Rehabilitation, Federal Criminal Lawyers and Justice

A federal criminal lawyer can argue rehabilitation in sentencing

Does “United States judicial law explicitly prohibit[] judges from considering rehabilitation when sentencing“? Yes, says Darrell Owens, someone who has the right sympathies about the cruelty of American prisons, but not much of a grasp on the law. Any federal criminal lawyer knows that rehabilitation must be taken into account when a judge sentences a defendant.

Owens wrote these comments in the context of comparing American prisons to prisons in Nordic countries.  And his point on that score is well-grounded. Many American prisons are cruel dungeons, generally unclean, unsafe, and not suitable for animals, much less human beings.

The United States suffers from high recidivism rates – the rate at which offenders commit new crimes and return to prison – in part, no doubt, because the federal Bureau of Prisons and state counterparts are underfunded and prioritize punishment and warehousing over rehabilitation and treatment.

But Owens is not correct when he says that “judicial law” prohibits judges from considering rehabilitation when sentencing.

In fact, earlier in December, the Fourth Circuit decided U.S. v. McCoy (20-6821) (see pdf).  The Government had appealed federal District Judge Catherine Blake’s re-sentencings in three cases involving Hobbs Act robberies committed in the 1990s and early 2000s in which the defendants were also convicted of 18 U.S.C. Sec. 924(c) violations. 924(c) criminalizes the possession of a firearm in furtherance of a “crime of violence” or a serious drug felony.  At the time, a conviction for violation of 924(c) meant a minimum of 5 years in prison consecutive to all other charges, followed by 25 years consecutive to all others for each additional offense.

For example, prior to the law being amended in 2018, a person convicted of three counts of 924(c) would face a minimum of 55 years in prison consecutive to other punishment.  The law was used as a “plea extraction” tool by prosecutors, forcing people to plead guilty – instead of go to trial – to avoid astronomical sentences.

In the McCoy cases before the Judge Blake and the Fourth Circuit this fall, the defendants, mostly young, received 30 and 40 year sentences based on 924(c) stacking. Their criminal lawyers argued for reductions in each of the defendant’s sentences upon rehearing.

In rejecting the Government’s appeal and attempt to maintain these sentences, the Fourth Circuit specifically noted that rehabilitation is part of any sentencing decision made by a federal judge:

The district courts in these cases appropriately exercised the discretion conferred by Congress and cabined by the statutory requirements of § 3582(c)(1)(A). We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions. The courts took seriously the requirement that they conduct individualized inquiries, basing relief not only on the First Step Act’s change to sentencing law under § 924(c) but also on such factors as the defendants’ relative youth at the time of their offenses, their post-sentencing conduct and rehabilitation, and the very substantial terms of imprisonment they already served. Those individualized determinations were neither inconsistent with any “applicable” Sentencing Commission guidance nor tantamount to wholesale retroactive application of the First Step Act’s amendments to § 924(c). Accordingly, we affirm the judgments of the district courts. (emphasis added

Furthemore, 18 U.S.C. Sec. 3553(a) specifically refers to “correction” as one of the factors that a judge must consider:

The court, in determining the particular sentence to be imposed, shall consider…the need for the sentence imposed… to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

North Carolina – where I practice as a federal criminal lawyer – also instructs judges to consider rehabilitation.

While Darrell Owens is correct that American sentences are far too long and the prison system lacks either the desire or ability to adequately rehabilitate offenders, he is incorrect when he says that a federal criminal lawyer cannot argue to judges that they consider rehabilitation in fashioning an appropriate sentence.

What is Parole? Calculating a Sentence

OJ Simpson will appear before the Nevada Parole Board, after nine years in a state prison for robbery-related crimes.  A high-profile parole hearing often brings a slew of questions about parole in criminal cases in North Carolina and the federal system.

