Recommendations for Federal Sentencing

Crack Cocaine Sentencing Reform

Crack Cocaine Sentencing Reform Only Partially Done

Despite significant improvements to sentencing disparity made by the FSA, the FSA is not retroactive and those incarcerated pursuant to the previous flawed sentencing scheme will receive no relief.  The FSA must be strengthened by retroactive application of its provisions, and by completely eliminating the sentencing disparity.

Make Changes Retroactive

Legislative

Congress should enact legislation to make the FSA retroactive.  The Fair Sentencing Clarification Act (FSCA), introduced in the 111th Congress by Robert “Bobby” Scott (D-VA),64 would extend the application of the FSA to those whose crimes were committed prior to its enactment by permitting people incarcerated under the old crack cocaine mandatory minimums to seek a reduction of their sentence consistent with the FSA lower mandatory minimums from the sentencing court.  Congress should reintroduce and pass FSCA.

Executive

The U.S. Sentencing Commission (USSC) should, in setting its permanent guidelines, restore the crack cocaine base offense levels at 24 and 30, rather than 26 and 32.65  Restoring the base offense levels to 24 and 30 more accurately reflects the stated goals of Congress, which are to reduce racial disparity in drug sentencing; increase trust in the criminal justice system; reduce overincarceration; and shift federal enforcement focus from low-level offenders to kingpins.66 Moreover, the FSA did not require the base offense levels to be set at 26 and 32.  Indeed, Sen. Richard Durbin (D-Ill.) and Rep. Scott, champions of the legislation, advised the Commission of their intent that crack base offense levels not be increased.67

Additionally, USSC should make changes to the new crack cocaine sentencing guideline retroactive.  For almost two decades in four separate reports, USSC has urged Congress to address the disparities in federal cocaine sentencing policy and eliminate the statutory mandatory minimum for simple possession of crack cocaine.68  Although the FSA is silent on retroactive application of the new sentencing structure, the USSC has authority to apply its changes to the Sentencing Guidelines retroactively.  Those sentenced under the guidelines in effect prior to November 1, 2010 are the very people whose cases inspired passage of the FSA.  They deserve to receive justice as well. 

In implementing the FSA, DOJ should issue guidance to federal prosecutors, instructing them to seek sentences consistent with the FSA’s reduced mandatory minimums for defendants who have not yet been sentenced, regardless of when their conduct took place.  At a minimum, DOJ should issue a policy allowing prosecutors to support, or not oppose, defense motions to apply the FSA to such “pipeline” cases.  This would be consistent with congressional intent, would further the goal of sentencing consistency, and would conserve prosecutorial and judicial resources in addressing piecemeal dispositions.

Finally, executive clemency should be granted to those whose crack cocaine sentences are unaffected by the FSA.  Presidential commutations can ensure fair application of the principles embodied in the FSA.  The President should appoint a clemency commission or other effective process to promptly and comprehensively identify cases that are not affected by the FSA, and grant relief where appropriate.  For example, many individuals sentenced to life in prison under the “three strikes” provision of 21 USC 841(b) were not drug kingpins, did not engage in violence, and would be subject to a term of years if sentenced under the FSA.  There should be an opportunity at some point to give a “second look” to these “three strikes” life sentences to determine whether they are just and necessary in particular cases.  

Improving and Expanding the Federal Safety Valve

The Safety Valve is Inadequate

The safety valve is inadequate to address the tension between the mandate of parsimony in the federal sentencing statute and mandatory minimums in individual statutes other than drug statutes, and should be replaced with a more general waiver that can be used when necessary to mediate between conflicting demands in federal sentencing law.  Barring that, the safety valve itself can be amended to address correctable structural problems.  First, it defines low-level offenders much too narrowly, relying on a rigid criminal history point system in the Sentencing Guidelines.69  Second, the safety valve’s “tell-all” requirement is confusing and has been interpreted in many courts as requiring that defendants provide information about other offenders, beyond the scope of related offenses.70  Finally, there is no sound reason to limit the application of the safety valve, which allows courts to fashion appropriate punishment for qualified offenders, to only those convicted of drug offenses.

