Federal Prison Reform and Unusual Allies

Common Sense and Federal Prison Reform

In a piece from Truth-Out entitled “Push to Reform Prison System Brings Unlikely Allies Together”, the unusual and unlikely are no joining forces to push for federal prison reform that has been needed for over two decades. (See Sentencing Reform Act of 1984). Excerpts from the Truth-Out article are below:

Over the past 15 years, the US prison population has more than doubled. There are 2.3 million Americans behind bars – that’s one in 100. About half of the people in prison are serving time for nonviolent offenses, including drug possession. More than 60 percent of US prisoners are black or Hispanic, according to the Pew Center on the States.

With just over 4 percent of the world’s population, the US accounts for a quarter of the planet’s prisoners and has more inmates than the leading 35 European countries combined.

Corrections is now the second-fastest growing spending category for states, behind only Medicaid, costing $50 billion annually and accounting for $1 of every $14 discretionary dollars. California spends approximately $50,000 per prisoner per year, far more than the state spends on students.

The push to reform the prison system has brought unlikely allies together. Earlier this year, the National Association for the Advancement of Colored People joined forces with Republican presidential hopeful Newt Gingrich who is part of a new prison reform initiative called Right on Crime.

In September, Inimai Chettiar, policy counsel at the American Civil Liberties Union wrote about speaking alongside members of Right on Crime and the faith-based Prison Fellowship at the American Bar Association’s initiative to “Save States Money, Reform Criminal Justice and Keep the Public Safe.”

“Never before have so many legislators, governors and advocates from all sides of the aisle come together with a single unifying theme on criminal justice: we need to end our addiction to incarceration,” she writes.

Yet, it’s all too rare to hear about their efforts.

Tim Cavanaugh, managing editor of Reason.com, the web site for the libertarian Reason Magazine, says prison reform should be a major issue for conservatives, yet more often than not, it’s falsely framed as a liberal issue. He notes that Mario Cuomo, the “great liberal governor of New York,” was the pioneer of the three-strikes-and-you’re-out law, and California, the most liberal state in the country, passed a three-strikes law in 1994.

Reason’s July issue was dedicated to prison reform with articles focusing on prosecutorial misconduct on death row, the costs involved in leading the world in locking up human beings and how California prison guards became the country’s most powerful union.

Cavanaugh says one solution would be a ten-year moratorium on new laws at the city, state and federal levels. He would also end the so-called war on drugs. “You can get rid of a huge body of cancerous US legal code just by eliminating the war on drugs. Ending the war on drugs would solve these problems,” he says. “We are the revolutionaries. We are the ones who are trying to tear down the castle walls and there are a lot of folks who want to keep it.”

Why the Resistance to Less Incarceration?

The simple answer to the title of this section is: Money. The prison industry makes billions of dollars every year, and the growing trend is in private prisons. The Justice Policy Institute did a major report on the private prison industry which explains its lobbying and influence on justice policies that keep their prisons full (read: profitable).

The report (available here) is called “Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies.” Here are the basics:

At a time when many policymakers are looking at criminal and juvenile justice reforms that would safely shrink the size of our prison population, the existence of private prison companies creates a countervailing interest in preserving the current approach to criminal justice and increasing the use of incarceration.

While private prison companies may try to present themselves as just meeting existing demand for prison beds and responding to current market conditions, in fact they have worked hard over the past decade to create markets for their product. As revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration.

For-profit private prison companies primarily use three strategies to influence policy: lobbying, direct campaign contributions, and building relationships, networks, and associations.

As policymakers and the public are increasingly coming to understand that incarceration is not only breaking the bank, but it’s also not making us safer, will this shrink the influence of private prison companies? Or will they use their growing financial muscle to consolidate and expand into even more areas of the justice system? Much will depend on the extent that people understand the role for-profit private prison companies have already played in raising incarceration rates and harming people and communities, and take steps to ensure that in the future, community safety and well-being, and not profits, drive our justice policies. One thing is certain: in this political game, the private prison industry will look out for their own interests.