The Definition of Parole

Parole in American criminal justice is the review by a parole board or commission of a sentence after some period has been served as defined in the criminal statutes.  A variety of factors are considered in by a parole hearing, including the nature of the offense, the prisoner’s conduct while incarceration, victim impact statements, and recommendations from law enforcement, mental health experts, and prosecutors.  The prisoner is afforded the opportunity to make statements in writing or in person before the parole board about why he should be released.

Parole is a shortening of the stated sentence.

Abolishing Parole

In the 1980s and early 1990s, many jurisdictions, including the federal system and North Carolina, abolished parole.  People convicted before those changes are still eligible for parole, but anyone convicted after 1994 in North Carolina or 1984 in the federal system is not eligible for parole.

The abolishment of parole was part of a nationwide effort to create more determinate sentencing – known as “truth in sentencing” – and a departure from indeterminate, judge-driven sentencing.  In the federal system the changes were accompanied by the advent of the United States Sentencing Guidelines.  In the state system, the changes saw the creation of a structured sentencing chart.

The end of parole, however, does not mean that, strictly speaking, a person’s sentence will serve a day-for-day sentence in the Bureau of Prisons or Division of Adult Corrections as specified by the judge.  A number of factors go into the actual length of the sentence, based on the person’s convictions.

Calculating a Prison Sentence

Calculating a prison sentence is complex business and depends upon a number of factors.  This information is not meant to substitute for a calculation in your case.  But below are some general things to consider.

Concurrent or Consecutive Sentences in North Carolina

Will a sentence run concurrently or consecutively to another sentence?  In some circumstances a person is convicted on day X of a series of crimes and sentenced in, say, Wake County.  Then, later, the same person may be sentenced in Durham County for a different set of crimes.

The Wake County judge may impose a consolidated sentence or a concurrent sentence, in which case the person will serve a single sentence for all of the convictions in that county.  The effective result is a sentence governed by the longest term of imprisonment, since the shorter terms will expire as the person is in prison.

The Durham County judge may impose a consolidated sentence or a concurrent sentence (although a Durham County judge cannot consolidate the Durham County convictions with the Wake County convictions).  The sentence can be run concurrent with the Wake County sentence.

By operation of law in North Carolina, a person will receive a concurrent sentence unless the judge says otherwise in his judgment.

Consecutive sentences – also called boxcar sentences – require that each sentence be served after another.

Shortening Sentences

Once the sentence is announced, in the state system the inmate enters the Division of Adult Corrections serving the maximum sentence.  Over time, assuming good behavior, that term can be reduced to the minimum announced sentence, and no shorter.  It’s important to note that the announced sentence might be 4 months to 15 months.  The high end of that sentence is 6 months, so the person goes into prison serving 6 months.  The remaining 9 months are considered post-release supervision and are spent out of prison, but on a type of probation.  In sex offense cases, the post-release supervision term is 60 months.

(A person may physically spend less time in prison than the 4 months, but still under control of the DAC, in half-way or re-entry type programs.)

Roughly 80 percent of all North Carolina prisoners reduce their sentences to the minimum through good behavior.

In the federal system, the announced sentence is in months.  The Bureau of Prisons will reduce the sentence, however, by 54 days each year, assuming good behavior.  A good rule of thumb is that a prisoner will serve 85 percent of the total sentence.  In addition, a sentence can be reduce further through participation in a drug and alcohol recovery program called RDAP.  The final six months are usually served in a residential re-entry program.

Credit for Time Served

By operation of law, a person must receive all credit in the state or federal system for days spent in custody awaiting trial.  A few small exceptions apply: for instance, in DWI cases, a person does not receive credit for the less-than-one day they spent in jail.

But generally a person will receive day-for-day credit.  Unfortunately, neither the DAC or the BOP awards a for person good behavior for time spent awaiting trial or disposition.

Concurrent State and Federal Sentences

Federal law is complicated when it comes to determining whether a federal sentence can be run concurrent with a state sentence.

Assuming a person has initially been convicted federally, a North Carolina judge may run the state sentence concurrent to the federal sentence.

