Tag Archives: sentencing reform

AG Sessions is a Chess-Playing Pigeon – Update for February 15, 2018

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





The Senate Judiciary Committee’s consideration of the Sentencing Reform and Corrections Act (S.1917), a bill which injects some sanity into both sentencing and rehabilitation policies, comes to a head with a mark-up and vote today. And unsurprisingly, the Attorney General – who never met an inmate he didn’t think should be serving multiple life sentences – weighed in on the widely-supported measure yesterday.

argueidiot180215In a letter to the Committee, Attorney General Jefferson Beauregard Sessions III warned that S.1917 “would reduce sentences for a highly dangerous cohorts of criminals, including repeat dangerous drug traffickers and those who use firearms and would apply retroactively to many dangerous felons, regardless of citizenship or immigration status,” Sessions wrote.

Of course, the bill would only entitle persons convicted and sentenced in ways unintended by Congress when it wrote 18 USC 924(c) and some other recidivist statutes to ask their sentencing judges for a reduction under 18 USC 3582(c)(2). The judge is entitled under that statute to grant the request in full, deny it in full or grant it only in part. But the AG hardly trusts federal judges – the people who impose sentences to begin with – to make a reasoned decision about the risk that sentence reduction will create when “a highly dangerous cohorts of criminals” is involved .

sessions180215The Attorney General’s scolding was not well received by Sen. Charles Grassley (R-Iowa), chairman of the Committee. The Washington Post reported Sen. Grassley was “incensed” at Sessions “for trying to derail a bipartisan bill that would reduce mandatory prison terms for drug offenders on the eve of its first procedural vote.” Sessions and Grassley have long been at odds over the measure, which reduces the length of mandatory minimum sentences for repeat nonviolent drug offenses, eliminates the “three strike” provision of 18 USC 3559(c)(1) that requires a life sentence, and gives judges greater leeway to impose sentences under the mandatory statutory minimum sentences for some offenses, when certain conditions were met. The reforms embraced by the bill fly in the face of Sessions’ bid to wage a new war on drugs, leading him to label the bill a “grave error.”

Grassley wasted no time publicly blasting Sessions, giving the AG what the Post called “a short reminder about who in the government makes the federal laws — and who is supposed to follow them.”

tweet180215In October 2015, the panel passed an identical measure, sending it on to the full Senate by a 15-5 vote.

Committee members anticipated Sessions’ outcry. Last week, the Committee spent most of its hearing time debating how best to get favorable action in the Senate. John Cornyn (R-Texas), one of the bill’s sponsors, said, “Given the opposition of the Attorney General and given the vocal opposition of some law enforcement groups, I honestly don’t see a path forward for that bill…”

Cornyn, who serves as Senate majority whip, said Senate Majority Leader Mitch McConnell (R-Kentucky) would be more likely to bring a prison reform bill to the floor than a sentencing reform package that might be a wedge within the Republican caucus. Cornyn said the committee’s best opportunity to move a criminal justice bill would be his legislation, proposed along with Sen. Mike Lee (R-Utah) and Sheldon Whitehouse D- Rhode Island), which contains only provisions aimed at easing re-entry for prisoners — “and then building on that as we can” with a sentencing amendment process on the floor.

Sen. Dick Durbin (D-Illinois), a prominent co-sponsor of the bill, disagreed, saying the Senate should not abandon bipartisan legislation just because the administration does not fully support it. “It’s a sad day if we are saying that we will not consider a measure in the halls here of the Senate Judiciary Committee if the attorney general of the United States opposes it,” Durbin said at the committee meeting. “For goodness sakes, have we reached that point? I hope not.”

“I’m worried that if we just revisit the Sentencing Reform and Corrections Act, which failed during the Obama administration, given this change in the new administration and its views on the sentencing reform component of it, we’re going to have nothing to show for our efforts,” said Cornyn, using the bill’s formal title. “I know we all tried to work together on this and it just didn’t work out.”

bipart160307Sen. Grassley said at the time the compromise SRCA bill would be the best way to get the sentencing and prison provisions into law. “It’s a matter of process and around here — nothing gets done unless it’s bipartisan. And I don’t often agree with Sen. Durbin, but we put together a bill that we worked really hard and we think it’s the only way of advancing both bills… There’s some people around here [who] are just a little bit afraid of what you call an Assistant U.S. Attorneys Association and they’re stopping everything from being done that is so successful in the other states. And when some people are willing to stand up to those leaders of the Senate, we’ll get something done in both areas.”

