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Recidivism, Recidivism, Recidivism: How to
Mitigate Your Client’s Criminal History
Jane McClellan, Assistant Federal Public Defender,
District of Arizona
7/22/2011
Recidivism, Recidivism,
Recidivism:
How to Mitigate Your
Client's Criminal History
Jane L McClellan, Assistant Federal Public Defender
District of Arizona
For; Multi-Track Federal Cnminal Defense Seminar: Strategies for
Defending Complex Cases, Seattle, Washington, August 18-20, 20U
Why is Criminal History Important?
It is supposed to reflect the risk of recidi-vism
(but it does not do so accurately)
Downward Departures
for Criminal History
Issues Represent 42%
of All Downward
Departures
(Fiscal Year 2009)
7/22/2011
Downward Variances Related to
Criminal History Reasons :
•
•
•
•
•
Nature and Circumstances of tlie Offense and
History of the Defendant: 23% (18 U.S.C. §
3553(a)(1))
Deterrence: 11% (18 U.S.C. § 3553(a)(2)(B))
Protect Public: 7% (18 U.S.C. § 3553(a)(2)(C))
Criminal Histoiy Issues: 4 %
Low likelihood of recidivism/not a risk to the
community: 1%
How to Attack the Criminal History
Category:
(1) Is the criminal history category accurately
calculated?
(2) Move for downward departure pursuant to
U.S.S.C. § 4A1.3: Over-Representation of
Criminal History
(3) Move for downward variance pursuant to
18 US.C.§ 3553(a)
Hypothetical #i:
Getting the Criminal
History Score Right
7/22/2011
Defendant Johnny Rotten
> Pled guilty
> Felon-in-Possession ofa Firearm
>Date of Offense: April i, 2010
> Age: 38
^^1:5=5:?=*^
CRIMINAL HISTORY
1. Burglary, Committed: November 24,1999
Sentenced: March 15, 2000
8 months Prison; 2 years Probation - Expired
2 Points
See U.S.S.G. § 4A1.1, Note 2
Theft, Committed: Feb. 2, 2003
Arrested: March 2, 2003
Sentenced: June 5, 2003
1.5 years Prison
3 Points
7/22/2011
3.
Theft, Committed: March 2, 2003
Arrested: March 2,2003
Sentenced: June 5, 2003
3 years Prison (consecutive to #2)
3 Points
See U.S.S.G. §4Ai.2(a) (2)
4.
Shoplifting
Sentence: 20 days Jail
1 Point
See U.S.S.G. §4Ai.2(c)(i)
Criminal History Before Objections:
Category IV
7/22/2011
Objections to Criminal History:
1. Burglary is too old
2. and 3. Thefts count as one con-viction
(3 points only)
4. Shoplifting does not count because
similar to "insufficient fimds check"
charge.
Two convictions do not bolh get criminal historv points il
(l)Nolnlerveningarrest AND
(2) Offenses in the same charging document; OR
Sentences Imposed on the same day.
Example where both convictions DO count:
(1)1 /20/11 - olfense dale - drug trafficking; 15 mths.
3 pis.
(2) 1/20/11 - offense date - child endangerment; 60
days (concurrentwilh drug sentence)
2 pis.
Why? Separate charging documents/different sentencing
dates
W h a t if Thefts were Robberies?
1 Point for Crime of Violence
See U.S.S.G. §4Ai.i(f)
7/22/2011
Issue: Guideline is wrong
because Defendants with
priors for COVs less likely to
recidivate t h a n defendants
with n u m e r o u s m i n o r
convictions for theft.
Criminal History After Objections:
Category II
ssaffiSjisaBffi
Hypothetical #2
Stale Offenses and Status
Points
7/22/2011
Defendant Jose Garcia-Garcia
> Pled Guilty
> Illegal Reentry after Deportation
> 8 U.S.C. § 1326(a) and (b)(2)
(prior felony)
> Date of offense: October 20, 2010
("Found in U.S.")
> Age 26
CRIIVIINAL HISTORY
1. Rape,CommiltBd2/15/90
Sentence: 5 years
Completed: 2/15/95
0 Poinls (stale). See § 4A1.1, Note. 1 (more than 15 years
since completion of sentence).
