Recent Updates NPSC
“Without the mitigation analysis, investigation and assessment of the NPSC team of experts, I would be serving at least several years extra in a Federal Institution. NPSC’s services are critical in preparation for federal sentencing and prison, particularly in complex white collar and government corruption cases, and prison designations.”
We believe that in order for our client’s to make an educated decision, they need knowledge. Below we have included several recent legislative, judicial and administrative legal updates along with links to further your insight regarding legal procedures, reforms and guidelines. Prison should be a last resort, rather than a first option. Contact our team to start analyzing your individual case.
November 13, 2017 Update on Halfway House Closures
As many in the federal prison community are aware, the Federal Bureau of Prisons has been quietly terminating contracts with certain Residential Re-entry Centers, commonly known as Halfway Houses. We have been trying to get to the bottom of this since we first heard about late last month. We have obtained a list of those Halfway Houses being closed. There are 16 with a total bed space of between 277 and 300 for federal inmates. In response to inquiries by interested parties and public interest groups, the Bureau of Prisons stated unequivocally that the closures would only affect approximately 1% of the federal prison population. However, we have been getting calls from a great number of clients, concerned family members and even halfway houses themselves and started to believe that the closures had to affect more than 1% of the federal prison population. What we have learned that as a general matter of policy, the Bureau is “reducing its use of Residential Reentry Centers without explanation or advance notice to those most affected.” (Letter dated October 26, 2017 from the US Senate to the BOP.) In other words, substantially more than 1% of federal inmates are having their halfway house time either reduced or eliminated altogether with many federal inmates staying in prison longer and not receiving the transitional services that many so dearly need. National Prison & Sentencing Consultants continues to investigate this fluid situation and its clients concerns and inquiries. If you have any questions or may need or assistance, please contact us at firstname.lastname@example.org or at 615-696-6153
October 19, 2017 Administration Seeks Closure and Termination of Contracts with 16 Halfway Houses
As reported here, the Trump administration has been quietly cutting funding for or closing 16 federal Residential Reentry Centers, commonly referred to as halfway houses. NPSC has been monitoring this situation as a few weeks back several of our clients contacted us inquiring as to why their halfway house placement dates were pushed back or cancelled altogether. Although federal halfway houses have always been viewed as a useful and productive method of assisting with inmate re-integration and adjustment, this new development will result in significantly more time in prison for a large number of federal inmates. We would like to believe that the BOP would utilize home confinement to ease this backlog, but to date we have not heard of such on a system wide basis. Please feel free to contact us with your questions or concerns or to inquire if NPSC can be of assistance.
October 17, 2017 Senator Grassley Introduces the Sentencing Reform and Corrections Act—Again
In addition to the legislation discussed below, On October 5, 2017 Senator Grassley has introduced S.1917 – The Sentencing Reform and Corrections Act of 2017. Similar—but not identical— to the bill that died in the Senate in 2015, this bill would give the judge the discretion in a 10-year mandatory minimum drug case to drop the mandatory minimum to 5 years if the defendant has no drug or violent priors, did not use violence in the crime of conviction, was not a leader or organizer of the offense and admitted the crime to the government. Cooperation for this benefit is NOT required. In addition, it establishes recidivism reduction programs to facilitate successful reentry. For a synopsis of the complete bill, please click here. In obtaining assistance in investigating or researching a potential federal sentence reduction or for more information call National & Sentencing Consultants at 615-696-6153 or email us at email@example.com
October 10, 2017 Senate Introduces the Smarter Sentencing Act of 2017
On October 5, 2017, a bipartisan group of U.S. Senators led by Mike Lee (R-UT) and Dick Durbin (D-IL) reintroduced the Smarter Sentencing Act of 2017. This legislation would modernize federal drug sentencing policies by giving federal judges more discretion in sentencing those convicted of non-violent drug offenses.
“Our current federal sentencing laws are out of date, they are often counterproductive, and in far too many cases they are unjust,” said Senator Lee. “The Smarter Sentencing Act is a commonsense solution that will greatly reduce the financial and, more importantly, the human cost imposed on society by the broken status quo. The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses while enabling nonviolent offenders to return more quickly to their families and communities.”