Enlarge the Safety Valve

Legislative

Congress should amend 18 U.S.C. § 3553 to bypass mandatory minimums when necessary to comply with federal sentencing law.  Congress, should pass legislation similar to the Ramos and Compean Justice Act, a bipartisan bill introduced by Reps. Robert “Bobby” Scott (D-VA) and Ted Poe (R-TX), 71 would amend the federal criminal code to authorize a federal court to impose a sentence below a statutory minimum if necessary to avoid violating the parsimony mandate of 18 U.S.C. § 3553(a).   It would also require the court to give the parties notice of its intent to impose a lower sentence and to state in writing the factors requiring such a sentence.  The Ramos and Compean Justice Act was the subject of a hearing in the House Judiciary Committee in 2009, and was successfully marked up that year by the House Judiciary Subcommittee on Terrorism, Crime and Homeland Security. 

Congress should also amend 18 U.S.C. § 3553(f) to broaden the safety valve and properly account for criminal history  The intent of the Safety Valve is to allow courts to recognize offenders with limited or no criminal history.  At present, the law permits only defendants with no more than one criminal history point to benefit from the safety valve.  Due to peculiarities of the Sentencing Guidelines’ criminal history provisions, people who have been convicted of more than one even very minor offense, such as driving on a suspended license or passing a bad check, can accumulate too many criminal history points to qualify, even though they pose very little threat of serious criminal conduct. 

Congress should change the criminal history criteria by eliminating the requirement that defendants have only one criminal history point.  Instead, Congress can specify in the Safety Valve criteria that defendants who fall into the Sentencing Commission’s Criminal History Category I can qualify.  Defendants qualify for Category I either because they have no more than one criminal history point or because the sentencing judge has reduced their criminal history from a higher category to Category I.  Judges do this when they think that the calculated criminal history points overstate the defendant’s true criminal background and risk of recidivism.

Congress should amend 18 U.S.C. § 3553(f) to eliminate the “tell all” requirement.72  The “tell-all” requirement is confusing to judges, defense attorneys, and prosecutors, and has been interpreted to require defendants to provide information about other offenders, not just their own conduct.73  It has been a hotly litigated issue, as defense counsel and prosecutors argue about how much information is enough, whether it was provided in a timely fashion, and how far beyond the offense of conviction a defendant must go in the admission.  There is already a separate provision in criminal law that rewards cooperators with mandatory minimum waivers.74  Congress should replace the “tell all” requirement with one that the defendant accept responsibility for the offense.  Acceptance of responsibility means that the defendant acknowledges his or her role in the offense.  If done early in the process, it can save significant resources.  Substituting acceptance of responsibility will eliminate the sometimes time-and resource-consuming process of determining whether a defendant has provided enough or timely information about his offense, as well as settle the law about just how much about other criminal conduct the defendant must reveal to qualify for the safety valve.  Acceptance of responsibility standards are well established as they have been a longstanding feature of the Sentencing Guidelines calculations.

Congress should also amend 18 U.S.C. § 3553(f) to apply the safety valve to all mandatory minimum offenses.  Federal mandatory minimums apply to over 700 offenses, including a number of inherently non-violent offenses.  The safety valve, however, only applies to drug offenses.  The problems associated with mandatory minimums drug sentences are replicated in other offenses to which such sentences apply.  There is no sound reason to limit the application of the safety valve, which seeks to recognize and fashion appropriate sentences for first time, low-level, non-violent offenders who recognize and accept responsibility, to only those defendants convicted of drug crimes.  Congress should thus amend 18 U.S.C. § 3553(f) to ensure that it applies to all statutes that include a mandatory minimum provision. 

Create a Sunset Provision on New and Existing Mandatory Minimums

Lack of Review of Effectiveness of Mandatory Minimums

Currently, there is no sunset provision or statutory review process for federal mandatory minimums once they have been enacted.  This lack of data, transparency, and reviews limits the ability to Congress to assess the effectiveness of these laws.

