In 2015-2016, the Firm was instrumental in helping to achieve the following results:
Criminal Justice Reform
Made contacts in support of S. 2123, the Sentencing Reform and Corrections Act of 2015, a bill to reform sentencing laws and correctional institutions, and for other purposes. This bill contains:
Section 101. Reforms and Targets Enhanced Mandatory Minimum Sentences for Prior Drug Felons. The enhanced mandatory minimums for prior drug felons are reduced: the three-strike is reduced from life imprisonment to 25 years, and the 20-year minimum is reduced to 15 years. The offenses that trigger these enhanced minimum sentences are also reformed. Currently, those offenses could be any prior drug felony. This bill would both limit them to serious drug felonies and expand them to include serious violent felonies. This provision will apply retroactively.
Section 102. Broadens the Existing Safety Valve. The existing safety valve is expanded to include offenders with up to four criminal history points. However, offenders with prior 3 point felony convictions or prior 2 point violent or drug trafficking offenses will not be eligible for the safety valve. But the safety valve will also adopt an existing mechanism under the Sentencing Guidelines to permit for a court to waive those disqualifying prior convictions if the court specifies in writing that those prior convictions substantially over-represent the seriousness of the defendants criminal history or the likelihood that the defendant will commit other crimes. This finding may be appealed by prosecutors. However, offenders with prior serious drug or serious violent convictions are excluded from this form of relief. This provision is not retroactive.
Section 103. Creates a Second Safety Valve that Preserves but Targets the 10-Year Mandatory Minimum to Certain Drug Offenders. A second safety valve is created that preserves but targets the existing 10-year mandatory minimum to (1) offenders who performed an enhanced role in the offense or (2) otherwise served as an importer, exporter, high-level distributor or supplier, wholesaler, or manufacturer. Consistent with the existing safety valve, the offender must not have used violence or a firearm or been a member of a continuing criminal enterprise, and the offense must not have resulted in death or serious bodily injury. The defendant must also truthfully proffer with the government and provide any and all information and evidence about the offense. This provision also excludes offenders with prior serious drug or serious violent convictions or offenders who distributed drugs to or with a person under the age of 18. This provision is not retroactive.
Section 104. Clarifies and Reduces the Enhanced Mandatory Minimums Sentences for Certain Firearm Offenses but Expands its Application to Similar Prior State Convictions. In response to a Supreme Court decision, the bill clarifies that the enhanced mandatory minimum sentence for using a firearm in connection with a crime of violence or a drug trafficking offense is limited to offenders who have previously been convicted and served a sentence for such an offense. The bill also reduces that enhanced mandatory minimum from 25 years to 15 years. But the bill expands the applicable predicate offenses to include similar prior state-level convictions in which the offender carried, brandished, or used a firearm. This provision will apply retroactively.
Section 105. Raises the Statutory Maximum for Unlawful Possession of a Firearm and Creates an Overlapping Range by Reducing the Enhanced Mandatory Minimum for Armed Career Criminals. The statutory maximum sentence for the unlawful possession of a firearm by a convicted felon and certain other offenders is increased from 10 years to 15 years. The bill also eliminates a significant gap in current sentencing laws by reducing the enhanced mandatory minimum for armed career criminals from 15 years to 10 years. This provision will apply retroactively.
Section 106. Retroactive Application of the Fair Sentencing Act. The Fair Sentencing Act of 2010 reduced the disparity in sentencing between crack and powder cocaine. This provision ensures the retroactive application of that law to certain offenders.
Section 107. New Mandatory Minimum for Interstate Domestic Violence.