Although the actual text of the bill is currently unavailable, we assume the bill is similar to the Smarter Sentencing act of 2015 that we commented on below. The Staff at National Prison and Sentencing Consultants is appreciative that these Senators have reintroduced this very important bill. We remain hopeful that both sides of the aisle can get together and do what is right for the American people and reduce the use of mandatory minimum sentences and allow for shorter sentences for non-violent drug offenders. NPSC will provide a detailed analysis once the bill is available. In the meantime, if you have any questions please call 615-696-6153 or contact us at firstname.lastname@example.org
August 16, 2017: Supreme Court upholds Discretionary Federal Prison Sentencing
In a recent decision, the United States Supreme Court has reaffirmed a sentencing court’s “wide discretion to decide whether the offender should be incarcerated and for how long.” The Supreme Court in Beckles v. United States, 580 U. S. ____ (2017) was faced with a “void for vagueness” challenge to the application of the United States Sentencing Guidelines. In rejecting that Due Process Clause based challenge the Guidelines, the Court ruled that the United States Sentencing Guidelines “merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.” Citing United States v. Booker, 543 U. S. 220, 233 (2005) the court reaffirmed the basic principle of American law that federal judges have broad discretion in imposing a sentence within a statutory range.” Once again, NPSC reiterates the importance of recognizing the court’s discretion and implores federal defendants to investigate and research any and all discretionary factors that a federal court can utilize in determining a sentence based in individual offense and offender characteristics. In many causing federal defendants can avoid federal prison altogether. In obtaining assistance in investigating or researching a potential federal sentence reduction, call National & Sentencing Consultants at 615-696-6153 or email us at email@example.com
July 24, 2017: Summer 2017 Legislative Updates-Federal Prisons
With the Summer halfway through, the federal prison rumor mill is in full swing. First, there are still many inquiries here at NPSC about the so called “65% Law” which would, if passed, increase the good time for federal inmates from 15% to 35%. While there are several bills introduced into the 115th Congress, none of them will involve increasing federal good time, we are sorry to say.
Second, there is also a prevalent rumor that all federal prison camps will be closed and that those inmates would be released in a Residential Re-Entry Center or Home Confinement. Such is pure rumor and there are no such plans by the Trump Administration or the Federal Bureau of Prisons to do so.
However, there are several bills that would certainly benefit federal offenders or federal inmates If passed.
First, there is a bill in both the House and the Senate, known as the Justice Safety Valve Act (H.R. 2435/S. 1134 (115th Congress), which if approved would allow the court to avoid imposing a mandatory minimum sentence by applying the “safety valve” in all cases not just controlled substances cases. In order to do so, the Court must find that imposing a mandatory minimum sentence does not comply with the goals of sentencing as enumerated in 18 U.S.C. §3553(a). We at National Prison & Sentencing Consultants strongly support the passage of this bill and we urge all to contact their Representative and Senators to support these bills.
Second, there is H.R. 64, Federal Prison Bureau Nonviolent Offender Relief Act of 2017 (115th Congress) which would allow nonviolent elderly inmates (over age 45) who have a clean prison record and who have completed half their sentence to be released. This bill, or some similar bill, has been introduced into Congress over the last 6 or 7 years with no progress or serious consideration. John Webster, NPSC’s Managing Director, does not believe that this bill has any chance of being passed under the current Administration or Congressional composition.
As most know, the current state of acrimony between and among both chambers of Congress and the Trump Administration, along with a fractured Republican party, lead us to believe that there will be no significant legislation affecting federal inmates of federal offenders at least until after the 2018 elections.
As always, if you have any questions please feel free to contact us at firstname.lastname@example.org or at 615-696-6153
June 6, 2017: Trump Administration Opts Not to Close Private Federal Prisons
As NPSC reported back in August 2016, the Obama Administration issued an order closing many private federal prison facilities housing federal inmates. Identified then for closure were Adam County CI, Big Spring CI, Cibola County CI, D. Ray James CI, Eden CI, Giles W. Dalby CI, Great Plains CI, McRae CI, Moshannon Valley CI, Reeves I & II CI, Reeves III CI, Rivers CI, Taft CI. Many of the inmates housed in those federal prisons would have been transferred to lower security facilities, federal prison camps or halfway houses. These prisons housed approximately 21,000 inmates. Unfortunately, the Trump Administration rescinded that order so as to meet the “future needs of the federal correctional system.” Reading between the lines, such portends very little positive change for federal inmates as the Justice Department has elected to renew its failed 50 year “War on Drugs” policy calling upon prosecutors to seek the longest prison time permitted under law for drug offenses. As always, NPSC will continue its efforts to assist its clients obtain the lowest sentence possible. If you have any questions, please call at 615-696-6153 or email us at email@example.com
UPDATE MAY 5, 2017: Sadly the United States Sentencing Commission has decided that there will no amendments to the federal Sentencing Guidelines for 2017. Although the following was proposed, they can not and will not even be considered until at least 2018, if at all. A description of the proposed amendments is below but no such amendment will be made this year.
