June 29, 2008 -- Washington Times (DC)

'Relevant Conduct' Can Add to Sentences

By Jim McElhatton

Steven Kalar, senior litigator in the Northern District of California's Office of Federal Public Defender, tells his clients facing big conspiracy cases to keep in mind the movie "Raiders of the Lost Ark."

"If you get hit, and it doesn't matter if it's even with one little dart, you're dead," Mr. Kalar said. "They're going to argue relevant conduct."

The point, he said, is that a criminal defendant might not benefit greatly from acquittal of all the charges in a major conspiracy case except for a seemingly minor count.

Prosecutors still can point to "relevant conduct" -- the acquitted charges that jurors rejected or other accusations the jury never heard -- and ask a judge to mete out a tougher sentence.

Mr. Kalar said that while juries must make their findings based beyond a reasonable doubt, sentencing judges instead can base their findings on a preponderance of evidence.

"I do think the Supreme Court will be addressing the issue very soon," he said.

James Bilsborrow, who recently published an article on acquitted conduct sentencing in the William & Mary Law Review, said the consideration of acquitted or uncharged conduct at sentencing is a recent phenomenon.

"In the past, you could get sentencing enhancements, but nothing that would take you up to 40 years," said Mr. Bilsborrow, who reviewed the defense and prosecution memos in the D.C. federal court case of Antwuan Ball.

Ball was acquitted on murder and racketeering charges but convicted of one $600 drug deal.

Defense attorneys say sentencing guidelines show Ball, who has a 1995 weapons conviction, should be released within a few years.

In memos, prosecutors say Ball deserves the 40 years, the maximum allowed by law for his drug charge, because he has intimidated witnesses, lied in court testimony and remains a danger to the community.

Defense attorneys balk at the description. They say it's unfair to ask for 40 years when jurors only found Ball guilty of a single drug transaction, acquitting him of the more serious charges

On Friday, the U.S. Court of Appeals for the District of Columbia noted the debate over the sentencing issue in the case of Tarik Settles, who had appealed his 57-month sentence on a firearms conviction.

"To be sure, we understand why defendants find it unfair for district courts to rely on acquitted conduct when imposing a sentence," the judges concluded in their opinion.

"For those reasons, Congress or the Sentencing Commission certainly could conclude as a policy matter that sentencing courts may not rely on acquitted conduct. But under binding precedent, the Constitution does not prohibit a sentencing court from relying on acquitted conduct."

Proposed Federal Parole, Good Time and Re-entry Legislation for the 110th Congress

Legislation is being drafted this summer and fall 2008 to establish a hybrid system of parole and good time allowances for federal prisoners, according to FedCURE, a nonprofit organization dedicated to ensuring human rights and early release for federal prisoners. Excerpts from recent FedCURE news release:

"There are now two separate draft-bills. First, the proposed 'parole' legislation has a new name and is sitting in House Legislative Counsel's office. Second, the Federal Inmate Work Incentive Relief Act of 2008 (FIWIRA), a good time bill, is back from House Legislative Counsel's office and is waiting for an advisory panel's review."

"The Criminal Justice Tax Relief Act of 2008 (CJTRA), authored by FedCURE, has been changed in a couple of significant ways and will probably have a new name. For now it is titled The Federal Release Revision Act of 2008. The focus of this Act is increased good time and parole review by the United States Parole Commission for those given more than a certain length of sentence.

"This proposed legislation would affect each and every inmate in some positive way. With a new focus, the CJTRA would establish a hybrid system of parole for all federal offenders. The bill is estimated to save the U.S. taxpayers $4 to $7 billion dollars annualy."

"Rep. Danny K. Davis has formed an advisory panel comprised of federal judges, a former Deputy Attorney General, a couple of post-conviction defense counsel, key Judiciary Committee staffers and representatives of the BOP, Parole Commission, Probation Services and other government agencies. The Panel is being asked for a twenty day turnaround for comments at which point another rewrite will doubtlessly take place before it is presented to House Counsel for their dissection of the details to ensure conformity with whatever statutory changes would have to take place if the bill passes."

If approved and signed into law by the President, the CJTRA, would:

* Reinstate the old parole statutes and make amendments thereto.

* Make all offenders eligible for parole.

* Increase good time allowances.

* Give jurisdiction to the United States Parole Commission to set release dates in accordance with applicable parole guidelines or the U.S. Sentencing Guidelines, whichever is lowest.

* Provide for reduction in term of imprisonment of elderly offenders.

* Clarify parole procedures.

* Provide post incarceration supervision.

* Apply prospectively and retroactively.

* Extend the life of the United States Parole Commission for twenty years.

www.fedcure.org/information/FedCURENews.shtml

(Note: At the URL above you'll find documents made available by the US Sentencing Commission to those attending the symposium on Alternatives to Incarceration. Great information!. Website last updated August 4, 2008 -- Nora)

What's Happening with Second Chance Act?

Signed into law by President Bush on April 9, 2008, the Second Chance Act (H.R. 1593) reauthorizes certain grant programs for prisoners' reentry into their home communities. 'Reauthorizing' is the first step taken before Congress can 'appropriate' funds. Total cost over two-year period is estimated at $191 million. By end of June no money has been spent.