However, in cases where a person is initially in the custody of the state, a federal judge can recommend, but not order, that most sentences run concurrently with the state sentence. The Bureau of Prisons will ultimately decide how the sentence is calculated, although the general policy by the BOP is to follow the wishes of the judge.

Certain convictions cannot run concurrently with state sentences.  For instance, a 924(c) – the possession or use of a firearm in furtherance of a crime of violence or serious drug offense – must run consecutively to all other sentences.  A federal judge may not, absent the filing of a 3553(e) by the prosecutor, depart below the mandatory minimum that requires consecutive sentences.

In a garden variety 924(c) involving the possession of a firearm, a person will receive – without a 3553(e) – a 60 month sentence consecutive to all other sentences.  This stacking provision means that that particular sentence will be served after previous state sentence has run its course, and after any other federal convictions run their course.

Other Relief

Other relief may be available in special and rare circumstances.  A federal Rule 35 motion by the Government can reduce a federal sentence below the stated sentence depending on the level of cooperation of the prisoner in the investigation or prosecution of other individuals.

In the state system, a defendant may rarely have a sentence reduced through a Motion for Appropriate Relief which can be filed and granted for any number of reasons.

Finally, a person’s sentence can be reduced for infirmity. These compassionate releases are rare and difficult.

Sentencing: What we Know, What Sessions does not

Here’s what we know about sentencing and deterrence:

Lock ’em up Sessions
  1. People are deterred by consistent enforcement and arrest of criminal laws, less so by consistent conviction, and even less so by the length of a potential sentence.
  2. Most people – except people with significant sociopathic disorders – age out of crime, particularly violent crime so that by their 40s, the incidence of violent criminal acts declines significantly.
  3. Most first time offenders do not re-offend; crime in general is committed by repeat offenders who, again, age out usually in their 40s of significant criminal acts.
  4. People contemplating a criminal act often take very little account of the potential lengthy criminal sentence (see 1) because they are usually young and young people don’t adequately conceive of what they might be doing or how they might be living in their 40s or 50s.
    1. See, for instance, how young people under-save for retirement.

It follows from what we know about criminal justice that mandatory minimum laws are the worst of all possible sentencing regimes, wherein control is often put in the hands of prosecutors and taken out of the hands of judges (who generally can not go below the mandatory minimum).

(Mandatory Minimum laws often have the intended consequence of coercing pleas from defendants whose plea bargains might exclude certain mandatory minimum convictions in exchange for an admission of guilt – and a denial of trial rights.)

Attorney General Sessions knows none of this – or cares not a wit – as he prances about the country and sends out sentencing memoranda to federal prosecutors everywhere demanding that, essentially, every charge be stacked against the defendant that can be reasonably defendant.

This is a recipe for fewer trials, harsher punishments, ruined lives, broken families, and little to no actual improvement in public safety.

Fake Criminal Justice Reform

Federal sentencing reform is upon us, and the results are pretty depressing. First, some context:

Federal criminal law is out of control, and has been since the mid-1980s for a combination of reasons. The advent of the Sentencing Guidelines which at first were mandatory, but have become advisory, took discretion away from judges and placed it in the hands of the Sentencing Commission, prosecutors, and probation officers.

While judges have always been able to depart or vary from sentencing guidelines, the guidelines, even in the post Booker era in which they have become discretionary, meant that judges were at least required to consult the guidelines.

And, particularly in drug cases, the impact of the guidelines has been disastrous for defendants since judges are allowed to consider all conduct “relevant” to the convicted offense. That means that in a drug conspiracy, a person faces sentences that reflect not just the specific weights related to his conduct, but all relevant conduct and relevant weights in the broader conspiracy in which he was involved.

The second problem has been the advent of mandatory minimums. Mandatory minimums do two things: they put trememdous power in the hands of prosecutors, and they make trials much riskier even for defendants with viable and triable cases.

The only way to avoid mandatory minimums is to negotiate a plea that doesn’t involve a mandatory minimum count. Since the judge cannot take part in plea negotiations, the prosecutor has nearly unfettered discretion in plea negotiations, and the “take it or leave it” approach means that the defendant may be forced to take an outrageously punitive plea in order to avoid a life sentence that would be imposed if the defendant went to trial and lost.