Bul: Counts for Offense Level EnhancementUnder§
2L1.2(b)(1)(/S: After11/1/11: 12 levels (not 16)
2L1.2(b)(1)(B): Afler11/1/11: 8 levels (not 12)
2. Possession of Drugs (Marijuana)
Committed: September 25, 2010
Sentenced: Oct. 19, 2010
2 years probation
1 point
+2 points for committing crime vi^hlle on
probation
See U.S.S.G. § 4 A 1 . 1 ( d )
7/22/2011
In Reentry Context:
Argue Contrary to Spirit of Guidelines
In Any Other Context:
Argue it Does Not Reflect Risk of
Recidi-vism
Hypothetical #3
Defendants with NO
Criminal History!
Defendant Richie Rich, III
Possessed Large Quantity of Child Porn
> No Criminal History
> No Arrests
> No Law Enforcement Contact of Any Kind
7/22/2011
> Client is 65 Years Old
> Married
> College Degree
> Employed as CEO of Large Company
> No History of Drug Use
Arguments R e g a r d i n g Criminal History:
Zero Is Less Than One
Recidivism Rate for Defendants with o points = 11.7%
Recidivism Rate for Defendants with 1 point = 22.6%
Recidivism Rate for Crim II to VI = 36.5%
Argue:
Departure for "Age" - § 5H1.1., and
Variance under 18 U.S.C. § 3553(a)
Age - Risk of Recidivism Declines
-with Age
9
7/22/2011
Amendments to Guidelines
Effective November i, 2010:
Ne-w U.S.S.G. § 5H1.1: Age "maybe
relevant" in determining -whether a
departure is warranted
Prior language: "not ordinarily
relevant"
Recidivism Rates are Lower For:
Married defendant
•
with education
•
a job in the year before the sentence
no history of drug use
Hypothetical #4
Unlucky 13:
Defendants in Criminal
History Category VI
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7/22/2011
Defendant Orlando Begay
> Member of Navajo Tribe
> Lives off Reservation in Flagstaff AZ
> Driving intoxicated-Grand Canyon Nat'l Park
^m^'-rfK-
Pleads Guilty to Involuntary
Manslaughter
Date of Offense: July i, 2010
Age: 30
Criminal History:
1.
Shoplifting
Sentenced on August 1, 2000
45 days
1 Point
11
7/22/2011
ll
J
2.
J -ijJUu.. t l
UJ
i
Ui*"-™
Possession of Drugs (Ivlarijuana)
Sentenced on September 5, 2001
6 months jail
2 Points
3.
DUI
Sentenced 2/1/2002
6 months Jail
2 years probation
Violated probation; 8 months
(concurrent with #4)
3 Points
4.
DUI
Sentenced: Dec. 1, 2002
3 years prison
3 Points
12
7/22/2011
5-
DUI, on the Navajo Reservation
Sentence: 15 days
o Points
6.
Possession of Drug Paraphernalia
Sentenced on Jan. 10, 2007
10 days jail „_,«^,,,,,„,,«,,^,,,,^^^
1 Point
7.
Theft
Sentenced on 8/8/2007
3 years Prison
Released u/6/2009
3 Points
13
7/22/2011
Total Points = 13
Criminal History Category VI
Argue:
Over-Representation of Criminal
History: U.S.S.G. § 4A1.3
And Variance under
18 U.S.C. § 3553(a)
Does the Defendant's Criminal
History Category Substantially
Over-Represent the Seriousness of
the Defendant's Criminal History
OR
The Likelihood that the Defendant
Will Commit Other Crimes
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7/22/2011
Also Argue:
All priors related to drug/alcohol use
Related to instant offense
Defendant needs treatment - not
incarceration
United States v. Ellis. 641 R3d411 (S'"
Circuit 2011):
Defendant got downward departure under§
4A1.3(a)(1) for over-representation of criminal
history.
