first step act and safety valve pricelist

Over the years I have been retained by a few criminal defense clients after they had bad experience with a prior lawyer. The reasons for switching defense attorneys in midstream vary: sometimes it is concern over the lawyer’s competence, or concern that their case is not getting the attention it deserves, or even that they just don’t see eye to eye with their lawyer. One of the most common, and disturbing reasons though is that the client feels that their prior attorney ripped them off. These complaints generally involve “flat-fee” retainer agreements in which a lawyer and a client agree upon a fixed sum of money for the entire defense representation no matter whether it goes to trial or ends in a plea deal. I see cases all the time where a lawyer accepts a major felony case for a ridiculously low flat-fee just to land the client. Then, when it becomes obvious the case will require a lot of work, the attorney hits the client up for more money. I have even seen cases where the attorney threatens to withdraw from the case if the client does not come up with the additional funds. I call these “pump and dumps:” The lawyer pumps the client for a quick cash infusion and if the client balks, the lawyer tries to dump the client or the retainer agreement. When this happens, the client rightfully becomes upset and the situation quickly becomes untenable. What should a client do? They have (or should have) a written and enforceable fee agreement with the attorney. Then again, who wants a lawyer defending them from serious criminal charges when they claim they are being paid for their work? Defending clients charged with serious or complex felony cases in state and federal courts takes a great amount of work on the part of the criminal defense attorney, the client, and the defense team. These cases are expensive. To get an idea of how expensive, ask the attorney what their normal hourly fee is. The ask them how many hours they would expect to work in a case such as yours. What if it is a plea? What if it is a trial? If the lawyer’s retainer agreement sounds too good to be true, it probably is. The best thing a person can do when selecting a criminal defense attorney is to deal very clearly with this issue up-front. Hourly fee agreements will avoid the problem altogether. The attorney is paid only for the work performed. When negotiating an hourly fee agreement with a criminal defense attorney, be sure to ask the attorney to give a good faith estimate of the number of hours she or he thinks the case will consume depending on various outcomes like a plea agreement or a trial. If you are negotiating a flat-flee agreement make sure that both parties understand that regardless of how many hours the attorney must spend on the case, the fee agreement spells out the total amount to be paid in attorney fees. To protect both parties, flat fee agreements can be modified to suit the needs of each case. For example: The amount of the fee could be staggered to depend on at what stage of the proceedings the case is resolved: Pre-Indictment, with a plea agreement, after a trial etc. Regardless of the attorney and the fee structure you choose. I always recommend the potential client talk to as many knowledgeable and experienced criminal defense attorneys as the situation allows before settling on their pick. This will give the prospective client some idea of comparable fee agreements and rates. It will also allow both parties to get to know each other a little bit before signing up to work so closely together over so serious a matter. Switching attorneys in the middle of the case is sometimes unavoidable, but it is a situation best-avoided if possible.

Luna, Erik. “Mandatory Minimums.” Reforming Criminal Justice: Punishment, Incarceration, and Release, vol. 4, 2017, pp. 117-133.https://law.asu.edu/sites/default/files/pdf/academy_for_justice/7_Criminal_Justice_Reform_Vol_4_Mandatory-Minimums.pdf

“… consequentialist theories are forward-looking in their focus on the future consequences of punishment. The primary consequentialist theory—utilitarianism—imposes criminal penalties only to the extent that social benefits outweigh the costs of punishment. In particular, the imposition of criminal sanctions might: discourage the offender from committing future crimes (specific deterrence); dissuade others from committing future crimes (general deterrence); or disable the particular offender from committing future crimes (incapacitation). According to their advocates, mandatory minimums both deter and incapacitate offenders. With respect to deterrence, mandatory minimum sentences are sometimes justified as sending an unmistakable message to criminals. Some offenses require certain minimum punishments, advocates claim. They argue that because of the wide diversity of views on the appropriate level of punishment for offenders, legislators—not judges—are in the best position to make sentencing determinations. The certain, predictable, and harsh sentences forewarn offenders of the consequences of their behavior upon apprehension and conviction. Proponents contend that mandatory minimums also incapacitate the most incorrigible criminals and thereby prevent them from committing crime. None of these claims receives robust empirical support, however, as most researchers have rejected crime-control arguments for mandatory sentencing laws. There is little evidence that lengthy prison terms serve specific deterrence. Rather, imprisonment either has no effect on an inmate’s future offending or perhaps even increases recidivism. …

