BREAKING NEWS: First Step Act to Get Full Senate Vote

The last month as been a bit of a roller coaster ride regarding the First Step Act. The folk here and National Prison and Sentencing Consultants have been monitoring this bill and its progress daily.  About 4 weeks ago, it looked promising, then Senator Mitchell McConnell (R-KY), the Senate majority leader, decided that there was no time left for the full Senate to consider the bill and therefore it would have to be taken up after January 3, 2019 when the newly elected Congress begin their terms.  This certainly would have been the death knell of the First Step Act.  The reasons are politically complex, but it boils down to this.  The First Step Act as currently written is a true bi-partisan compromise bill.  Most Democratic legislators do not feel it goes far enough and many Republicans feel it goes too far.  If the bill is not passed this year, it is likely that in a Democrat controlled House a bill more satisfactory to the Democrats would have passed the House, but with a Republican controlled Senate, no companion bill would have been approved:  Hence, the bill dies.  Thanks to pressure from Jared Kushner, the POTUS and many others, Senator McConnell agreed to put the bill up for a floor vote.  However, passage is not a certainty as several right-wing Republican Senators have vowed to introduce “floor” amendments that would substantially water down the bill as currently written.  As currently written the First Step Act would:

  1. The bill would make retroactive the reforms enacted by the Fair Sentencing Act of 2010, which reduced the disparity between crack and powder cocaine sentences at the federal level. This could affect nearly 2,600 federal inmates.
  2. The bill would take several steps to ease mandatory minimum sentences under federal law. It would expand the “safety valve” that judges can use to avoid handing down mandatory minimum sentences. It would ease a “three strikes” rule so people with three or more convictions, including for drug offenses, automatically get 25 years instead of life, among other changes. It would restrict the current practice of stacking gun charges against drug offenders to add possibly decades to prison sentences.
  3. The bill would increase “good time credits” that inmates can earn. Inmates who avoid a disciplinary record can currently get credits of up to 47 days per year incarcerated. The bill increases the cap to 54, allowing well-behaved inmates to cut their prison sentence by an additional week for each year they’re incarcerated. The change would apply retroactively, which could allow some prisoners — as many as 4,000 — to qualify for release the day that the bill goes into effect.
  4. Increase Home Confinement from a Maximum of 10% to 15% for eligible federal inmates.
  5. The bill would allow inmates to get “earned time credits” by participating in more vocational and rehabilitative programs. Those credits would allow them to be released significantly earlier early to halfway houses or home confinement.
  6. Would allow inmates or their representatives to file a motion directly with the court for Compassionate Release rather than only permitting the BOP from doing so.

However, Senator Thomas Cotton (R-AR) opposes the retroactive application of the increase in good time credits and wants it to apply prospectively only.  Further, he has asserted fear (largely nonsensical, antiquated and unrealistic) that all inmates can earn additional earned time credit even though the currently written bill excludes federal inmates convicted of certain violent offenses (50 excluded offenses listed) from participating in early release programs.  All of us here are waiting for the final bill to pass to see what effects its passage could have on its clients and other federal inmates.  We will update this page as soon as the Senate votes.

