Here's a summary of the
"Criminal Justice Reform and Corrections Act of 2015." Rumor
on the street is that Senator Grassley is content with this "reform."
We'll see what the final product looks like!
Title I. Sentencing Reform
Sec.101. "Reduce and Restrict Enhanced Sentencing for Prior Drug Felonies"
• Narrows
and expands recidivist enhancements under § 851 o Limits applicability
to prior "serious drug felony" defined under § 924(e)(2)(A)
for which s/he served more than 12 months
o Expands applicability to prior "serious violent felony" as
defined under § 3559(c)(2)(F), or any felony assault that would violate
§ 113 if it were committed in special maritime and territorial jurisdiction,
for which s/he served more than 12 months
• Reduces 20-year MM to 15-year MM, and life to 25-year MM
• No change to any 10-year MM, or to life and 20-year MMs for death
or SBI results
• Applies to pending cases not yet sentenced
• Applies retroactively - on motion by D, BOP or govt, court may reduce
after considering 3553(a) factors, danger to any person or community,
post-sentencing conduct
Note -use 3559(c)(3) to limit some of the prior offenses in (c)(2)
-3559(c)(2)(F)(ii) contains a residual clause that can be challenged under
Johnson
-new penalties for "serious violent felony" cannot be applied
in pending cases if instant offense committed before enactment, or in
final cases, per Ex Post Facto Clause
-still subject to Holder memo re 851s
Sec. 102. "Broadening of Existing Safety Valve"
• Expands existing safety valve to 4 points
• But cannot have any 3-point prior, or any 2-point prior for a drug
trafficking offense "punishable by imprisonment" under federal
or state law or a crime of violence defined in § 16
• Court may waive these requirements by specifying in writing why
excluding the D "substantially over-represents the seriousness of
the defendant’s criminal history or the likelihood that he will
commit other crimes" o But court may not waive if any prior for a
"serious drug felony" or a "serious violent felony"
as defined in Sec. 101
• Does not apply retroactively
Note -Ask for the waiver
-§ 16 contains a residual clause that can be challenged under
Johnson
Sec. 103. "Limitation on Application of the 10-Year Mandatory Minimum"
• In addition to the SV in Sec. 103, when MM is 10 years, court may
impose sentence "as if" the MM was 5 years if: o no prior conviction
for "serious drug felony" or "serious violent felony"
o satisfies existing 3553(f)(2), (3), (4) and (5)
o did not "exercis[e] substantial authority or control over the criminal
activity of a criminal organization, regardless of whether the defendant
was a member of such organization"
o did not "act as an importer, exporter, high-level distributor or
supplier, wholesaler, or manufacturer" "importer, exporter,
or high-level distributor or supplier" means D "imported, exported,
or otherwise distributed or supplied large quantities of a controlled
substance to other drug distributors," and does not include D "whose
role was limited to transporting drugs or money at the direction of others"
"manufacturer" means D "grew, produced, or manufactured
a controlled substance and was the principal owner of such controlled
substance"
"wholesaler" means D "sold non-retail quantities of a
controlled substance to other dealers or distributors’
o did not distribute a controlled substance to or with a person under 18
•Does not apply retroactively
Sec. 104. "Clarification of Section 924(c) of Title 18"
•Reduces 924(c)(1)(C) recidivist enhancement from 25-year MM to 15-year MM
•Applies only to convictions that were final prior to the new offense
•Applies to both prior convictions under 924(c)
and under "State law for a crime of violence that contains as an element
…carrying, brandishing, or use of a firearm"
•Applies to pending cases not yet sentenced
•Applies retroactively - on motion by D, BOP or govt, court may reduce
after considering 3553(a) factors, danger to any person or community,
post-sentencing conduct
Note -will automatically apply via the PSR, like ACCA
-definition of COV under 924(c)(3) has a residual clause that can be challenged under
Johnson
-new penalties based on state priors cannot be applied in pending cases
if instant offense committed before enactment, or in final cases, per
Ex Post Facto Clause
Sec. 105. "Amendment to Certain Penalties for Certain Firearm Offenses
and Armed Career Criminal Provision"
•Increases stat max for firearm possession from 10 to 15 years
•Reduces MM for ACCA from 15 to 10 years
•Applies to pending cases not yet sentenced
•Applies retroactively - on motion by D, BOP or govt, court may reduce
after considering 3553(a) factors, danger to any person or community,
post-sentencing conduct
Note
-higher stat max cannot be applied in pending cases if instant offense
committed before enactment, or in or final cases, per Ex Post Facto Clause
-may make it more difficult to obtain retroactive 2255 relief for ACCA
clients when priors don’t count which now results in a sentence
within a range of 0-10 years; retroactivity resulting in a 10-year MM
for all ACCA is good for some, but not for those who could get a range
of 0-10 through 2255 under the current structure
Sec. 106. "Application of Fair Sentencing Act"
•Applies FSA retroactively - on motion by D, BOP or govt, court may
reduce as if FSA was in effect
•However, no reduction if the sentence was previously imposed or reduced
under the FSA or "if a motion made under this section to reduce the
sentence was previously denied"
Note
-If a motion was denied due to an error of fact or law, argue that the
provision directing no reduction if previously denied means if denied
on the merits
Sec. 107. "Mandatory Minimum Sentences for Domestic Violence Offenses"
•New 10-year MM if death of the victim results from a violation of
§ 2261
•Increases stat max from 20 to 25 years if permanent disfigurement
or life threatening bodily injury results, and from 10 to 15 years if
serious bodily injury results
Sec. 108. "Minimum Term of Imprisonment for Certain Acts Relating
to the Provision of Controlled Goods or Services to Terrorists or Proliferators
of Weapons of Mass Destruction"
•5-year MM for offenders who willfully violate 50 U.S.C. 1705 by providing
"controlled goods and services" to terrorists, foreign nations
developing weapons of mass destruction, or countries subject to an arms embargo.