Congress is expected to remain focused on immigration-related debates for the foreseeable future, as the March 5th deadline for the expiration of the Deferred Action for Childhood Arrivals program approaches.

One political observer, who writes under the pen name “root” (and has nothing to do with the author of this blog), said he has spoken to Grassley, and that the Senator “plans to use his substantial political clout to press Trump to change his mind.” The commentator said,

Trump bends over backwards to keep Grassley happy. He knows that as Judiciary Chairman, Grassley played a crucial role in delivering two of Trump’s biggest successes so far: the confirmation of Supreme Court Justice Neil Gorsuch and a modern record for circuit court judges in a president’s first year. ‘I’ve carried a lot of water for the White House,’ Grassley told me. ‘They ought to give some consideration for the close working relationship we’ve had on issues we agree on… I think people at the White House have not wanted to go against Gen. Sessions,’ he added, before closing with a sentence crafted perfectly to appeal to Trump’s ego. ‘This is an opportunity for a bipartisan victory by the President of the United States’.

Washington Post, Grassley ‘incensed’ by attorney general’s attempt to stymie sentencing reform (Feb. 14, 2018)

10ztalk.com, root, Grassley twists Trump’s arm for criminal justice reform (Feb. 11, 2018)

Reuters, U.S. attorney general opposes plan to reform prison sentencing (Feb. 14, 2018)

District Sentinel, Senate Committee to Advance Criminal Justice Reform Once Opposed by Jeff Sessions (Feb. 8, 2018)

Roll Call, Senators Ponder How to Break Criminal Justice Logjam (Feb. 9, 2018)

Courthouse News Service, Cornyn Sees No Way Forward for Sweeping Criminal-Justice Reform (Feb. 8, 2018)

– Thomas L. Root


Criminal Justice Reform Accelerates – but in a Different Direction – Update for January 29, 2018

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


momentum180129Momentum is building under the Trump administration for criminal justice reform, even as the debate veers away from mandatory minimums to preventing inmates from returning to prison. A report in The Hill last week said politicians now believe this approach has the best chance of winning approval from both Congress and the White House.

The Hill reported, “A source familiar with the talks between the White House and GOP members of Congress said a bipartisan prison-reform bill, the Prison Reform and Redemption Act, H.R. 3356, offered by Rep. Doug Collins (R-Georgia) is expected to be marked up in the House Judiciary Committee before the first quarter ends in April. Co-sponsored by eight Democrats and seven Republicans, the PRRA allows prisoners to serve the final days of their sentences in halfway houses or home confinement and to earn extra good time. To do so, prisoners have to complete evidence-based programs while in prison that have been shown to reduce recidivism rates.

Senate Majority Whip John Cornyn (R-Texas) and Sen. Sheldon Whitehouse (D-Rhode Island) have introduced similar legislation in the Senate, and reportedly are working closely together to ensure any differences between their bills are reconciled, the source familiar with talks said.

The conservative billionaire brothers Charles and David Koch unveiled a program this past weekend, “Safe Streets and Second Chances,” intended to shift America’s criminal justice system from a focus on punishment to rehabilitation.

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

At the announcement of the new initiative, Koch Industries general counsel Mark Holden downplayed the challenge Attorney General Jefferson Beauregard Sessions III poses to Koch’s criminal justice reform objectives. Holden said Sessions is on board with prison reform. “I had a good discussion with him in a meeting at the White House a couple of weeks ago,” Holden said. “We’re going to meet people where they are. And hopefully we can get more success in this area when we show some success with prison reform.”

Rep. Bobby Scott (D-Virginia) said late last week he hasn’t given up hope on Sessions coming around on sentencing reform, pointing to that fact that as a senator Sessions helped pass the Fair Sentencing Act, which improved the racial disparity in cocaine crime sentencing.

