The following is a list of several recent news updates with links for more information. Please feel free to contact us for additional information.
1. February 2014: President Obama Announces New Clemency Approach
Last Thursday, January 30, 2014, the Obama Administration announced that it will move forward on commuting (reducing) sentences for federal non violent drug offenders serving long prison terms. The Justice Department indicated that it is looking for inmates to apply who are similar to the eight people who were granted clemency by President Obama in December, 2013. All of those individuals were sentenced to at least 15 years in federal prison. (This new initiative does not apply to state prisoners.) The new Justice Department initiative suggests that the President could end up granting clemency to a much larger group of federal offenders. Specifically, the Department is looking for “nonviolent, low-level drug offenders who were not leaders of—nor had any significant ties to—large-scale organizations, gangs, or cartels.” It appears that first-time offenders and those without substantial criminal records would also be considered. Historically, commutations have rarely and selectively been used and can take quite some time to process. However, this new initiative will streamline the process and hopefully a much larger number of commutations will be granted over a much shorter period of time. Please feel free to contact NPSC at 615-696-6153 for more information and competent, experienced attorney referrals.
2. January 13, 2014: USSC Proposes Reducing Drug Guidelines
The United States Sentencing Commission voted last week to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all drug offenses. What this means is that the Commission will seek public comment on possibly reducing by two points the base offense level for all drug offenses. Please note that this change—if adopted—would not affect mandatory minimum sentences. If this guideline change is adopted it would become effective in November 2014 and the US Sentencing Commission will have authority to decide to make it retroactive (as it did with all of recent prior crack amendments). It may or may not be deemed retroactive and if not it will not affect anyone already incarcerated. However, this is surely a monumental change and a giant step forward. Members of the general public will be invited to write and make comment to the Commission on the propriety of such a change and we here at NPSC suggest that all concerned do it fact urge the Commission to adopt these suggestions.
Feel free to contact NPSC for additional information.
3. December 19 2013: Senate Judiciary Committee Fails to Act
As was well known and widely published in the federal prison community, Senate Bills 619, Justice S.619, Justice Safety Valve Act of 2013 (Leahy, Paul); S.1410, Smarter Sentencing Act of 2013 (Durbin, Lee, Leahy) and S.1675, Recidivism Reduction and Public Safety Act 2013 (Whitehouse) were scheduled for hearings before the Senate Judiciary Committee today, December 19, 2013. We are sorry to report that the Committee took no action on these bills and their consideration was held over to another, but unannounced, date.
Feel free to contact NPSC for additional information.
4. December 2013: Legislative Changes on the Horizon
With this Holiday Season quickly approaching, the rumor mill is in overdrive and we are receiving countless inquiries about “new laws” that may affect federal defendants and federal inmates. We are writing to share with you what we see on the horizon.
First, In August 2013, the United States Sentencing Commission announced that it will review and possibly consider amending the drug sentencing guidelines across “all drug types” by reducing the guidelines by two full levels. This could be a very important and positive development for those charged with drug possession and distribution charges. Please keep in mind it is only under consideration and will brought up before the Commission in the Spring of 2014 and if approved will sent to Congress by May 1, 2014 and take effect on November 1, 2014.
Second, in terms of Congressional legislation, there are many bills currently pending before the 113th Congress. These bills (click highlighted to read the bills) range from amending the Good Time Credit to 50% for non violent inmates above age 45 to eliminating mandatory minimums, to expanding the “Safety Valve” to reducing sentences for elderly inmates. However, these bills are bogged down in Committee and it doesn’t appear likely that any will pass before year’s end. However, the 113th Congress lasts until December 31, 2014 and it is important—if not imperative—- that action be taken on these and many other bills currently before Congress. We urge all to contact their Congressperson or Senator and urge support of these bills. To find your Representative Click here. To find your Senator Click here.