Create a Sunset Provision for Mandatory Minimums

Legislative

Congress should make all new mandatory minimum laws subject to a five-year sunset provision.  Congress may create such a sunset provision on new mandatory minimums through either: (i) passing legislation containing a sunset provision, or (ii) creating a sunset commission to offer recommendations to Congress ahead of reauthorization of mandatory minimum legislation.  A sunset commission would review and provide recommendations to retain, refine, or end a mandatory minimum.  The commission would provide recommendations based on analysis of whether a mandatory minimum has achieved its goals. 

Ensure that 18 U.S.C. § 924(c) Recidivism Provisions Apply Only to Repeat Offenders

Sentence Stacking Provisions Over-punish First Offenders

Federal “sentence stacking” provisions result in unduly severe sentences that bear no relation to deterring true recidivists.  Perversely, a true recidivist can serve a shorter sentence than a true first offender. 

Apply Stacking Provision to True Recidivists and Provide Predictability in Recidivist Sentencing

Legislative

Congress should pass the Firearm Recidivist Sentencing Act of 2009.75  Introduced by Congressman Robert “Bobby” Scott, the Firearm Recidivist Sentencing Act of 2009 would amend 18 U.S.C. § 924(c) to ensure that individuals who carry a firearm while committing a violent crime or drug trafficking offense face the 25-year mandatory minimum for repeat offenses only if they have been previously convicted and served a sentence for a §924(c) offense.

This bill would ensure that the recidivist enhancement is only used on true recidivists, by requiring that a previous conviction must be final before the 25-year mandatory minimum may be sought.  Finally, the bill amends Part 1 of Title 18 of the United States Code to require the government to file notice with the court when it intends to invoke the enhanced recidivism penalties in the gun statutes. 

Expand Authority to Defer Adjudication to Avoid a Conviction Record

Federal Judges have Only Narrow Authority to Expunge Criminal Convictions for Low-level Offenders.

Under current law, federal judges have very little authority to expunge criminal convictions.  Given the collateral consequences associated with a felony conviction, such as public assistance and employment licensing exclusions, the lack of availability of punishment options that allow for eventual expungement of criminal records may serve to increase recidivism.  Defendants who are not charged with offenses other than very serious offenses, such as predatory crime; a crime involving substantial violence; a crime in which the defendant played a leadership role in large-scale drug trafficking; or a crime of equivalent gravity, should be eligible for community placement, community-based treatment programs, and diversion and deferred adjudication. 

Expand Federal Statutory Authority for Deferred Adjudication

Legislative

Congress should enact a statute permitting individuals charged with certain federal crimes to avoid a conviction record by successfully completing a period of probation.  Congress could do this in one of two ways.  First, it could pass the Federal First Offender Improvement Act76, introduced by Rep. Pedro Pierluisi in July 2010.  The Act would expand the Federal First Offender Act77 to allow (but not require) a judge to place certain first-time drug offenders on probation without entering a judgment of conviction.  A drug defendant would qualify who (i) did not use violence, a firearm or other weapon, or cause death or serious bodily injury; (ii) was not an organizer, leader, manager, or supervisor of others; (iii) had not previously benefited from this provision; and (iv) had not previously been convicted of a crime of violence or other offense punishable by more than one year in prison.  If, at the end of the probation term, the defendant has not violated a condition of his or her probation, the court may dismiss the proceedings.

Alternatively, Congress could reinstate the set-aside authority in the Youth Corrections Act,78 and extend it to all first felony offenders eligible for probation.  In addition, for persons with a federal conviction, Congress should enact an expungement/sealing remedy that would be available after a waiting period (e.g., five years for misdemeanors, 10 years for felonies). 

Expand Alternatives to Incarceration in Federal Sentencing Guidelines

Judges Have Insufficient Discretion to Impose Alternative Sentences.