The Hill, Prison reform gains new momentum under Trump (Jan. 24, 2018)

WTKR-TV, Koch network leader says Attorney General Jeff Sessions “on board” with prison reform (Jan. 28, 2018)

Washington Examiner, Koch brothers introducing new criminal justice reform initiative (Jan. 24, 2018)

Axios, Rep. Scott hasn’t given up on Sessions on sentencing reform (Jan. 27, 2018)

– Thomas L. Root


Last Week’s White House Meeting on Crim Justice Reform: Beginning of the End? – Update for January 19, 2018

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


wall180119Earlier this week, we reported that President Trump and Jared Kushner, his son-in-law and senior adviser, met with criminal justice reform advocates a week ago on prison reform and re-entry. We noted that “the meeting emboldened some advocates who saw it as a sign the White House is officially on board with criminal justice reform. Mark Holden, general counsel of Koch Industries, came away from the meeting with a sense of optimism, noting that President Trump was an active participant during the 45-minute session. “I saw some passion there,” Holden said, admitting that he hopes prison reform can be the start to broader federal criminal justice reform.

Now for the darker side. Vice reported this week that Kushner’s plan for a bipartisan initiative to reform the U.S. criminal justice system hit the wall (and we don’t mean that wall) prior to the meeting. Kushner’s comprehensive proposal – which included incentives to companies for hiring former felons, investing in inmates once they leave prison – most importantly focused on reforming sentencing laws, especially mandatory minimum sentencing.

sessions180119So nearly everyone was surprised that last week’s meeting omitted any talk about sentencing reform as such, especially about reforming mandatory minimums. It appears that in order to entice Attorney General Jefferson Beauregard Sessions III – who adamantly opposes reforming mandatory minimum sentencing – to attend the roundtable, Kushner had to drop any mandatory minimum discussion from the agenda. Thus, the AG has effectively blocked sentencing reform from becoming part of the White House reform agenda, Vice reports, citing statements made by three people who have attended meetings with White House advisors on the issue over the past few months.

“Sessions was very powerful in the Senate, but I think he’s actually more powerful now to oppose the bill,” Vice quotes a source familiar with White House meetings on the issue as saying. “He has an ability to keep in line several members on the conservative side, the DOJ would take a position on the bill, that would scare the Republicans.”

At the meeting, the President suggested creating more programs for job training, education, mentoring and drug addiction aimed at rehabilitation.

Ohio State University law professor Doug Berman, who writes the authoritative Sentencing Law and Policy blog, wrote earlier this week that he “remain confident that any number of bills with sentencing reform components could get a majority of votes on the floor of the House and the Senate if leadership would bring these bills up for a vote.  But I surmise AG Sessions has enough sway with leadership (especially in the Senate) to get them to prevent a vote on any bills the AG opposes.”

To be sure, some corrections reform could be a significant boost to many of the 183,470 federal prisoners in the system, reaching substantially more of than reforms in mandatory minimums, which would affect about 25% of the population. But that 25% is serving a disproportionate amount of the time handed out to inmates. What’s more, much of the talk about corrections reform is focusing on “nonviolent” offenders, no doubt because limiting any incentives to nonviolent offenders is a much easier “sell” to the public.

violence151213But violent offenders by and large get out of prison, too, and logic suggests that effective rehabilitation of someone who has in the past bludgeoned a grandmother might yield substantially more public safety benefit than rehabilitating someone who sold marijuana on the street corner.

I received a thoughtful email from a “violent offender” earlier this week. He complained that

[e]very time I read these newsletters all they talk about is reform for non-violent offenders. They say that these reforms and programs are designed to help non-violent offenders reintegrate back into society and to give them a chance to become normal citizens again. Why just non-violent-offenders? Why wouldn’t you want all offenders to get out and become normal citizens again… Just because an inmate has what is considered a violent charge does not make that person in fact violent. In most cases it just makes him/her stupid. I have been locked almost 16 years. I have never had even one write up for disciplinary action. I have taken over 60 programs while in Federal custody. But because I committed a crime with a violent nature I have been designate as a Public Safety Factor. This has excluded me from getting to go to camp, Half-way house, home confinement and any reduction in my sentence. I did wrong, really wrong and I have tried every day of my sentence to make amends and to change the person I am into a person who can be a good citizen again. The question is why have I been good? The answer is that I want to change…

heraclitus180119Heraclitus wrote that ““No man ever steps in the same river twice, for it’s not the same river and he’s not the same man.”

Heraclitus understood it. Our inmate correspondent understands it. Just about everyone gets it… except for the AG.  But that hardly matters… it seems that as long as Mr. Sessions is the Attorney General (and has President Trump’s ear, a situation that changes from day to day), sentencing reform is foundering.