Other problems, unique to the way federal trials proceed, make these two structural features of federal criminal law even more problematic for defendants:

While lawyers can submit questions to the judge who then can select which he asks potential jurors, unlike in many state courts, prosecutors and defense lawyers do not question potential jurors in federal trials. This means that defense attorneys have virtually no ability to educate jurors about the case, or about sentencing, or to weed out particularly hostile jurors.

In addition, federal judges do not generally permit any discussion at trial or in argument of the potential sentences that can be imposed. Jurors, therefore, often have an unrealistic understanding of the punishments that await a defendant upon a compromise verdict. In fact, because relevant conduct applies in many drug cases, a compromise verdict may afford the defendant no practical relief. Uncharged or unconvicted conduct may become a basis for sentencing at a future hearing because sentencing decisions are based on a lower burden of proof than guilty or innocence.

An Inflection Point

A number of forces have raised the issue of sentencing reform: overcriminalization and mass incarceration are now topics in political campaigns, the #BlackLivesMatter movement has raised this issue in the context of racism, and even conservative organizations have shifted their attention away from law and order and toward the problem of onerous sentencing.

In addition, various organizations, such as Families Against Mandatory Minimums, have worked tirelessly for decades to lobby and build consensus around sentencing reform.

And the recession of 2008 has created havoc in state and federal budgets, putting pressure on governments to rethink – at least for fiscal reasons – the extremely costly prison industrial system in this country, a country that incarcerates its citizens at rates higher than nearly ever other country in the world.

Ersatz Reform

The problem is that moments like this can either result in real reform, or fake reform. In some ways, no reform is better than fake reform. Fake reform lulls people into believing that something positive has been done, and takes the momentum out of all the movements that created the inflection point in the first place.

The 2015 Sentencing Reform Act is fake reform. While it purports to expand the “safety valve,” the method by which the convicted can avoid mandatory minimums, the safety valve expansion is extremely limited, affecting a tiny percentage of federal cases each year.

FAMM has come out in support of the bill, but other commentators have been less enthusiastic, including New York criminal defense lawyer Scott Greenfield.

Real reform would involve a junking of the sentencing guidelines, and a return to judge- and case-based sentencing. Real reform would involve an elimination of mandatory minimums. Real reform would involve true open-file discovery by statute. Real reform would end relevant conduct. Real reform would ultimately shift the drug war in favor of a rehabilitative approach modeled on the very successful example of Portugal.

Real reform would stop treating evey citizen as a potential criminal awaiting to be incarcerated.


Do you Feel Lucky, Punk? Your Right to a Trial

Trial rights lucky ounkRoss Ulbricht was sentenced to life in prison by United States District Court Judge Katherine Forrest who had the temerity to say to Ulbricht, as she imposed the judgment, “I don’t think you know that you hurt a lot of people.”

Forrest, appointed by President Obama in 2011, probably doesn’t know just how she has and will soon “hurt a lot of people” as she begins imposing outrageous federal sentences.

It’s not that Ulbricht shouldn’t have been punished. It’s just that the punishment so far outstrips the crimes, and makes a mockery of the right to a trial. When he could’ve received a mandatory minimum of 20 years, but is sentenced to life in prison… what does one say? It’s so outrageous.

What did Ulbricht do? He ran an underground drug market. Judge Forrest called it “an assault on the public health of our communities” by making it easy for people around the world to buy illegal drugs. That horror did apparently could not be corrected by a 20 year sentence.

When people plead guilty – that is, when they agree to forego their rights to a jury trial – they have a colloquy with a judge who asks them various questions, including whether the plea is their informed choice, freely taken, without coercion.

What is coercion though? When you’re being offered a two decade life sentence, but could face life if you go to trial? Are you truly able to exercise your trial rights?