Supreme Court: Bivens Can’t Be Used Against Private Prison Guards

Federal Private Prison Guards Protected

Minneci v. Pollard

So you or a loved one is in federal prison. You also happen to be one of the 10% or so of federal inmates who are housed in a private prison. It may already feel like the Bureau of Prisons (BOP) can do as they please with little to no repercussions.

Now, however, there is more protection for the employees of a private prison than even the BOP enjoys. Say you get thrown into “The Hole”, officially called segregation, for some bad behavior. There you are deprived of medical care or subject to other violations of the United States Constitution’s Eighth Amendment protections against cruel and unusual punishment.

This is a federal prison, and you are the property of the United States Federal Government. That means that violations of the United States Constitution while there should be the purview of the federal courts, right? Wrong.

In this opinion from the Supreme Court, announced on January 10th, 2012, an inmate in private federal prison cannot sue a guard of a private federal prison (see Bivens) for violations of his federally protected right against cruel and unusual punishment. Sound fishy to anybody?

Explanation

Tuesday’s opinion was discussed and explained (better than I ever could) over at the Constitutional Law Prof Blog. The details are below:

The Supreme Court ruled 8-1 today that a prisoner in a privately run federal prison in California cannot sue guards for a violation of his Eighth Amendment rights under Bivens v. Six Unknown Fed. Narcotics Agents. The ruling, authored by Justice Breyer, means that when alternative state causes of action (or other processes) exist, plaintiffs have no Bivens action against private government contractors, even when they are engaged in traditional government services (like guarding a prison).

Justice Breyer applied the two-prong approach in Wilkie v. Robbins (2007). The Court in Wilkie held that Bivens does not extend if (1) there are “alternative, existing” processes that provide adequate protection or (2) there are special factors counseling against a Bivens remedy. Only the first was at issue here.

The ruling, which focuses on the availability and adequacy of state tort law, at least theoretically leaves open the possibility that Bivens might extend in a similar circumstance but when an alternative process is inadequate.

The ruling extends the holding in Correctional Services Corp. v. Malesko (2001), which said that Bivens did not extend to a plaintiff’s case against a privately operated prison (and not a private prison guard). The plaintiff here tried to distinguish Malesko on the ground that Bivens is designed to deter, and while the threat of a Bivens action against a private prison can’t deter individual officers, the threat of a Bivens action against private guard can.

From the Opinion

Delivered by Justice Breyer:

The question is whether we can imply the existence of an Eighth Amendment-based damages action (a Bivens action) against employees of a privately operated federal prison. See generally Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389 (1971) (“[V]iolation of [theFourth Amendment] by a federal agent . . . gives rise to acause of action for damages” against a Federal Government employee). Because we believe that in the circumstances present here state tort law authorizes adequate alternative damages actions—actions that provide both significant deterrence and compensation—we cannot do so. See Wilkie v. Robbins, 551 U. S. 537, 550 (2007) (no Bivens action where “alternative, existing” processes provide adequate protection).

Bureau of Prisons Gets a New Director

Lappin is Out

Nearly simultaneously, the current director of the federal Bureau of Prison Harley Lappin was arrested for DUI and announced his resignation from his position at the bureau. All this occurred in late march, 2011.

Now that his retirement is looming, the embattled U.S. Attorney General has announced the appointment of Lappin’s replacement: Charles E. Samuels Jr. Below is an excerpt from the original DOJ piece from justice.gov.

“Attorney General Eric Holder today announced the appointment of Charles E. Samuels Jr. as the director of the Federal Bureau of Prisons (BOP).

“I am pleased that Charles will continue to build upon 23 years of distinguished service at the department,” said Attorney General Holder. “I am confident that Charles will provide the kind of effective and innovative leadership that will increase efficiency, further expand prisoner development and reentry programs, and allow for transparency and accountability at the Federal Bureau of Prisons – while remaining true to the BOP’s core mission of protecting public safety.”

“I am very honored to be appointed by Attorney General Holder to serve as the director for the Federal Bureau of Prisons and will continue to work with the great staff at every level of the BOP to meet our mission to protect society and provide meaningful life skills and reentry programs for our inmate population,” said Samuels. “I also look forward to working with the leadership and others in the Department of Justice, throughout the federal government and in states and local communities to further the department’s goals and objectives.”