We plan on regular updates and will keep you informed of any relevant changes in the federal criminal justice system. In the meantime, we wish all of you a very Merry Christmas and Holiday Season and a New Year that will bring you and your loved ones together more quickly. Feel free to contact NPSC for additional information.
5. August 2013: Attorney General Eric Holder About to Announce Sentencing Reforms
We here at National Prison and Sentencing (NPSC) were pleased, in fact elated, to see that United States Attorney General Eric Holder has finally recognized that sentences in the United States for non-violent federal offenses and drug offenders are unduly harsh. Last week, Attorney General Holder stated that there are too many people in federal prison and it is time for federal sentencing reform. He could announce major changes as early as next week. We await his specific proposal, of course, and are hopeful that he will prioritize federal criminal prosecutions and a long established policy of the Government to always seek the harshest punishments possible.
There are also three pending Bills in Congress that will go a long way to reduce the federal prison population
o The Safety Valve Act, introduced in the U.S. Senate by Democratic Senator Patrick Leahy and Republican Senator Rand Paul, and in the U.S. House by Democratic Congressman Bobby Scott and Republican Congressman Thomas Massie. The bills would allow federal judges to sentence nonviolent offenders below the federal mandatory minimum sentence if a lower sentence is warranted.
o The Smarter Sentencing Act, introduced in the U.S. Senate by Democratic Senator Dick Durbin and Republican Senator Mike Lee, which would lower mandatory minimums for certain drug offenses, make the recent reduction in the crack/powder cocaine sentencing disparity retroactive, and give judges more discretion to sentence certain offenders below the mandatory minimum sentence if warranted.
o The Public Safety Enhancement Act, introduced in the U.S. House by Republican Congressman Jason Chaffetz and Democratic Congressman Bobby Scott, which would allow certain federal prisoners to be transferred from prison to community supervision earlier if they take rehabilitation classes, saving taxpayer money while improving public safety.
Feel free to contact NPSC for additional information
6. MARCH 2013 New Senate Bill to Change Mandatory Minimums
On March 20, 2013, Senators Patrick Leahy (D-VT) and Rand Paul (R-KY) introduced the Justice Safety Valve Act of 2013, S. 619, in the U.S. Senate. The bill creates a brand-new, broad “safety valve” that would apply to all federal crimes carrying mandatory minimum sentences. If passed, the Justice Safety Valve Act would allow judges to sentence people below the mandatory minimum sentence whenever that minimum term does not fulfill the goals of punishment. In a nutshell, if passed, the bill would restore sentencing discretion to judges in all federal cases where a mandatory minimum applies! Now is the time to write your Congresspersons and Senators or contact Families Against Mandatory Minimums for more information.
7. SCOTUS upholds BOP’s Method of Calculating Good Time Credits
On June 7, 2010 the United States Supreme Court upheld the Federal Bureau of Prisons’ method of calculating good time credits. As all involved with the federal prison know, the relevant statute provides for 54 days of good time per year. The BOP calculated that in a manner which effectively provided for 47 days per year and many inmates and their families have futilely challenged the BOP’s method. This decision should put to rest all other challenges in this regard. Read the decision here. There is certainly more of a need to push for the Federal “Good Time” bill.
8. BOP Issues Regulations on Halfway Houses
Regulations were finally issued by the BOP to provide some guidance as to how it will interpret and implement the relevant provisions of the Second Chance Act. The BOP will give “individualized consideration” to every inmate in determination how much time they will receive in a Halfway House. The Second Chance Act permits the BOP to grant up to 12 months in a Halfway House and inmates can receive no time or 12 months depending upon the following: 1.The resources of the facility contemplated; 2. The nature and circumstances of the offense; 3.The history and characteristics of the prisoner; 4. Any statement by the sentencing court concerning the purpose for which the sentence was imposed or recommending a specific type of institution; and 5. Any pertinent policy statements issued by the United. It is hopeful that the BOP will now consider more inmates for more Halfway House time than before. Please contact NPSC if you have any questions or comments.