First Step Act Updates

Finally, a hint of welcome news from Washington, DC about the First Step Act.  Recent reports suggest that the bill does have a chance of passing both Chambers of the current lame duck Congress before the break in mid-December.  As many know, the First Step Act is a comprise bill of the much heralded and comprehensive Sentencing Reform and Corrections Act.  The SRCA would have provided substantial changes to both federal prison sentencing as well as certain prison-based reforms.  The First Step Act, as originally written, primarily included only the prison-based reforms of the SCRA and was viewed as a compromise bill.  It passed the House of Representatives on May 22, 2018 and  was forwarded to the Senate where it has languished since.  Most recently, Senators have drafted a revised  bill (Text can be read here.) which, by and large, embraces the version passed by the House but includes some sentencing related reforms.  In particular, the bill would expand the “safety valve” to include defendants with more than 1 criminal history point; reduce the applicability of certain mandatory minimums for non-violent drug offenders and reduce the mandatory minimums for certain others.  In addition, the bill would make the 2010 crack amendments, which significantly reduce the penalties for crack cocaine offenses, retroactive.  As to the prison reform aspect of the bill, it would allow inmates who participate in certain programs to earn significant time credits, increased phone privileges and relocation closer to family.  As to the earned time credits, they will not be applied to the sentence itself, resulting in a reduced prison sentence. Rather, the earned time credits can be used to increase the amount of time an inmate is assigned to a Residential Reentry Center, Home Confinement or Supervised Release.  Our research has concluded that there appears to be substantial bipartisan support for the First Step Act, but of course President Trump must support this bill or it will not be signed into law.  We are as optimistic about he [passing of this bill as we have ever been and urge all to urge the Representatives and Senators to pass this urgently needed bill.  Of course, if you have any questions, please do not hesitate to contact us at help@nationalprisonconsultants.com

Senate Needs to Take Action on the First Step Act NOW!

As many who follow our website and blogs know, the Republican controlled House of Representatives passed the First Step Act on May 22, 2018 and presented it to the Senate the day after. The First Step Act is a federal prison reform bill that will allow federal inmates to earn more time in alternative facilities such as Residential Reentry Centers (Halfway Houses) and Home Confinement upon successful completion of certain types of vocational and rehabilitative programs while in federal prison. It also would allow for a true 54 days of Good Time Credit rather than the Bureau of Prisons’ interpretation of only 47 days. The Senate has yet to take any substantive action on the First Step Act as certain senators on both sides of the aisle are pushing for a more expansive bill that would include sentencing reform as well. These senators are seeking a bill that would reduce prison sentences for large class of non-violent offenders. However, politics being what it is, there are other senators that, although they support the First Step Act, oppose the more expansive bill that includes sentencing reform. Thus, there is a standstill in the Senate as it appears that both the First Step Act and the proposed bill, known as the Sentencing Reform and Corrections Act, may very well be considered DOA—Dead on Arrival. Our view at NPSC is simple: Although our nation and its federal inmates needs BOTH federal sentencing AND prison reform, a half a loaf is always better than no loaf at all. With the midterms a mere 54 days away, time is of the essence to urge your Senator to push for approval of the First Step Act. To find your Senator’s contact information click here.  Of course, if you have any question please feel free to contact us at 615-696-6153 or at help@nationalprisonconsultants.com

Supreme Court Issues Two Decisions Today

Today the United States Supreme Court issued two decisions that can have a significant impact on a large number of current federal inmates.  In Hughes v. United States, the Court addressed the issue of whether a federal inmate who enters a plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) can seek to be resentenced pursuant to 18 U.S.C. 3582(c)(2) when the Sentencing Commission makes an amendment that subsequently lowers the guideline range.  A plea under FRCP 11(c)(1)(C), although not commonly utilized, is a specific agreement between the government and the defendant to a specific defined sentence and, if accepted by the court, that specified sentence must be imposed by the court leaving the court no discretion. The Hughes decision makes it clear that a federal inmate even with a FRCP 11(c)(1)(C) plea has a right to be resentenced if the applicable guideline range is subsequently reduced.  This is great news for about 800 federal inmates anticipated to be affected by this decision.

In another case,  Koons v. United States, the Court decided whether defendants subject to statutory mandatory minimum sentences, but who received prison terms below the minimum because they provided substantial assistance to the government, are eligible for reductions under 18 U.S.C. §3582(c)(2). The Court held that these type of federal inmates are NOT entitled for a resentencing under 18 U.S.C. §3582(c)(2).

If you have any questions or may need or assistance, please contact National Prison & Sentencing Consultants (NPSC) at help@nationalprisonconsultants.com or at 615-696-6153.