Samuels began his career with the BOP as a correctional officer in 1988. He was promoted to a number of positions within the BOP including correctional programs administrator and executive assistant for the Northeast Regional Office. Samuels has served as associate warden at the Federal Correctional Institutions at Otisville, N.Y. and Beckley, W.Va.; ombudsman in the BOP’s Central Office; warden at the Federal Correctional Institutions at Manchester, Ky. and Fort Dix, N.J.; and senior deputy assistant director of the Correctional Programs Division.”

The Rumor Mill

This news will no doubt set the inmates of the Bureau of Prisons ablaze with rumor about how this new director will be great or terrible. The reality is that there is no indication that the BOP will do anything except the same old stuff under the direction of Samuels.

Conrad Black’s Indictment of the American Criminal Justice System

Conrad Black

This famous American prisoner is a Canadian-born member of the British House of Lords. His noble title is Baron Black of Crossharbour. He is a historian, columnist and publisher, and has much to say about the American criminal justice system.

Lord Black controlled Hollinger International, Inc. Through affiliates, the company published major newspapers including The Daily Telegraph (UK), Chicago Sun Times (U.S.), Jerusalem Post (Israel), National Post (Canada), and hundreds of community newspapers in North America.

Black was convicted of fraud in a US court in 2007 and sentenced to six and a half years’ imprisonment. On July 19, 2010 Black was granted bail. The U.S. 7th Circuit Court of Appeals overturned two of the three remaining mail fraud counts in October of that year. On June 24, 2011 he was resentenced on one remaining count of mail fraud and one count of obstruction of justice to a prison term of 42 months and a fine of $125,000.

The original article was published December 1, 2011 on the National Review Online.
Here is how it begins:

Justice Denied

The U.S. Legal System is a Disgrace

In the current issue of Commentary, there is a symposium of 43 knowledgeable people who discuss whether they are optimistic or pessimistic about America. In the current edition of The New Criterion, the eminent British historian Andrew Roberts, now a U.S. resident, assesses similar points in a lead essay about how benign America has been as the superpower, and how keenly it will be missed if superseded in that role by China.

Nowhere in either interesting section of either magazine is the appalling state of the U.S. justice system mentioned as symbolic or indicative of the country’s problems. Very adequate attention is given to the uncompetitive deterioration of American public education, to fiscal irresponsibility, and certainly to the shortcomings of popular culture and the media.

I try to rise above the fact, known to most readers, that I write from a federal prison where I have been sent for a total of 37 months, for crimes I did not commit, and after all 17 counts against me were abandoned, rejected by jurors, or vacated by a unanimous U.S. Supreme Court. I have amply described my legal travails elsewhere and refer to them here only as disclosure.

The United States has six to twelve times as many incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom, all prosperous democracies. The U.S. has a much higher percentage of successful prosecutions, a lower hurdle to clear to prosecute (with rubber-stamp grand juries), a greater range of offenses, heavier sentences, and a higher recidivism rate than any of those other countries.

As Sen. Jim Webb of Virginia wrote in his essay “Criminal Injustice” two years ago, either those other countries are less concerned with crime than the U.S., or Americans are more addicted to criminal behavior — both preposterous suggestions — or the U.S. justice system is not working well.

There are 48 million people in the United States with a “record,” many of them based on ancient DUIs or disorderly behavior decades ago at a fraternity party and other unstigmatizing offenses, but still a severe inconvenience to them when they travel abroad or their names are fed to almost any information system; and millions have had their lives effectively ruined. The U.S. has 5 percent of the world’s population, 25 percent of the world’s incarcerated people, and 50 percent of the world’s lawyers, who invoice almost 10 percent of U.S. GDP (around $1.4 trillion annually). In the mid-1970s, the U.S. had about 650,000 people in mental institutions; today, it has only 50,000. Prisoners cost $40,000 per year to detain, and some states can no longer afford it. The conditions of hundreds of thousands of prisoners are grossly and shamefully inhumane. (My own are not.)