What does it actually mean to take a plea, and then say you weren’t coerced, when that’s the offer on hand?

#RossUlbricht #sentencingguidelines

Mandatory Minimum Reform is Slow in Coming

North Carolina has structured sentencing, which has been in effect for crimes committed in the last 20 years. Before 1994, the state used Fair Sentencing, and before 1980, the state used a pre-Fair sentencing regime about which I know very little.

Structured sentencing was designed to introduce consistency into the system, to eliminate parole (and replace it with post-supervision release), and to create clarity – truth-in-sentencing – so that when the judge handed down the sentence, everyone in the courtroom knew that at least the minimum would be served.

Over time, North Carolina’s legislature has chipped away at the structure. DWIs were excluded from the system, in order that they be punished more harshly. Today we have six levels of a DWI, where a person can theoretically get up to 3 years if convicted of an Aggravated Level One DWI.

But the key deviation from the structured nature of our sentencing scheme is through mandatory minimums. I was asked recently to list the ways in which mandatory minimums (outside of the basic structured sentencing scheme) impact North Carolina law, and I can think of two ways.

First, forcible rape is punishable by a mandatory minimum of 25 years in prison, regardless of what the sentencing guidelines state.

Second, and more problematically, North Carolina drug trafficking offenses have mandatory minimums. These minimums exist for those substances that a person possessed, transported, or sold in which the quantity exceeds certain arbitrary weights or amounts established by the legislature.

If convicted of a trafficking offense, a judge may not impose a non-active sentence unless the person participates in substantial assistance. Substantial assistance (or “snitching”) in many counties requires that the person plead in to the drug trafficking offense before the assistance is given: so in a sense, the person agrees to serve the mandatory minimum, and is hoping that his or her information will be sufficient to warrant a reduction in the sentence below the minimum, or, if possible, to probation.

Federal criminal law has even more draconian mandatory minimums that can result in outrageous sentences for what would otherwise be comparatively minor participation in a larger drug conspiracy.

Families Against Mandatory Minimums has fought for years against mandatory minimums, which take discretion out of the hands of judges, place enormous discretion in the hands of prosecutors whose charging decisions can crush a defendant. For a list of recent reforms, see this PDF.

The good news is reform is coming, at least in other states. And some efforts are being made at the federal level to create “safety valves” to escape the mandatory minimum dilemma.

The bad news is that basic distrust of the judiciary means that legislators still hew to the view that mandatory minimums are good policy.

Federal Judge Calls for Sentencing Reforms

Anyone facing federal drug charges knows that the prosecutors’ power has far outstripped the judge’s power in the courtroom. That’s because the power to charge someone lies with the prosecutor, and prosecutors have enormous discretion to charge people under various laws that require the judge to impose mandatory minimum sentences even when such sentences were not originally contemplated by Congress.

The New York Times has an interesting article on Federal District Judge John Gleeson’s recent memorandum regarding sentencing.

President Obama wrote opening about his use of illegal drugs – cocaine and marijuana – in his autobiography. Yet, his Department of Justice has been as tough as any in seeking harsh mandatory minimum sentences for people accused of fairly low level drug crimes.

The article describes the fate of Jamie Dossie, a low level drug dealer who was an intermediate in hand-to-hand crack sales that netted him a grand total of about $140. But because the sales exceeded the law’s 28 gram threshold, Dossie was required to serve at least a 5 year minimum sentence upon a finding of guilt.

Now, you might ask, why didn’t Dossie go to trial? The answer is because, while I don’t know the facts of this case, after trial, the judge might have learned about other drug activity during his sentencing phase. And because the federal sentencing guidelines permit judges to sentence for all uncharged “relevant conduct,” Mr. Dossie could potentially have served a much higher sentence if he went to trial and lost.

So while the judge’s memorandum is certainly a much needed corrective, far more pressing reforms need to be imposed – including a reform of the Sentencing Guidelines themselves – to correct an over-powerful prosecution in Federal criminal cases.

