What is the Likelihood of a "Second Step Act?" How
Presidential Politics Will Make It Happen.
by Derek Gilna
Criminal
Justice reform is the one reliably bipartisan issue in a politically divided
country. The President receipt of the Bipartisan Justice Award from
predominantly African American Benedict College in the past week, based upon
his support of First Step Act (FSA), effectively one-upped Democratic primary candidates
who have been touting their own criminal justice plans. He also symbolically signaled
his opposition to the DOJ's bureaucratic slow-walking of the FSA reforms that
have handed to almost all federal prisoners a path to sentence reduction.
In his
acceptance speech, the President challenged the Democratic Party's decades of
control over their core constituency of minority voters, and forced its field
of candidates (which contains three former aggressive prosecutors), to embrace
more radical reform. However, he was also called to do more to bring DOJ into
FSA compliance.
In the U.S.
Supreme Court, three cases of interest await action, including Eady v US ,
Caldwell v US ,
and Paul v US .
In Eady, the court is asked to review the "knowingly" provision of
922(a)(2) cases to see if it applies to both possession and status elements of
a 922(g) crime. In Caldwell and Paul, the court is considering whether a SO
registration and Notification Act delegation to the AG violates the
constitutional nondelegation doctrine.
More courts
continue to grant compassionate release.
After the case of Brittner v US ,
16cr15 (Dist. of MT, 2-18-19) granted relief based upon an "extraordinary
and compelling" medical reasons, more recently, in US v Walker, 11-cr270
(ND OH, 10-17-19, the court granted relief based upon extraordinary
rehabilitation while in prison. In US
v Cantu, 5cr458, (SD-TX, 6-17-19 ),
the court placed Cantu in home confinement based upon "extraordinary and compelling reasons
(that) warrant a reduction of...sentence."
In a 9th
CIrcuit case that has implications for FSA petitions where drug quantity is an
issue, the court ruled that the drug quantity in the PSR adopted by the
sentencing court is NOT binding in 3582(c)(2) sentence reduction proceedings,
and did not disqualify petitioner from FSA relief. US v. Rodriguez, 9221 F.3d 1149 (9th Cir.
2019).
The 9th
also found in case involving the illegal distribution of various controlled
substances the assessment of the drug
quantity incorrectly increased a sentencing factor, and that when that
"has an extremely disproportionate effect on the sentence relative to the
offense of conviction, the government may have to prove the factor by clear and
convincing evidence." US v. Ridgill, 18-50128, (10-23-19 ), quoting US v. Felix, 561 F.3d
1036,`045 (9th Cir. 2009) and US v. Mezas de Jesus, 217 F. 3d 638 (9th Cir.
2000).
The
government might also be facing some challenges in its methodology in
determining base offense level in meth cases, based upon the 