The Fifth, Sixth, and Eighth Amendment rights of assurance against capricious prosecution, due process, no seizure of property without due compensation, an impartial jury, access to counsel, prompt justice, and reasonable bail, don’t exist. The ubiquitous plea bargain is just the wholesale subornation or extortion of inculpatory perjury in exchange for immunities or reduced sentences (often with people who are threatened, although there is no evidence against them). Assets are routinely frozen on the basis of false affidavits in ex parte proceedings to deny defendants the ability to defend themselves. Those who do exercise their constitutional right to a defense receive three times as severe a sentence as those who plead guilty; 95 percent of cases are won by prosecutors, 90 percent of those without trial. The public defenders have no resources to conduct a serious defense and are usually just Judas goats of the prosecutors conducting the defendants to legal destruction.

Supreme Court Grants Cert. to FSA Pipeline Issue

Hill v. United States (11-5721)

Fair Sentencing Act and Crack Cocaine cases before and after its implementation are going to get their day in the Supreme Court!

Great news today from the United States Supreme Court. With a split in Circuit Court decisions regarding application of Crack Cocaine Sentencing Guideline reductions from the Fair Sentencing Act of 2010 (FSA), the Supreme Court has decided to hear arguments and resolve this issue once and for all.

In Hill v. United States, the defendant asserts that the reductions in Crack Cocaine sentences which arose from the passage of FSA applies to all defendants sentenced after the date of enactment of the new law: August 3, 2010.

Since the name “Fair Sentencing Act” implies that prior sentencing rules were unfair, its only logical to think that courts would apply the new guidelines to all defendants sentenced after its enactment, right? Wrong.

Although the First, Third, and Eleventh Circuits have agreed with this conclusion, the 7th Circuit has decided to apply the new reductions only to defendants who committed their crimes after August 3, 2010. All defendants already awaiting sentencing after that day were still sentenced under the older, harsher rules.

FSA Pipeline Cases Defined

These cases are called “Pipeline” cases. FSA pipeline cases are where defendants committed and charged with their offenses before the enactment of FSA, but had yet to be sentenced. Many believed they would get a more fair sentence immediately following the bill’s enactment date, and many received no such relief.

What Does This Mean?

The Supreme Court must now decide if the application of the newer, fairer law should have been applied to all pending sentences as of August 3, 2010. If it decides that this is the case, the decision is a huge victory for a lot of defendants with FSA pipeline cases.

Even if the Supreme Court decides that many defendants were sentenced under the old law unfairly, there is still work to be done. Each defendant must petition their sentencing court to reduce their sentence in the same way that the current USSC policy allows for. The biggest change that could come from this decision is the application of lengthy mandatory minimum sentences that could then be removed.

Keep checking in for the latest on the Hill case!

November Round-Up

From Crack Cocaine Sentence Reductions to Early Termination of Supervised Release

November has been a big month in the world of federal corrections. Due to all the recent events, this will be a lengthy post on all matters federal-criminal.

New Retroactive Crack Law

The United States Sentencing Commission’s 2011 Amendments to their Guidelines Manual were enacted on November 1st. In these amendments, the Sentencing Commission made the Fair Sentencing Act of 2010 retroactive in sentence reductions.

Inmates may now petition their sentencing courts to reduce their Crack Cocaine sentences if sentenced before August 3, 2010. There are too many details about this to effectively discuss in this singular article, but here are the highlights:

  1. Sentences must be for 21 U.S.C. §841 or §846
    • §841 (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
    • §846 Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
  2. Sentencing must be issued under the drug quantity table of the Guidelines Manual
  3. In most Circuit Courts, commission of stated crime must have occurred after August 3, 2010 instead of just the sentencing occurring after this date.
    Exceptions are discussed in this prior post.

Federal Probation Early Termination (Supervised Release Too!)

Judges are now being told to cut people loose from federal supervised release and probation. Another amendment to the USSC Guidelines Manual specifically tells federal judges to consider early termination for anybody who is in their final phase of supervision.