9. The Federal “Good Time” Bill
In September 2008, Representative Danny Davis of Illinois introduced the “Federal Work Incentive Act of 2008.” This bill has quickly become known as the Federal “Good Time” Bill. The Bill proposed to “roll back,” so to speak, the good time allowances as they existed before the enactment of the Sentencing Reform Act. As all federal inmates and their families are aware, an inmate currently must serve 85% of their time and there are extremely limited options to reduce their time. This new Bill would provide incentives for inmates and create a graduated system of good time credits. Under the Bill the following would be the amount of good time available, along with “Industrial Good Time” in the amount of 3 days per month for the first year and 5 days per month for the following years:
(1) 5 days for each month of the sentence, if the sentence is not less than 6 months and not more than 1 year.
(2) 6 days for each month of the sentence, if the sentence is more than 1 year and less than 3 years.
(3) 7 days for each month of the sentence, if the sentence is not less than 3 years and less than 5 years.
(4) 8 days for each month of the sentence, if the sentence is not less than 5 years and less than 10 years.
(5) 10 days for each month of the sentence, if the sentence is 10 years of more.
Certainly, this is a huge step in the right direction to reduce not only prison overcrowding and the associated skyrocketing costs of incarceration, but will provide inmates with a strong incentive to be the classic “model prisoner.” It will also bring home your loved ones much sooner. The bill is currently sitting it he House Judiciary Committee and no substantive action has yet been taken.
However, it is imperative that you contact your Congressperson and show your support for this Bill. To find out who your Congressperson is, go to www.house.gov and enter your zip code. Congress MUST hear your voice or this will be just another bill that dies in Committee.
10. The Second Chance Act
On April 9, 2008 President Bush signed into law the Second Chance Act. Although the Act is certainly a step in the right direction, the bulk of the Act is designed to permit additional funding and research for re-entry programs and targets recidivism. However, one provision amends the law and allows the Federal Bureau of Prisons to grant up to 12 months in a Halfway House rather than 6 as previously authorized. The Act also amends 18 USC §3624(c) and permits the BOP to grant up to 6 months in Home Confinement. To date the Bureau of Prisons has not issued regulations letting the criminal justice community know how it will utilize its new authority, but we are optimistic that more inmates will find that they will receive more CCC and HC time than previously permitted. See Update Above Please feel free to call or e-mail with specific questions.
11. December 10, 2007. In a spectacular and groundbreaking decision, the US Supreme Court allows sentencing judges significantly more discretion in imposing a below guidelines sentence.
In Gall v. United States the Supreme Court made it easier for district courts to impose a below guideline sentence without fear of reversal. As many may know, many appellate courts reversed below guideline sentences as being “unreasonable.” In the Gall decision the Supreme Court held that judges can impose sentences below the specified guideline level and still have such punishment regarded as “reasonable.” The Court also imposed a heretofore different appellate standard of review and mandates that federal appeals courts to use a “deferential abuse-of-discretion standard” when a trial sets sets a punishment below the range. It is imperative to bring this important decision to your lawyer’s attention or have your counsel contact us for specific information. More than ever, sentence mitigation and investigation is needed well prior to any sentencing hearing.
12. On November 1, 2007 New Federal Crack Cocaine Sentencing Guidelines Become Effective.
After a battle lasting over 12 years and after growing national concern surrounding ongoing racial disparity in the justice system, the United States Sentencing Commission Thursday lowered sentencing guidelines for crack cocaine. Until November 2007 there had been a 100 to 1 sentencing disparity for crack versus cocaine possession. Meaning, simply, that 5 grams of crack brought the same sentence as 500 grams of powder cocaine. Although he Commission did not completely eliminate that disparity it did take a major step towards narrowing the gap. It is estimated that the average crack sentence will now be 16 months lower. Now the issue of retroactivity has taken center stage at the Commission with a hearing scheduled for November 15, 2007. If the Commission and ultimately Congress applies the amendment retroactively, thousands of inmates previously sentenced for crack possession can seek to have there sentence lowered. Check back in mid November for updates.