Note
-new opportunity for government stings
Sec. 109. "Inventory of Federal Criminal Offenses"
•Requires an inventory of all federal criminal and regulatory offenses,
their penalties, their required mens rea, and the number of violations
in the past 15 years
Title II. CORRECTIONS Act
Title II is the CORRECTIONS Act, sections 201 through 206 of which is the
risk assessment bill (S. 467) that we have vigorously opposed, but hoped
would be counter-balanced by sentencing reform that would help a large
and diverse population on the front end.
This part of the bill has serious problems, including:
•It requires BOP to use a risk assessment tool to categorize each
prisoner as low, moderate or high risk. Those categorized as low risk
earn 10 days a month for participating in programming; all others earn
5 days a month.
•High risk prisoners cannot use any credit they earn. Moderate risk
prisoners can earn only half of what low risk prisoners earn. Only low
risk prisoners can fully earn and use credits by getting out of prison early.
•This is a problem because: o risk assessment tools misclassify about
half of persons as moderate or high risk when they are actually low risk
and commit no further crimes
o risk assessment tools misclassify Black offenders as high risk more often
than White or Hispanic offenders
o risk factors, including but not limited to criminal history, correlate
with socioeconomic class and race
o giving the maximum incentive to participate in recidivism reduction programming
to low-risk inmates and no meaningful incentive to high-risk inmates most
in need of programming is contrary to evidence-based practices and the
professed goal of public safety
•The bill theorizes that prisoners can change their risk categories
in prison, but this theory is untested by research or experience and is
highly unlikely. Every existing risk assessment tool gives static factors (
i.e., age and criminal history) heavy weight (at least half the total points)
based on their statistical correlation with recidivism. These cannot change,
and the most prevalent dynamic factors are impossible or very difficult
to change in a prison setting.
•No state uses risk assessment tools in this manner. The states use
risk/needs assessment tools to identify prisoners’ programming needs,
and award credits to all on an equitable basis.
•Federal Prison Industries has been proven to reduce recidivism more
than any other program (inmates involved in FPI work programs are 24%
less likely to recidivate for as long as 12 years following release),
by giving them marketable job skills (they are 14% more likely to be employed
12 months after release),
particularly for "young minorities who are at the greatest risk for
recidivism
." But the bill requires the AG to report "the feasibility of
expanding" prison work programs "so that, not later than 5 years
after the date of enactment of this Act, not less than 75 percent of eligible
low-risk
offenders have the opportunity to participate in a prison work program
for not less than 20 hours per week."
The bill also contains a long list of exclusions from earning any credit
based on the offense of conviction or prior record. The prior version
excluded from earning any credits all prisoners in Criminal History Category
VI (which would have a disparate impact on African Americans) and inmates
with Federal priors (which would have a disparate impact on Native Americans).
As introduced, the bill made two changes in an attempt to address that
disparate impact of these two exclusions.
The introduced version:
•Changes the exclusion of all in CHC VI to prisoners with 13 or more
criminal history points, unless the court determines in writing at sentencing
that the defendant’s criminal history category substantially overrepresents
the seriousness of the defendant’s criminal history or the likelihood
that the defendant will commit other crimes.
•Does not include as a prior Federal offense any offense under section
1152 or section 1153 for which the prisoner was sentenced to less than
13 months.
Note
-You would need to ask the judge to make the overrepresentation finding
even if the judge is not departing or varying downward on this basis.
Judges may not be inclined to do it for fear the defendant will appeal
on the basis that the judge made the finding but failed to depart or vary
accordingly. So you would need to encourage the judge to state that s/he
is making the finding "to ensure that the defendant can participate
in BOP programming." And then you would need to ask the judge to
order the PO to put that finding in the PSR so that BOP can know about it.
Section 210. Compassionate release. Both expands and contracts what already existed as a required pilot program.
What’s new is underlined. The AG may release some or all eligible
offenders to home
detention upon written request of BOP or an eligible offender. Eligible
offender (i) is at least 60 years old, (ii) is not serving life and instant
offense is not COV, sex offense, terrorism offense, or espionage, and
has served 2/3 of sentence; (iii) no priors for any Federal or State offense
for any COV, sex offense, or other offense listed in clause (ii); (iv)
has not been determined by BOP "in its sole discretion" to have
a "history of violence" or of "engaging in conduct constituting
a sex offense or other offense described in clause (ii); (v) has not escaped
or attempted to escape from BOP; (vi) BOP has determined release to home
detention of this person will reduce net costs to the Federal government;
(vii) determined by BOP to be of "no substantial risk" of engaging
in criminal conduct or endangering any person or the public; and (viii)
"is receiving or in medical need of care at a nursing home, intermediate
care facility, or assisted living facility, as those terms are defined
in section 232 of the National Housing Act (12 U.S.C. 1715w); or (II)
has been diagnosed with a terminal illness."