In basic terms, if a supervisee is done with treatment, community service, or any other requirement of probation that has an expiration, that person is eligible for early release. If all that is left on supervision is simply monitoring for violations, you have a good chance of getting free. More on this subject on our Federal Probation Termination page.

Supreme Court Round-Up

The United States Supreme Court is collecting cases to hear on November 22, 2011 regarding application of Fair Sentencing Act reductions to “pipeline” cases (see exceptions, above). Davis and Hill are two of the cases regarding this issue that the Supreme Court needs to decide on in order to rectify a Circuit split. The 1st, 3rd, and 11th Circuits apply FSA to all cases sentenced after 8/3/10. The 7th Circuit applies the reduction to cases where the actual crime was committed after that date. All other Circuits are currently mute on the subject.

Also on the docket is the issue of juveniles receiving Life Without Parole sentences. Originally discussed back in 2010 on Sentencing Law and Policy, the Supreme Court is now taking another look at the constitutionality of sentencing kids to die in prison.

Below we’ve summarized the rest of what the Supreme Court has done so far this year:

1. A unanimous AEDPA ruling for the state: “The first opinion of the Term is in Greene v. Fisher. Justice Scalia wrote the opinion for a unanimous Court, which held that for purposes of the Antiterrorism and Effective Death Penalty Act, ‘clearly established federal law’ is limited to the Supreme Court’s decisions ‘as of the time of the relevant state-court adjudication on the merits.’”

2. A hint during oral argument in US v. Jones (transcript here) that GPS tracking might require a warrant: “Midway through a federal government lawyer’s plea Tuesday for unrestricted power for police to use new GPS technology to track cars and trucks on public roads, Chief Justice John G. Roberts, Jr., sketched out just how the Court may well restrict the practice. Despite an unqualified prior statement by the Court that one moving about in public has absolutely no right to expect privacy, the Chief Justice said that such a right might exist, after all, and it could trump the fact that the movement was in public. If the Court can find a way to say just that, police almost certainly would have to get a warrant before using GPS to monitor where suspects go.”

3. A suggestion during oral argument in Smith v. Cain (transcript here) that SCOTUS that sometimes prosecutors should stop defending hinky convictions: “There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles.”

Federal Inmate-Related Bills In Congress

This isn’t specific to November, but many inmates and families of inmates are hungry for knowledge of what Congress will do next to give relief to federal inmates. Here’s a short list of bills currently proposed for this session:

  • H.R. 2316, the Fair Sentencing Clarification Act retroactively applies the sentence reductions included in last year’s Fair Sentencing Act (FSA). This means that inmates rendered ineligible for reductions because of preexisting mandatory minimum sentences would now benefit from FSA.((Read the 2014 version of the bill here)
  • H.R. 2242, Fairness in Cocaine Sentencing Act of 2011 eliminates any disparity between crack and powder cocaine sentences. Its not retroactive, but makes the ratio that FSA brought from 100:1 to 18:1, down to 1:1.
  • H.R. 2344, the Prisoner Incentive Act of 2011 rewrites the good time statute to make clear that a prisoner is eligible to earn up to 54 days of good time credit per year for each year of the prisoner’s sentence. Since 1988, the Bureau of Prisons (BOP) has interpreted the good time statute to award good time credit based on the time actually served by the prisoner, not the sentence imposed by the judge. As a result, prisoners only earn a maximum of 47 days of good time for each year to which they are sentenced, instead of the 54 days per year many believed Congress intended.
  • H.R. 223, the Federal Prison Bureau Nonviolent Offender Relief Act of 2011 directs the Bureau of Prisons to release individuals from prison who have served 50 percent or more of their sentence if that prisoner: (1) is 45 years of age or older; (2) has never been convicted of a crime of violence; and (3) has not engaged in any violation, involving violent conduct, of institutional disciplinary regulations. The bill is intended to reduce overcrowding in federal prisons and give those nonviolent offenders over the age of 45 a second chance.

For more information on bills currently in Congress, visit the FAMM page regarding the subject.