Section 108. New Mandatory Minimum for Certain Export Control Offenses
Section 109. Report and Inventory of All Federal Criminal Offenses
TITLE 2: THE CORRECTIONS ACT
Section 202. Recidivism Reduction Programming and Productive Activities. This section requires BOP to make statistically validated recidivism reduction programming available to all eligible prisoners within six years. As an incentive for successfully completing recidivism reduction program, eligible inmates may receive time credit of up to five days for each period of 30 days of programming that they successfully complete. Inmates classified as low risk may receive an additional credit of up to five days for each period of 30 days of program completion. Inmates serving sentences for a second or subsequent federal offense and those with 13 or more criminal history points under the sentencing guidelines are ineligible for time credits. Inmates serving sentences for certain offenses are excluded, including crimes of terrorism and violence.
Section 203. Post-Sentencing Risk and Needs Assessment System. The Attorney General is required to develop a risk and needs assessment system that will determine the recidivism risk of all federal inmates and classify inmates as having a high, moderate, or low risk of recidivism. The assessment system must also identify each inmates programmatic needs and identify appropriate programming. The system must measure indicators of progress such that each inmate (other than those already classified as low risk) has a meaningful opportunity to progress to a lower risk level during the time of the inmates incarceration through changes in dynamic risk factors, and that each inmate on prerelease custody (other than those already classified as low risk) has a meaningful opportunity to progress to a lower risk classification through changes in dynamic risk factors.
Section 204. Prerelease Custody. This section allows prisoners to serve an amount of time equal to the credit they have earned for recidivism reduction programming in prerelease custody, provided that the prisoners most recent risk assessment determined that the prisoner was low or moderate risk and, if moderate risk, that the prisoners risk of recidivism has significantly declined. It provides that a prisoner permitted to spend a portion of the prisoners sentence in prerelease custody as a result of completing recidivism reduction programming may spend such time in a residential reentry center, on home confinement, or on community supervision. Inmates placed in home confinement shall be subject to monitoring and be required to remain in their residence, with exceptions for employment and other specified activities. BOP may revoke a prisoners prerelease custody and require the prisoner to serve the remainder of the prisoners term of incarceration in prison if the prisoner violates the conditions.
Section 205. Reports. This section requires various reporting to Congress about best practices for reentry as well as notification to the VA about veterans in custody.
Section 206. Additional Tools. This section requires presentence investigation reports to include information about the defendants history of substance abuse and addiction, the defendants prior service in the Armed Forces, and a detailed plan to reduce the defendants likelihood to abusing drugs or alcohol, address the defendants risk of recidivism, and prepare the inmate for reentry.
Section 207. Eric Williams Correctional Officer Protection Act. This section permits officers and employees of BOP to carry oleoresin capsicum spray (pepper spray). BOP officers and employees are required to complete a training course prior to being issued pepper spray, and may use pepper spray to reduce acts of violence.
Section 208. Promoting Successful Reentry. This section requires the Attorney General to submit a report evaluating best practices for reentry, and to carry out reentry demonstration projects in judicial districts in consultation with the Administrative Office of the Courts.
Section 209. Parole for Juveniles. The Supreme Court has ruled that the Constitution requires that juveniles convicted as adults and sentenced to life terms must be eligible for parole. The bill creates a system whereby such juveniles in the federal system will be eligible to seek parole after they have served 20 years of their sentence. A judge would apply a range of specified factors in deciding whether to grant parole. If parole were denied, the inmate could apply twice more for parole after five years had elapsed after denial. The provision applies as well to juveniles sentenced as adults to terms longer than 20 years.
Section 210. Compassionate release. The bill would allow certain individuals with no record of violence older than 60, as well as terminally ill offenders and those in nursing homes who have served a large portion of their sentences, to be released from prison.
Section 211. Juvenile sealing and expungement. This section permits nonviolent juveniles who are tried as juveniles in federal court, other than for misdemeanor domestic violence offenses, to obtain sealing or expungement of their convictions in certain circumstances. The goal is to enable youthful offenders who live a crime free life to seek employment without regard to earlier errors in their life.
Section 212. Juvenile solitary confinement. The bill would impose limitations on the use of solitary confinement for juveniles housed in federal prison.
