Publications and Articles

John Webster, a former practicing lawyer and founder of National Prison and Sentencing Consultants, NPSC, keeps abreast of all significant changes in federal law and policy. Please check our recent updates page for more recent updates. However, we offer several publications and articles that may be of assistance.

Some Thoughts on AG Holder’s New Federal Sentencing Policy , August 2013 (by John Webster and National Prison and Sentencing Consultants)

Like many involved in the criminal justice system, we here at National Prison and Sentencing Consultants (NPSC) were pleased, at least initially, to listen to Attorney General Holder’s announcement that the Justice Department is taking steps to ease America’s overcrowded federal prison system. Among other initiatives, such as releasing elderly inmates, Mr. Holder unveiled a plan to reduce mandatory minimum sentencing for nonviolent drug-related crimes. In addition to supporting bipartisan legislation giving judges more flexibility in sentencing, the Department of Justice sent a memo to all U.S. federal prosecutors this week requires them to not include information regarding drug quantities – thereby (presumably) allowing them to sidestep mandatory minimums – for drug defendants that meet a certain set of criteria, including having no affiliations with drug cartels or other criminal organizations, no prior criminal record, and no violent crimes connected to their offenses.

Having been involved in hundreds, if not thousands, of federal sentencing processes, we question the efficacy of this seemingly simple maneuver. It seems—almost—that perhaps in the Ivy Tower of Washington, Mr. Holder does not grasp the nuances and procedures of federal sentencing in the trenches, so to speak.

Initially, it must be understood that the amount of drugs that one is charged with, not only drives the ultimate sentence, but triggers the mandatory minimums. Congress has passed a law, for instance, that anyone possessing more than 5 kilos of cocaine MUST be imprisoned for 10 years and anyone possessing more than 500 grams of cocaine MUST be imprisoned for 5 years. Contained in 21 U.S.C. §841 is Congress’ mandate that possession of certain amounts of enumerated drugs triggers certain mandatory minimums. Although there are certain limited methods to avoid mandatory minimums, such as providing substantial assistance or qualifying for the Safety Valve, by and large, the specified quantity of drugs will trigger the specified mandatory minimums.

As well, the advisory United States Sentencing Guidelines, as it pertains to drugs, also relies heavily on the amount of drugs to determine the appropriate guideline level and, by and large, the ultimate sentence to be imposed. Although the Guidelines were declared advisory and not mandatory in 2005, the United States Supreme Court has ruled that the first step in all federal sentencing hearings is to properly calculate the guideline level. In drug cases the quantity of drugs is used to determine the base offense level. Without knowing the quantity of drugs involved, it is simply not possible for a sentencing court to properly calculate the appropriate guideline level as mandated by our Supreme Court.

Moreover, we cannot envision a plea agreement with the government that would state that the defendant pleads guilty to “an unspecified, albeit known to the government and the defendant, amount of drugs.” Nor can we envision any judge accepting such a plea.

Compounding the matter is that in virtually all federal sentencing cases, after a plea is entered or a conviction returned, the Court orders a Pre Sentencing Investigation Report (PSI) from the Office of Probation. The Office of Probation is an arm of the court and the PSI is intended to present the court with an objective and independent assessment of the appropriate guideline calculation. As part of the process of preparing the PSI, the Probation Officer, will examine all law enforcement reports—which will certainly contain the amount of drugs involved in the arrest or involved in the conspiracy if appropriate. The Probation Officer must include that information in its PSI. Clearly the amount of drugs involved will have to be presented to the court. Regardless of how it gets there, it will get there.

Now, for instance, what happens if the PSI reveals that there was 501 grams of cocaine involved? Is the court not duty bound and legally obligated to impose the mandatory minimum of 5 years specified in 21 U.S.C. §841 regardless of the Governments r

We fear that Mr. Holder’s initial plan, although laudable, will not be effective in unshackling courts from Congress’ mandatory minimum sentences and reducing prison populations. What must be done is passing legislation that eliminates mandatory minimums and allow Judges to actually judge the individual standing before him or her based on offense and offender characteristics and allow them to be sentenced as an individual

New Federal Bureau of Prisons’ Security Classification Regulations, September 2006 (by John Webster and National Prison and Sentencing Consultants)

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.

“A Primer on Booker Fanfan” By John B. Webster, January 2005 (by John Webster and National Prison and Sentencing Consultants)

On January 12, 2005, the United States Supreme Court in a 5-4 vote issued its long awaited decisions in companion cases known as United States v, Booker, No 04-104, slip op January 12, 2005 and United States v Fanfan, No 04-105 slip op, January 12, 2005. Succinctly, the Supreme Court struck down significant (but textually small) portions of the of the1984 Sentencing Reform Act, 18 U.S.C. 3551-3626 and 28 U.S.C. 991-998, as amended, (SRA) as being unconstitutional and altered the standard of review to be used by appellate courts in reviewing district court sentences. The SRA created and implemented the United States Sentencing Guidelines.

What started out as “typical” federal criminal cases for Messrs. Booker (USP McCreary) and Fanfan (MDC Brooklyn) have turned out to be the most significant decision regarding sentencing since the enactment of the Sentencing Reform Act in 1984. Read Full Article Here

“To Cooperate or Not: The Myths and Illusions of Section 5K1” By John B, Webster, March 2005 (updated January 2012)(by John Webster and National Prison and Sentencing Consultants)

Obviously, a defendant faced with the possibility of a substantial downward departure if they opt to “cooperate” faces a seemingly complex dilemma. On one hand they will be branded a “rat” or a “snitch” and possibility face the adverse consequences, real and imagined, in the event that a prison sentence results nonetheless. On the other hand, it is often likely (if not a guarantee) that others involved in the same crime or indictment will be discussing the possibility of cooperation resulting in “a race” to be the first. Failure to act in time may result in the inability to cooperate at all and avail oneself of the substantial benefits of a downward departure. This dilemma is present and most poignant in drug related cases as most if not all drug crimes usually involve more than one person and often involve many who are indicted as part and parcel of a drug conspiracy. Complicating matters is the fact that an individual with a “minor” part in the conspiracy is criminally liable for the total amount of drugs involved in the entire conspiracy. As a result, an individual may find themselves faced with the potential of scores if not hundreds of months in prison for what they thought was purchasing or distributing a relatively small amount of drugs. Read Full Article Here

“Does Anyone See a Problem Here?: Our Failing Judicial System.” John B. Webster, December 2004.(by John Webster and National Prison and Sentencing Consultants)

As of January 2005 the American criminal justice system has in excess of 181,000 Americans in federal custody and over 2 million people are incarcerated in the various states” systems. One out of every 134 Americans is incarcerated. America has the highest per capita rate of incarceration than any nation in the world including present and former totalitarian regimes such as China, Libya, North Korea or even Stalinist Russia. Read Full Article Here