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A comprehensive discussion of new Ninth Circuit cases, and of other new legal challenges and ideas, can be found on the Ninth Circuit blog. The Ninth Circuit blog contains Federal Defender Jon Sands' weekly Ninth Circuit summaries, interesting new defense challenges and theories posted by AFPDs David Porter and Steve Sady, and the “Case o’ The Week” memos by Federal Defender Steve Kalar. The Ninth Circuit blog is a useful starting place for the latest developments in federal criminal defense.

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Shorter Sentences, More Judicial Leeway: What the Criminal Justice Bill Would Do

By Eileen Sullivan

WASHINGTON — President Trump said on Wednesday that he would support a bipartisan proposal to change the nation’s sentencing and prison laws, clearing a major obstacle to passage of the largest overhaul of the federal corrections system in decades.

Even with Mr. Trump’s support, however, lawmakers face a year-end deadline to approve the bill before the current session of Congress ends, and Senator Mitch McConnell, the majority leader, cautioned that it would be competing with other priorities.

The proposal, which would generally allow for shorter prison terms and more judicial discretion in sentencing, would have more of an effect on future inmates, though some measures would apply to current federal prisoners.

Here is some of what the legislation, called the First Step Act, would do:

Federal judges would have more discretion to bypass mandatory minimums and lighten drug sentences.

This would have a significant effect on African-Americans, who have faced much higher incarceration rates on drug crimes than white offenders.

Under the new guidelines, the mandatory minimum sentence for serious violent crimes or serious drug offenses would be reduced to 15 years from 20 years.

The guidelines would also eliminate the “three strikes” penalty that calls for offenders to face life in prison after committing a third crime. This penalty has long been criticized because it can result in an inmate serving a life sentence for three minor, nonviolent crimes. The current sentence of life would be reduced to 25 years, and the category of offenders who could receive the penalty would be narrowed.

Sentences would no longer be ‘stacked’ for first-time offenders charged with federal crimes while in possession of a firearm.

Getting rid of the so-called stacking mechanism for first-time offenders would address what some have said is a misinterpretation of the law. Currently, if offenders are caught in possession of or use a firearm in connection with other federal crimes, such as drug trafficking, their sentence could increase an additional five to 25 years for each offense. The elimination would affect about 60 offenders a year, according to estimates from the United States Sentencing Commission based on an analysis of an earlier version of the bill in August.

Proponents of changing this calculation point to Weldon H. Angelos, who at age 25 was sentenced to 55 years in prison for being in possession of a firearm when he was caught selling small bags of marijuana to a police informant. At the time, the federal judge who sentenced him acknowledged the stiff penalty, but said his hands were tied by the law. After appeals and pleas for clemency, Mr. Angelos was eventually released from prison in 2016 after serving a quarter of his sentence.

The new rule would not apply retroactively to the roughly 700 inmateswho are already serving such sentences.

Judges would have more leeway to sidestep mandatory minimums for nonviolent drug offenders.

Judges could more widely ignore mandatory minimum sentencing rules for nonviolent drug offenders with the expansion of what is called the “drug safety valve.”

As it stands now, judges can sidestep mandatory minimum sentences for a nonviolent drug offender with a minimal criminal history who also meets other specific criteria.

Under the bill, judges could use their discretion for offenders with a slightly higher record of criminal history. This could affect about 2,000 offenders each year, according to government calculations. It would not affect current inmates.

Potentially thousands of drug offenders could have long sentences for crack cocaine offenses shortened.

A 2010 law intended to address the sentencing disparity between crack cocaine offenders and powder cocaine offenders would be applied retroactively — covering inmates incarcerated for crack cocaine offenses before Aug. 2, 2010.

For years, critics have said the sentencing disparity disproportionately affects black people, who have been sentenced to longer periods of incarceration for crack offenses than white offenders charged with powder cocaine offenses.

Although the reductions are not automatic, nearly 3,000 inmates could be affected by this change.

Inmates would have new incentives to maintain good behavior in prison and to avoid reoffending once released.

Inmates would be rewarded more for consecutive days of good behavior while incarcerated under a tweaking of how the Federal Bureau of Prisons currently calculates such incentives.

The law would also provide new incentives for inmates to shave time off their sentences. For instance, if an inmate participated in an activity or a program to address recidivism, that would lead to days off their sentences. More than 75,000 inmates would be eligible for this benefit.

Pregnant women in federal custody would no longer be shackled.

For years, human rights advocates have argued for better treatment and care of pregnant women while they are incarcerated, providing examples of female inmates who were in labor as their legs were shackled. Under the new law, corrections officers could no longer restrain pregnant inmates with shackles.

https://www.nytimes.com/2018/11/14/us/politics/sentencing-prison-bill.html

Candis Mitchell