USSC 2017-2018 Amendment Cycle
Sentencing Commission Hearing on First Offenders, Alternatives to Incarceration, Synthetic Drugs and Fentanyl
The U.S. Sentencing Commission held a hearing on March 14, 2018, to take testimony on a number of proposed amendments, including drug penalties, reductions for first offenders, and alternatives to incarceration.
Policy advocates, defense lawyers, and prosecutors appeared on three panels to examine proposals that have generated the most interest: First Offenders and Alternatives to Incarceration.
To briefly recap, the First Offender proposal would:
- Define who is a true first offender
- Include an adjustment of one to two levels downward for first offenders.
The first panel included a U.S. Attorney and a Federal Public Defender. The U.S. Attorney explained that the Justice Department opposes awarding any reductions to first offenders. They argued that an across-the-board first-offender reduction could reward violent criminals and individuals who prey on others.
Members of the Commission pressed the U.S. Attorney on that point. They asked repeatedly what if any offenses would be eligible if the government wants to exclude violent and serious offenses. The U.S. Attorney ducked and weaved and never conceded that anyone should get a first-offender reduction, no matter how minimal their crime.
Miriam Conrad, the federal public defender from Massachusetts, also challenged the government’s positions and brought evidence and data to bear on the question of first offenders, pointing out, among other things, that they have the lowest recidivism rates of anyone.
You can read the testimony of these and other witnesses and watch a video of the hearing here.
FAMM submitted comments about the first-offender proposal. You can read them here.
And, FAMM was invited to testify at this hearing, but not on the First Offender/Alternatives to Incarceration panel, but rather on the Commission’s proposed amendments on drugs. Mary Price, FAMM’s general counsel, represented our views at the hearing. She urged the Commission to act with great restraint when determining how to punish distributors of the new drugs under consideration, synthetics and fentanyl. She drew parallels between the extreme and legitimate concerns about the harm these drugs pose to public health and the concerns that led to adopting crack cocaine mandatory minimums 30 years ago. It is hard to undo mistakes made in the heat of fear, and very important to err on the side of sentences that are too short rather than too long.
Price also made the point that research shows that sentence length does not affect drug use, drug overdose deaths, or drug arrests. You can read a great report from the Pew Charitable Trusts here.
What Happens Next
The Commission will vote on all the proposed amendments before May 1, 2018. Only amendments that receive a unanimous vote from all four sitting commissioners will be adopted. The amendments that received unanimous votes are then sent to Congress. Congress then has a six-month period to review these proposals. The proposals go into effect automatically on November 1, 2018, unless both houses of Congress pass a bill to reject any or all of them. Rejection of the Commission’s proposals is rare.
If the Commission votes to amend a guideline in a way that would reduce sentences (such as for First Offenders), they must vote whether to consider making the guideline retroactive. If they vote in favor of considering retroactivity, the Commission may seek public comment and hold a hearing on the issue. They do not need to send the amendment making a guideline retroactive to Congress. If they vote not to consider making the guideline retroactive, that is the end of the matter and the guideline will not be retroactive.
We will know by May 1, 2018, which amendments are going to Congress and if the Commission will consider making any amendments retroactive. We will report to you as soon as we learn.
In the meantime,
- The Commission has not passed any amendments.
- The Commission has not yet considered retroactivity for any amendments.
posted January 2018:
Amendments Proposed for 2018
Here we summarize just a few of the amendments proposed for adoption in 2018. Readers can view all the proposed amendments by going to www.ussc.gov. Proposed amendments were issued in two rounds. One set was proposed in August 2017. The second set was proposed on January 2018.
The first set of amendments were proposed in August 2017. Here is a summary of a few of them.
First Offenders/Alternatives to Incarceration.
Defendants with no or very limited criminal history are classified in Criminal History Category I. Criminal History Category I does not distinguish between defendants with zero criminal history points and those with 1 criminal history point. This means that Criminal History Category I treats the following defendants identically:
- First time offenders with no prior convictions
- Defendants with prior convictions that are too old to be counted anymore
- Defendants with prior convictions that are not counted for other reasons (such as minor misdemeanors or convictions from tribal or foreign courts) and
- Defendants with a prior conviction that resulted in one criminal history point.