As the holidays approach, hope can either strengthen or wane. PCR Consultants wishes all the best to the people it serves: Defendants, Inmates, Released Offenders, and their families. For more information on any subject here, give us a call at (480) 382-9287.

Free Crack Cocaine Sentence Reduction Guidebook

PCR Consultants Has Published a Book(let)!

Many of the calls we get here at PCR Consultants are about the November 1, 2011 Sentencing Guidelines Manual Amendment regarding crack cocaine sentence reductions. The first question potential clients ask is about eligibility.

Who is eligible? What makes or breaks eligibility?

As part of our services to families and inmates who are interested in these sentence reductions, we conduct informal case-eligibility reviews to give confidence in eligibility based upon court records. Now, you can read all about what makes and breaks eligibility!

To help, PCR Consultants has written and published a free resource. Now, we’re making this guidebook available for free download here:

Let Us Help You!

Call us at (480) 382-9287 and get a free consultation to find out more information about how we can help you and your incarcerated loved one get these sentences reduced.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Learn about us and how our services work on our about page.
 

US Sentencing Commission Posts 2011 Amendments

New 2011 Amendments from U.S.S.C.

With October upon us, and November first rapidly approaching, PCR Consultants is starting a yearly tradition of breaking down this year’s amendments to the United States Sentencing Guidelines as published by the US Sentencing Commission (U.S.S.C.). Each year, these amendments become active on the first day of November.

To find out how PCR Consultants can help you take advantage of these new amendments, contact us for a free consultation at (480) 382-9287.

Here is a breakdown of the Amendments, what changed, and how they may help or hurt federal defendants, inmates, and those on probation.

The Amendments

Fair Sentencing Act: The Commission re-submitted its changes to crack cocaine sentencing guidelines per the Fair Sentencing Act of 2010. On June 30, 2011 the Commission voted unanimously to make the guidelines changes retroactive. Read more on our Crack Cocaine Sentence Reductions page.

Supervised Release: Learn more about getting early release from federal probation or supervised release with the help of PCR Consultants on our Early Termination Page. This year, four changes were made to Supervised Release and federal Probation:

  1. Deportable Aliens: This change effectively eliminates Supervised Release for defendants who are not required it by law, and are likely to be deported after imprisonment;
  2. Lesser Terms of Supervised Release: The Commission lowered the minimum term of Supervised Release under §2D1.2 from three years to two years from Class A and B felonies, and from 2 years to one year for Class C and D felonies;
  3. Guidance on Imposing Supervised Release Terms: The Commission added criminal history and substance abuse to what the court should consider in determining whether to impose supervised release, and for how long;1
  4. Early Termination of Supervised Release: §5D1.2, has been amended with language which specifically encourages courts to consider early termination of supervised release “in appropriate cases.” An example provided is a substance abuser who successfully completes a treatment program, “thereby reducing the risk to the public from further crimes of the defendant.”

Illegal Reentry: The Commission reduced but didn’t eliminate, the enhancements based on stale convictions or convictions that do not receive criminal history points under chapter 4 of the guidelines. This amendment also provides an upward departure if the new enhancement “does not adequately reflect the extent or seriousness of the conduct underlying the prior conviction.

Mitigating Role: This amendment changed the language of its notes to §3B1.2 (Mitigating Role) to encourage the courts to apply the adjustment therein. This amendment struck (1) from Application Note 3(c)2 and (2) from Application Note 43. This amendment encourages the court that it can, and should, give this adjustment when the only evidence of role rests upon circumstantial evidence and the defendant’s statement of his/her participation.

The US Sentencing Commission also changed the language of §1B1.3 (Relevant Conduct) to help clients who are charged with fraud crimes but benefited little from the overall fraud scheme.

Firearms: Guidelines §2K2.1 and §2M5.2 are changed for the worse. In §2K2.1, the Commission increased penalties for straw purchasers, added a 4-level enhancement (and floor of 18 points) when a defendant left or tried to leave the US while possessing any firearm or ammunition. There is, however, language for downward departure for straw purchasers who were motivated by an intimate or familiar relationship or by threats or fear to commit the offense, where no monetary benefit from the offense exists.

