Thursday, January 30, 2014

On to the Full Senate

Today, the Smarter Sentencing Act was approved 13-5 by the Senate Judiciary Committee.  The bill cuts most drug mandatory minimums in half, makes the Fair Sentencing Act retroactive, increases safety valve eligibility, and directs the Commission to issue new drug guidelines.  We put together a fuller explanation here.

Should this bill pass, it could well affect our current clients. Anyone who has not yet been sentenced may be eligible to benefit from the penalty changes.  The Supreme Court's decision in Dorsey v. United States applied the Fair Sentencing Act to all defendants whose sentencing occurred after the Act's passage, regardless of when their crime occurred.  Critical to the Court's decision in Dorsey was the FSA's direction to the Sentencing Commission to issue emergency amendments recalibrating penalties to fit the newly announced mandatory minimums.  The Smarter Sentencing Act has an identical feature, and Dorsey should dictate that it will be applied to defendants not yet sentenced as well.

So...if you have a client accused or convicted of a drug offense, think about the implications of the Smarter Sentencing Act before pulling the trigger on strategy decisions.  And remember to track the progress of the bill through Congress with the widget on our blog. (Though apparently we are ahead of our own widget in reporting the committee endorsement).

Wednesday, January 22, 2014

Tech-savvy SCOTUS? Cellphones and Search Warrants

Cert was granted in two cases last Friday on the constitutionality of warrantless cellphone searches. Once again, the Court has the opportunity to extend Fourth Amendment protection to  information captured by rapidly evolving technology. The last occasion, while a defense win, bypassed the broader issues. In US v. Jones, the Court found, on rather narrow and  antiquated grounds, that a warrant was necessary to physically attach a GPS monitoring device to a defendant's car. Little progress was made in defining Fourth Amendment protection of the massive amount of personal information -- in particular, communications meta-data -- now available to the government through third-party technological records and resources. Only Justice Sotomayor, in a concurring opinion, observed that, in a Fourth Amendment context, secrecy cannot be a prerequisite for privacy.

Professor Jeffrey Fisher
In both of the new cert grants, police searched a cellphone seized at the time of arrest and searched the content without a warrant, a rather common event nowadays. Riley v. California involved a Samsung Touchscreen smartphone. The question, redrafted by SCOTUS, is simply, "Whether evidence admitted at [his trial] was obtained in a search of [his]cellphone that violated the Fourth Amendment." Jeffrey Fisher is counsel of record for Riley -- you know, the lawyer who won Blakely v. Washington after everyone
 else had given up hope of defeating mandatory guidelines.

The second case is US v. Wurie, a federal case arising from the warrantless search of  an old-school flip phone. Police arrested Wurie and searched his cell phone log without a warrant, then used that information to convict him at trial. Wurie won at the First Circuit, but cert was granted on the government question of "whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cell phone found on a person who had been lawfully arrested." Wurie's brief in opposition is here.

EFF (Electronic Frontier Foundation) filed an amicus brief in Riley and EFF's Hanni Fakhoury, who spoke at our recent CLE,  discusses the issue here.

SCOTUSBlog's analysis and links are here.

Friday, January 17, 2014

Federal Mentoring Program for the District of Kansas

Interested in practicing in federal court, but a bit shy of experience?  Intimidated by the Napoleonic Code that is the Federal Sentencing Guidelines?  Well, we have an idea.

The new Federal Public Defender, Melody Evans, is happy to announce that the Judges of the Kansas District Court have generously decided to support a new pilot program to provide mentorship for lawyers interested in representing indigent defendants in federal prosecutions.  Here are the basics:

  • you will be assigned an attorney from the Federal Defender to shadow
  • your term will last for about one year
  • you will follow your assigned attorney through a number of cases, including discovery review, client meetings, suppression issue analysis, sentencing guideline computation, and all other aspects of federal representation
  • you will be compensated at the rate of $70 an hour
Completion of the program is not a guarantee of inclusion on the federal CJA panel, but we hope to introduce you to the basics of the federal system.  

The program is limited to five participants.  A formal application will be finalized early next week.  If you are interested in applying, please send an email to  If you are an attorney that knows someone who you think would be interested, please encourage them.  We will have additional application links before long, so check back.

Thursday, January 16, 2014

Parsimony and Pot

Colorado and Washington have legalized recreational marijuana use, and a number of other jurisdictions looking to do the same.  The Department of Justice has backed off prosecution of even large-scale marijuana distributors in states where weed is legal.  So why are federal marijuana prosecutions still more frequent (27.6% of federal drug cases) than methamphetamine prosecutions (19.5%)?

While federal prosecutions may still be frequent, the sentences imposed in those cases may be going down.  In a recent decision, United States District Judge James K. Bredar, decided that the "evolving landscape of state law and federal enforcement policy regarding marijuana is particularly relevant" when fashioning sentences by federal marijuana offenses.  Judge Bredar found that a two-level downward variance, which reduced the defendants' sentences by 20-25%, was justified by our nation's evolving tolerance of marijuana.  The judge found the legal and political developments relevant in two ways.  First, the court found that the,

"seriousness of violations of federal marijuana laws has been undercut by (1) recent state enactments decriminalizing, legalizing, and regulating not only the possession of marijuana but also its cultivation, distribution, and sale, and (2) the federal government’s expanding policy of non-enforcement. Indeed, these state enactments reflect the desire of several states to “try something new” in marijuana policy by adopting an approach focused on regulation instead of prohibition. "

Second, Judge Bredar ruled that the marijuana guideline would create unwarranted disparity.  Because the charged marijuana conspiracy "s bears some similarity to those marijuana distribution operations in Colorado and Washington that will not be subject to federal prosecution. The Court therefore finds it should use its sentencing discretion to dampen the disparate effects of prosecutorial priorities."