Ninth Circuit held that appellate court did not
have to examine whether the district court
correctly applied § 4A1.3, because departure
was reasonable under § 3553(a)
Hypothetical #5:
Safety-Valve and Racial
Disparity
15
7/22/2011
Defendant LeBron Jackson
> Convicted in Cleveland, OH
> Conspiracy to Possess -w/Intent to
Distribute Cocaine
> 21 U.S.C. § 841 (a) and (b)(1)(B)
> 4 Idlograms (powder)
> Date of offense: August 1, 2010
> LeBron is subject to 5-year mandatory
minimum unless safety valve eligible
> No role enhancement issues
y No guns
> Admitted involvement and pled
guilty
> Age: 22
CRIMINAL HISTORY
Dri-ving on a Suspended License
Sentenced: June 8, 2009
18 months probation
1 Point
+2 Points (on Probation at time of offense)
Total = 3 Points
Criminal History Category II
16
7/22/2011
Sentencing Calculation:
Base Offense Level =
Acceptance of responsibility
Total =
30
-3
27
Offense Level 27
Criminal History Category II =
78 to 97 months
Argue:
Over-Representation of
Criminal History, § 4A1.3
And
Variance u n d e r
18 U.S.C. § 3553(a)
•Racial and Geographical
Disparity Reflected in Prior
Sentence
•Impact of Minor Offense on
Safety-Valve Eligibility
•Ask for Minimum Sentence of 5
Years
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7/22/2011
Hypothetical #6:
Career Offenders
Defendant B o n n i e Parker, Age 26
> Bonnie & boyfriend, Clyde, rob bank
on July 4, 2010
> Bonnie is getau^ay driver •»
0
o
> Clyde uses a Note - Does NOT possess
Firearm
B o n n i e Goes t o Trial
Bonnie's Defense - thought Clyde was
maldng w^ithdravi^al from account
Clyde cooperates & testifies against
Bonnie
Bonnie found guilty of bank robbery,
18 U.S.C. § 2113
Statutory Maximum - 20 years
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7/22/2011
Criminal History:
1. Possession -with Intent to Distribute
Marijuana (i lb.)
Sentenced on May i, 2002
18 months probation
i /
1 Point
Residential Burglary
Sentenced on March 15, 2005
2 years prison
Released: June 1, 2007
3 points
Criminal History Calculation:
> 4 Points - Category III
> But - 2 priors for "controlled substance
offense" and "crime of-violence"
> See U.S.S.G. S 4B1.1
19
7/22/2011
Criminal History Category
increased t o VI
Offense Level Increased
from
Level 24 to Level 32
Without Career Offender Enhancement:
Sentence = 63 to 78 months
With Career Offender Enhancement:
Sentence = 210 to 262 months
(Stat Max is 240 months)
ARGUE:
Over-representation of Criminal
History, § 4A1.3 and Variance under
18 U.S.C. § 3553(a)
Deconstruct the Career Offender
Guideline
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7/22/2011
BUT:
U.S.S.G. § 4Ai.3(b)(3)(A) says
only 1 Category Departure
allowed for Career Offender
Argue:
After Booker:
Do Not have to Consider Commentary
•
Policy Statement Only
Part of Feeney Amendment
Reaction to PROTECT Act to Limit
Departures
No Rationale for Amendment
Problems with Career Offender
Guideline:
• Based on directive from Congress
• Guideline not based on careful study,
empirical research, or national experience
21
7/22/2011
Sentencing Conunission
exceeded the directive and made
overly expansive definitions of:
• "prior felony"
• "controlled substance offense"
• "crime of violence"
^
,
1
I"-.,.,
Effects o f t h e Career Offender
Guideline:
• Creates unwarranted disparity
• Unwarranted uniformity
• Racial disparity
Especially true in drug cases
Recidivism rates of "career offenders"
more accurately reflected by true
category-without enhancement
True Category VI recidivism rate = 55% (after 2
years)
Recidivism Rate for Career Offenders Based on Drug
Priors: 27%
Also lower for Career Offenders based on COVs
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7/22/2011
Other Problems
Examine issues surrounding definitions:
1. Definitions of ""Crime of Violence" and
"Controlled Substance Offense"
2. Is it a Felony?
Argue:
The Offense Level not a predictor of
recidi-vism.