December 13, 2016: 2017 Proposed Preliminary United States Sentencing Guidelines Changes Announced
On December 9, 2016 the United States Sentencing Commission published its annual Preliminary Proposed Amendments to the United States Sentencing Guidelines. These are preliminary and are subject to public comments and hearings between now and May 2017. However, NPSC and John Webster, its Managing Director, are ecstatic with some of the proposed changes. We believe they will substantially benefit many federal defendants if they are approved. The most significant proposal would provide lower guideline ranges for “first offenders” generally and increase the availability of alternatives to incarceration for offenders at the lower levels of the Sentencing Table. These new Guidelines would apply if [(1) the defendant did not receive any criminal history points under the rules where the defendant has no prior convictions of any kind. Further, Zone C of the Sentencing Table would be eliminated thus permitting a significantly greater number of defendants to be sentenced to non-custodial sentences such as Residential Re-entry Centers and Home Confinement. Clearly, these proposals show that the Commission is certainly beginning to look at ways to reduce the number of Americans incarcerated and is beginning to focus on alternatives to prison. Further, the Commission is proposing changes to the Acceptance of Responsibility provisions along with quite a few technical and substantive proposed changes. The changes to the Acceptance of Responsibility provisions will permit a defendant to make non-frivolous objections to relevant conduct without losing the acceptance of responsibility adjustment pursuant to USSG section 3E.1.1(a) and (b). Again we at NPSC having faced this issue many times, believe this to be a very positive proposed amendment. If you have any questions, please do not hesitate to contact National Prison & Sentencing Consultants at 615-696-6153 or at firstname.lastname@example.org
December 8, 2016 Year End Update for Federal Prison Reform
We are providing this year end update as to where National Prison and Sentencing Consultants thinks we are in terms of federal prison and sentencing reform as the Obama Administration comes to an end and President-Elect Donald Trump prepares to take office.
First, although most were optimistic that the Sentencing Reform and Corrections Act (S.2123) would be passed by the 114th Congress, those hopes have been dimmed. Extinguished actually. With a lame duck Congress, and the complexities of the transition to a new Administration it seems unlikely that any meaningful federal sentencing reform will happen in 2016. Our only hope is that Congress reintroduces this bill in 2017, but for the time being we believe that the SRCA is effectively dead.
Second, back in August, we reported that by Executive Order President Obama would be ending the use of privately run prisons to house federal inmates. Those prisons slated to be closed or transferred to other jurisdictions were Adams County CI, Big Spring CI, Cibola County CI, D. Ray James CI, Eden CI, Giles W. Dalby CI, Great Plains CI, McRae CI, Moshannon Valley CI, Reeves I & II CI, Reeves III CI, Rivers CI, Taft CI. However, predicting anything that President- Elect Donald Trump would so is a dicey venture at best, based upon many of his campaign promises and some of his Cabinet selections, it seems unlikely that he will close these facilities to federal inmates. Trump has gone on record supporting the use of private prisons—and expanding privatization. Coupled with his solemn vow to deport hundreds of thousands of illegal immigrants it seems that these prisons will be necessary for the new administration. As well, the nominee to the Attorney General position, Jeff Sessions, has supported the use of private prisons. Further, his vow to expand the drug war, rather than change away from a 50 year old failed national drug policy, leads us to believe that over the next few years at least rates of incarceration will rocket upwards.
In sum, as 2016 comes to a close, we see little being done on a national level in terms of federal prison and sentencing reform. As always, if you have any questions or concerns about these issues, federal sentencing or federal prison, please feel free to call NPSC at 615-696-6153. God bless, Merry Christmas and best to all for a Happy and Free New Year.
August 18, 2016, Obama Administration to End Privately Run For Profit Federal Prisons
It a ground breaking Executive Order, the Obama Administration has begun the process of eliminating the use of private for profit prisons for federal prison inmates. In a memo to the Federal Bureau of Prisons, Deputy Attorney General Sally Yates told it to start reducing “and ultimately ending” the Justice Department’s use of private prisons. The announcement follows a recent Justice Department audit that found that the private facilities have more safety and security problems than government-run ones. Right now there are approximately 22,000 federal inmates held at the following privately run, for-profit federal prisons in the United States: Adams County CI, Big Spring CI, Cibola County CI, D. Ray James CI, Eden CI, Giles W. Dalby CI, Great Plains CI, McRae CI, Moshannon Valley CI, Reeves I & II CI, Reeves III CI, Rivers CI, Taft CI. We are thankful that the federal government has finally recognized the hypocrisy of incarcerating Americans for profit. As always, if you have any questions or concerns about this matter, any issue related to federal sentencing or federal prison, please feel free to call NPSC at 615-696-6153.
