Monday, July 27, 2015


From Paige Nichols -- 

Probation Condition Aimed at Reducing Out-of-Wedlock Children is Itself Illegitimate

Thought you'd heard it all when it comes to supervised-release conditions? In United States v. Harrisa district court judge in Kansas City, Missouri, sua sponte ordered the defendant not to engage in unprotected sex without probation's approval. Was Harris a sex case? Not even close. It was a gun case. But the judge heard that Mr. Harris had fathered ten "illegitimate" children with seven different women, and he wanted to fix what he saw as a "serious social problem." The Eighth Circuit vacated the condition, finding it unrelated to Mr. Harris's gun crime, unrelated to deterrence from future criminal conduct, and unrelated to Harris's correctional treatment.

Friday, July 24, 2015

SAFE Justice Act Progress and Dorsey

From Kirk --

Editorials in support are here, here, here, here, here, and here. Reform calls range from the Koch Brothers to the ACLU.

If you have a client charged with drug offenses, you should pump the brakes before she or he gets sentenced. Despite the anti-empirical position of the National Association of Assistant United States Attorneys, the bill seems likely to pass in some form.

So, Dorsey. There, the Court applied the Fair Sentencing Act to conduct predating the Act (but not the sentencing hearing) for six reasons. All would apply to the language of the this bill. 

The third and fourth reasons compel Dorsey’s result under the proposed legislation. Dorsey recognized that the Fair Sentencing Act “implies that Congress intended to follow the Sentencing Reform Act background principle” because the Act required the USSC to issue conforming amendments. The SAFE Justice Act goes a large step further and requires retroactive application of its provisions.

Dorsey’s fourth rationale was to avoid sentencing disparities between those sentenced under the old law and the new. Well…that seems an apt comparison for a total overhaul of federal drug laws.

In sum, Dorsey was a much closer case than we would have if the SAFE Justice Act passes to apply its terms to pre-sentencing defendants. To be SAFE (ha), wait until the bill is decided before proceeding to sentencing.

Wednesday, July 22, 2015

The SAFE Act and Mandatory Minimums

From Kirk, still on the SAFE Act,

So, the ten-to-life mandatory minimum penalties for drug offenses (841(b)(1)(A)) would apply only if the client was an organizer or leader of a drug trafficking organization with five or more participants. Meaning that if your client is not an organizer or leader, no mandatory minimum would apply.

And the (b)(1)(B) mandatory minimum penalties (5-40) only apply if your client was an “organizer, leader, manager or supervisor.”

These terms do not mean what you think they mean (said Inigo Montoyo). The Act provides new definitions, narrower than the current Sentencing Guidelines. A long but helpful block quote follows.

(2) The term “organizer” or “leader” is a person who, over a significant period of time—
(A) exercised primary decisionmaking authority over the most significant aspects of the criminal activity;
(B) engaged in significant planning of the acquisition or distribution of large quantities of drugs or sums of money for the initiation and commission of the offense;
(C) recruited and paid accomplices;
(D) delegated tasks to other participants on a regular basis;
(E) received a significantly larger share of the proceeds of the crime than other participants; and
(F) exercised supervisory control or authority over at least four other participants who meet the definition of “manager” or “supervisor” in subsection (d)(3) over a substantial period of time.
(3) The term “manager” or “supervisor” is a person who, over a significant period of time—
(A) exercised some decisionmaking authority over significant aspects of the criminal activity;
(B) received a larger share of the proceeds of the crime than most other participants; and
(C) provided ongoing, day-to-day supervision of, or specialized training to, at least four other participants over a substantial period of time.

Please note the “and” between the subsections. All of the requirements must be fulfilled before a mandatory minimum applies.

Also, we aren’t done with the impact of the Act on mandatory minimums. More tomorrow.

Monday, July 20, 2015

"Probation Generally Available"

Also from Kirk --


The SAFE Justice Reinvestment Act of 2015 is quite the thing. We will cover separate parts in separate posts. But the Act hits the reset button on the federal criminal justice system. Boehner endorses it. So does Obama. So does the Police Foundation. Speculation is that the bill will pass. It has “more momentum that anyone realizes.”

Let’s start with Section 302 of the Act. Subsection (a)(1) begins with the words “Probation Generally Available”. It really does. Here is the language.

(a) In General.—
“(1) PROBATION GENERALLY AVAILABLE.—Except as provided in paragraph (2), a defendant who has been found guilty of an offense may be sentenced to probation.
“(2) GENERAL EXCEPTIONS.—A defendant may not be sentenced to probation if—
“(A) the offense is a Class A or Class B felony and the defendant is an individual;
“(B) the offense is an offense for which probation has been expressly precluded; or
“(C) the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense that is not a petty offense.
“(3) PRESUMPTION OF PROBATION FOR CERTAIN OFFENDERS.—The court shall sentence an otherwise eligible defendant to probation, if the defendant is a first-time Federal offender whose place of residence allows for Federal probation supervision and who did not engage in violent conduct as a part of the offense, unless the court, having considered the nature and circumstances of the offense and the history and characteristics of the defendant, finds on the record that a term of probation would not be appropriate. However, a defendant convicted of a Federal sex offense, as described in section 111 of the Sex Offender Registration and Notification Act, is not subject to a presumption of probation under this paragraph.”

Probation. Okay, then.

Sunday, July 19, 2015

SAFE Justice Act: Things are Getting Weird

From Kirk -- 

Well, hello. James Sensenbrenner (R-WI) is (really) a co-sponsor of a criminal justice reform bill. Here is what it says:

1. The Attorney General should consider measures to reduce pretrial detention.

2. Acquitted conduct should not be considered at sentencing.

3. Relevant conduct should be limited to conduct intended and in furtherance of conduct undertaken by the defendant.

4. DNA evidence should be preserved.

5. Video and audio recording of defendant statements should happen.

6. Informant testimony is “inherently suspect”.

7. Defense counsel must be permitted to inspect “and to copy or photograph the full contents of all investigative and case files” within 14 days of a request.

8. A presumption of probation (yes, probation) if “if the defendant is a first-time Federal  offender whose place of residence allows for Federal probation supervision and who did  not engage in violent conduct as a part of the offense, unless the court, having  considered the nature and circumstances of the offense and the history and characteristics of the defendant, finds on the record that a term of probation would not be appropriate.” I don’t know what this means, exactly.

9. Limiting mandatory minimums to situations where the “defendant was an organizer, leader, manager, or supervisor of a drug trafficking organization of five or more participants.”


1. Truncating the time limits for 851-eligible penalties. The predicate has to have occurred in the last ten years, excluding periods while incarcerated.

2. These changes are retroactive for crack offenses.

3. And the whole freaking thing may be retroactive upon certain proof, the content of which is unclear.

4. Compassionate release should be expanded.

5. Good time expands to 33% except for terrorism, homicide, and sex offenses (excluding prisoners who are serving a sentence. of less than one month, because that happens).

6. A system of graduated sanctions for supervised release violations should be implemented. 

Good grief. There is a lot more in this bill.  Which seems likely to pass. Read the whole bill. See what you think. Advise your clients accordingly.

Things are getting weird. Actually, things are getting a lot less weird. We will discuss the Dorsey implications in a future post.

Wednesday, July 15, 2015

Hercules and the Umpire


Judge Richard Kopf shut down his blog. We will miss him. Even with the scabies. Actually, especially with the scabies. He did an honest, unprecedented thing. As the Red Sox owner said (at least in the movie version), the first guy through the wall always gets bloody.

If Judge Kopf has a recommendation as to what else we should read at 5:20 in the morning, please let us know.

-- Kirk