13. House Representative Charles Rangel (D. NY) Introduces the Second Chance for Ex Offenders Act of 2007.
On January 22, 2007 Congressman Rangel introduced the “Second Chance for Ex-Offenders Act of 2007.” The Act seeks to allow expungement of federal criminal records for certain non-violent offenders, As things stand today, the only method to “expunge” or eliminate a federal criminal conviction is a Presidential Pardon. The Act, if approved, would permit the expungement of federal criminal records for those never convicted of a violent offense, who are drug free, fulfilled the requirements of the sentence imposed and who have completed at least 1 year of community service. Certainly this bill if it becomes law will go a long way in assisting ex-offenders obtaining employment and benefits and allow for a smoother reintegration back into society. We ask that everyone contact their Congressperson in writing and by phone seeking support for this Bill.
14. Pending Supreme Court Case to Affect Federal and State Sentencing November 5, 2006
UPDATE: On January 9, 2007 The Supreme Court dismissed the Petition for a Writ of Certiorari as being improvidently granted. It appears that the Petitioner failed to properly comply with certain statutorily imposed procedural requirements which prevented the Court from reaching the merits of the case. We do expect the court to ultimately address the very important issues raised in Burton in a subsequent case yet to be identified. The October 2006-2007 Term of the United States Supreme Court will substantially affect federal and state sentencing issues. The Supreme Court heard arguments in a case known as Burton v. Waddington, No. 05- 05-9222, (cert granted on June 5, 2006) and will address the issue of the retroactivity of Blakely and Booker. The issues presented in Burton are:
1. Is the holding in Blakely a new rule or is it dictated by Apprendi?
2. If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively?
Needless to say, we are hopeful that the Court will rule that Blakely and Booker will apply retroactively to previously imposed sentences. If such occurs, the courts may be forced to re-sentence a large number of inmates that received enhancements based on “facts” not found by a jury or admitted to by the defendant. We are keeping a close eye on this case and will provide updates when a decision is issued.
15. New Federal Bureau of Prisons’ Security Classification Regulations, September 2006
Effective September 12, 2006, the Federal Bureau of Prisons instituted new security and custody scoring classifications. The changes are designed to reflect not only the centralization of designations to the Security Designation and Custody Classification Center in Grand Prairie, TX, but to update and modernize the criteria for designating an inmate to one of the Bureau’s five security levels assigned to all federal institutions. The new criteria will now take into account age, Criminal History Points from the PSI, (converted to a Criminal History Score), education and history of drug and alcohol use. The numerical cutoffs have also been changed as follows: Minimum: 11/15 for females, Low 12-15/15-30 for females, Medium: 16-23, High: 24+/ 31+ for females. The calculations are more inclusive and comprehensive taking in a broader range of criteria. We suspect that many of our clients and inmates will now face new hurdles in initial designations and that many currently incarcerated will be transferred to higher or lower level facilities as the new regulations are implemented during the bi-annual or annual custody level review. Please feel free to contact us with any questions or assistance you may need.
16. On February 8, 2005 the Federal Bureau of Prisons made an announcement that it will close the following Federal Prison Camps: FPC-Eglin (Florida), FPC-Nellis (Nevada); FPC-Allenwood (Pennsylvania) and FPC-Seymour Johnson (North Carolina). We expect that these closures are related to putative cost savings and further expect that it will become a bit more difficult to attain camp status for existing inmates as well as future inmates.
17. “A Primer on Booker/Fanfan” (pdf) Click Here to read an article we have written to help clients, friends and visitors understand the impact of Booker/Fanfan.