July 5, 2016, It Appears The Sentencing Reform and Corrections Act Will not Pass this Year
It appears the Sentencing Reform and Corrections Act is dead. As Congress prepares to adjourn on July 15, 2016 and not return to session until after Labor day, I fear that I am writing the obituary for the much heralded (and needed) Sentencing Reform and Corrections Act. (S.2123) applicable to many federal inmates serving unduly lengthy federal prison terms. The SRCA would have reduced certain federal mandatory minimum sentences for non-violent drug offenses, established programs to reduce the number of repeat offenders and allow for programs for federal inmates to reduce the amount of time they spend in prison. However, due to political jockeying and failed negotiations by Senators on both sides of the aisle, it appears the bill is dead. Although Congress can consider the bill after its return after Labor Day, it will only have 5 weeks in which do so. Since it has taken 18 months for the bill to even get out of Committee, it seems unlikely that Congress will be able to agree to bring the bill to a vote in those five weeks and before Election Day. If the SRCA is not passed before Election Day, federal sentencing reform will have to start all over again. With election day just a few months away, perhaps our readers and subscribers, should determine the position of their Senator and Congressperson come election day and vote accordingly. As always, if you have any questions or concerns about this bill, federal sentencing or federal prison, please feel free to call NPSC at 615-696-6153.
May 4, 2016 Federal Bureau of Prisons Expands RDAP Eligibility
National Prison and Sentencing Consultants (NPSC) is happy to announce that on April 26, 2016 the Federal Bureau of Prisons promulgated new proposed rules expanding inmate eligibility for its Residential Drug Abuse Treatment (RDAP). As many know, successful completion in the BOP’s RDAP program allows for the Bureau to give an inmate up to 12 months off their sentence. As many know, in inmate with a prior violent crime was precluded form RDAP participation and early release. Those crimes were prior felony or misdemeanor convictions for homicide, forcible rape, robbery, aggravated assault, arson, kidnapping, or an offense that involves sexual abuse of minors. The new rules would allow those inmates with prior convictions for such offenses older than 10 years from the date of sentencing to participate in RDAP and receive a sentence reduction.
A substantive change was also made to the rules governing expulsions from the RDAP program. Those who committed acts involving alcohol or drugs, violence or threats of violence, escape or attempted escape, or any 100 level series incident, are no longer subject to expulsion.
These rules will go into effect on May 26, 2016 and should assist many federal inmates with early releases. Should you have any questions, please feel free to contact us at email@example.com or call us at 615-696-6153
April 13, 2016 , 2016 Updates on the Sentencing Reform and Corrections Act
As many know currently pending in Congress are two bills, one in the Senate and one in the House of Representatives that reflect a major change in federal sentencing policy and federal prison related matters. We want to explain what these bills do NOT do. Over the past year we have received hundreds if not thousands of calls and emails asking whether the “65% law has passed” or whether it will go into effect in November of 2016. There is much confusion in the federal prison system often fueled by prison rumor and, of course, hope.
The Sentencing Reform and Corrections Act (S. 2123) as currently written and IF passed does NOT increase good time credits for federal inmates. There is no change proposed as to good time. However, it will permit Earned Time Credits.
If it becomes law, S. 2123 would let certain prisoners who successfully complete recidivism-reducing programs and productive activities earn time credits as follows: Low-risk prisoners: 10 days of credit for 30 days of programming/work and Medium- and high-risk prisoners: 5 days of credit for 30 days of programming/work. Those credits can be used ONLY for increased Halfway House Time and Home Confinement time—and is not a reduction in sentence. Rather, those credits can only be used to increase time in exchange for more time in lesser restrictive environment. The last time a 65% bill was before Congress was 2011 and is was shot down 3 times. The only changes that will go into effect in November are changes to the United States Sentencing Guidelines which do not and cannot affect good time. As always if you have any questions please feel free to call us at 615-696-6153 or email us at firstname.lastname@example.org
March 16, 2016 News on the 2016 Proposed Federal Sentencing Guideline Amendments
The United States Sentencing Commission has promulgated for public comment proposed Amendments to the United States Sentencing Guidelines to be effective November 2016. As far as reducing federal prison sentences, or otherwise reducing the overwhelming overcrowding of our federal prison system (and its budget), the proposed Amendments do little. The Commission is proposing amendments to the following areas: Compassionate release, Conditions of Probation and supervised release, animal fighting, child pornography and immigration. As to compassionate release, the Commission merely incorporated the Federal Bureau of Prisons’ Policy Statement on compassionate release. As to conditions of SR, the Commission has proposed a “clarifying” amendment to all the standard conditions that is now in every federal inmates’ judgment. It has also proposed an increase and expand the penalties to animal fighting. Additionally it proposes a clarification of the child pornography guidelines now requiring a “knowing” mental state for an enhancement for peer to peer distribution. A reader friendly version of the proposed amendments can be found here.
