1. SCOTUS
upholds BOP's Method of Calculating
Good Time Credits
On June 7, 2010
the United States Supreme Court
upheld the Federal Bureau of
Prisons' method of calculating good
time credits. As all involved with
the federal prison know, the
relevant statute provides for 54
days of good time per year. The BOP
calculated that in a manner which
effectively provided for 47 days per
year and many inmates and their
families have futilely challenged
the BOP's method. This decision
should put to rest all other
challenges in this regard. Read the
decision
here. There is certainly more
of a need to push for the Federal
"Good Time" bill.
2. BOP Issues
Regulations on Halfway Houses
Regulations were
finally issued by the BOP to
provide some guidance as to how it
will interpret and implement the
relevant provisions of the Second
Chance Act. The BOP will give
"individualized consideration" to
every inmate in determination how
much time they will receive in a
Halfway House. The Second Chance
Act permits the BOP to grant up to
12 months in a Halfway House and
inmates can receive no time or 12
months depending upon the following:
1.The resources of the facility
contemplated; 2. The nature and
circumstances of the offense; 3.The
history and characteristics of the
prisoner; 4. Any statement by the
sentencing court concerning the
purpose for which the sentence was
imposed or recommending a specific
type of institution; and 5. Any
pertinent policy statements issued
by the United. It is hopeful that
the BOP will now consider more
inmates for more Halfway House time
than before. Please
contact NPSC if you have any
questions or comments.
3. The Federal
"Good Time" Bill
In September
2008, Representative Danny Davis of
Illinois introduced the "Federal
Work Incentive Act of 2008." This
bill has quickly become known as the
Federal "Good Time" Bill. The Bill
proposed to "roll back," so to
speak, the good time allowances as
they existed before the enactment of
the Sentencing Reform Act. As all
federal inmates and their families
are aware, an inmate currently must
serve 85% of their time and there
are extremely limited options to
reduce their time. This new Bill
would provide incentives for inmates
and create a graduated system of
good time credits. Under the Bill
the following would be the amount of
good time available, along with
"Industrial Good Time" in the amount
of 3 days per month for the first
year and 5 days per month for the
following years:
(1) 5 days for each month of
the sentence, if the
sentence is not less than 6
months and not more than 1
year.
(2) 6 days for each month of
the sentence, if the
sentence is more than 1 year
and less than 3 years.
(3) 7 days for each month of
the sentence, if the
sentence is not less than 3
years and less than 5 years.
(4) 8 days for each month of
the sentence, if the
sentence is not less than 5
years and less than 10
years.
(5) 10 days for each month
of the sentence, if the
sentence is 10 years of
more.
Certainly, this
is a huge step in the right
direction to reduce not only prison
overcrowding and the associated
skyrocketing costs of incarceration,
but will provide inmates with a
strong incentive to be the classic
"model prisoner." It will also bring
home your loved ones much sooner.
The bill is currently sitting it he
House Judiciary Committee and no
substantive action has yet been
taken.
However, it is
imperative that you contact your
Congressperson and show your support
for this Bill. To find out who your
Congressperson is, go to
http://www.house.gov/ and enter
your zip code. Congress MUST hear
your voice or this will be just
another bill that dies in Committee.
4. The Second
Chance Act
On April 9, 2008
President Bush signed into law the
Second Chance Act. Although the Act
is certainly a step in the right
direction, the bulk of the Act is
designed to permit additional
funding and research for re-entry
programs and targets recidivism.
However, one provision amends the
law and allows the Federal Bureau of
Prisons to grant up to 12 months in
a Halfway House rather than 6 as
previously authorized. The Act
also amends 18 USC §3624(c) and
permits the BOP to grant up to 6
months in Home Confinement. To date
the Bureau of Prisons has not issued
regulations letting the criminal
justice community know how it will
utilize its new authority, but we
are optimistic that more inmates
will find that they will receive
more CCC and HC time than previously
permitted. See
Update Above Please feel free
to call or e-mail with specific
questions.
5. December
10, 2007. In a spectacular and
groundbreaking decision, the US
Supreme Court allows sentencing
judges significantly more discretion
in imposing a below guidelines
sentence.
In Gall
v. United States the Supreme
Court made it easier for district
courts to impose a below guideline
sentence without fear of reversal.
As many may know, many appellate
courts reversed below guideline
sentences as being "unreasonable."
In the Gall decision the
Supreme Court held that judges can
impose sentences below the specified
guideline level and still have such
punishment regarded as “reasonable.”