First Step Act to be Voted by House Today

Although current political realities have effectively eliminated the chances for the Sentencing Reform and Corrections Act from being passed, it appears that the First Step Act is poised for passage in the House of Representatives today.  The First Step Act focuses solely on several aspects of federal “prison reform” rather than any form of sentencing reform.  Although, many Democratic Representatives are voicing their opposition to this bill, asserting that it does not include any sentencing reform measures.  Although such is true, we here at NPSC feel that half a loaf is better than none at all.  With a GOP controlled House, Senate and White House it  is not expected that comprehensive sentencing reform is likely at least until after the 2018 mid-term elections.  Indeed, last week President Trump announced that he does support the First Step Act and will sign it if it gets on his desk.

The First Step Act, if passed, would:

  1. authorize $50 million annually for five years to provide education and vocational training programs to federal inmates.
  2. allow more federal prisoners to take advantage of credits that would allow inmates to serve part of their sentence in home confinement or at a halfway house.
  3. provide a technical fix that would allow inmates to earn up to 54 days of “good time” credit a year, up from 47 days annually under current Bureau of Prisons’ interpretation of the law.
  4. amend 18 U.S.C. §3621 to require the Bureau of Prisons to initially place or transfer most inmates closer to their primary residence subject to programming needs, bed availability and security level.
  5. ease some of the requirements to obtain a “Compassionate Release” and, more importantly, would allow an inmate—rather than just the Bureau of Prisons—-to file the required motion before the court pursuant to 18 U.S..C §3582 to seek a Compassionate Release.

The staff here at National Prison and Sentencing Consultants will keep an eye on this very important bill and will update its subscribers and readers with any important developments.  Of course, if you have any questions, please feel free to contact us at help@nationalprisonconsultants.com

“FIRST STEP” Legislation

Yesterday, the Senate and the House of Representatives introduced companion federal prison reform bills, which at present, appears to have bipartisan support.  The bills, known as “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act” or “FIRST STEP” Act, if approved, would allow for the following:

  1. The bill would authorize $50 million annually for five years to provide education and vocational training programs to federal inmates.
  2. The bill would allow more federal prisoners to take advantage of credits that would allow inmates to serve part of their sentence in home confinement or at a halfway house.
  3. The bill includes a technical fix that would allow inmates to earn up to 54 days of “good time” credit a year, up from 47 days annually under current Bureau of Prisons’ interpretation of the law.
  4. The bill would amend 18 U.S.C. §3621 to require the Bureau of Prisons to initially place or transfer most inmates closer to their primary residence subject to programming needs, bed availability and security level.
  5. The bill would ease some of the requirements to obtain a “Compassionate Release” and, more importantly, would allow an inmate—rather than just the Bureau of Prisons—-to file the required motion before the court pursuant to 18 U.S..C §3582 to seek a Compassionate Release.

We here at National Prison and Sentencing Consultants hope that this bill, if passed, is truly a FIRST STEP in federal prison reform.  Of course, if you have any questions, do not hesitate to call us at 615-696-6153 or help@nationalprisonconsultants.com

Sentencing Reform and Corrections Act

Since 2015, when Senator Grassley introduced the bipartisan supported Sentencing Reform and Corrections Act (SRCA), it looked like there would soon be a ray of very substantial hope for many federal inmates and those facing federal charges at the time or in the future.  Initially, the SRCA, generally speaking, comprised two parts:  Legislation that would reduce federal sentences for a large number of federal inmates and defendants AND prison reform that involved allowing many federal inmates to receive certain rehabilitative credits that would ultimately allow them to serve more of their time in Comprehensive Sanction Centers, Residential Reentry Centers and in-Home Confinement.  With respect to sentencing reform, the bill would have, at a minimum, expanded the use of the “safety valve” and reduce several mandatory minimums. However, it appears that the Senate is not at all interested in approving the federal sentencing reform aspect of the bill and appears to be poised to only consider the prison reform aspects of the bill.  Although from 2015 through 2018, the progressive winds of change were moving in the right direction in terms of smarter sentencing whereby inordinately long periods of incarceration were being curtailed and meaningful second chance opportunities were becoming available.  By all current accounts, it appears that sentencing reform is no longer a realistic possibility.  It is time for all to contact their Senators and Representatives and advocate for true and meaningful federal sentencing reform

Supreme Court Strikes Down Federal Definition of “Crime of Violence.”