Ever hopeful that the Commission would begin to adopt guidelines that reduce prison sentences in accordance with an evolving national consensus, again this year we are disappointed. If you have any questions please feel free to contact us
January 26, 2016 President Obama Limits Use of Solitary Confinement in Federal Prison
President Obama’s finally announced a policy that bans the use of solitary confinement, known in the federal prison system as the SHU—–Special Housing Unit—— for juvenile offenders in federal prison. In addition the President also called upon the BOP to limit the use of federal solitary confinement for low level non-violent offenders; offenders with mental health issues and prohibit the BOP from the SHU for protective custody. With over 10,000 federal inmates currently in the SHU for minor violations of federal prison rules this is welcome relief. Please feel free to call National Prison & Sentencing Consultants at 615-696-6153 of email us at email@example.com
December 3, 2015 It Appears that Federal Sentencing Reform has Been Delayed by the House and Senate
We have been closely following the federal Sentencing Reform and Corrections Act currently in the U.S. Senate along with its companion bill in the House of Representatives. We, like countless others, were hoping the bill would be on the President’s desk by the end of the year as federal prison and sentencing reform is long overdue. However, and as we have been warning many of our clients and members of the media, there is no telling what kind of amendments and riders various lawmakers would try to attach to the respective bills that could delay or prevent the passage of these much needed federal sentence reform bills. We have recently learned that the proposal of certain changes by Republican lawmakers—which have little to do with sentencing reform—– has bogged down the negotiations. Although President Obama had a recent meeting with Senate Leadership about the bills, it appears little progress has been made. Senator Durban (D. IL) who co-authored the Senate bill, stated that after the meeting “we have a good chance” of passing legislation in early 2016, so lawmakers can work out their differences “and send it to the president before midpoint of next year.”
In other words, no significant change to the federal prison system or federal sentencing will occur until at least midway through 2016. Of course if you have any questions about this or any federal sentencing matter feel free to email firstname.lastname@example.org or call 615-696-6153.
November 21, 2015 The House introduces a Companion Bill to the Sentencing Reform and Corrections Act of 2015
It now appears that the House of Representatives has introduced a companion bill to the Senate’s Sentencing Reform and Corrections Act, The House bill is known as the “Sentencing Reform Act of 2015.“ Largely similar to the Senate’s bill this is certainly a step in the right direction for long awaited federal sentencing reform. Both bills must go to a full vote before the House and Senate and then sent to President Obama for signature. However, it is not uncommon to have bills “marked up” or amended while on the floor of Congress so it is still possible to see significant changes. However, until both the House and the Senate schedule a full vote, we are remaining just cautiously optimistic. If you need any additional information please email us or call. Please notet hat contrary to the federal prison rumor mill, neither bill changes the good time to 65% from 85%.
October 1, 2015 The Senate introduces the Sentencing Reform and Corrections Act of 2015
The “Sentencing Reform and Corrections Act “finally came out of the Senate Judiciary Committee today. Please remember it is just a bill and is not yet law. IF passed by the Senate and the House and signed by President Obama it will do the following: 1. Most significantly it would reduce the use of mandatory minimums in many drug cases and reduce mandatory minimums in others while expanding its use for certain other crimes. 2. Under the Act, certain eligible prisoners would get slotted into risk categories based on how likely they were to commit another crime. Low- and medium-risk prisoners could get reduced sentences of 5 (medium risk inmates) to 10 days (low risk inmates) for every month they participated in prison programming (like education or a prison job) and maintained good behavior. Such inmates may also receive a benefit of up to 25% of their time in a Residential Re-entry Center or Home Confinement. However, this aspect of the bill is not to take place for 6 years. 3. Expand the use of the “safety valve” to include offenders with up to 4 criminal history points. It does not increase good time however to a blanket 65%. A copy of the 141 page bill can be found here.
September 29, 2015 Sentencing Reform Updates
The rumor mill is buzzing about federal sentencing reform. Although we posted on our website and emailed our subscribers on September 2, we thought another update would be helpful. It was anticipated by many in the federal criminal justice field that in early September 2015, the Senate Judiciary Committee and Senator Grassley would have had a bipartisan federal criminal justice reform bill ready to be presented to both the House and Senate. That has not happened as of yet and as the bill is under consideration, negotiation and is still being drafted it is impossible to say what the bill would look like and what changes it will contain. For some reason, many federal inmates are under the impression that the bill WILL increase the good time to 35% rather than the current 15%. Although that MAY happen, it is way too early to say with certainty. Even if it does, Congress must agree that it should and will apply retroactively—meaning to inmates currently incarcerated. Also it must be understood that although federal sentencing reform is a hot topic in Congress, with President Obama as well as judges, prosecutors and criminal defense lawyers, the way things stand now, there is no assurance than any sentencing reform bill will definitely pass. Of course we will keep all updated as things progress and feel free to call or email with any questions. email@example.com
We also share that we are available for a free consultation with regard to sentence mitigation or any federal prison related issue or problem. Please feel free to contact us.