The Court also imposed a heretofore
different appellate standard of
review and mandates that federal
appeals courts to use a “deferential
abuse-of-discretion standard” when a
trial sets sets a punishment below
the range. It is imperative to bring
this important decision to your
lawyer's attention or have your
counsel contact us for specific
information. More than ever,
sentence mitigation and
investigation is needed well prior
to any sentencing hearing.
6. On November
1, 2007 New Federal Crack Cocaine
Sentencing Guidelines Become
Effective.
After a
battle lasting over 12 years and
after growing national concern
surrounding ongoing racial disparity
in the justice system, the United
States Sentencing Commission
Thursday lowered sentencing
guidelines for crack cocaine. Until
November 2007 there had been a 100
to 1 sentencing disparity for crack
versus cocaine possession. Meaning,
simply, that 5 grams of crack
brought the same sentence as 500
grams of powder cocaine. Although he
Commission did not completely
eliminate that disparity it did take
a major step towards narrowing the
gap. It is estimated that the
average crack sentence will now be
16 months lower. Now the issue
of retroactivity has taken center
stage at the Commission with a
hearing scheduled for November 15,
2007. If the Commission and
ultimately Congress applies the
amendment retroactively, thousands
of inmates previously sentenced for
crack possession can seek to have
there sentence lowered. Check back
in mid November for updates.
7. House
Representative Charles Rangel (D.
NY) Introduces the Second Chance
for Ex Offenders Act of 2007.
On January
22, 2007 Congressman Rangel
introduced the "Second Chance for
Ex-Offenders Act of 2007." The Act
seeks to allow expungement of
federal criminal records for certain
non-violent offenders, As things
stand today, the only method to
"expunge" or eliminate a federal
criminal conviction is a
Presidential Pardon. The Act, if
approved, would permit the
expungement of federal criminal
records for those never convicted of
a violent offense, who are drug
free, fulfilled the requirements of
the sentence imposed and who have
completed at least 1 year of
community service. Certainly this
bill if it becomes law will go a
long way in assisting ex-offenders
obtaining employment and benefits
and allow for a smoother
reintegration back into society. We
ask that everyone contact their
Congressperson in writing and by
phone seeking support for this Bill.
8. Pending
Supreme Court Case to Affect Federal
and State Sentencing November 5,
2006
UPDATE:
On January 9,
2007 The Supreme Court dismissed the
Petition for a Writ of Certiorari as
being improvidently granted. It
appears that the Petitioner failed
to properly comply with certain
statutorily imposed procedural
requirements which prevented the
Court from reaching the merits of
the case. We do expect the court to
ultimately address the very
important issues raised in Burton
in a subsequent case yet to be
identified. The October
2006-2007 Term of the United States
Supreme Court will substantially
affect federal and state sentencing
issues. The Supreme Court heard
arguments in a case known as
Burton v. Waddington, No. 05-
05-9222, (cert granted on June 5,
2006) and will address the issue of
the retroactivity of Blakely
and Booker. The issues
presented in Burton are:
1. Is the holding in Blakely
a new rule or is it dictated by
Apprendi?
2. If Blakely is a new rule,
does its requirement that facts
resulting in an enhanced statutory
maximum be proved beyond a
reasonable doubt apply
retroactively?
Needless to say,
we are hopeful that the Court will
rule that Blakely and
Booker will apply retroactively
to previously imposed sentences. If
such occurs, the courts may be
forced to re-sentence a large number
of inmates that received
enhancements based on "facts" not
found by a jury or admitted to by
the defendant. We are keeping a
close eye on this case and will
provide updates when a decision is
issued.
9. New
Federal Bureau of Prisons' Security
Classification Regulations,
September 2006
Effective
September 12, 2006, the Federal
Bureau of Prisons instituted new
security and custody scoring
classifications. The changes are
designed to reflect not only the
centralization of designations to
the Security Designation and Custody
Classification Center in Grand
Prairie, TX, but to update and
modernize the criteria for
designating an inmate to one of the
Bureau's five security levels
assigned to all federal
institutions. The new criteria will
now take into account age, Criminal
History Points from the
PSI, (converted to a
Criminal History Score), education
and history of drug and alcohol use.
The numerical cutoffs have also been
changed as follows: Minimum: 11/15
for females, Low 12-15/15-30 for
females, Medium: 16-23, High: 24+/
31+ for females. The calculations
are more inclusive and comprehensive
taking in a broader range of
criteria. We suspect that many of
our clients and inmates will now
face new hurdles in initial
designations and that many currently
incarcerated will be transferred to
higher or lower level facilities as
the new regulations are implemented
during the bi-annual or annual
custody level review. Please feel
free to
contact us with any questions or
assistance you may need.