Under the Sentencing Guidelines, federal judges currently have little authority to impose sentences other than jail or incarceration, even when the offense is relatively minor.  As a result, while the federal justice system authorizes probation as an alternative to incarceration, the use of probation has declined since the advent of the Sentencing Guidelines.  In 1984, more than 30 percent of defendants were sentenced to probation without any term of imprisonment; by 2006, that figure had declined to 7.5 percent.79  Alternative sentences to incarceration under the Guidelines should be expanded.

Expand Alternatives to Incarceration in the Federal Sentencing Guidelines

Judicial

The USSC, the independent federal agency created by Congress to promulgate sentencing guidelines for use by federal judges in criminal cases and to advise Congress on federal sentencing, should amend the Sentencing Guidelines to broadly expand the availability of alternatives to incarceration.  In 2010, the USSC did adopt an amendment to modestly expand the availability of alternative sentences.80  However, the USSC should adopt at least two further expansions: (i) eliminating the distinction between Zones B and C of the Sentencing Table and (ii) creating a Criminal History Category 0 for first offenders. 

By merging Zone C into Zone B, the Sentencing Table would include more ranges in which a non‑prison sentence is an option.  This would more accurately capture the individualized sentencing processes through which judges must first determine whether any term of imprisonment is necessary to satisfy the purposes of sentencing. 

The USSC should also create a new Criminal History Category 0 for true first offenders.  As presently constructed, Criminal History Category I includes both first offenders and offenders who have minimal criminal records.  The USSC’s extensive study of criminal history and recidivism demonstrates that true first offenders are simply different—they have a significantly lower risk of recidivism than those with prior criminal experience.81  This reflects Congress’ intuitively correct determination in the enabling legislation that first time offenders are peculiarly suited for non-imprisonment sentences.  This difference between first offenders and those with prior criminal history should thus be reflected in the Guidelines.

The USSC should also further expand the option of the use of alternative sentences for offenders whose crimes are associated with substance abuse or mental illness and who pose no substantial threat to the community.  Alternative sentencing programs in other jurisdictions indicates that such programs are often associated with reduced recidivism rates.82  The USSC should eliminate any offense level ceiling on treatment alternatives or, at a minimum, set offense level 16 rather than Zone C of the Sentencing Table as the ceiling for eligible offenders.

Prison Incentives and Management: Expand the Residential Drug Abuse Program (RDAP)

RDAP Requirements Are Too Restrictive.

Despite the fact that the Residential Drug Abuse Program (RDAP) is proven to reduce the likelihood of recidivism and reduce prison costs, rigid eligibility requirements result in only a small percentage of eligible prisoners being able to take advantage of the program.  BOP rules excluding certain classes of prisoners from RDAP, as well as delayed RDAP eligibility determinations, limit the effectiveness of RDAP by excluding prisoners who would benefit from the program.   For example, by unilateral BOP rule, the one-year sentence reduction for successful RDAP completion is not available to certain classes of prisoners who are eligible under the statute, including those with immigration or state court detainers (eliminating 26.2 percent of prisoners who are removable aliens)83 and those who the BOP classifies as having committed a “crime of violence,” which includes an offense that involves the mere possession of a weapon.84

Expand RDAP to Include More Offenders.

Executive

The BOP should remove limitations on RDAP eligibility, and make RDAP available to those with immigration or state court detainers, as well as more non-violent offenders.  Under current rules, anyone who is not eligible for placement in a federal halfway house is not eligible for the RDAP.  Thus, those with immigration or state court detainers are ineligible for RDAP.  The Attorney General should issue a memorandum directing the BOP to administer the sentence reduction incentive consistent with federal law, such that it be made available to all prisoners with detainers, and that planning be done far enough in advance to ensure that qualified prisoners receive the full benefit Congress intended to bestow.  The cost incurred in expanding the RDAP program are outweighed by the benefits in terms of costs saved by shortening sentences as well as lower recidivism rates.85