“As for general deterrence, research has largely failed to show that mandatory minimums decrease the commission of crime, and some studies suggest that such punishment schemes may even generate more serious crime. Regardless, any deterrence-based reduction in crime is far outweighed by the increased costs of incarceration from long mandatory sentences. …

“Mandatory minimum sentences are also unlikely to reduce crime by incapacitation, at least given the overbreadth of such laws and their failure to focus on those most likely to recidivate. Among other things, offenders typically age out of the criminal lifestyle, usually in their 30s, meaning that long mandatory sentences may require the continued incarceration of individuals who would not be engaged in crime. In such cases, the extra years of imprisonment will not incapacitate otherwise active criminals and thus will not result in reduced crime. … Moreover, certain offenses subject to mandatory minimums can draw upon a large supply of potential participants. With drug organizations, for instance, an arrested dealer or courier may be quickly replaced by another, eliminating any crime-reduction benefit. More generally, any incapacitation-based effect from mandatory minimums was likely achieved years ago, due to the diminishing marginal returns of locking more people up in an age of mass incarceration. Based on the foregoing arguments and others, most scholars have rejected crime-control arguments for mandatory sentencing laws. By virtually all measures, there is no reason to believe that mandatory minimums have any meaningful impact on crime rates.”

National Research Council. The Growth of Incarceration in the United States: Exploring Causes and Consequences. The National Academies Press, 2014.https://doi.org/10.17226/18613

“The conclusion that increasing already long sentences has no material deterrent effect also has implications for mandatory minimum sentencing. Mandatory minimum sentence statutes have two distinct properties. One is that they typically increase already long sentences, which we have concluded is not an effective deterrent. Second, by mandating incarceration, they also increase the certainty of imprisonment given conviction. Because, as discussed earlier, the certainty of conviction even following commission of a felony is typically small, the effect of mandatory minimum sentencing on certainty of punishment is greatly diminished. Furthermore, as discussed at length by Nagin (2013a, 2013b), all of the evidence on the deterrent effect of certainty of punishment pertains to the deterrent effect of the certainty of apprehension, not to the certainty of postarrest outcomes (including certainty of imprisonment given conviction). Thus, there is no evidence one way or the other on the deterrent effect of the second distinguishing characteristic of mandatory minimum sentencing (Nagin, 2013a, 2013b).”

Tonry, Michael. “Fifty Years of American Sentencing Reform — Nine Lessons.” 7 Dec. 2018, Crime and Justice—A Review of Research. Forthcoming. Available at SSRN:https://ssrn.com/abstract=3297777

“Mandatory Sentences. Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.

“Mandatory sentencing laws are a fundamentally bad idea. From eighteenth century England, when pickpockets worked the crowds at hangings of pickpockets and juries refused to convict people of offenses subject to severe punishments, to twenty-first century America, the evidence has been clear. Mandatory minimum sentences have few if any discernible deterrent effects and, because of their rigidity, result in unjustly harsh punishments in many cases and willful circumvention by prosecutors, judges, and juries in others. In our time, when plea bargaining is ubiquitous, mandatories are routinely used to coerce guilty pleas, sometimes from innocent people (Johnson 2019).

“In the 1950s, the American Bar Foundation undertook the most extensive research ever conducted on day-to-day operations of American criminal courts. They learned that prosecutors applied mandatories selectively and that judges and juries refused to convict when penalties seemed too severe. Frank Remington, who directed the project, observed in 1969, ‘Legislative prescription of a high mandatory sentence for certain offenders is likely to result in a reduction in charges at the prosecution stage, or if this is not done, by a refusal of the judge to convict at the adjudication stage. The issue ... thus is not solely whether certain offenders should be dealt with severely, but also how the criminal justice system will accommodate to the legislative charge.’ A large number of sophisticated case processing studies in the 1970s, 1980s, and 1990s reached the same conclusion.