Section 213. Accuracy of federal criminal records. Under this section, the Attorney General would establish and enforce procedures for individuals who are to undergo background checks for employment to challenge the accuracy of their federal criminal records, in particular, of arrests without dispositions.
Also made contacts in support of HR 3713, the Sentencing Reform Act, a bill to reform sentencing laws, and for other purposes; and HR 759, the Corrections and Recidivism Reduction Act, a bill to reform the federal prison system, strengthen public safety, enhance prison security, provide inmates the help they need, and protect civil liberties.
HR 3713 permits a court to reduce the mandatory minimum prison term imposed on certain non-violent defendants convicted of a high-level first-time or low-level repeat drug offense (including unlawful import, export, manufacture, or distribution of, or possession with intent to distribute a controlled substance).
The legislation expands safety valve eligibility to permit a court to impose a sentence below the mandatory minimum for certain non-violent, cooperative drug defendants with a limited criminal history.
It reduces the enhanced mandatory minimum prison term for certain defendants who commit a high-level repeat drug offense, use a firearm in a crime of violence or drug offense after a prior conviction for such offense, or unlawfully possess a firearm after three or more prior convictions. It permits retroactive application of such reductions for defendants without a prior serious violent felony conviction, after a court considers certain factors.
It also establishes a consecutive mandatory prison term for a defendant who commits a drug offense involving a detectable amount of heroin or fentanyl.
The bill makes the Fair Sentencing Act of 2010 retroactive to permit resentencing of a convicted crack cocaine offender sentenced before August 3, 2010.
HR 759 does the following:
Strengthens Public Safety:
The Corrections and Recidivism Reduction Act implements a post-sentencing dynamic risk assessment system to determine an inmates risk of committing more crimes upon release from prison. Under the legislation, the Bureau of Prisons (BOP) would utilize effective recidivism reduction programs and provide incentives for inmates to participate in those programs. Ultimately, inmates could earn credits toward an alternative custody arrangement – such as a halfway house or home confinement – at the end of their prison sentence.
Renders criminals convicted of certain serious offenses ineligible for the alternative custody program, including dangerous sexual offenders, murderers, and others.
Enhances Prison Security:
The bill authorizes the Director of BOP to issue pepper spray to those employed in a prison above the medium security level.
The bill requires the Director of BOP to provide a secure storage area outside the secure perimeter for employees to store firearms or to allow for vehicle lock boxes for firearms.
The bill requires the Director of BOP to provide de-escalation training as part of the regular training requirements of correctional officers.
Provide Inmates the Help They Need:
The bill requires BOP to initiate pilot programs for youth mentorship and the training and therapy of rescue dogs.
It requires BOP to submit a report and evaluation of the current pilot program to treat heroin and opioid abuse through medication assisted treatment.
The bill extends the compassionate elderly release provision from the Second Chance Act that allows the prisoner to request for his or her compassionate release if he or she meets the requirements set out in the law.
The bill codifies BOPs rules on using restraints on pregnant inmates, which generally prohibit the use of restraints on pregnant inmates except those who are an immediate and credible flight risk or threat of harm to herself, the baby, or others.
Protects Civil Liberties:
The bill prevents BOP from monitoring the contents of electronic communications to or from a prisoner in a federal prison facility and his attorney or other legal representative. The bill contains an exception when BOP obtains a court order to monitor electronic communications for the purpose of entering it into evidence, or use or disclose, the contents of the communications.
International Religious Freedom
On behalf of 73 organizations and individuals, including the client, who signed a multi-faith letter in support of H.R. 1150, the Frank R. Wolf International Religious Freedom Act, made contacts in support of a swift markup and passage of H.R. 1150 out of the Senate Foreign Relations Committee; then in support of Senate passage; and finally in support of House passage of the amended version passed by the Senate. H.R. 1150 passed out of the Senate Judiciary Committee on December 7; passed out of the Senate on December 10; and passed out of the House on December 13. The President of the United States signed it into law on December 16, 2016.