As of June 25, the House Appropriations Committee completed the mark-up of the 2009 appropriations bill, which reserves $45 million for programs under the Second Chance Act. In July the Senate Appropriations subcommittee reserved $20 million for Second Chance programs. After full Committee consideration in the Senate, and assuming approval, further budget wrangling still leaves some doubt about how much, or if, money will be spent in coming months on Second Chance grants.

While recognizing that this Act is the first comprehensive effort by Congress to solve problems that released prisoners are given when they return home, the Act has very little to do with reducing time served in prison. A proposed pilot program for the "Eligible Elderly Offender" may take place in only one federal lockup and -- like the little-used, existing "Compassionate Release" BoP policy -- is unlikely to help many people over 65 who have served at least 75% of their sentences.

Another small provision affecting early release is the lengthening of time from six to twelve months for possible halfway house confinement, but the BoP is not required to give every eligible prisoner twelve months. Same for slight increase in home confinement: BoP is not required to give home confinement as a right to any incarcerated person.

Though the Act authorizes funds for measuring levels of successful reentry, it offers only job preparation or 'work readiness activities,' not real jobs that anchor successful reentries. Though some incentives are provided for participation in skill-development programs, the Director of BoP has no power to reduce a term of imprisonment as incentive to participate

Only states and local governments are eligible for funding under the Act's Demonstration Programs, but community-based nonprofit groups can apply for mentoring funds through the Department of Labor -- which is authorized to merely "educate employers about existing programs for former prisoners, such as the work opportunity tax incentive." Some money will be granted to "states or local governments for building transitional housing, including homes for recovering substance abusers."

Whether it's the $45 million wanted by the House, or the $20 million by the Senate in initial appropriations, the Second Chance Act ranks fairly low in planned criminal justice funding measures, and, to repeat, no one knows for sure that Congress will appropriate any money at all for the Act in this presidential election year.

Sources: www.reentrypolicy.org and www.famm.org

New Constituency" Targeted as Election Day Approaches

From The Sentencing Project

Florida civil rights lawyer Reggie Mitchell, Alabama activist Rev. Kenneth Glasgow and various grass-roots groups around the nation are trying to register tens of thousands of newly eligible citizens with felony convictions for the upcoming election. "They have taken up the cause on their own, motivated by the belief that former offenders have been unfairly disenfranchised for decades," the Washington Post reports.

Mitchell said Florida's former disenfranchisement policy that banned all citizens with felony convictions from voting offended his notion of justice. "You can serve your time and still have your rights taken away," he stated of the former policy which was changed last year to allow those with non-violent offenses and paid restitution to vote. "I studied the history of black disenfranchisement in the state. We had the grandfather laws and the tissue-paper ballots. When a black man came to vote, they gave him a tissue-paper ballot that was later thrown out. There were lynchings and riots. We've got a long history of depriving people of the right to vote in Florida."

Commenting on the Post's coverage, the American Prospect posted a blog entry that begged for a logical response to continuing antiquated disenfranchisement laws. "Such laws are Constitutionally suspect. If someone has fulfilled their legal obligations in prison, why are they still being punished after release? Why do former felons lose the right to act politically in their own self-interest once they are supposedly free? What, exactly, is Constitutional about depriving American citizens of one of their most basic civil rights? How does disenfranchising the formerly incarcerated encourage them to be productive members of society?

Most ridiculous is the presumption that such laws are 'tough on crime.' How does preventing ex-felons from voting prevent crimes from being committed?"

How Does Conspiracy Law Work?

In 1988 Congress passed another pre-election Anti-Drug Law. One of the provisions was urged by the Department of Justice to simply close a little loophole. The change was to apply the mandatory sentences of 1986, intended for high level traffickers, to anyone who was a member of a drug trafficking conspiracy.

The effect of this amendment was to make everyone in a conspiracy liable for every act of the conspiracy. If a defendant is simply the doorman at a crack house, he is liable for all the crack ever sold from that crack house. Indeed, he is liable for all of the crack ever sold by the organization that runs the crack house. After the conspiracy amendment was enacted, the prison population swelled. Within six years, the number of drug cases in federal prisons increased by 300%. From 1986 to 1998 it was up by 450%.

One result of the conspiracy amendment is that low-level traffickers can get very long sentences. They can also be the victims of lies by codefendants who have figured out how to cut a deal and manipulate the sentencing laws to their advantage. High-level traffickers often get lower sentences than Congress anticipated.

The top organizer is in a position, for example, to identify and testify against the people who launder money for him at a bank, corrupt police officers, airport or shipping personnel, and others. When a top organizer faces a very long mandatory or guideline sentence, he is able to offer "substantial assistance" and get a low sentence. Examples of such deals were the much reduced sentences obtained by high level cocaine traffickers who testified against former Panamanian strongman, General Manuel Noriega, when the U.S. government prosecuted him for cocaine trafficking.

Source: Eric Sterling, at: www.pbs.org/wgbh/pages/frontline/shows/snitch/primer/