Recidi-vism rates of women are lower.
Lack of deterrence for Drug Offenders
Drug Dealer will be replaced by another
Avoiding Recidivism
After Release From
Imprisonment
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7/22/2011
The Second Chance Act:
"Innovative reentry programs
are the key to bringing down
staggeringly high recidivism
rates." Sen. Sam Brownback
(R. Kansas)
WHAT DEFENDANTS NEED
Cognitive Skills
• Health/Sobriety
• Employment
Education/Literacy
Housing
Money Management
Familial/Social Relationships
Anger Management
24
7/22/2011
Argue For:
Shorter Sentences
More Intensive Treatment
After Release
Defendants with Minimal
criminal history/Minimal
social issues do better
with Minimal
supervision.
Sentence of imprisonment
should not be longer to
enable defendant to
participate in RDAP or other
prison programs
25
7/22/2011
See i8 U.S.C. § 3582(a): "The c o u r t . . . in
determining the length ofthe term [of
imprisonment], shall consider the
factors set forth in section 3553(a) to the
extent they are applicable, recognizing
that imprisonment is not an
appropriate means of promoting
correction and rehabilitation."
Tapiav. United states. 131 S. Ct
2382(2011):
Supreme Court held that district court
may not impose or lengthen a term of
imprisonment to promote defendant's
rehabilitation.
New Guidelines Regarding Supen/lsed Release Tenns
Effective 11/1/11:
§5D1.1: adds:
Court should not ordinarily Impose a term of supervised release in a
Case in which supervised release is not required by statute, and
Defendant is a deportable alien who will be deported.
Application Note adds favorable language about
Early tenninatlon of supervised release.
§501.2:
Class A and B Felonies: Recommends 2 to 5 years of SR
{Instead of 3 to 5)
Class C and D Felonies; Recommends 1 to 3 years of SR
(instead of 2 to 3)
26
7/22/2011
IN SUMMARY
(i) Look for Mistakes in the PSR
Criminal History Calculation
(2) Move for a do-vvnward departure
pursuant to § 4A1.3
(3) Move for a do-wnward variance
pursuant to § 3553(a), arguing that
criminal history does not accurately
reflect the true risk of recidivism,
the history ofthe defendant, the
risk to the community, or need to
protect the public
•ssas:
(4) Recidivism is reduced by
programs, rehabilitation, and
supervision after imprisonment
27
7/22/2011
SOURCES
Gall v. United States. 552 U.S. 38 (2007).
ICimbroughv. United States. 552 U.S. 85
(2007).
"Fifteen Years of GuideUnes Sentencing:
An Assessment of How Well the Federal
Criminal Justice System is Achie-ving the
Goals of Sentencing Reform," U.S.S.C.
publication, November 2004, at page 134.
"Recidivism and the 'First Offender'"
U.S.S.C. website (published May 2004).
"Measuring Recidivism: Criminal History
Computation ofthe Federal Sentencing
Guidelines," U.S.S.C. Publication, May 2004,
a t p.12-13.
"A Comparison ofthe Federal Sentencing
Guidelines Criminal History Category and
the U.S. Parole Commission SaUent Factor
Score," U.S.S.C. publication (Jan. 4, 2005).
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7/22/2011
"Impact of Prior Minor Offenses on
Eligibility for Safety Valve," U.S.S.C.
publication (March 2009).
"Deconstructing the Career Offender
Guideline," byAmy Baron-Evans, 2010 on
•www.fd.org.
"The Continuing Struggle for Just, Effective
and Constitutional Sentencing after United
States v. Boolcer" byAmy Baron-Evans, Aug.
2006 at M^ww.fd.org. at 31-32.
"What Worlcs in Reducing Recidi-vism?" by
Edward Latessa and Christopher
Lowenlcamp, Vol. 3:3, University of St.
Thomas Law Journal, p. 521 (2006).
QUESTIONS?
Jane L. McClellan
Assistant Federal Public Defender
District of Arizona
602-382-2729
jane_mcclellan@iFd.org
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