Notable Federal Sentencing, Crime and Defense News

The last few weeks has held a substantial amount of news concerning federal crime, sentencing, and defense news. Although there is not going to be an in-depth discussion on each topic here today, links are provided to source materials or detailed discussions and analyses.

U.S. Supreme Court

After a long break, the Supreme Court is back in action. Here is an overview of the recent decisions:

Howes v. Fields: The Sixth Circuit held that an inmate who is questions about events outside of prison are ‘in custody’ for Miranda purposes. The Supreme Court reverses the Circuit ruling, stating “The Sixth Circuit’s categorical rule—that imprisonment, questioning in private, and questioning about events in the outside worldcreate a custodial situation for Miranda purposes—is simply wrong.”

Kawashima v. Holder: The Ninth Circuit ruling that aiding and assisting in the preparation of a false tax return is an aggravated felony if the government’s revenue loss is greater than $10,000 is affirmed. “Convictions under 26 U. S. C. §§7206(1) and (2) in which the Government’s revenue loss exceeds $10,000 qualify as aggravated felonies pursuant to Clause (i).”

Wetzel v. Lambert: This case involves AEDPA questions concerning habeas relief for a defendant on death row in Pennsylvania. The Supreme Court, in a per curiam opinion, vacated the Third Circuit, and remanded. Explanation of habeas relief under AEDPA is quoted from the opinion below.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) precludes a federal court from granting a writ of habeas corpus to a state prisoner unless the state court’s adjudication of his claim “resulted in a decision that was contrary to, or involved an unreasonable application of, a clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. 2254(d)(1).

United States Sentencing Commission

Last week, the USSC held two important and public hearings regarding sentencing policy in the federal justice system. One focused on broad sentencing options, entitled “Federal Sentencing Options after Booker” (written testimonies). From professor Berman over at Sentencing Law and Policy:

There was a rough consensus, at least coming from all the judges, prosecutors, defense attorneys and public policy groups (whose written testimony is still linked via this official agenda here), that the broader post-Booker sentencing structure is, as a matter of policy and practice, functioning reasonably well all things considered.

The second hearing addressed the sentencing guidelines concerning child pornography offenses (written testimonies). This area is functioning so poorly that defendants who possess visual depictions of child sexual abuse are often punished more severely than the perpetrators of the sex abuse that is depicted. In some cases, possessors of child pornography are sentenced to longer incarceration terms than rapists and murderers.1

Sentencing and Crime Articles

Here are a few of the many academic and opinion articles published on federal criminal law.

The High Cost of Prisons: Using Scarce Resources Wisely.

“The Gray Box”: An Investigation of Solitary Confinement in U.S. Prisons.

Round-Up

There is a lot of information to take in here, as there is always a lot of discussion about federal criminal practice and policy. Not many changes are made from Congress or even the Sentencing Commission, but the pendulum is swinging away from locking up everybody possible. Talk turns into action, it just seems to take decades to do so (see the obvious problems with the Cocaine v. Crack Cocaine sentence disparity).

Check back often for more on federal cases, sentencing policy, and discussions on how consultants can help you use this information to your advantage!

  1. Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines. Troy Stabenow (2009) at 38. “Child pornography is a pernicious evil. However, the hysteria associated with public events such as the Dateline “To Catch a Predator” series is not a sound basis for sentencing. Since 1991, the punishment for these offenses has been dramatically and irrationally increased, to the point where today rapists, murderers, and molesters receive lesser sentences than would a man who swaps a few, thirty-year old, pictures of child pornography that were produced before the defendant was even born.” []

US Sentencing Commission Holds Important Public Hearings

February U.S.S.C. Public Hearings

February is set to be a significant month in the world of the United States federal sentencing. The US Sentencing Commission has announced two public hearings regarding big sentencing issues involving federal criminal justice.

The first hearing, announced Wednesday, is all about federal Child Pornography sentencing. A huge public reaction has occurred because many federal Child Porn possessors are getting much larger sentences than the offenders who actually create  that pornography and sexually assault the pictured victims.

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing.

The second hearing, also announced Wednesday, regards sentencing in the post-Booker world.

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses on federal sentencing options pursuant to United States v. Booker.

The outcome of these hearing could be effective policies that alter sentences both in the future and retroactively. These decisions are made based on these hearings. Although the hearings themselves are public, the general public is not allowed to comment and testify. Only a handful of invites were sent out for each hearing.

Check back soon for information on the outcomes of these hearings.

Early Release from Federal Probation – What Judges Must Consider

Early Release from Federal Probation

Post #1 of a 3-Part Series

In this first part to our series on early release from federal probation early (or supervised release), we’ll take a close look at the statutory factors that judges must consider when somebody on supervision asks for early termination. The only unbreakable rule here is that one year of supervision must expire before anybody can motion for early termination. The rest is up to the judge.

The next installment deals with the factors by policy that judges do, or may, consider.