- The first offender proposal presents two options for defining who is a first offender. Option 1 would lower the guideline range for defendants who did not receive any criminal history points. Option 2 would lower the guideline range for defendants who had no prior convictions of any kind. FAMM prefers Option 1.
- There are two alternatives for the amount of reduction. Option 1 would reduce the sentence range by one level. Option 2 would reduce it by two levels if the offense level was less than 16 and by one if 16 or greater.
- Finally, the amendment would also provide more access to alternatives to incarceration for such true first offenders. In the Sentencing Reform Act of 1984, Congress stated that alternatives to incarceration are the appropriate treatment of first offenders not convicted of a violent or otherwise serious offense. 28 U.S.C. sec. 994(j). The proposed amendment would direct the court to impose a sentence other than imprisonment if the defendant is a true first offender, the instant offense did not involve violence, and the guideline range was in Zone A or B. The proposal presents a couple of options for determining if the offense was violent.
- The Commission also includes a proposal to combine sentencing zones B and C, allowing people with guideline ranges topping out at 18 months a wider variety of sentencing option.
- The Commission asked about whether changes that would lower sentences should be made retroactive. FAMM said “yes”! It would be great if they did but
- They have not yet voted to make a first offender adjustment in the guidelines
- They have not yet voted to make anything retroactive
- We don’t know what they will do but we do know that they are expected to vote before May 1, 2018 on all proposed amendments, including the first offender adjustment. That is the deadline for the amendment to go to Congress for review.
- We will know a lot more by then and will report as soon as the Commission announces its decision
- Any change to the guideline will not take effect until Nov. 1, 2018.
- You can read FAMM’s letter about this proposed amendment
Acceptance of Responsibility
Defendants who clearly demonstrate their acceptance of responsibility can receive a two-level reduction but the Guidelines discourage courts from awarding the two-level reduction if the defendant unsuccessfully challenges relevant conduct outlined in the presentence report. This amendment would allow certain challenges to relevant conduct. The Commission offers two alternatives.
In Option 1, a defendant who makes a non-frivolous challenge to relevant conduct is not precluded from earning the two-level reduction for acceptance of responsibility. There is no definition of “non-frivolous” and the Commission asks, in an issue for comment, whether it should define it. In Option 2, a defendant may make a challenge to relevant conduct, “unless the challenge lacks an arguable basis in either law or in fact.”
You can read FAMM letter about this proposed amendment here.
Other proposed guidelines
The Commission also sought comment on proposed amendments dealing with tribal issues – including providing for an upward departure for tribal court convictions (which do not incur criminal history points), the Bi-Partisan Budget Act and a variety of miscellaneous and technical amendments. It did not publish for comment proposals on criminal history or the impact of juvenile offenses on criminal history, although those issues remain on its list of priorities, so we may see some amendments in the months to come.
What happens next
The Commission has gathered comments from the public about these proposed amendments. You can read all the public comment here. The Commission will vote before May 1, 2018 whether to adopt any of the proposed amendments. We will keep you up to date.
But wait, there’s more
Here is information about some of the proposed amendments announced on January 19.
The Commission has been studying synthetic drugs for the past two years. The proposed amendments would collect some synthetic drugs into groups or “classes” for purposes of guideline sentencing, rather than treating them individually. One class would cover synthetic cathinones, such as “bath salts,” with a minimum base offense level of 12. The Commission has proposed some alternative weights that would trigger guideline ranges starting at base offense level 12. Another class would cover synthetic cannabinoids, such as synthetic marijuana, also with a base offense level of 12. The proposed amendment would define “synthetic cannabinoid.” The Commission asks if the sentences for these drugs should distinguish between actual drugs and drugs that are part of a mixture. The Commission also seeks comment on how the guidelines should treat synthetic THC. In addition, the Commission proposed an increase in penalties for fentanyl “analogues,” proposed a definition for fentanyl analogues, and would treat fentanyl and analogues identically. The Commission also proposed an enhancement of two to four levels if a person misrepresents or markets fentanyl or its analogues as another substance. This enhancement would increase the length of the sentence a person faces under the guidelines.