As we reconsider drug sentences on a national level, this is an opinion to remember.

Friday, January 10, 2014

How RDAP Works

Outside of "have you heard about the 65% good time change", the most frequently asked question we hear about life in BOP is whether a particular client is eligible for the Residential Drug and Alcohol Program.

Many, many prisoners in the federal system need effective drug treatment.  A full 45% of federal prisoners meet the criteria for a DSM-IV substance abuse disorder. In each of its 117 institutions, BOP provides some level of drug counselling.  At 63 locations, an RDAP Unit is available, which is BOP's effort to comply with the statutory requirement that it provide residential drug treatment to the eligible inmates that it supervises.  RDAP is a 500 hour program in which participating inmates all live in the same housing unit and receive about three hours of drug treatment a day for nine months.

The Pardon Project

On December 19th of 2013, President Obama granted clemency to eight people and issued an additional thirteen pardons.  This positive development started to reverse a trend which had seen American citizens receive pardons at a rate only marginally higher than Thanksgiving turkeys.  But progress is progress.

Here at the Kansas Federal Defender office, we are encouraged by President Obama's decision, and are implementing a project designed to capitalize on it.  While the changes made in the Fair Sentencing Act are certainly an improvement,  there are still thousands of people serving long prison sentences because of mandatory minimum sentences imposed in crack cocaine cases that are now universally derided as unfair and racially biased.

So, we are looking for volunteers.  We intend to request a series of pardons for a number of the defendants our office has represented during the litigation of Sentencing Guideline amendments 706 and 750, which retroactively lowered guideline sentences in crack cocaine cases.  Many of these defendants, for reasons unrelated to the gravity of their crime or their progress in rehabilitation, continue to languish in prison.  And to seek those pardons, we need your help.

Are you a law student (or do you know one) who has a commitment to justice?  Would you like to gain practical experience in the administration of criminal law?  Do you mind working for free?  If you answered "yes" to any two of those questions, please contact to inquire.

Thursday, January 9, 2014

"All Drugs Minus Two"

Today, the Sentencing Commission voted -- unanimously -- to publish for comment its proposed amendment to reduce the drug guidelines by two levels. All drugs. Across the board. Two levels. Down.

The proposed "all drugs minus two" amendment, as dubbed by FAMM, ties the mandatory minimums to levels 24 and 30, rather than 26 and 32. The full press release is here.  If successful, it could go into effect November 2014, and could even be made retroactive.

This is amazing for a number of reasons, as noted by Doug Berman, and it reflects a trajectory that began with the reduction in  the crack guidelines in 2007, followed by another reduction in 2010, then the Fair Sentencing Act, the proposed Smarter Sentencing Act, and the President's recent pardons in several crack cases. Last Sunday, the New York Times published an op-ed, Crack Cocaine Limbo, advocating that the FSA be made retroactive.

For today: this is an argument for a below-guideline variance for every drug defendant. While the Sentencing Commission action is a proposal, it is also the Commission's expert and experienced and published position that the drug guidelines are too harsh.

More support is available at, including recidivism studies and Commission recommendations to Congress for reduced mandatory minimum sentences in drug cases, expanding the applicability of safety valve, and increasing good time credit (see previous blog post).

Thursday, January 2, 2014

Expanded Good Time Credit?

Since the dawn of time (2003, for present purposes) I have been fielding client questions about an increase in the amount of good time credits that would be available for inmates to earn.  Well, there is now legislation that may make this a possibility.

Senate Bill 1675, known as the Recidivism Reduction and Public Safety Act of 2013, has recently been referred to committee. The Bill, if enacted, would amend 18 U.S.C. 3624(b) to permit an inmate to earn up to 54 days a year of good time, a modest increase of the current 47.  It would also be retroactive, meaning that a client who has served a ten year sentence might be eligible for up to 70 additional days of good time.

More significantly, the Bill would allow inmates to earn up to an additional 60 days per year of good time for participating in programming, which includes prison jobs, drug treatment, vocational training, or other programs designated by the Bureau of Prisons as reducing recidivism.  These sentencing discounts would be capped at 30% of the inmate's sentence, meaning no greater reductions would be awarded.

This increase in good time credit availability is not a new idea.  The Bureau of Prisons has itself endorsed the concept for some time.  Hopefully this time the idea comes to pass.  So call your Senator or Representative!

CLE/ Training Opportunities

First, the Western District of Missouri is offering a free CLE on January 24. Lunch is 11:30 to 12:00, and the CLE presentation is 12:00 to 1:00:

You are invited to attend a free lunchtime CLE on January 24, 2014 at the Federal Courthouse in Kansas City Missouri.  The topic is How Your Client Can Help You Help Him.

No one knows your client's story as well as he does.  This one-hour CLE will help you learn to gather information that you can use to make communication with your client more effective, make your plea negotiations more productive, and make your sentencing hearings (when necessary) more successful. Pending approval for 1 hour of CLE credit in both Missouri and Kansas.

The CLE will be simulcast in Jefferson City and Springfield at the courthouses.  Attendees in Kansas City will have lunch provided.  Please use the link below to RSVP.

Second is Capital Voir Dire Training, Theory and Intense Practice, at the Colorado School of law, May 15-17, 2014, in Boulder, Colorado.  This is also known as the Colorado method, developed by David Wymore, and focuses on the insulate/isolate method of voir dire.Online application is at, or contact Ann England at 303.492.0285.