17. On January 12, 2005, the United States Supreme Court issued its long awaited decision in Booker and Fanfan. Click here to read the case. In its 124 page Decision the Supreme Court held that the mandatory application of the guidelines is a violation of the Sixth Amendment to the United States Constitution. The court wrote “The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” In other words, the Guidelines are now advisory only and the courts may take into account a host of additional factors when sentencing an offender. Please feel free to contact us if you have any specific questions. This case may affect thousands—if not scores of thousands—- of people in the federal system and in particular those awaiting sentencing.
1. On January 6, 2005 the Bush Administration announced that it is eliminating funding for the Federal Bureau of Prisons’ Intensive Confinement Center (ICC), program, commonly known as Boot Camp. According to the Administration and the BOP, the program, initiated 14 years ago, is being phased out in a cost cutting measure and as a result of its limited effectiveness at reducing rates of recidivism. We understand that the Women’s program at Bryan-FPC has accepted its last class and that the Men’s programs at Lompac-FCI and Lewisburg-FCI will be accepting one more class. Several federal judges have already expressed their shock and disappointment at the BOP’s and Administration’s decision to eliminate the program. District Judge William M. Skretny, of the Western District of New York, stated that,. “I’d be very disappointed if this shutdown goes forward. I’ve had prisoners write to me after going through the program and tell me what a positive experience it has been in their lives.” It is expected that some might judicially challenge the decision but immediate success appears unlikely. Contrary to popular belief there is no statute that mandates the existence of the program only one that funds the program and grants the BOP the power to establish the program. See, 18 USC §4046 Creative and unique legal theories will be needed.
Already litigation (Click here to read a copy) has begun seeking to stay sentencing where a Court has recommended ICC placement to inmates and at least one court has entered an Order Staying Execution of Sentence pending litigation of the legality of termination of the ICC. The legal challenge is based, in part, on purported non-compliance with the Administrative Procedures Act. We will provide updates of any litigation regarding the ICC.
2. In June 2004 the United States Supreme Court rocked the foundations of the many states’ sentencing schemes that were modeled on the United States Sentencing Guidelines. Now, the constitutionality of federal sentencing awaits the Supreme Court’s opinion in companion cases known as Booker and Fanfan.. In Blakely v. Washington, the US Supreme Court struck down a part of the State of Washington’s sentencing scheme as a violation of the Sixth Amendment to the US Constitution since it allowed a judge to enhance a sentence based on facts neither admitted to by the defendant nor found by a jury. As many involved in the federal system are aware, judges routinely enhance sentences based on the amount of money involved, quantity of drugs and the like when such facts were neither admitted to nor found beyond a reasonable doubt by a jury. Needless to say, those involved with federal sentencing, eagerly await the application of the Blakely rationale to the Sentencing Reform Act of 1984 (and the USSG’s). It is expected that by mid to late January 2005 the Supreme Court will issue its decision(s) in Booker and Fanfan. Click Here to read Transcript of Booker and Fanfan Oral Argument before the US Supreme Court. By and large, it is expected that all or part of the USSG’s will have to be revised and it is expected that there will by substantial litigation as to the applicability and retroactivity of the Court’s decisions. Stay tuned.
3. On September 9, 2004, the First Circuit Court of Appeals ruled that the December 13, 2002 U.S. Department of Justice policy limiting federal inmates’ eligibility for placement in a community corrections center to the last ten percent of their sentence is illegal . As well, the Court struck down a Department of Justice policy prohibiting the BOP from designating an inmate directly (or subsequently) to a Community Corrections Center. Click here for the Opinion of the Court.
4. In July 2004, the New York Times reported that the United States prison population reached an all time high with over 6.9 million Americans incarcerated or on parole or probation. Based on a report by the United States Bureau of Justice Statistics, one in 132 Americans were incarcerated or on probation/parole in 2003. Click here to read the full report. UPDATE: As of 2008, that number is 1 in 100 Americans are incarcerated. We truly have become the “Incarceration Nation.”