Illegal Reentry Cases
The Sentencing Commission also proposed changes to a very small class of cases in which a person has reentered the country illegally after deportation. In such cases, in which the person engaged in criminal conduct before the order of deportation or removal, but was not convicted until after the deportation order or order of removal issued, the Commission proposed that the conviction be treated as a prior offense under the guidelines. This amendment would create a longer sentence for a few cases.
Other Proposed Amendments
The Commission sought comment on proposed amendments dealing with tribal issues – including providing for an upward departure for tribal court convictions (which do not incur criminal history points), addressing items from the Bi-Partisan Budget Act, and a variety of miscellaneous and technical amendments. It did not publish for comment proposals on criminal history or the impact of juvenile offenses on criminal history, although those issues remain on its list of priorities. We do not expect to see proposed amendments on these issues in this amendment cycle.
What Happens Next
This information is simply a summary of some of the proposed amendments. It does not contain all the proposed amendments or all the terms of the proposals, or any of the many issues the Commission asks for comment on. If you are interested in commenting on the proposed amendments and/or the issues for comment, be sure to obtain a copy of them.
The period for the public to submit comments to the synthetic drug, illegal reentry, and other issues proposals ends on March 6, 2018. FAMM will be submitting comments as part of this process, and we will share our comments with you.
We hope that you and your loved ones will review these issues and consider contacting the Commission if you have views on these most recent proposals. If you wish to comment on the synthetic drug, illegal reentry or miscellaneous proposals, you can do so by writing a letter to the Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, South Lobby, Washington, D.C. 20002-8002.
Some things to remember:
- The proposed amendments are not going into effect right now. If the Commission adopts any or all of them, they will do so after the public comment period closes and by no later than May 1, 2018.
- By May 1, 2018, all proposed amendments will then be sent to Congress, which has six months to disapprove them by a majority vote in both houses.
- If Congress does not reject any or all the amendments, they will go into effect automatically on November 1, 2018.
- These amendments would not affect mandatory minimum sentences. They would only affect guideline sentences.
- No more guidelines are expected to be proposed in this amendment cycle.
FAMM has weighed in with the U.S. Sentencing Commission as it begins the work of considering amendments to the federal sentencing guidelines.
We had a lot to say.
First, we told the Commission that while we support their focus on simplifying the guidelines, we worry that they will use that effort to ask Congress to make the guidelines mandatory. Mandatory guidelines would cover every crime. We told the Commission that its work to uncover the harms caused by mandatory minimums is exhibit number one in the case against mandatory guidelines. In fact, the Commission just released a new mandatory minimum report that we used to support our position.
We didn’t just wag our finger though. We also saw a lot to support in the Commission’s proposed priorities, including work to convince Congress to limit the Career Offender guideline. The Commission issued a Career Offender report last year that included some good recommendations to Congress. For example, the Commission encouraged Congress to pass a bill that would limit Career Offender sentencing to defendants with crimes of violence. But, we also told the Commission it should explore ways to amend the guidelines without new legislation from Congress.
We also told the Commission that we support ongoing work
- to study mandatory minimum sentences, educate lawmakers and the public about them, and promote reforms in Congress, including expanding the safety valve and lowering mandatory minimum enhancements in the drug and gun statutes
- to create a true first offender adjustment that would allow judges to lower sentences for first offenders (we wrote about this proposal last year. You can read our letter here)
- to refine how criminal history is counted, for example, for crimes committed when the defendant was a juvenile
And, we suggested some other areas the Commission might focus on this year, including
- examining how to lessen certain sentences for child pornography offenses
- ending the practice of counting crimes of which the defendant has been found not guilty by a jury in a defendant’s “relevant conduct” to drive a sentence up
- commending a proposal by a group of organizations, including the American Conservative Union, #Cut50 and others that the Commission study the impact on minor children of parental incarceration.
The Commission will post all the public comments on its website shortly. We will keep you posted on developments.