Additionally, the BOP should expand eligibility for RDAP to more non-violent offenders.  In 2000, the BOP issued a permanent rule that categorically excluded eligibility for a sentence reduction to anyone whose “current offense is a felony... [t]hat involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives [.]”86  By using this definition, the BOP disqualifies from RDAP prisoners who had merely possessed a firearm.  However, 18 U.S.C. § 924(c) defines a “crime of violence” as an offense that is a felony and either (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.87  The BOP should change the definition that is uses to determine who is excluded from RDAP, and use the definition of “crime of violence” found in 18 U.S.C. § 924(c) in determining eligibility for the program.  This would allow those who had merely possessed a firearm to benefit from RDAP. 

Finally, when calculating proximity to release for purposes of who should take part in the overall drug program, BOP should consider that a successful participant will be closer to release by one year than prisoners who are ineligible for the sentence reduction.  Priority for RDAP participation is given to those prisoners who are closest to their release date.  However, currently, BOP does not make eligibility determinations early enough to ensure that prisoners who qualify receive the full year credit.  Thus, prisoners who are eligible for the reduction see prisoners who are not eligible for a one-year reduction take their places in programs based on release dates that do not include the one-year reduction. 

Clarify and Expand Good Time Credit

The BOP’s Administration of Good Time Credits Limits its Effectiveness.

The BOP’s method of calculating good time credit may only reduce a prisoner’s sentence to a maximum credit of 47 days—well below the 54 days specifically mentioned in the authorizing statute.88  This decision results in unnecessary increases in prison sentences at significant cost to the BOP and the incarcerated individuals.  As the U.S. Supreme Court has upheld BOP’s method of calculating good time89, it is now up to Congress to ensure the BOP complies with the intent of the statute, and reward good behavior and efforts by prisoners to improve themselves, thereby significantly reducing taxpayers’ burden by reducing time served in prison, reducing recidivism, and saving policing and prosecution costs. 

Clarify and Expand Good Time Conduct Credit.

Legislative

Congress should pass the Prisoner Incentive Act.90  First introduced in December 2009 by Rep. Robert “Bobby” Scott (D-VA), the bill would rewrite the good time statute to make clear that a prisoner serving a sentence of over one year may earn up to 54 days of good time credit per every year of his sentence.  The bill would also change the law to permit the BOP to “subsequently restore any or all” credit previously denied the prisoner, based on his good behavior as determined by BOP.

Congress should also pass the Literacy, Education, and Rehabilitation Act,91 introduced in the 111th Congress by Rep. Robert “Bobby” Scott (D-VA), which would provide credit toward service of sentence for satisfactory participation in a designated prison program.  Under the bill, the director of the BOP may grant up to 60 credit days per year, in addition to the good conduct credit currently awarded, to a prisoner for successful participation in literacy, education, work training, treatment, and other developmental programs.  The BOP Director would determine the number of days of credit to be applied for any given program, based on its difficulty, required time, responsibility requirements, rehabilitative benefits, and benefit to the BOP. 

Sentence Reductions for Extraordinary and Compelling Circumstances

BOP Prevents Consideration by Judges of Release for Changed Circumstances.

Contrary to the provisions of the Sentencing Reform Act (SRA) that granted sentencing judges the discretion to retroactively reduce sentences for certain kinds of changed circumstances or events (and granted BOP merely a gate-keeping function in the process), the BOP has effectively taken over the role of exercising this discretion.  By applying the so-called “Death Rattle Rule,” the BOP has limited the sentence reduction cases that come before sentencing courts to only those with imminent proximity to death, rather than the broader “extraordinary and compelling circumstances” standard articulated by the statute.92  BOP has not ensured that the courts are able to consider petitions for early release from prisoners whose conditions—medical, terminal or otherwise—might merit it.

Expand BOP Motions to Consider Sentence Reductions.