Judicial Considerations by Law

Most of the factors judges must use to determine an appropriate sentence1 are also required to be used when terminating part of that sentence. Since probation and supervised release are part of a sentence, terminating them early is the same thing as reducing sentences.

Title 18 U.S.C. §3582(a) says that:

“(a) Factors To Be Considered in Imposing a Term of Imprisonment.— The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553 (a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation. In determining whether to make a recommendation concerning the type of prison facility appropriate for the defendant, the court shall consider any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994 (a)(2).” (emphasis added)

So what are these factors? You can read what these factors are in the law here.

For a detailed review and discussion of what these factors mean, read our comprehensive e-book on terminating federal supervised release and probation here.

The best news, however is a 2011 amendment to the Guidelines Manual where the USSC2 specifically encourages judges grant early release from federa

l probation in specific cases. This is the first time they’ve every encouraged early termination of supervision at all.

What this all means

Not since the 80’s has there been a more advantageous time in the federal system to get released early from supervision. Whether on probation or supervised release, the USSC has realized that probation officers have too many people to supervise, and no budget to hire more probation officers. So the logical conclusion is to cut low-risk people free from supervision!

Get Started Today

To get started with your early termination documents now, contact us by e-mail or phone to get the process going. Its fast and easy!

 

Read our free e-book on the A-to-Z of federal probation and supervision!

  1. At least what is legally considered an appropriate sentence []
  2. United States Sentencing Commission []

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.

Crack Cocaine Reduction Made Retroactive

Huge News for Relief Seekers

The United States Sentencing Commission, in a unanimous vote on June 30, 2011, made retroactive the sentencing guideline in certain Crack Cocaine reduction cases to those already sentenced and serving time for their offenses. The Fair Sentencing Act of 2010 changed the guidelines for federal sentencing in all future “Cocaine Base” cases. However, the applicability of these changes to those serving unfair sentences under the previous law was unclear.

Read more on the change from the NY Times or from the Sentencing Law and Policy blog. Here is an excerpt from the official press release:

Retroactivity of the amendment will become effective on November 1, 2011― the same day that the proposed permanent amendment would take effect ― unless Congress acts to disapprove the amendment. …

Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect.

The Commission’s vote to give retroactive application to the proposed amendments to the federal sentencing guidelines does not give retroactive effect to the Fair Sentencing Act of 2010. Only Congress can make a statute retroactive. Many crack offenders will still be required under federal law to serve mandatory five- or 10-year sentences because of the amount of crack cocaine involved in their offenses…..

A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction given by the Commission. The ultimate determination will be made only after consideration of many factors, including the Commission’s instruction to consider whether reducing an offender’s sentence would pose a risk to public safety.

Reduced Sentences

Under this new policy, inmates serving time for these cases are eligible to get an average of 37 months taken off their sentence! These reductions are not automatic, though. A motion must be submitted to the correct U.S. District Court for a judge to review the case before any time is taken off an inmate’s sentence.

An attorney can be used to submit this motion on behalf of an inmate, and a large attorney’s fee will be charged. Let PCR Consultants handle this procedural issue for you at a fraction of the cost and with the same results!

Learn how we work on our About page. Contact us today about this exciting development by phone or send a message through our Contact page. We can then contact you with the answers you are looking for. First consultations are always free!

Vote to Determine Retroactivity of Crack Reduction Today

USSC Crack Reduction Vote

From the Associated Press, an article about the United States Sentencing Commission vote today to determine if the Fair Sentencing Act of 2010 will be made retroactive to currently incarcerated Crack Cocaine offenders. If passed, this could take an about 3 years off a sentence of a conviction involving Crack Cocaine. Here is an excerpt from that article :


Congress passed a law last year substantially lowering recommended sentences for people convicted of crack cocaine crimes, ranging from possession to trafficking. The idea was to fix a longstanding disparity in punishments for crack and powder cocaine crimes, but the new, lower recommended sentences for crack offenders didn’t automatically apply to people already in prison. Now it is up to the six-member U.S. Sentencing Commission to decide whether offenders locked up for crack offenses before the new law took effect should also benefit and get out earlier.

Up to 12,000 of the some 200,000 people incarcerated in federal prisons nationwide could be affected. A report by the commission estimates that the average sentence reduction would be approximately three years, though a judge would still have to approve any reduction.

“There is a tremendous amount of hope out there,” said Mary Price, vice president of Families Against Mandatory Minimums, an advocacy group for prisoners and their relatives. “There is a potential that people could see their sentences reduced, for some quite dramatically.”

At a meeting in early June, commissioners suggested they want to apply the lower recommended sentences to at least some past offenders, but it is unclear how many. Advocacy groups have asked for the widest possible application while a group of 15 Republican lawmakers from the House and Senate wrote a letter to the commission saying the Fair Sentencing Act passed by Congress last year was not intended to benefit any past offenders.

Keep reading soon as we will post more on this as the vote unfolds.