First Step Act – Criminal Justice Reform

In the final month of this Congressional session, the Senate may take up criminal justice reform. The First Step Act – a bill led by a bipartisan group that includes Judiciary Committee Chairman Chuck Grassley (R-IA) and Democratic Whip Dick Durbin (D-IL) – attempts to chip away at this country’s mass incarceration problem, reduce recidivism, and walk back some unfair sentencing practices. It proposes to:

  • repeal the three-strikes life sentence for drug crimes, and instead implement a 25-year penalty for third offenses;
  • reduce the two-strike drug penalties from 20 years to 15 years;
  • allow a firearm sentencing enhancement to run concurrently with the underlying penalty (currently, a defendant who convicted of a non-violent drug offense whilst nevertheless possessing a firearm is essentially given two sentences);
  • expand the sentencing “safety valve” so that judges can deviate from the harsh penalties prescribed for certain drug crimes;
  • retroactively reduce sentences for those convicted of crack cocaine offenses before the law was changed to remedy the disproportionate treatment of crack to powder cocaine; and
  • allow low-risk inmate who participate in anti-recidivism programs to receive earned time credits and thus serve the remainder of their sentence in a supervised release setting.

A more modest version of the bill was already passed by the House of Representatives. Many hope the Senate will vote on – and pass – the amended version before the end of this session.

As defense attorneys, we see the broken parts of our system every day. We have a constitutional duty to fight for just outcomes at each stage of the case, and sentencing is the most critical stage for many of our clients. This is especially true for those charged with and convicted of white collar crimes, who often want, more than anything, a chance to rebuild the lives.

But getting a fair sentence is not easy. The court can sentence defendants based on conduct for which they were not convicted and evidence that would be inadmissible at trial. The court also considers the U.S. Sentencing Guidelines, a nuanced scheme that, among other challenges, may call for defendants to re-serve time they had already served in a state facility. But as defense attorneys, we focus in this work and do whatever is necessary to make sure the punishment fits the crime (and importantly, the offender). Nevertheless, systemic reforms are undoubtedly needed.

The First Step Act is a bipartisan policy, and bipartisanship is rare in today’s climate. Criminal justice reform has become an area where both sides of the aisle can find common ground. Republicans and fiscal conservatives see mass incarceration as a wasteful use of public funds and loss of human capital, and the federal government’s role in our criminal/legal apparatus – in which public safety is a police power of the states – as far too big. For Democrats and social justice progressives, mandatory minimums and strict drug laws are tools of a discriminatory system – applied disproportionately to certain defendants – and crime should be approached as a consequence of poverty, illness and trauma.

This is a good first step.

Steve’s Fresh Perspective

The Proffer Letter:

The First Landmine in Federal Criminal Defense Practice


Assistant United States Attorneys (AUSAs) often take the position that a proffer letter, or a “Queen for a Day” agreement, is intended to protect a defendant who ultimately chooses not to cooperate with the government.   Stated another way, as the Seventh Circuit Court of Appeals did in United States v. Threw, 861 F.2d 1046 (7th Cir. 1988), “the purpose of [a proffer letter], according to the government, is to ensure that in the event a cooperating defendant decides not to plead guilty, any information he may have ‘proffered’ to the government cannot later be used against him at trial” or sentencing, with some exceptions.  It is those exceptions that call into question a proffer letter’s true purpose.  In my view, the purpose of a proffer letter, from the government’s perspective, is to ensure that a defendant pleads guilty, because if he goes to trial after proffering, he is going to sentencing as well.

A typical two-page proffer letter in the District of Maryland contains the following language (liberally summarized): Continue reading “Steve’s Fresh Perspective”

Steve’s Fresh Perspective

What Rep. Rangel’s Non-Indictment Says About Our System:

As a recovering federal prosecutor, I see an occasional injustice that I might not have seen when I was with the US Attorney’s Office in the District of Maryland.  A businessman, for instance, is wrongfully targeted and subsequently suffers from the toll such an investigation takes on both his personal and professional life.  Or, a defendant is named in an indictment which should not have named him at all.  Even if acquitted, that defendant loses his reputation, his friends, and his money, among other things.  While such injustices exist, only clients, their families and their attorneys seem to take note.  Continue reading “Steve’s Fresh Perspective”

Steve’s Fresh Perspective

Prisoner Transfer Program

Like many of our colleagues practicing criminal defense, we have seen an increase in the number of immigrants being prosecuted in our jurisdictions.  Surprisingly, while many questions that potential clients ask are expected (how strong is the government’s case? what kind of sentence am I looking at if I get convicted? what is your fee? do you take credit cards?) some clients, I’m told, are met with blank stares when they ask their prospective attorneys about where such a sentence might be served.  Consequently, it is perhaps more important now than ever before to spread the word that a prisoner in the United States, who is a foreigner, may be transferred to his home country to serve out his sentence. 

According to the Department of Justice, Office of Enforcement Operations, website, the International Prisoner Transfer Program began in 1977 when our government negotiated the first in a series of treaties to permit the transfer of prisoners from countries in which they had been convicted of crimes to their home countries. The program is designed to relieve some of the special hardships that fall upon offenders incarcerated far from home, and to facilitate the rehabilitation of these offenders. Prisoners may be transferred to and from those countries with which the United States has a treaty. (Participating countries are listed here). While all prisoner transfer treaties are negotiated principally by the United States Department of State, the program itself is administered by the United States Department of Justice.   Continue reading “Steve’s Fresh Perspective”

Steve’s Fresh Perspective

Thanks to Allan Lengel of for sending us this interesting piece about Freedom of Speech, entitled Is it OK to Shout Fire in a Chatroom?   The article, written by a retired FBI agent, raises an issue that will not soon be retired:  when does free speech cross the line and become a criminal act?  In the era of wiretapping, government surveillance and terrorism, it is a question worth asking.

Steve’s Fresh Perspective

A Plea for All Seasons

Margaret Burns, the press officer for the Baltimore City State’s Attorney’s Office, recently commented on a Resurrection-clause in a plea agreement that permits a defendant to withdraw her plea of guilty to child abuse resulting in death should the child rise from the grave. (See here for The Washington Post article):

“This would need to be a Jesus-like resurrection.  It cannot be a reincarnation in another object or animal.” 

Ms. Burns’ comment suggests that the State was never really serious about upholding its end of the bargain.  This would not be the first time in recent history that a government agency had breached, or had made an effort to breach, the terms of a plea agreement.  See here for a Fourth Circuit opinion from this past Monday addressing just such a situation.

We should not be surprised to learn that the State never intended to follow through with the agreement, and here’s why:  The agreement clearly violates the Rule Against Perpetuities.  As you may recall from law school or Body Heat, the  Rule Against Perpetuities can be simply stated as follows:

No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.

Although most discussions and analysis relating to the rule revolve around wills and trusts, the rule is not limited to those matters.  I can already hear the government’s attorney on appeal arguing that the clause is applicable to contract law and should therefore be struck from the agreement.  (An attorney in private practice would probably say “stricken.”)  I can see it now–the child is revived in, say, 22 years, and the defendant must remain a convicted felon.  This was a clever ploy by the State and an unfortunate decision by the defendant’s attorney not to negotiate a better deal consistent with contract law.   As a matter of public policy, we should insist that the State be held to the agreement, rule or no rule.  April 1st or no April 1st.