The changes to §2M5.2 raised penalties for cases involving small arms crossing the border, increasing the base offense level from 14 to 26 in cases involving more than two (changed from 10) non-fully automatic small arms.

Fraud: Responding to new health care legislation, §2B1.1 was amended in two ways. First, tiered enhancements for loss amounts of over $1 million were added. Second, a new rule for loss amounts in healthcare fraud cases was added, but is arguable.

Child Support: Defendants convicted of willful failure to pay court-ordered child support are no longer subject to a 2-level enhancement under §2B1.1(b)(8)(C).

Drug Disposal Act: This final amendment broadens the list of people who can be subject to an enhancement for abusing a position of trust or use of a special skill. This is ordinarily used in drug offenses.

**************************

  1. Adding these to the statutory factors set forth in 18 U.S.C. §3583 []
  2. Stating that the court “is not required to find, based solely on the defendant’s bare assertion, that such a role adjustment is warranted” []
  3. The statement: “It is intended that the downward adjustment for minimal participant will be used infrequently []

Will Congress Make Crack Law Retroactive?

Crack Cocaine Sentence Reductions – Retroactivity

It is fairly common knowledge at this point that the United States Sentencing Commission has made their Sentencing Guideline Manual reductions for crack cocaine sentences retroactive. However, this policy has raised quite a few questions regarding how it works and who it helps. This article is meant to clear up many of the questions that visitors to this site, and families of incarcerated loved-ones in general, have regarding the new policy.

The Basics

In 2010 Congress passed the Fair Sentencing Act of 2010, which raised the triggering quantities of mandatory minimum sentences for crack cocaine offenses. The Sentencing Commission then lowered the sentence ranges for all such charges. On June 30, 2011, the Sentencing Commission made their reductions retroactive to all inmates in the federal Bureau of Prisons.

This is a good thing. Many inmates will qualify for reductions in their sentences because those sentences were “Unfair”. The new policy, however, doesn’t have the effect of a new Congressional law that would make FSA 2010 retroactive.

What’s the difference?

Policy can only change the guideline range, so those who were sentenced to mandatory minimums under the old law cannot get a sentence reduction (with one exception). The only way these inmates can get relief is if Congress specifically makes FSA 2010 retroactive.

So, will Congress make the new crack cocaine law retroactive? Currently there seems to be no movement on the side of Congress on FSA 2010 at all. It has the opportunity to block the Sentencing Commission’s policy with a blocking Bill before the enactment date of November 1, 2011. However, so far nothing has been presented.

It (Congress), can also pass a new law making all these changes retroactive to every inmate sentenced for applicable crack cocaine crimes. Again, there is no movement on this front either. The good folks at FAMM even made a page with lots of great information and up-to-date news on these guidelines changes.

Crime and Corruption in Law Enforcement

Obama Administration Investigations

At a record-setting pace, the Department of Justice is currently conducting 17 separate investigations to determine whether law enforcement officers are guilty of brutality or discrimination against minorities. This, as reported by the Washington Post, is the highest number of such investigations at one time in American history.

The excerpt below highlights a few of the stories behind investigations and contains a dramatic quote claiming one law enforcement agency shows a “staggering level of crime and corruption” within its ranks.

In recent months, the Justice Department has begun inquiries into major city police departments like Portland, Or., where officers shot several people who had mental health issues, and Seattle, where police were accused of gunning down a homeless Native American woodcarver. The department issued a scathing report this month accusing Puerto Rico police of a “staggering level of crime and corruption.”

And later. . .

Thomas E. Perez, assistant attorney general for civil rights, said the investigations into local police are “really a cornerstone of our work.” He was speaking to reporters about the report on Puerto Rico, which accused officers of widespread brutality, unconstitutional arrests and targeting people of Dominican descent.

Much can be said, and many personal accounts float around all over the country of law enforcement bias against minorities. These investigations are being conducted amidst events like the recent one in Texas where the United States Supreme Court halted the execution of Duane Buck who claims that racial motives during trial/sentencing led to his death sentence.