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.