‘’The evidence on deterrent effects is equally damning. Countless authoritative surveys, in many countries, have concluded that mandatories’ deterrent effects are modest at best. National Academy of Sciences reports in 1978 and 2014 serve as contemporary bookends. The 1978 Panel on Research on Deterrent and Incapacitative Effects concluded, ‘In summary...we cannot assert that the evidence warrants an affirmative conclusion regarding deterrence’ (Blumstein, Cohen, and Nagin 1978, p. 7). The 2014 Committee on the Causes and Consequences of High Rates of Incarceration similarly observed:

‘Knowledge about mandatory minimum sentences has changed remarkably little in the past 30 years. Their ostensible primary rationale is deterrence. The overwhelming weight of the evidence, however, shows that they have few if any deterrent effects … Existing knowledge is too fragmentary [and] estimated effects are so small or contingent on particular circumstances as to have no practical relevance for policy making. (Travis, Western, and Redburn 2014, p. 83)’

“Contemporary research thus confirms longstanding cautions against enactment of mandatory sentencing laws. Their use to coerce guilty pleas is new and distinctive to our times. Even innocent defendants are sorely tempted to plead guilty and accept probation or a short prison term rather than risk a mandatory 10- or 20-year sentence. The late Harvard Law School professor William Stuntz observed that ‘outside the plea-bargaining process’ prosecutors’ threats to file charges subject to mandatories ‘would be deemed extortionate’ (2011, p. 260). Federal Court of Appeals judge Gerald Lynch similarly observed that prosecutors’ power to threaten mandatories has enabled them to displace judges from their traditional role: It is ‘the prosecutor who decides what sentence the defendant should be given in exchange for his plea’ (2003, p. 1404). American sentencing has become more severe in recent decades; prosecutors bear much of the responsibility (Johnson 2019).

“This is a uniquely American problem. Nothing similar occurs in any other developed country. It has two causes. One is that American prosecutors are elected or appointed by elected politicians; elsewhere they are nonpartisan career civil servants. The second is that, under US constitutional law, prosecutors’ day-to-day decisions are almost never subject to judicial review. American prosecutors have the same interests and motives, however, as other elected politicians to curry favor with the electorate and the media. In recent ‘tough on crime’ decades, prosecutors have favored severe punishments.

“This is not how things are supposed to work. Until mandatory sentencing laws proliferated, prosecutors filed charges and presented evidence, judges with or without juries decided whether the evidence justified a conviction, and judges imposed sentences. This division of labor made sense, and remains the norm in other Western countries. …

“Every authoritative law reform organization that has examined American sentencing in the last 50 years has proposed elimination of mandatory minimum sentence laws. These included, in earlier times, the 1967 President’s Commission on Law Enforcement and Administration of Justice, the 1971 National Commission on Reform of Federal Laws, the 1973 National Advisory Commission on Criminal Justice Standards and Goals, the 1979 Model Sentencing and Corrections Act proposed by the Uniform Law Commissioners, and the American Bar Association’s 1994 Sentencing Standards. The American Law Institute’s Model Penal Code—Sentencing offered the same recommendation in 2017 (Reitz and Klingele 2019).”

United States Sentencing Commission. Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System. August 1991.https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/mandatory-minimum-penalties/1991_Mand_Min_Report.pdf

“Accordingly, we conclude that the most efficient and effective way for Congress to exercise its powers to direct sentencing policy is through the established process of sentencing guidelines, permitting the sophistication of the guidelines structure to work, rather than through mandatory minimums. There is every reason to expect that by so doing, Congress can achieve the purposes of mandatory minimums while not compromising other goals to which it is simultaneously committed.”