Vice News, Jared Kushner’s prison reforms hit a brick wall called Jeff Sessions (Jan. 17, 2018)

Sentencing Law and Policy, Detailing how AG Sessions seeks to block sentencing reforms in White House criminal justice reform push (Jan. 17, 2018)

The Hill, Trump, Kushner meet with advocates on prison reform (Jan. 11, 2018)

–    Thomas L. Root

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.


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

Sentencing Commission Releases Sobering Mandatory Minimum Report – Update for July 12, 2017

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


mandatory170612Everyone appreciates on a visceral level how badly Congressional meddling in sentencing – in the form of statutorily-imposed mandatory minimum sentences – has loaded the BOP with inmates serving harsh sentences and skewed any attempt by the United States Sentencing Commission to impose a rational system. Thanks to a USSC report issued yesterday, everyone’s understanding of mandatory minimum sentence havoc can be intellectual as well.

The USSC study, An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017 Overview), examines the application of mandatory minimum sentences and the impact of those penalties on the federal prison population.”

The 89-page report is a bonanza of data on mandatory minimums. Perhaps most significant to us is the fact that over half (55.7%) of federal inmates at the end of last fiscal year were serving time for offenses carrying mandatory minimum sentences. Recall that one of our criticisms of Prisology’s sentencing table reform was that so many inmates – perhaps 150,000 – would be eligible for a sentence reduction were the table made retroactive that the courts would be overwhelmed. This likely flood of sentence reduction motions would probably cause the Commission to refuse retroactivity.

The Report’s number suggests that even if the table were amended and made to apply retroactively, only about 83,000 inmates would be eligible for a sentence reduction under 18 USC 3582(c)(2). That number is still high, but much more manageable than our original estimate. While we still have substantial doubts that the Prisology proposal will go anywhere, we acknowledge that the sheer volume of eligible inmates is less than half of what we anticipated, tipping the probability scale more in Prisology’s favor.

keynes170712Other interesting facts gleaned from the Report:

•   The average sentence length for inmates serving mandatory minimum sentences convicted was 110 months, nearly four times the 28-month average sentence for inmates without a mandatory minimum.

•   Over one-third (38.7%) of inmates convicted of a mandatory minimum offense received relief from the mandatory minimum at sentencing, a decrease from 46.7% six years before.

mandatorywhere170712•   Fewer that 10% of defendants in Vermont, West Virginia, New Mexico and Arizona were convicted of mandatory minimum offenses. But in middle Illinois, southern Indiana, western Kentucky, eastern Tennessee, and northern and middle Florida, between 40% and 50% of defendants were hit with mandatory minimums.

• While drug and gun mandatory minimum sentence convictions have stayed level or dropped since 2002, child porn and sexual offense mandatory minimums have skyrocketed from fewer than 5% of all defendants charged with those offenses to 60%.

mandatorywhenJudge William H. Pryor, Jr., Acting Chair of the Commission, said in a press release that “when Congress created the Commission, Congress empowered it to serve ‘as a clearinghouse and information center’ about federal sentencing and to assist Congress, the federal courts, and federal departments in the development of sound sentencing policies… The Commission has published this report to fulfill that Congressional mandate.”

In a 2011 report, the Commission urged Congress to moderate drug, firearm and sex/porn mandatory minimums. Since that time, Congress has proposed adding several new mandatory minimums, but thus far has ameliorated nothing.

U.S. Sentencing Commission, An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (July 11, 2017)

– Thomas L. Root


Just Because Your Friends Do It Doesn’t Mean It Isn’t Hopemongering – Update for July 5, 2017

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


mouse170706From time to time, we rail about hopemongerers, people who traffic on the desperation of federal inmates to make a buck. The people who do this spectrum from those proceeding out of naïve self interest, like the Colorado prison reform group that is really just the families of the co-conspirators in a white-collar fraud, to the genuinely corrupt, like the bunch selling a sentence reduction scam.

(A happy note: Alvin Warrick, aka “Pete Candlewood,” last week got slammed with a 235-month sentence in the Southern District of Florida, while sidekick Colitha Bush got 96 months – we’ll be sure to offer them the Rule 35 Deal of the Century).

But sometimes someone with the most altruistic of motives inadvertently stirs the pot of hope, sending the system into a tizzy for no good reason. And that brings us to our friends at Prisology.org.