September 2, 2015 Expected Federal Sentencing Reform from Congress
With the countless calls and emails we at National Prison and Sentencing Consultants, NPSC, are receiving, we see that the federal prison rumor mill is in overdrive. Hopefully, this post can clarify what has been going on and what is expected, but finally some real concrete and some good news. The latest bipartisan federal sentencing reform effort suggests that in the next week or so a bipartisan bill is expected to come of out of the Senate Judiciary Committee that (hopefully) will reduce the federal prison population. Please note that the bill is still being written and is not final. However, it is expected that this bill will provide judges with more discretion in sentencing non-violent drug offenders and will allow certain “well behaved” federal inmates to earn additional time off their prison sentences. It may also expand the use of the “safety valve.” However, the bill is not expected to eliminate or reduce mandatory minimums and unfortunately will not increase federal “good time” to 65%. Check back here frequently and we will provide updates as they occur.If you have any questions please feel free to call National Prison and Sentencing Consultants at 615-696-6153 or email us at firstname.lastname@example.org
April 30, 2015 United States Sentencing Commission Submits Amendments to Congress
On April 30, 2015 the United States Sentencing Commission submitted proposed amendments to the Federal Sentencing Guidelines to the United States Congress. They will go into effect on November 1, 2015 unless Congress acts to block them. We believe that to be unlikely. Of import is the fact that the Commission made inflationary adjustments that have the effect of increasing the dollar amount for “amount of loss” in financial crimes. Accordingly, there will a now be a higher threshold amount to trigger a specified increase in offense level and this should result overall the reduction in the length of many federal prison sentences. This is positive news. Further, instead of just looking at the number of victims, which can often increase ones guideline level, the new Guideline amendments focuses on the whether there is a substantial financial harm to victims. Additionally, the new proposed amendments would also require that the government demonstrate that the defendant intended to engage in sophisticated conduct. In other words, the court will look at the specific conduct of the defendant rather than the overall scheme or crime to determine whether a crime was “sophisticated” permitting a 2 point upward enhancement. Also of significance is that the Commission is proposing that the “mitigating role” adjustment as contained in USSG Section 3B1.1 is used too sparingly and has broadened its application to benefit more defendants. It is unclear as to whether these changes, if the go into effect on November 1, 2015, will be applied retroactively as the Commission did with the “drug Minus 2” or 2 point reduction affecting drug offenders. We will have to wait and see what the Commission does on that issue.
UPDATE JULY 20, 2015: IT DOES NOT APPEAR THAT THE COMMISSION WILL VOTE TO APPLY THESE AMENDMENTS RETROACTIVELY, WE ARE SORRY TO SAY. At the end of the last Commission hearing, USSC staff brought up the question of retroactivity and said a motion would be appropriate at this time if the Sentencing Commission wanted the staff to conduct a retroactivity impact analysis. No motion was made.
January 16, 2015: United States Sentencing Commission Proposes Significant Changes to the Federal Sentencing Guidelines
On January 16, 2015, The United States Sentencing Commission promulgated for public comment Proposed Amendments to the United States Sentencing Guidelines. These proposed changes are sweeping in scope and will have an enormous positive impact on federal defendants and if applied retroactively, like the drug minus 2 amendments (also known as the 2 point reduction), may affect thousands of federal inmates. A “reader-friendly” version can be downloaded here. The proposed Guideline Amendments can affect many “white collar” offenders convicted of financial crimes by significantly raising the loss amounts for most fraud, tax, bribery and insider trading cases. By raising the loss amounts to account for inflation since 1989, the Sentencing Commission has effectively lowered the incremental increases in Guideline levels based on loss amounts. For instance, a $1,000,001 loss today results in a 16 point increase whereas if the amendments are approved, such a loss would amount to a 14 point increase. This change alone will save federal defendants (and inmates if applied retroactively) a substantial amount of time in prison. Further the Commission is also “tightening” the practice of holding a federal defendant criminally responsible for “other relevant conduct” and is also clarifying (for the better) and expanding the use of the mitigating role adjustment.
There is nothing certain as to these Guideline Amendments and the final version will not be published until May 2015 and many of these proposals can change.
