prison reform as a way to strengthen the justice system,” the Examiner quoted Collins as saying. “In 2018, I think we’re going to see even more lawmakers come together to push forward where we have consensus, and the Prison Reform and Redemption Act captures a big part of those shared priorities at the federal level.”

Holden and Collins both were part of a bipartisan roundtable meeting on federal prison reform at the White House in September, convened by President Trump’s son-in-law, Jared Kushner.

Not everyone is hopeful. Kara Gotsch, manager of the Sentencing Project’s federal advocacy work, said she sees the chances for sentencing reform as slight, and expressed concern over changes being made at the Dept. of Justice. “Areas to watch are how Sessions’ harsher charging and sentencing policies take effect now that more Trump-appointed U.S. attorneys are being installed,” she said. On the other hand, “the U.S. Sentencing Commission is poised to issue new guideline amendments related to alternatives to incarceration which would expand eligibility for federal dependents to receive a non-incarceration sentence.”

Virgin180102Also on the horizon is a Sentencing Commission proposal floated last year to adopt a “first offender” provision that would reduce the Guidelines score of people with no prior offenses. The Commission has not adopted the proposal yet, and has not yet settled on whether the reduction would be one level or two, and whether to qualify, a first offender would just need a criminal history score of zero, or whether he or she would need a prior record that was absolutely clean. Likewise, the Commission has not hinted whether a first offender proposal would be retroactive. Nevertheless, the possibility of a beneficial Guidelines change makes 2018 look more promising than the prior year.

Looming over sentencing reform, however, is the opioid crisis. Republican senators such as Rob Portman from Ohio and Democrats like Elizabeth Warren from Massachusetts are making the case that opioid addiction should not be criminalized. The Washington Spectator said last week that “before in our nation’s history had we seen such a vocal and powerful bipartisan push among politicians to make sure that drug addiction, at least addiction to some drugs, is treated like the public health crisis it always was… Even when the Republican attempt to overhaul Obamacare failed this summer, bipartisan calls to protect opioid addicts didn’t die out. Again, this is a good thing as it suggests that even in the Trump White House, there might remain the possibility of at least some criminal justice reform. But protecting some is hardly protecting all, or even most, of the people who suffer the consequences of criminalizing addiction in this country. Indeed, those very same politicians who continue to clamor for a different approach to opioid addiction are now insisting that we must start “beefing up other tough-on-crime laws” for everyone else.”

got-skepticismEver cautious and thoughtful, Ohio State University law professor Doug Berman expressed skepticism in his review at his Sentencing Law and Policy blog: “As is my general tendency, I am hopeful but not optimistic about the prospects for federal statutory sentencing reform during a pivotal election year. If other possible ‘easier’ legislative priorities get completed (or falter), I could see at least some modest reforms making it through the legislative process. But inertia can be a potent political and practical force in this setting, especially in an election year, so I am not holding my breath.”

Washington Examiner, Criminal justice reform poised to take off in 2018 (Dec. 30, 2017)

Washington Spectator, Opioid Concerns Supplant Hopes for Broader Reform (Dec. 26, 2017)

– Thomas L. Root
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