0. On February 8, 2005
the Federal Bureau of Prisons made an announcement that it will close the following
Federal Prison Camps: FPC-Eglin (Florida), FPC-Nellis (Nevada);
FPC-Allenwood (Pennsylvania) and FPC-Seymour Johnson (North Carolina). We
expect that these closures are related to putative costs savings and
further expect that it will become bit more difficult to attain camp
status for existing inmates as well as future inmates.
11."A Primer on Booker/Fanfan"
(pdf) Click here to read an article
we have written to help clients, friends and visitors understand
the impact of Booker/Fanfan.
12. On January 12, 2005,
the United States Supreme Court issued its long awaited decision in
Booker and Fanfan. Click here to
read the case. In its 124 page Decision the Supreme Court held that
the mandatory application of the guidelines is a violation of the Sixth
Amendment to the United States Constitution. The court wrote "The
district courts, while not bound to apply the Guidelines, must consult
those Guidelines and take them into account when sentencing."
In other words, the Guidelines are now advisory only and the courts may
take into account a host of additional factors when sentencing an
offender. Please feel free to contact us if you have any specific
questions. This case may affect thousands---if not scores of
thousands---- of people in the federal system and in particular those
awaiting sentencing.
13.On January 6, 2005 the
Bush Administration announced that it is eliminating funding for the
Federal Bureau of Prisons' Intensive Confinement Center (ICC), program,
commonly known as Boot Camp. According to the Administration and
the BOP, the program, initiated 14 years ago, is being phased out in a
cost cutting measure and as a result of its limited effectiveness at
reducing rates of recidivism. We understand that the Women's program at
Bryan-FPC has accepted its last class and that the Men's programs at Lompac-FCI and Lewisburg-FCI will be accepting one more class.
Several federal judges have already expressed their shock and
disappointment at the BOP's and Administration's decision to eliminate
the program. District Judge William M. Skretny,
of the Western District of New York, stated that,. "I'd be very
disappointed if this shutdown goes forward. I've had prisoners write to
me after going through the program and tell me what a positive
experience it has been in their lives." It is expected that some might
judicially challenge the decision but immediate success appears
unlikely. Contrary to popular belief there is no statute that mandates
the existence of the program only one that funds the program and grants
the BOP the power to establish the program. See,
18 USC §4046
Creative and unique legal theories will be needed.
Already
litigation (Click here to
read a copy) has begun seeking to stay sentencing where a Court has
recommended ICC placement to inmates and at least one court has entered
an Order Staying Execution of Sentence
pending litigation of the legality of termination of the ICC. The legal
challenge is based, in part, on purported non-compliance with the
Administrative Procedures Act. We will provide
updates of any litigation regarding the ICC.
14. In June 2004 the United
States Supreme Court rocked the foundations of the many states'
sentencing schemes that were modeled on the United States Sentencing Guidelines.
Now, the constitutionality of federal sentencing awaits the Supreme
Court's opinion in companion cases known as Booker and Fanfan..
In
Blakely v. Washington, the US Supreme Court struck down
a part of the State of Washington's sentencing scheme as a violation
of the Sixth Amendment to the US Constitution since it allowed a judge
to enhance a sentence based on facts neither admitted to by the
defendant nor found by a jury. As many involved in the federal system
are aware, judges routinely enhance sentences based on the amount of
money involved, quantity of drugs and the like when such facts
were neither admitted to nor found beyond a reasonable doubt by a jury.
Needless to say, those involved with federal sentencing, eagerly await
the application of the Blakely rationale to the Sentencing Reform
Act of 1984 (and the USSG's). It is expected that by mid to late
January 2005 the Supreme Court will issue its decision(s) in Booker and
Fanfan. (Click Here to
read Transcript of Booker and Fanfan Oral Argument before
the US Supreme Court.) By and large, it is expected that all or part of the USSG's will have to be revised and it is expected that there will by
substantial litigation as to the applicability and retroactivity of the
Court's decisions. Stay tuned.
15. On September 9, 2004, the First
Circuit Court of Appeals ruled that the December 13,
2002 U.S. Department of Justice policy limiting federal inmates'
eligibility for placement in a community corrections center to the last ten
percent of their sentence is illegal . As well, the Court struck down a
Department of Justice policy prohibiting the BOP from designating an
inmate directly (or subsequently) to a Community Corrections Center. Click
here for the
Opinion
of the Court.
