A criminal justice reform resolution intended to amend federal law so that it does not force unnecessary mandatory detention of a defendant pending sentencing in a federal district court, which has been spearheaded by ABA committee co-chair Rick Collins and New York City attorney Mark Cohen, will be discussed and voted on at the upcoming American Bar Association 2020 Midyear Meeting in Austin, Texas, taking place from February 12 – 17. Rick and Mark have played an instrumental role toward resolving to amend the current statute – which states that a defendant who pleads guilty to a federal drug or violent offense and is eligible to serve a term of probation or supervised release, rather than jail or prison, is subject to mandatory detention pending sentence if the offense to which he or she pleads carries a maximum sentence of ten years or more. This statute requires detention pending sentencing regardless of whether the defendant is eligible to serve a sentence of probation or supervised release without prison and regardless of whether the defendant is not a flight risk or threat to the public. This provision applies to many anabolic steroid clients, who may have very low federal sentencing guideline ranges even though the statutory maximum is ten years in prison. At a time when we are scaling back mass incarceration and seeking alternatives to prison, to warehouse a person with no criminal record for several months while awaiting sentence, only to then have the person sentenced to a term of probation, makes no sense.
In working to amend this statute, Rick and Mark are seeking to “restore judicial discretion and meet the ends of justice and fairness by preventing unnecessary incarceration of a defendant.” This amendment would effectively allow a defendant to remain at liberty without detention in any of three circumstances: if there is a substantial likelihood that a motion for acquittal or new trial will be granted; or if an attorney for the government recommends that no sentence of imprisonment be imposed; or if the court finds by clear and convincing evidence that the person is not likely to flee or pose a danger. In any one of those three circumstances, the defendant would remain at liberty without detention. The proposed amendment to the statute would not change the provision that defendants who are flight risks or threats to the public would be detained while they await imposition of sentence, and would only apply to defendants who are NOT flight risks or threats to the public. The proposed amendment would simply allow judicial discretion to consider permitting these defendants to remain on the same bail conditions as before the guilty plea or conviction after trial if deemed appropriate by the court.
Rick, who will be attending the ABA Midyear Meeting in Austin, has previously presented the amendment to the Criminal Justice Section of the New York State Bar Association -- which adopted the proposed Resolution on April 3, 2019. It is hoped that the American Bar Association will also adopt the resolution upon discussing and voting on it at the upcoming ABA Midyear Meeting, as well.
We will keep you posted about the status of this proposed resolution and the results of the ABA vote, which will be taking place on Monday, February 17th. If you would like additional information about this resolution and its potential impact on the criminal justice system, or if you have any questions surrounding any area of criminal law, contact Rick Collins anytime at 516-294-0300 or firstname.lastname@example.org.
Rick is looking forward to seeing many of you in Austin later this week and to providing additional insight into this important resolution in criminal justice reform.