Federal Sentences Still Vary Widely

When the federal Sentencing Commission was created in the 1980s, the idea was to create Sentencing Guidelines that would restore uniformity to sentencing. The concern at the time was that similarly positioned defendants were receiving wildly varying sentences depending on which judge they appeared in front of, or depending on where in the country they were sentenced.

In 2005, the United States Supreme Court declared that the sentencing guidelines were not mandatory, but were merely advisory.

Now comes a new study which examines sentences handed down since 2005 and finds that disparities within sentences are appearing with regularity.

For instance:

[D]efendants convicted in a drug trial in the Southern District of California got an average sentence of 17 years before Republican-appointed judges, compared with six years before Democratic counterparts. But a weapons conviction after trial in the Eastern District of Michigan resulted in an average sentence of 21 years before the Democratic-appointed judges and an average of less than 12 from the Republican ones.

North Carolina Structured Sentencing is No Longer Structured

Until the mid-1990s, North Carolina had a sentencing system called Fair Sentencing. The major criticisms of Fair Sentencing were that:

  1. There was no truth in sentencing. The actual sentence served was usually much lower than the stated sentence at sentencing.
  2. There was disparity in how people were treated from place to place, and defendant to defendant.
  3. The system was uneven and difficult for lay people to understand and interpret.

After years of study, in the mid-1990s North Carolina introduced Structured Sentencing with six prior record levels, and 10 sentencing classes (A to I), with each crime being assigned a sentencing level based on the seriousness of the crime.

The idea of structured sentencing was to end parole and to introduce truth in sentencing.

Misdemeanors were categorized by four levels – A1 to 3 – and three prior record levels.

Almost from the start, however, there were deviations from the Structured Sentencing system. For instance, DWIs have always been governed by the prior Fair Sentencing system, in part because the legislature wanted to punish DWIs more harshly than the newly established Structured Sentencing scheme would allow if DWIs were made a misdemeanor within Structured Sentencing.

Next, the legislature decided that drug trafficking was too serious a crime to be left to structured sentencing. So, while drug trafficking nominally carries with it a Class, each level of drug trafficking has specific mandatory minimums and drug trafficking sentences are not determined by looking at the offender’s prior record level.

Next, the legislature decided that certain sex offenses were too serious to be left to structured sentencing. So, while forcible rape is nominally a B1 felony, it carries with it a mandatory minimum sentence of 25 years, taking it out of Structured Sentencing. That 25 years is set regardless of a person’s prior record level.

These little tweaks here and there have meant that, over time, North Carolina’s Structured Sentencing system has looked more like a hodgepodge. Truth in sentencing has become something less than entirely truthful.

The Justice Reinvestment Act passed in 2011 and now fully in effect in North Carolina as of January 1, 2012 blows a hole in the Structured Sentencing scheme by creating an entirely new program that looks a lot like parole, even though it’s technically called Advanced Supervised Release.

As if the legislature doesn’t entirely trust judges, it requires that the prosecutor not object to putting the defendant into the DOC’s ASR program. If the person is admitted into the program at the time of sentencing, then he is eligible release on his Advanced Supervised Release date which is either the minimum sentence at the bottom of the mitigated range for the same Class and Prior Record Level, or is 80 percent of his minimum sentence if he’s sentenced in the mitigated range.

Eligible defendants must fit into certain Class and Prior Record Levels in order to qualify for the ASR program. And only the sentencing judge can place the person into the ASR program if the prosecutor doesn’t object.

The program is a good move in the right direction, because it incentivizes defendants to take advantage of programs in the DOC to earn ASR release, and then supervises them for a period of time after release.

And it credits worthy offenders, getting them out of prisons earlier, and lessening the financial burden to the State.

But it represents essentially a return to parole, which in my view is a good thing, but which runs counter to the whole concept behind Structured Sentencing.

Rationalizing sentencing only goes so far. Leniency must be built into the system to incentivize offenders. Overall NC’s criminal sanctions are overly punitive. Moving toward a less structured, but more humane criminal justice sytem is the way to go.



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