Prisology is an on-again off-again prison reform group headed by Brandon Samples, a former federal inmate who is now a practicing attorney. Brandon’s a sharp guy, someone who has been in both seats at the defendant’s table, as a defendant facing a harsh sentence and as counsel working to get his client the best outcome possible.

prisologyL170706Prisology, formed in 2013, became active in about 2014, organizing a letter-writing campaign to the U.S. Sentencing Commission when Amendment 782 – retroactivity of the two-level reduction in drug base offense levels contained in USSG Sec. 2D1.1(c) – was being considered. The organization’s website touts its involvement in the 2014 efforts, claiming that its “monumental effort” in submitting tens of thousands of letters to the Sentencing Commission in support of retroactive application of the 2-level drug reduction “helped prompt change to harsh drug guidelines.” Indeed, in a press release issued in March 2015, Prisology said, “Key to the Sentencing Commission’s unanimous approval of Amendment 782 was its receipt of over 75,000 comments favoring the reform, mostly prompted by an intensive email, letter writing and social media campaign organized by Prisology. This is the first major victory for the barely year-old nonprofit organization dedicated to criminal justice system reform.”

Really? This would certainly be news to Families Against Mandatory Minimums, the 25-year old big gorilla in criminal justice reform. FAMM took credit for generating most of the 65,000 plus letters the Sentencing Commission received, a claim that – given FAMM’s prominence in sentencing reform – is much easier to swallow that Prisology’s assertion that it organized the effort.

rooster170706In all fairness, even if one credits Prisology’s rather far-fetched contention that it ramrodded the 2014 drug reduction retroactivity decision, the organization is pretty much the rooster taking credit for the sun rising. After all, in 2007, the Sentencing Commission reduced the offense levels for drug quantities, and made those changes retroactive in Amendment 706. In 2011, the Sentencing Commission again made reduced crack cocaine offense levels retroactive in Amendments 750 and 759. After those retroactive reductions, the 2014 decision was hardly a seismic event.

Plus, it’s not like the retroactivity decision had any natural predators. The Obama Administration supported it. There was no effort in Congress to thwart it. The Sentencing Commission’s vote on retroactivity was unanimous. And FAMM, a considerably larger advocacy group, was generally credited at the time with generating a vast volume of mail in support of retroactivity.

After 2014, Prisology seemed to fall dormant. It posted two press releases in early 2015, one of which was its self-adulation for spearheading the 2014 retroactivity decision. There was one project, Prisology’s Freedom of Information Act lawsuit against the Federal Bureau of Prisons, in which the nonprofit had its hat handed to it by the D.C. Circuit earlier this year. But otherwise… nothing.

prisology170706Until now. A few weeks ago, we heard from a number of inmate readers asking us what was about to happen in the sentence reform world. It seems they had received emails from well-known federal post-conviction attorney Jeremy Gordon – a Prisology board member who was at the helm of the FOIA suit when it foundered on the D.C. Circuit’s shoals – who told them something big was in the works: One wrote

Do you know who Jeremy Gordon is? He’s a federal lawyer that sends out newsletters every week. Any way he said to tune in next week because there’s going to be a big sentencing reform push bigger than the drugs minus 2 and has the potential to affect everyone in federal prison… have you heard anything?

Yes, we have now heard something. After all of the hoopla, Jeremy, Brandon and Prisology last week brought forth a… mouse.

It seems that Prisology has drafted a new sentencing table (Chapter 5A of the Guidelines), which proposes substantially lower sentencing ranges for each step in the chart than those in the current table. It wants to generate 50,000 letters to the Sentencing Commission in an effort to browbeat the agency into adopting the proposal. The organization includes a form on its website that you can complete and submit online, complete (of course) with your name, address, email and phone number.

OK, so what could possibly be wrong with this? To be sure, the Guidelines would benefit from a more rational sentencing range chart. And, as one inmate complained to us, at least this constitutes “doing something” toward sentence reform. Something’s always better than nothing, right?

petition170706We have two – maybe two-and-a-half – complaints with Prisology’s approach. First, the Sentencing Commission’s statutory mandate nowhere mentions vox populi. The Commission is a judicial agency, not a representative democracy, and flooding it with 50,000 online forms, all of which are different names attached to the same message written by Prisology, is not going to sway any bureaucrat. Online petitions do not get read. If the sentencing tables should be rewritten, then a compelling case should be made, one that addresses the sentencing factors of 18 USC 3553(a) and that statutory goals of the Commission. After all, 50,000 online signatures in a country where more than half of Americans believe aliens have visited earth does not really establish much.

