First Step Act – Criminal Justice Reform

In the final month of this Congressional session, the Senate may take up criminal justice reform. The First Step Act – a bill led by a bipartisan group that includes Judiciary Committee Chairman Chuck Grassley (R-IA) and Democratic Whip Dick Durbin (D-IL) – attempts to chip away at this country’s mass incarceration problem, reduce recidivism, and walk back some unfair sentencing practices. It proposes to:

• repeal the three-strikes life sentence for drug crimes, and instead implement a 25-year penalty for third offenses;
• reduce the two-strike drug penalties from 20 years to 15 years;
• allow a firearm sentencing enhancement to run concurrently with the underlying penalty (currently, a defendant who convicted of a non-violent drug offense whilst nevertheless possessing a firearm is essentially given two sentences);
• expand the sentencing “safety valve” so that judges can deviate from the harsh penalties prescribed for certain drug crimes;
• retroactively reduce sentences for those convicted of crack cocaine offenses before the law was changed to remedy the disproportionate treatment of crack to powder cocaine; and
• allow low-risk inmate who participate in anti-recidivism programs to receive earned time credits and thus serve the remainder of their sentence in a supervised release setting.

A more modest version of the bill was already passed by the House of Representatives. Many hope the Senate will vote on – and pass – the amended version before the end of this session.

As defense attorneys, we see the broken parts of our system every day. We have a constitutional duty to fight for just outcomes at each stage of the case, and sentencing is the most critical stage for many of our clients. This is especially true for those charged with and convicted of white collar crimes, who often want, more than anything, a chance to rebuild the lives.

But getting a fair sentence is not easy. The court can sentence defendants based on conduct for which they were not convicted and evidence that would be inadmissible at trial. The court also considers the U.S. Sentencing Guidelines, a nuanced scheme that, among other challenges, may call for defendants to re-serve time they had already served in a state facility. But as defense attorneys, we focus in this work and do whatever is necessary to make sure the punishment fits the crime (and importantly, the offender). Nevertheless, systemic reforms are undoubtedly needed.

The First Step Act is a bipartisan policy, and bipartisanship is rare in today’s climate. Criminal justice reform has become an area where both sides of the aisle can find common ground. Republicans and fiscal conservatives see mass incarceration as a wasteful use of public funds and loss of human capital, and the federal government’s role in our criminal/legal apparatus – in which public safety is a police power of the states – as far too big. For Democrats and social justice progressives, mandatory minimums and strict drug laws are tools of a discriminatory system – applied disproportionately to certain defendants – and crime should be approached as a consequence of poverty, illness and trauma.

This is a good first step.

Steve’s Fresh Perspective

The Proffer Letter:

The First Landmine in Federal Criminal Defense Practice

 

Assistant United States Attorneys (AUSAs) often take the position that a proffer letter, or a “Queen for a Day” agreement, is intended to protect a defendant who ultimately chooses not to cooperate with the government.   Stated another way, as the Seventh Circuit Court of Appeals did in United States v. Threw, 861 F.2d 1046 (7^th Cir. 1988), “the purpose of [a proffer letter], according to the government, is to ensure that in the event a cooperating defendant decides not to plead guilty, any information he may have ‘proffered’ to the government cannot later be used against him at trial” or sentencing, with some exceptions.  It is those exceptions that call into question a proffer letter’s true purpose.  In my view, the purpose of a proffer letter, from the government’s perspective, is to ensure that a defendant pleads guilty, because if he goes to trial after proffering, he is going to sentencing as well.

A typical two-page proffer letter in the District of Maryland contains the following language (liberally summarized):

Steve’s Fresh Perspective

You can’t lead if you don’t show up.  Thursday, notwithstanding her Wednesday press release promising to appear at a Senate hearing to recommend expanding a no-parole law that she says would help cut violent crime, Ms. Jessamy failed to show.  In other words, she failed to lead. 

Steve’s Fresh Perspective

What Rep. Rangel’s Non-Indictment Says About Our System:

As a recovering federal prosecutor, I see an occasional injustice that I might not have seen when I was with the US Attorney’s Office in the District of Maryland.  A businessman, for instance, is wrongfully targeted and subsequently suffers from the toll such an investigation takes on both his personal and professional life.  Or, a defendant is named in an indictment which should not have named him at all.  Even if acquitted, that defendant loses his reputation, his friends, and his money, among other things.  While such injustices exist, only clients, their families and their attorneys seem to take note.