We urge all to write or email your comments to the USSC at email@example.com. and comments are due by March 18, 2015 . If you have any questions please feel free to call National Prison and Sentencing Consultants at 615-696-6153 or email us at firstname.lastname@example.org
January 6, 2015: UPDATE on the Two Point Federal Sentence Reduction for Drug Offenders
As many know, the change to the Federal Sentencing Guidelines resulting in a 2-point reduction for federal drug offenses has been made retroactive and many federal drug offenders have had their sentences reduced and many motion s are still pending. We have heard from many federal inmates and their loved ones about a “list” prepared by the Federal Bureau of Prisons.We have not seen any such list and believe that to be rumor. However, we are aware that the United States Sentencing Commission has compiled lists of inmates that they believe are eligible and forwarded those lists to the respective offices of the Federal Public Defender. We have learned from certain Public Defender Offices that the lists do not appear to be accurate as there are many people not on the list that are eligible and, tragically, many people on the list, that turn out not to be eligible. It is best for all concerned to contact their regional Federal Public Defender and ask. All must keep in mind that the drug minus 2 changes are NOT self effectuating and the sentencing court still has discretion to grant or deny the motion. It should be filed by an attorney rather than pro se if at all possible. We are also aware that some District Offices of the Federal Public Defender are preparing and filing these motions at no charge. We suggest that if anyone believes they are eligible for the 2 point reduction, they contact the Federal Public Defender in the District where they were sentenced to see if they are willing to file the motion. Some are and some are not we have been told.. If not, feel free to contact National Prison and Sentencing Consultants for additional information or for an attorney referral. Call 615-696-6153 or email us at email@example.com
July 18, 2014: United States Sentencing Commission Voted for Delayed Retroactivity of Drug Guidelines Amendments
The United States Sentencing Commission voted on July 18, 2014 to allow the November 2014 Amendments to the federal drug sentencing guidelines to be applied retroactively. The new Amendments reduce the drug sentencing guidelines by 2 points and can result in a sentence reduction of 6 months to 2 years for many inmates. However, the USSC voted for a delayed retroactivity where no order reducing a sentence can be effective prior to November 1, 2015, Each individual can apply to the court on or after November 1, 2014 and should do so, but the earliest a federal inmate CAN be released under the new amendments is November 1, 2015. This does raise an interesting question. Since we all know that the Guidelines are advisory and the courts are not required to strictly follow them as if they were mandatory, would it not be possible for a judge to order release of an inmate prior to November 1, 2014?
If you have any questions or need attorney referrals, please feel free to call National Prison and Sentencing Consultants at 615-696-6153 or email us at firstname.lastname@example.org
July 14, 2014: Vote Scheduled for Retroactivity of Drug Guidelines Amendments
The United States Sentencing Commission has scheduled a vote for July 18, 2014 as to whether the November 2014 Amendments to the federal drug sentencing guidelines will apply retroactively. The new Amendments reduce the drug sentencing guidelines by 2 points and can result in a sentence reduction of 6 months to 2 years for many inmates. Although we at National Prison & Sentencing Consultants are confident that the Commission will in fact vote for applying the new guidelines retroactively, the question is whether it will apply generally, i.e. to all drug offenders currently incarcerated in federal prison or to a limited and specified group of inmates. The Department of Justice is arguing for “limited retroactivity” meaning only those inmates with no aggravating sentencing factors, enhancements and limited criminal histories. We believe that it would more appropriate to allow judges to be judges and permit individual inmate to apply to a judge and allow the judge to consider an inmate’s complete background, offense and offender characteristics and prison record. Of course, we will be awaiting the vote scheduled for this Friday, July 18, 2014 and will provide updates on our website and to our subscribers.
If you have any questions, please feel free to call National Prison and Sentencing Consultants at 615-696-6153 or email us at email@example.com
June 11, 2014: Federal Prison—Update on 2 Point Reduction
The federal prison rumor mill is in overdrive. We at National Prison and Sentencing Consultants (NPSC) have been receiving countless calls and emails from clients, family and friends regarding the possible retroactivity of the United States Sentencing Commission’s (USSC) Amendments to the drug guidelines by two points across the board. Many people are under the (false) impression that come November 2014 a vast number of drug offenders will be released from federal prison. Although such is possible, that has not yet occurred and we urge all to contact the USSC and urge that the amendments be applied to all non-violent drug offenders without limitation.
Yesterday, June 10, 2014, the USSC conducted a public hearing and heard from Federal judges, prosecutors, law enforcement personnel, public defenders, defense lawyers, the Federal Bureau of Prisons and others. The debate focused on whether the amendments should be applied to all incarcerated drug offenders or whether, as urged by the Department of Justice, “limited” retroactivity should be adopted. The DOJ is urging that that the amendments be applied retroactively to only those drug offenders who have no priors, no role enhancements and whose offense did not involve any weapons. At first blush, this seems reasonable. However, NPSC believes that such limitations will take away the judges’ historical and time honored role in sentencing and in re-sentencing—-to review the individual facts of the case ,“judge” the person accordingly and then impose a sentence that they deem to be reasonable. In our mitigation work, NPSC has seen the application of the so called “gun enhancement” where small time marijuana dealers stored an old hunting rifle in the same structure as the marijuana; we have seen the gun enhancement applied in situations where the gun was not used in connection or in furtherance of the drug offense; we have seen role enhancements applied when they were clearly inapplicable.