Our second complaint is more significant. By trumpeting this online petition so prominently, and billing it to inmates as “bigger than the drugs minus 2,” as our correspondent put it, Prisology has committed the cardinal sin of hopemongering. Let’s say for a moment that the Sentencing Commission really did adopt the new sentencing table. Nothing about that adoption makes the change retroactive. Rather, as with all of the drug reductions, the Commission would have to hold a second proceeding to determine retroactivity.

And there’s the rub. In considering retroactivity, the Commission considers, among other factors, (1) the purpose of the amendment, (2) the magnitude of the change in the guideline range made by the amendment, and (3) the difficulty of applying the amendment retroactively. See USSG Sec. 1B1.10.  In 2010, when the Commission abolished the extra criminal history point assigned for “recency,” that is, when the new crime occurred within two years of getting off parole or supervised release for a prior crime, the Justice Department and the Judicial Conference strongly opposed retroactivity for the “recency” amendment – which would have affected maybe 7,997 prisoners – because of the disruption such a change would have caused the court system. Bowing to those views, the Sentencing Commission turned down the retroactivity proposal.

falsehope170206How likely would the Sentencing Commission be to approve retroactivity for over 150,000 prisoners, so that each could file a petition with his or her judge seeking resentencing at a lower sentencing range?

Finally, our complaint No. 2½: We cannot help sensing that maybe Prisology’s primary purpose in the online petition is to capture data. As Heather Horn wrote in The Atlantic:

It’s the great lie of online organizing: that your voice to Congress or your voice to whomever can make a difference. It can, it should, but not through them. Nearly every organization in Washington is focused on one thing–inventing new and interesting ways to get your email address. And they want your email address so that they can ask you for money.

You don’t need a physical address, phone number and email address to sign an online petition. Congress alone gets over a billion emails annually. No one has time to read them, let alone record the user information. The organization, however, does, and it gains a valuable email, phone and address database from which to solicit funds.

We are left with the disquieting feeling that Prisology may be as interested in bulking up its email list as it is in selling the Sentencing Commission its new Sentencing Table.

Is the Prisology online petition push a scam? We have no opinion on that, but it has clearly raised inmate hopes without foundation and has little chance of having any impact.

The Atlantic, Your Online Petition Is Useless (Aug. 12, 2010)

– Thomas L. Root


Sessions Channels His Inner Ashcroft – Update for May 15, 2017

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

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

Attorney General Jeffrey Sessions last week walked back Eric Holder’s 2014 DOJ order to go easy on drug offenders, telling federal prosecutors to “charge and pursue the most serious, readily provable offense” in drug cases, even when that would trigger mandatory minimum sentencing. The new policy cancels the Obama administration’s attempts to pull back on harsh sentencing strategies, which had produced a huge growth in prison populations, restoring the take-it-to-the-limit policies from a 2003 memo written by George W. Bush AG John Ashcroft.

The shift highlights the primary role US Attorneys and their minions play in setting federal sentences. The Atlantic said, “Prosecutorial discretion, like gravity, is the unseen force that binds the American criminal-justice system together. Federal prosecutors have a broad array of legal mechanisms at their disposal with which they can ratchet a defendant’s punishment higher or lower, depending on which charges they file and end with plead deals, making the AUSA the most influential actor in the federal system.”

lawandorder161219Sessions’ memo drew universal Democrat condemnation, and caught immediate heat from conservatives, too. Sen. Rand Paul (R-Kentucky) said mandatory minimum sentences “have unfairly and disproportionately incarcerated too many minorities for too long.” Sen. Mike Lee (R-Utah), one of the conservative leaders in advocating changes to the criminal justice system, lamented, “To be tough on crime we have to be smart on crime. That is why criminal justice reform is a conservative issue.”

The Sessions memo, not wholly unexpected, nevertheless comes at a time when bipartisan support has been quietly building in the Senate for an overhaul of federal sentencing. Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Minority Whip Dick Durbin (D-Illinois) have proposed pushing a modified version of last year’s Sentencing Reform and Corrections Act.