Caulkins, Jonathan. “Are Mandatory Minimum Drug Sentences Cost-Effective?” Rand Corporation. 1997,https://www.rand.org/pubs/research_briefs/RB6003.html

“Mandatory minimum sentences for cocaine consumption or drug-related crime are not justifiable on the basis of cost-effectiveness. Mandatory minimums reduce cocaine consumption less for every million taxpayer dollars spent than allocation of the same amount on enforcement under the previous sentencing regime. Both enforcement approaches reduce drug consumption less, for every million dollars spent, than putting heavy users through treatment programs. Mandatory minimums are also less cost-effective than either alternative at reducing cocaine-related crime, primarily because of the high cost of incarceration.”

Starr, Sonja, and M. Marit Rehavi. “Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker.” Yale Law Journal, vol. 123, no. 1, October 2013.https://www.yalelawjournal.org/article/mandatory-sentencing-and-racial-disparity-assessing-the-role-of-prosecutors-and-the-effects-of-booker

Considerable empirical research has shown that racial disparities in sentencing are pervasive: “one of every nine black men between the ages of twenty and thirty-four is behind bars.” In United States v. Booker, the U.S. Supreme Court rendered the mandatory guidelines merely advisory. This study, looking not just at judicial opinions but also at plea agreements, charging decisions, and other factors contributing to sentencing, shows that this racial disparity has actually not increased since more judicial discretion was permitted. Instead, the black-white gap in sentencing “appears to stem largely from prosecutors’ charging choices, especially to charge defendants with ‘mandatory minimum’ offenses.” Removing these minimums as advisory guidelines would help shift toward greater racial equalization in the sentencing arena.

“Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.”

“The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies. The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests. The findings … reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations.”

The Federal Safety Valve law permits a sentence in a drug conviction to go below the mandatory drug crime minimums for certain individuals that have a limited prior criminal history. This is a great benefit for those who want a second chance at life without sitting around incarcerated for many years. Prior to the First Step Act, if the defendant had more than one criminal history point, then they were ineligible for safety valve. The First Step Act changed this, now allowing for up to four prior criminal history points in certain circumstances.

The First Step Act now gives safety valve eligibility if: (1) the defendant does not have more than four prior criminal history points, excluding any points incurred from one point offenses; (2) a prior three point offense; and (3) a prior two point violent offense. This change drastically increased the amount of people who can minimize their mandatory sentence liability.

Understanding how safety valve works in light of the First Step Act is extremely important in how to incorporate these new laws into your case strategy. For example, given the increase in eligible defendants, it might be wise to do a plea if you have a favorable judge who will likely sentence to lesser time. Knowing these minute issues is very important and talking to a lawyer who is an experienced federal criminal defense attorney in southeast Michigan is what you should do. We are experienced federal criminal defense attorneys and would love to help you out. Contact us today.

The Senate, led by Majority Leader Mitch McConnell (R-Ky.), has a prime opportunity to change its reputation and pass a landmark piece of conservative legislation. It arises on the issue of criminal justice reform that has strong bipartisanship across all ideological spectrums. Although most of the bipartisanship we see in the Senate coalesces around bad policy, such as wasteful spending, mass surveillance, and more, the bipartisanship in this instance is directed at very good policy.

Although the First Step Act has been stalled in the Senate for more than five months since passing the House earlier this year by a vote of 360 to 59, the bill is very much alive, as the lame duck session of the 115th Congress gets underway. News broke this week that a final deal that incorporates the input of key Senate and House players, outside stakeholders, and the White House has been put on the table.

{mosads}The First Step Act that passed the House focused on only prison reform, a priority outlined by President Trump in his State of the Union Address this year and that has continued to press on since. The majority of the 57 Democrats who voted against the House bill did so because they did not think prison reform was enough. They want sentencing reforms as well.

Many in the Senate shared that perspective, so this dream has finally become a reality. The package proposed includes the bill passed by the House with a few important revisions as well as four sentencing provisions the Senate knows well. These are the 924(c) stacking reform, 841/851 sentencing enhancement modifications, expansion of the 3553(f) federal safety valve, and retroactive application of the Fair Sentencing Act.

