First Step Act Implementation Slow, but Steady

First Step Act Implementation Slow, but Steady, but Courts Ready to Help Ensure Compliance

by Derek Gilna

            The passage of the First Step Act (FSA) of 2018 was supposed to be a game-changer, and for some, that has been true.   However, despite Congress' and the President's stated intentions, the unelected criminal justice bureaucracy has done everything in its considerable power to water-down the benefits for the confined. Career prosecutors continue to file objections to compassionate release requests and sentence reduction petitions, but the courts have generally sided with Petitioners.   Public defender offices have been granted no additional funds or personnel to review cases and push your cases forwards, which means that you are generally on your own.

            Although several bills have already been introduced in the 116th Congress proposing additional reforms, the House and Senate Judiciary Committees are focused on overseeing implementation of FSA before turning to new and possibly more controversial changes. The new Prisoner Assessment Tool Targeting Estimated Risks and Needs (PATTERN) will not apparently be ready until the first of the year, and there is a lot of misinformation about who does and does not qualify. Contrary to rumors, violence in your background, unless it falls into certain discrete categories, does not automatically prevent you from receiving sentence credit from completing programming.

            Although there were no new cases heard or decided in the U.S. Supreme Court, the circuits were busy.  In the 9th, in US v. Ridgill, 19-50128, the court affirmed the controlled-substances conviction but reversed and remanded for resentencing, by finding that the district court's finding of drug quantify was contrary to the preponderance of the evidence standard, and the sentencing factor had "an extremely disproportionate effect on the sentence relative to the offense of conviction."

            In the 2d Circuit, in the case of US v Tanner, 18-3598 (consol.) 10-31-19, the conviction was affirmed, but the court again faulted the "methodology to determine the victim's actual loss," and that "the District Court erred in ordering the defendants to forfeit more than the amount of their criminal proceeds."

            In the 8th Circuit, in US v. Sterling, 18-2974, 11-1-19, the court ruled that "the government "failed to prove estimated drug quantity about base offense level 24, with information that 'has sufficient indicia of reliability to support its probably accuracy,'"

and remanded for resentencing.

            Finally, in US v Rabb, 18-1678, 10-30-19, the court reversed and remanded a fentanyl and cocaine case for resentencing, finding that his NY conviction for second-degree robbery did not qualify as a predicate for CO purposes, and invoked the SCOTUS Stokeling opinion that non-aggravated robbery did not qualify.