“This policy shift flies in the face of the growing bipartisan consensus that we need to reduce—not increase—the length of prison sentences for nonviolent drug offenders,” Durbin said in a statement Friday.

justicereform161128An organization supported by conservative businessmen Charles and David Koch is also criticizing the Sessions memo. “We favor a different approach which requires changing some of the existing federal laws,” Freedom Partners Chairman Mark Holden said in a statement Friday afternoon. “Fortunately, there are already federal reform bills from last year that have broad bipartisan support that will address this issue. These reforms are consistent with those enacted by many states the past 10 years.”.

Yesterday, conservative blog Hot Air railed against the Sessions memo, arguing that federal law is so bloated that “some people don’t even know they’ve committed a crime because of how many rules and regulations there are on the books. Justice reform in states like Texas and Georgia have shown crime rates and expenses go down when reforms are enacted. The people leading the charge for justice reform aren’t cop haters, but want there to be alternatives to keep those who aren’t hardened criminals from becoming them. Sessions is wrong and should reconsider his horrible memo which won’t help anyone, except maybe prison builders and his own department’s budget. Congress can stop this by enacting sentencing reform, but only if they’re willing to act.”

His hands may end up as tied as were his predecessor's.
His hands may end up as tied as were his predecessor’s.

The Republican response, even more than that from across the aisle, suggests that the Trump administration may soon learn what the Obama Administration realized to its chagrin. It may be able to make a number of changes on the Executive side, such as rolling back federal sentencing reform, increasing federal prosecutions for drug and immigration-related offenses, and expanding federal private prisons. But Trump can no more end criminal justice reform than Obama was able to end mass incarceration from the White House.

Los Angeles Times, Sessions restores tough drug war policies that trigger mandatory minimum sentences (May 12, 2017)

– Thomas L. Root


Two Outta Three Ain’t Bad – Update for May 11, 2017

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


Back in the good old days, when the Executive Branch pretended to care about rational federal sentencing policies (and we’re not saying that the prior inhabitant of the White House really did, other than to the extent he could use sentence reform to burnish his legacy) the U.S. Sentencing Commission adopted an amendment to the federal sentencing guidelines that reduced by two the offense levels assigned to drug quantities. The 2014 change reduced defendant’s sentencing ranges accordingly.

USSC170511Unlike most changes in the Guidelines, the Sentencing Commission made the 2-level reduction retroactive to people already sentenced. Retroactivity under the Guidelines is not an automatic thing: a defendant must petition his or her sentencing court under 18 USC 3582(c)(2) for a sentence reduction pursuant to the retroactive Guideline. If eligible, an inmate still must convince the court that a reduction of his or her sentence ought to be awarded. Sentencing courts have wide discretion as to what to do with a sentence reduction motion, and district court decisions are nearly bulletproof.

The Sentencing Commission released a report Tuesday on the fallout from the 2014 2-level reduction. Slightly more than 46,000 people applied for the reduction, of whom a few more than 30,000 receive sentence cuts, for a 66% grant rate. Like Meatloaf said, “Two outta three ain’t bad.”

funwithnumbers170511Actually the odds for defendants were even better than that: 24% of the people who applied were not even eligible for the reduction, for reasons ranging from not having been sentenced under the drug guidelines to being locked in place by statutory mandatory minimum sentence. Only 8% of the 46,000 were denied on the merits (although due to sloppy district court records, the number could have been as high as 13%).

sentence170511The average sentence was cut from 144 to 119 months, a 17% reduction. Of those receiving sentence reductions, 32% were convicted for methamphetamines, 28% for powder cocaine, 20% for crack, 9% for pot and 7% for heroin. The racial and ethnic distribution was 30% white, 33% black, and 41% Hispanic. Curiously enough, the defendant’s criminal history seemed to have no effect on likelihood of receiving a sentence cut, with novices and pros alike getting cuts at about the same rate.

Defendants were better off in Chicago than they were in sunny California. The 7th Circuit gave the largest sentence cuts, 33 months off on the average (20% of the original sentence). The 9th Circuit was the stingiest, giving an average cut of 20 months (16% of the sentence).

U.S. Sentencing Commission, 2014 Drug Guidelines Amendment Retroactivity Data Report (May 10, 2017)

– Thomas L. Root