Leading on the issue in the White House is Jared Kushner and his team at the Office of American Innovation. For their tireless work to deliver relief to thousands of Americans affected by the inefficient federal justice system and continue to keep our communities safe, they deserve endless credit. McConnell now has a bill to do a vote check on, which he has promised to do, that has the backing of Senators Mike Lee (R-Utah), Tim Scott (R-S.C.), and Lindsey Graham (R-S.C.) and everywhere around and in between, and that has wide support from faith based leaders and law enforcement alike. This new bill is dubbed the First Step Act.

For lawmakers, passing the First Step Act in the lame duck session this year is the smartest move imaginable. In a time when the American people feel that bipartisanship is a thing of the past and all that occurs in Washington anymore is gridlock and partisan vitriol, nothing could be better for all members of Congress than to prove that they can reach across the aisle in good faith for the betterment of the country.

The merits of the First Step Act compromise package in the Senate stand on their own legs. Carefully crafted criminal justice reforms that provide modest but meaningful incentives to prisoners to participate in evidence based programming individually designed to reduce their risk of reoffense upon release from prison is all but entirely noncontroversial legislation. In the House, only two Republicans voted against the original bill.

On the sentencing side of the equation, the proposed reforms in the First Step Act apply the law as it was intended, refocus lengthy sentences on serious offenders, allow judges to exercise some discretion in sentencing offenders with limited and lower level criminal history, and offer relief to thousands of inmates at no cost to public safety. Although the lowest hanging fruit of sentencing changes included in bills that have been discussed for years, including the Smarter Sentencing Act and the Sentencing Reform and Corrections Act, these reforms effectively tackle some of the most egregious and obvious wrongs of our sentencing laws.

Senators should look to their backyards at home for proof that these reforms work. States, both traditionally conservative and traditionally liberal alike, have implemented criminal justice reforms over the past decade that serve as the model for the reforms in the First Step Act. An impressive 35 states have successfully cut crime and imprisonment simultaneously, and 22 of those states did so by double digits for both.

Clearly, this is a winning issue for conservatives, liberals, and Americans across the country. The Senate has a historic chance to break from its usual pattern on legislation and do its part in passing meaningful reform of our criminal justice system. With a House willing to support such significant reforms and a president who understands what this means not only to those in direct contact with the criminal justice system but also to average Americans, the time is now to pass the First Step Act.

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The Act requires the submission of several reports to review the BOP"s implementation of the law and assess the effects of the new risk and needs assessment system.

Conducting research and data analysis on: evidence-based recidivism reduction programs relating to the use of prisoner risk and needs assessment tools;

Advising on the most effective and efficient uses of such programs; and which evidence-based recidivism reduction programs are the most effective at reducing recidivism, and the type, amount, and intensity of programming that most effectively reduces the risk of recidivism;

The “safety valve” sentencing provision in  18 U.S.C. § 3553(f) allows a district court to sentence a defendant below the mandatory-minimum sentence for certain drug offenses if the defendant can show he or she doesn’t have all three conviction categories, together, that are listed in the statute, the Ninth Circuit held Friday in United States v. Lopez,  No. 19-50305 (9th Cir. May 21, 2021).

The term “and” in the statute, 18 U.S.C. § 3553(f)(1), means “and,” the court held. "Applying the tools of statutory construction, we hold that § 3553(f)(1)’s “and” is unambiguously conjunctive. Put another way, we hold that "and" means "and".” “A defendant must have all three before § 3553(f)(1) bars him or her from safety-valve relief,” referring to the three categories of prior convictions.

The result allows Eric Lopez, who was convicted of drug transporting, to serve four years’ imprisonment rather than five. Lopez, age 35, had a single prior conviction—for vandalism with spray paint at age 22.

Up until 2018, anyone with more than one “criminal history point” under the Sentencing Guidelines was safety valve ineligble. Specifically, anyone who had been sentenced to more than 60 days in jail or had more than one conviction of any kind (including misdemeanors) was excluded.

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