OK, here’s my second post on the annual amendments to the Federal Sentencing Guidelines, rules that govern imposition of a criminal sentence in all federal courts from Alanta to Alaska, from Maine to Moultrie (way down in South GA, look it up if you’re not familiar with it). There are two good defense-friendly amendments I will mention, but first, a little more history (poor readers, you know my inclinations).
Over the past 30 years, there have been a number of trends we see in these yearly Guideline amendments. For the first 15-20 years, virtually all such amendments resulted in harsher sentences. Then, when Congress and the public began finally listening to those of us hollering about how the United States had turned into the country that incarcerates the largest percentage of its population, the rules slowly began to soften. It also helped when fiscal hawks joined the “defense” side of the argument, pointing to the millions of dollars wasted when locking up low-level offenders. The past 10-15 years have included a number of amendments that actually reduce or make sentences less harsh than earlier versions of the Guidelines. The 2018 amendments are more down the middle, a few that jack up sentences (for newer offenses like dealing fentanyl or designer drugs) and others help to soften the blow for many of my clients. Today, I want to discuss two defense-friendly changes effective 11-1-18.
First, there is a change concerning the “acceptance of responsibility” rules, found at USSG §3E1.1. Remember that a defendant can earn up to 3 points “off” the scoring rules when he or she “accepts responsibility”, which generally means pleading guilty and doing so early enough so that the prosecutor did not have to actually do some work preparing for trial. However, experienced readers know about Presentence Reports, defense objections, and the all-important federal sentencing hearing where arguments on each side are presented to the Judge, whose rulings on contested issues can have a huge impact on the sentencing “range” and therefore the ultimate sentence. One of the biggest issues is often the scope of “relevant conduct”, meaning how much stuff done by other people will the Defendant in court be held accountable for? Over the years, some prosecutors and truly mean judges took the position that a Defendant who fights against relevant conduct can lose the 3-point reduction because that Defendant has not shown he or she is truly accepting responsibility.
Based in part on these “bad” earlier decisions, the Sentencing Commission created an application note that goes with §3E1.1 which notes that “a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” However, the new 2018 amendment somewhat softens this “bad” rule. The Sentencing Commission says the new rule “clarifies that an unsuccessful challenge to relevant conduct does not necessarily establish that the challenge was either a false denial or frivolous. Specifically, the amendment adds ‘but the fact that a defendant’s challenge is unsuccessful does not necessarily establish that it was either a false denial or frivolous’ to the end of Application Note 1(A).” In other words, it is no longer virtually automatic for a Defendant to lose the 3-level reduction just because he or she challenges the breadth of the relevant conduct in the case. Hooray!
Second, the Commission beefed up their push toward making sure that Judges understand that they should strongly consider alternatives to incarceration for non-violent first offenders. The Commission added an Application Note to §5C1.1, telling participants in the federal criminal justice system that a Defendant who falls into “Zone A or B” on the sentencing chart should be considered for a sentence other than imprisonment. The amendments mention an academic study which corroborates what most experienced practitioners know, namely, that there is a much “lower recidivism rate” for non-violent offenders who have had virtually no previous contact with the criminal justice system.
This amendment also goes on at length to talk about what is or is not a “non-violent first offender.” Over the past decade there has been an explosion of cases all trying to figure out what Congress means when it jacks up sentences based on actual or possible violence in a current or prior crime. This 2018 Guidelines amendment uses what is sometimes called the “real offense conduct” way of looking at a crime, meaning look to what happened, and not how the crime is described by the legislature.
Finally, this amendment that tries to get more Judges to impose non-custodial sentences changes language when talking about electronic monitoring for Defendants who do not go to prison. Earlier rules made it more likely that such a Defendant would have what is called “location monitoring” (which is generally the ankle bracelet that many are aware of). The new rule says that location monitoring should only be used when “appropriate”, because less intrusive monitoring is often just as effective “for many low-risk offenders.” This is truly good news, for I have many clients who have struggled with the ankle monitors when there was no real need to have them monitored in such a fashion.
OK, that’s the good news from this year’s Guideline amendments.