Criminal Justice Reform and Corrections Act of 2015

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.”

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