We believe H.R. 1150 strengthens IRFA at a critical time when assaults on religious freedom around the world are systemic and growing. In fact, the current state of international religious freedom is one of deepening crisis-according to the Pew Research Centers latest annual study on global restrictions on religion, 74% of the worlds population live in countries with a high or very high overall level of restriction on religion.
We must work to create a context where people can peacefully live with their deepest differences. The turmoil and bloodshed in Syria, Iraq and Nigeria-including the Islamic States genocide against Christians, Yazidis, Shia Muslims, Turkmen (Shia), Shabak and others-offers the latest examples of what happens if we do not.
The Frank R. Wolf International Religious Freedom Act would:
Give the Administration and the State Department new political tools, strengthen the standing of the International Religious Freedom Office and the Ambassador-at-Large for International Religious Freedom by making clear that the Ambassador reports directly to the Secretary of State.
Clarify the Ambassador-at-Larges role in distributing project grants to protect religious freedom globally.
Create a Special Watch List and automatic downgrade to a Country of Particular Concern (CPC) for states on the list for three straight years.
Clarify that CPC designations will occur annually.
Require designation of non-state actors as Entities of Particular Concern.
Direct the President to focus sanctions on individuals who carry out or order religious restrictions.
Set a floor at 25 full-time employees in the International Religious Freedom Office.
Require curriculum for training all Foreign Service Officers in the strategic value of international religious freedom.
Prioritize IRF programming for groups that seek to strengthen investigations, reporting, and monitoring of religious freedom violations, including genocide.
The passage and implementation of H.R. 1150 will result in a strengthened IRFA, as well the integration of this foundational human right into U.S. foreign policy and national security strategies. In so doing, the United States will send a clear and urgent message regarding the inherent dignity of every human being, while advancing global security in the fight against persecution, religious extremism and terrorism. This legislation is consistent with the best of our values, and has the added benefit of practically protecting our national interests as well.
On behalf of 31 organizations and individuals, including the client, who signed a multi-faith letter, made contacts in support of House Resolution 290, a bi-partisan measure that promotes the rights to freedom of religion, belief and expression by calling for the global repeal of blasphemy laws.
We all agree that blasphemy laws are antithetical to modern, prosperous societies, and must be abolished worldwide. Blasphemy laws are used to silence internal critics and alternative interpretations of the faith of the majority religious community, causing minority religious groups and the non-religious to suffer terribly. In an era when fundamentalist religious belief is leading to terror attacks and armed struggles throughout the world, it is more important than ever that we protect freedom of religion and belief. Blasphemy laws do precisely the opposite.
H. Res 290 recognizes that many countries have blasphemy laws that punish expression deemed blasphemous and that blasphemy laws are inconsistent with international human rights standards, as they protect beliefs over individuals and often result in violations of the freedoms of religion and expression.
The resolution also:
Calls upon the President and State Department to make the repeal of blasphemy laws a priority in its bilateral relationships with all countries that have such laws through direct interventions in capitals and multilateral fora;
Encourages the President and State Department to oppose any efforts at the United Nations or other international or multilateral fora to create an international anti-blasphemy norm, or to expand the international norm on incitement to include blasphemy or defamation of religions;
Urges the President and State Department to designate Pakistan and Egypt each as a country of particular concern under the International Religious Freedom Act for perpetrating and tolerating particularly severe violations of religious freedom; and
Urges the governments of Pakistan, Saudi Arabia, Egypt and other countries to amend or repeal their blasphemy laws, to release unconditionally persons imprisoned on charges of blasphemy and, once released, ensure their safety and that of their families.
Blasphemy laws and similar restrictions on speech regarding religion exist in at least 44 countries, according to the Pew Research Center. Pew has also found that countries with laws against blasphemy, and apostasy were more likely to have high government restrictions on religion, as well as social hostilities based on religion, than countries that do not have such laws.
