Tag Archives: sentencing reform

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