President's Message: Hope for the Crumbling Federal Prison System? - By Bobby Mims

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Wednesday, March 12th, 2014

Recently it has become apparent that the federal prison system is crumbling from overcrowding. In 1980, the federal prison population was approximately 25,000 people, but since then it has grown exponentially—over 800 percent. Currently, the Federal Bureau of Prisons (“BOP”) has custody of nearly 219,000 people. The agency’s facilities are operating at almost 40 percent over capacity. With less than 5 percent of the world’s population, the U.S. has more than 25 percent of the world’s prisoners. The average cost per inmate to the taxpayer is more than $28,000 per year. That is unsustainable, and incarcerating nonviolent offenders is a poor use of the taxpayer’s dollar.

Congress passed the Fair Sentencing Act (“FSA”) in 2010 to equalize the guidelines for crack and powder cocaine. However, the act was not retroactive and only applied to sentencing imposed after the effective date of the FSA. This was the first effort to address some of the unfairness in sentencing, but the act did not do much to slow the growth of the federal prison population.

Recently, Attorney General Eric Holder has directed all U.S. Attorneys to draft complaints so that the mandatory minimum provisions would not apply to low-level nonviolent drug offenders. More recently, Deputy Attorney General James Cole addressed the New York Bar Association, calling upon defense attorneys to identify federal inmates sentenced to long prison sentences that would not be imposed if they were convicted today. Deputy AG Cole has requested that the criminal defense bar assist the U.S. Attorneys in identifying low-level drug offenders who no longer pose a threat to public safety and whose “long-term incarceration harms our criminal justice system” . . . for possible commutation of sentence. A qualified petitioner is one who has a clean record in prison, who does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law.

There have been signs that there are efforts in the Department of Justice (“DOJ”) to review some of these old marijuana cases that resulted in long prison sentences. After all, Washington and Colorado have legalized the possession and use of marijuana. The DOJ advised that they would not enforce federal marijuana laws in those states so long as strict regulations were imposed and enforced under state law. The DOJ essentially advised that they were taking a “hands-off but watchful eye” policy on the enforcement of federal marijuana laws in those states. These developments have drawn into stark relief the unfairness of federal inmates serving long sentences based on old convictions that if the crime occurred today would not even be enforced.

Last September I met with federal officials in the Western District of Texas about a 1996 case involving a Jamaican who had been indicted, tried, and convicted of possession for the mere possession of marijuana seeds. The West Texas federal jury had convicted him, and the court sentenced him to 35 years pursuant to the sentencing guidelines. With the cooperation of the Assistant U.S. Attorney who had prosecuted him, this individual’s sentence was reduced to “time served” pursuant to Rule 35 by the same Judge who sentenced him. He was turned over to immigration authorities and deported to Jamaica. He has been reunited with a family he has not seen in many years. I try not to tell “war stories,” but this example is offered as indicative, at least to me, that something encouraging may be underway in the DOJ.

Pending in Congress is the Smart Sentencing Act (“SSA”), which has bipartisan support in the House. This bill seeks to reduce the statutory mandatory minimums for some low-level drug cases and expand the “Safety Valve” provision. The SSA also, if enacted, would make the FSA retroactive as well. There is an unusual coalition of supporters from the right and left wings of the political spectrum to reduce prison populations. Both have different reasons for supporting the reduction of prison population, but the effect would be the same if the SSA is enacted.

Presently, it is encouraging that in the federal prosecution bar there appears to be an effort to “look back and do justice” in some cases. Members of TCDLA should encourage this hopeful development and render assistance. Many prosecutors and judges are dismayed at the severe sentences the present federal law and guidelines impose. The “tough on crime” policies and the “war on drugs” have forced this situation on the public. The SSA, if adopted, could give some relief to the system and correct some of the injustices that have been imposed in the past.

Members are encouraged to review their old files and identify cases for review by the DOJ. There is no guarantee you will get relief, but at least in some circumstances you might find that the door is open at the U.S. Attorney’s office.

Bobby Mims