Executive

The Attorney General should signal his intention that the statute be used as intended by providing a guidance memorandum laying out his support for use of the power to reduce a sentence for extraordinary and compelling circumstances consistent with that intended by Congress in the SRA and by the Commission in its recent conforming guideline amendment.  This memo should instruct that BOP bring motions before the sentencing judge in all cases where the petitioner’s circumstances meet the criteria laid out in U.S.S.G. § 1B1.13.  The memo may specify additional factors that may be considered by BOP in approving a motion to be filed with the court.
 
Expand the Elderly Release Provision Program

Prisons Challenged by Caring for Growing Population of Elderly Prisoners

The nation’s state and federal prison systems are confronting the complicated and costly problem of a growing population of elderly prisoners.  The average cost of housing elderly prisoners is approximately two to three times that of younger prisoners.93  At the same time, aging is correlated with diminishing risk of recidivism.94  The incarceration of older prisoners who represent the smallest threat to public safety but the largest cost to taxpayers exemplifies failed public and fiscal policy.

Extend and Expand Elderly Prisoner Home Confinement Release Program

Legislative

In 2008, Congress authorized a pilot program through the Second Chance Act providing for the release to home confinement of some geriatric federal inmates.95  The Elderly and Family Reunification for Certain Nonviolent Offenders (later renamed the Elderly Offender Home Detention Pilot Program) provision gave BOP authority to set up demonstration projects at BOP facilities for certain prisoners who were age 65 or older.96  The qualified inmates must have served at least ten years or 75% of their sentence, among other criteria.  Only a handful of prisoners benefitted from the early release program.  That pilot program has expired.  It should be extended and expanded.  The Judiciary Committee should hold hearings and invite BOP to testify about its experience with the program with an eye toward expansion and improvement. Also invited to testify should be lawmakers or correctional experts from states that have implemented successful elderly release programs.

Add a Federal Public Defender as Ex Officio Member of the United States Sentencing Commission

The United States Sentencing Commission Lacks Representation of the Defense Community.

The addition of a federal public defender as an ex officio member of the USSC would improve the quality and accuracy of USSC's work and the transparency and neutrality of its proceedings.  The executive branch has two ex officio representatives on the USSC: the Attorney General and the Parole Commission.  However, the defense community is not represented on the USSC, which means that one interested adversary, the prosecution, can influence the outcome of guidelines in non-public meetings, where the real business of the USSC takes place.  The presence of a defender ex officio would ensure that all relevant issues are raised and receive timely and balanced consideration, much as the adversary system functions, and would thereby improve the quality of and public confidence in the USSC’s work.

Add a Federal Defender as an Ex Officio USSC Member.

Legislative

Congress should amend 28 U.S.C. § 991(a) by replacing “one nonvoting member” with “two nonvoting members” at the end of the first sentence, and by inserting before the last sentence: “a representative of the Federal Public Defenders, appointed by the Judicial Conference of the United States, shall be an ex officio, nonvoting member of the commission.”

Reduce All Drug Guideline Levels by Two Offense Levels

Drug Guideline Sentences Are Set Unnecessarily High in Relation to Corresponding Mandatory Minimums

The twin attack on drug offenses in the form of the contemporaneous passage of mandatory minimum drug laws by Congress and the USSC’s issuance of drug offense guidelines indexed to mandatory minimums caused the unprecedented and disproportionate incarceration of first-time and low-level drug offenders.  Because of this grim reality, the USSC has urged Congress to revise mandatory minimums and the guidelines, without avail.  There is no sound reason to maintain the USSC drug offense guidelines at levels above those required by the drug mandatory minimums.

Reduce all Drug Guidelines Indexed to Mandatory Minimums by Two Levels. 

Judicial

The USSC should propose to reduce all drug guideline range triggers by two levels so that the corresponding mandatory minimum floats at the top of the range for any given drug, not below it.  This will ensure that the guideline ranges correspond with the mandatory minimums while providing additional flexibility to judges in cases where the mandatory minimum is not at issue.  The Commission should hold a hearing to take testimony about the proposed change and promulgate a final amendment for submission to Congress.