Month: March 2019

Update: Estimated Effects of the First Step Act

John Roberts, Esq.
Arseneault & Fassett, LLP

In the wake of the recent passage of the First Step Act, which was touted as “sweeping” criminal justice reform by the news media, the U.S. Sentencing Commission has released the first estimates of the Act’s effects on the current and future federal prison population. After analyzing Bureau of Prisons (BOP) statistics, not individual cases, the Report estimates that out of a total population of 180,218 federal inmates:

  • 142,448 are eligible to earn increased Pre-Release Custody (“good time” credit);
  • 106,114 are eligible for Risk and Needs Assessments;
  • 2,660 are eligible for retroactive application of the Fair Sentencing Act, which reduced the disparity in sentencing between powder and crack cocaine;
  • 2,045 are eligible for broadened application of the Safety Valve, which avoids mandatory minimum sentences for first-time drug offenders;
  • 1,882 are eligible for the Federal prison Reentry Initiative Reauthorization, including qualifying offenders who are age 60 or older, have served two-thirds of their sentences, and were in BOP custody as of May 26, 2018;
  • 57 will be eligible annually for the adjustment to 18 U.S.C. § 924(c), which applies to certain first-time firearms offenders sentenced for multiple firearms counts on the same day;
  • 56 will be eligible annually for the lower enhanced mandatory minimums under 18 U.S.C. § 851 (the “Three Strikes” law) for second and subsequent drug offenses.

The Commission has further estimated the effects of the Act on three categories of cases:

  • Enhanced mandatory minimums for second and subsequent drug offenses (“Three Strikes” law). The Act reduced the minimum for a second qualifying offense from 20 years to 15 years, and for a third or subsequent offense from life to 25 years. Enhanced mandatory minimums apply to an average 189 new cases annually. It is estimated that 56 of these cases annually will benefit going forward. The average sentence in qualifying cases, which would have been 267 months, will be an estimated 211 months. This reduction of 4 years, 8 months in predicted sentences in future cases is invaluable to inmates, as well as saving the BOP nearly $150,000 per case.
  • Broadened qualifications for the Safety Valve. The Act relaxed the criteria for avoiding mandatory minimums for certain drug offenses, allowing offenders with as many as 4 criminal history points, barring a single 3-point offense or a 2-point violent offense. Of 2,260 qualifying cases annually, an estimated 2,045 will benefit going forward, with resulting sentences reduced from an average 55 months to 43 months, a reduction of one year imprisonment for the average offender.
  • Clarification of 18 U.S.C. § 924(c). The Act clarified that multiple firearms offenses sentenced on the same day do not trigger enhanced penalties under 18 U.S.C. § 924(c). Of the 103 cases sentenced annually under this provision, an estimated 57 will benefit, reducing the average sentence from 624 months to 296 months. This provision provides the greatest relief, an estimated average reduction of more than 27 years per case, albeit to a relative handful of offenders annually.

These preliminary estimates support our initial assessment that, for all the fanfare surrounding enactment, the First Step Act holds out very modest relief for most inmates and significant relief for very few. (Read our prior article on the First Step Act here:

If you or a loved one are facing investigation or prosecution for federal criminal charges, you should retain an experienced criminal defense firm that is fluent in the latest developments in every aspect of the law, including sentencing.


Continue Reading

Federal Criminal Sentences Increasingly Vary by Judge

John Roberts, Esq.
Arseneault & Fassett, LLP

The disparity in criminal sentences meted out by federal judges is increasing, according to a new report issued by the U.S. Sentencing Commission. The Report, entitled Intra-City Differences in Federal Sentencing Practices: Federal District Judges in 30 Cities, 2005–2017, studies disparities according to sentencing judge since the Supreme Court ruled that the U.S. Sentencing Guidelines are advisory rather than mandatory in United States v. Booker.

The Commission selected 30 cities to represent eleven of the twelve appellate circuits, as well as the major geographical regions.  As a result of the Commission’s selection criteria, no New Jersey city was studied.  However, Philadelphia (Eastern District of Pennsylvania) and Manhattan (Southern District of New York) feature in the Report.

After excluding certain categories of cases from its analysis — such as those in which a life sentence was mandatory, or where the court granted downward departure due to the defendant’s cooperation — the Commission analyzed 143,589 cases.  The breakdown of types of offenses are as follows: 31.0% for drugs (USSG § 2D1.1); 14.2% for unlawful entry/remaining (§2L1.2); 13.1% for theft, embezzlement, and fraud (§2B1.1); 12.7% for firearms (§2K2.1); and 29.0% for other offenses.

The Commission measured the difference between the low end of the Guideline range and the ultimate sentence in each case, expressed as a percentage of the Guideline minimum. For example, if the Guideline minimum was 60 months and the sentence was 72 months, the result was (12/60 = ) +20%. Conversely, if the minimum was 60 months and the sentence was 36 months, the result was (24/60 =) –40%. The Commission chose to measure differences from the bottom of the Guideline range based on two remarkable preliminary findings:

  • Most (58.4% of) sentences imposed within the Guideline range are precisely at the Guideline minimum.
  • Courts depart or vary downward from the Guideline range 21 times more frequently than upward.

Based on these preliminary findings, the Report commented that the Guideline minimum exerts a “gravitational pull” on sentences.

Currently, the courts in the S.D.N.Y. impose sentences that average 36.3% below the Guideline minimum, which is the largest downward deviance from the minimums among all 30 cities studied.  Philadelphia is 18.4% below the Guideline minimum, due in large part to a single sentencing judge who was a statistical “flyer,” who sentences an average 40% below the minimum.

The Report concludes that “[i]n most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.”  The important unstated conclusion is that as judges increasingly exercise their discretion to vary from the advisory sentencing guidelines, the more important it is for defendants to have the best representation possible.  If you or a loved one are facing federal prosecution or even investigation, immediately engage the services of an experienced federal criminal defense firm with a track record of positive results.

Continue Reading