We at NPSC have already received many inquiries about the impact of yesterday’s Supreme Court decision Sessions v. Dimaya which can be found here.  There is the potential that Dimaya can have a significant impact on many federal inmates who have had their sentence enhanced or a conviction based upon allegedly having committed a “crime of violence” as defined by 18 U.S.C. §16(b) or 18 U.S.C. §924(c).  Clearly, defendants who have not yet been sentenced or whose sentences are not yet final or have an appeal pending may be able obtain significant benefit from the application of Dimaya. For other federal inmates where Dimaya may have a beneficial effect may need to secure counsel and file a §2255 petition. It is advised that no one should file a petition pro se as such matters are very complicated and skilled counsel will give the federal inmate the best chance of reducing their sentence.  Such inmates may also want to contact the appropriate Office of the Federal Public Defender for assistance and guidance. Feel free to contact NPSC at 615-696-6153 or at help@nationalprisonconsultants.com for more information or for a referral to private legal counsel with experience in such matters.

US Sentencing Commission Voted on the 2018 Amendments on April 12, 2018

The United States Sentencing Commission (USSC) held a vote on the 2018 Proposed Amendments today.  We are somewhat disappointed.

At today’s Public Hearing of the United States Sentencing Commission, (USSC), the Commission voted to approve certain of the Proposed Amendments.  Unfortunately, in terms of reducing  the federal prison population and reducing federal sentences overall, the USSC did very little.  Specifically, they approved the changes to USSG §3E1.1 making it clear that a defendant being sentenced who makes non-frivolous objections to “Relevant Conduct” enhancements should not jeopardize a defendant’s Acceptance of Responsibility adjustment.  This is a positive step and we here at NPSC have worked on many cases where a defendant who made substantive (and legitimate) objections to certain enhancements were threatened with the denial of the 2 or 3-point Acceptance of Responsibility downward adjustment.  Additionally, and most significantly, the Commission did not approve a 1 or 2-point reduction for non-violent first-time offenders. However, it did approve a commentary amendment advising  that courts should alternatives to incarceration for non-violent first-time offenders who are in Category A or B on the Sentencing Table, meaning those with an Adjusted Guideline Level under 12. In addition, the Commission provided for a 4 level increase for “knowingly” distributing fentanyl as  another substance.  During the public hearing there was significant debate as to whether to include a mens rea requirement such as “knowingly” and we happy to see that the Commission opted not to include another “strict liability” enhancement.  A copy of the 2018  Amendments can be found here. As always, if you have any questions, please feel free to contact NPSC at help@nationalprisonconsultants.com or call 615-696-6153

Rumored Federal Prison Camp Closures

National Prison and Sentencing Consultants (NPSC) has heard many rumors from federal inmates and others that have been circulating relating to the Federal Bureau of Prisons’ closing certain federal prison camps in an effort to comply with its reduced 2019 Federal Budget allocation.  Although it is unclear what has been approved 2019, the 2019 Budget request by the Bureau of Prisons called for the closure of 2 of 7 federal standalone camps.  We have been asked about these rumors and as of this date do not have a definitive answer as to which camps, if any, will in fact be closed in 2019.  However, the seven-standalone federal prison are:  FPC Pensacola, FPC Montgomery, FPC Duluth, FPC Alderson, FPC Bryan, FPC Morgantown and FPC Yankton. We do find this putative budget cut and tentative closures curious when in fact the Department of Justice also proposed the elimination of a planned new $50,000,000 federal prison in Eastern Kentucky, but Congress, under the leadership of Senate Majority Leader Mitch McConnell (R-KY), approved the funding for this new and admittedly unnecessary facility.  Even more curious is the fact that this new facility is slated to also have a satellite prison camp adjacent to a high security facility.   As of this date we do not know which federal camps will be closed, if any.  Of course, National Prison and Sentencing Consultants will keep all updated as new and reliable information becomes available.