There are incalculable individual offense and offender characteristics and circumstances which need to be reviewed by a judge to determine whether a particular inmate —based on the particulars of their offense—warrants a reduction in their sentence. The DOJ’s proposal will prevent a federal judge from looking at the particular facts of an inmate’s case to determine their level of culpability and dangerousness. We believe that the DOJ should let judges be judges and allow them the discretion to examine the details of an inmate’s offense, character, history and prison record and determine whether they should receive a reduced sentence. Like the DOJ, we do not want to see violent, dangerous criminals released—-but we want the judge to decide who is dangerous and who is not.
The Commission needs to hear from you NOW and we ask that you urge the Commission to adopt retroactivity without limitation and let the judge decide whether an inmate should receive a reduced sentence. Email the Commission at: firstname.lastname@example.org.
As always, if you have any questions please contact National Prison and Sentencing Consultants at mailto: email@example.com or at 615-696-6153.
We urge all to write or email your comments to the USSC at firstname.lastname@example.org.
If you have any questions, please feel free to call National Prison and Sentencing Consultants at 615-696-6153 or email us at email@example.com
June 2, 2014: Retro-activity of Drug Guidelines Amendments
As many of our subscribers and clients are aware, the United States Sentencing Commission (USSC) voted unanimously to amend the federal sentencing guidelines for drug offenders by reducing the guideline level by 2-points. In other words, the base offense level for a specific drug quantity will now be two points lower. This change will result in most federal drug offenders serving 11-18 months less time in prison. Equally important is that RIGHT NOW the USSC is accepting public comment on whether the amendments should be applied retroactively and it is accepting comment and input through July, 7, 2014. If it does vote to apply the amendments retroactively USSC staff estimates, 51,141 offenders who will be incarcerated in the federal prison system on November 1, 2014 would be eligible to seek a reduction in their current sentence. If the courts were to grant the full reduction in sentence possible in each case, the average reduction in sentence would be 18.4 percent. Approximately 4,600 offenders would be eligible for immediate release on November 1, 2014.
We urge all to write or email your comments to the USSC at firstname.lastname@example.org.
If you have any questions, please feel free to call National Prison and Sentencing Consultants at 615-696-6153 or email us at email@example.com
April 25, 2014: Department of Justice Announces New Clemency Guidelines
The Department of Justice has developed and published its clemency guidelines as part of President Obama’s new clemency initiative. It is expected that a significantly larger number of federal inmates can have their sentences drastically reduced. They are as follows:
a. They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
b They are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels;
c. They have served at least 10 years of their prison sentence;
d. They do not have a significant criminal history;
d. They have demonstrated good conduct in prison; and
e. They have no history of violence prior to or during their current term of imprisonment
National Prison & Sentencing Consultants is optimistic that the new clemency approach will reduce the sentences of a large number of federal inmates. These new guidelines do not exclusively apply to drug offenders and others may benefit as well.
Please feel free to contact NPSC at 615-696-6153 for more information and competent, experienced attorney referrals.
April 11, 2014: United States Sentencing Commission Votes to Reduce Drug Sentencing by 2 Points
Yesterday April 10, 2014, the United States Sentencing Commission (USSC) voted unanimously to amend the federal sentencing guidelines for drug offenders by 2-points. In other words, the base offense level for a specific drug quantity will now be two points lower. This change will result in most federal drug offenders serving 11-18 months less time in prison. It is not final however. By law, the Commission will submit the amendments to Congress by May 1 and unless Congress acts to reject the changes, they will automatically go into effect on November 1, 2014. Further, the Commission is considering whether these changes will be retroactive (meaning applying to those already sentenced and incarcerated) and is seeking public comment on that point. NPSC is excited about these groundbreaking and wise changes in federal sentencing policy.
Please contact firstname.lastname@example.org or call NPSC at 615-696-6153 for more information.
April 11, 2014: Smarter Sentencing Act Moving Along
The House version of the Smarter Sentencing Act (HR3382) now has 26 co-sponsors. This bill which appears to have bipartisan and Obama Administration support would provide certain drug offenders with reduced mandatory minimum sentences and would eliminate mandatory minimums for other drug offenders. The Senate version of the bill was passed by the Senate Judiciary Committee in January and is awaiting full Senate approval. The entire purpose of these bills would be to reduce federal prison overcrowding and provide federal judges with more discretion based on individual offender and offense characteristics. Now is the time to contact your Congressperson and urge them to support this much needed bill. Please click here to find the name of your House Representative and how to contact them. Coupled with President Obama’s new Clemency Initiative and the anticipated Federal Sentencing Guideline changes (hopefully) to go into effect this November reducing the base offense levels for drug offenders by 2 points, such should provide relief to many inmates and defendants across the country.
Please contact email@example.com or call NPSC at 615-696-6153 for more information.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
“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.
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.”