The United States government is in a unique position to promote the rights to freedom of religion, belief, and expression around the world. This country was founded on respect for the principles of religious freedom and tolerance for difference of opinion, and as a leader in the global community we have a moral duty to advance these principles around the world. Congress in particular can play a significant role in promoting freedom of religion, belief, and expression around the world by passing H. Res 290, which would bring more attention to the troubling use of blasphemy laws and related measures, place deserved attention on worst offenders, and press the administration to make their repeal a more central focus of their foreign policy.
On behalf of 93 organizations and individuals, including the client, who signed a multi-faith letter, made contacts to express our deep concern about Federal Laws № 374-ФЗ and 375-ФЗ, On Amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation to establish additional measures to counter terrorism and ensure public safety (the Federal Anti-Terrorism Law); and to urge U.S. government leaders to engage the Russian government and urge its leaders to ensure the Federal Anti-Terrorism Law is not used against peaceful spiritual groups.
The Federal Anti-Terrorism Law further restricts religious freedom. We are particularly concerned about the amendments that introduce an entire new section to the Religion Law, imposing strict limits on sharing beliefs, including where and who may share them, and increase extremism punishments.
We are aware of the fact that Russia has to be vigilant in order to prevent extremism, violence and terrorism. But you must fully consider and understand the impact of these amendments on social cohesion and national security. The need to counter violent extremism is pressing, but cracking down on religious freedom is a dangerous and counterproductive response.
This conclusion is increasingly bolstered by empirical research. An exhaustive study by academics from Harvard, Notre Dame and Georgetown found that religious communities are most likely to support democracy, peace and freedom for other faiths, and least likely to take up the gun or form dictatorships, when governments allow them freedom to worship, practice and express their faiths freely and when religious communities in turn renounce their claims to permanent offices or positions of policy-making authority. Dr. Brian Grim, a noted expert on society, the economy and religion, has found a strong correlation between government restrictions on religion and religiously-motivated violence.
Further, the Federal Anti-Terrorism Law poses threats to the fundamental human rights and freedoms that are guaranteed by Russias Constitution and its international human rights obligations, including the International Covenant on Civil and Political Rights, the Organization for Security and Co-operation in Europe (OSCE) human dimension commitments, the European Convention on Human Rights, and the Vienna Convention on the Law of Treaties.
When evaluated within these legal frameworks, the Federal Anti-Terrorism Law raises a number of serious problems. It restricts the dissemination of beliefs in public to registered groups and organizations, and bars even informal sharing of beliefs by individuals acting on their own behalf. Perhaps most concerning, it restricts the beliefs that can be shared, limits the places where sharing beliefs can happen and explicitly bans sharing beliefs in residential buildings, “except as provided for by Article 16, Part 2 of [the Religion Law].” Article 16, Part 2, states that worship services and other religious rites and ceremonies may be freely held in residential premises, as well as in premises owned or rented by religious organizations. It is therefore unclear what this part of the amendment will mean in practice.
On behalf of 28 organizations and individuals, including the client, who signed a multi-faith letter, made contacts to express our continuing deep concern about rising restrictions on religion in the Republic of Kazakhstan; and to urge U.S. government leaders to engage Kazakh President Nazarbayev and leaders of his government regarding the 2011 Religion Law and related amendments to the Criminal Code and Administrative Code, and urge them to amend the 2011 Religion Law and related articles in these Codes in order to bring them into conformity with international human rights standards, Kazakhstans international commitments, and its own Constitution.
Related to this, shared the Kazakhstan report of the UN Special Rapporteur on Freedom of Religion or Belief, which recommends reforms to the 2011 Religion Law. The brief summary of this formal report on his mission to Kazakhstan stated:
While acknowledging a general appreciation of religious diversity in the country, he noticed adverse attitudes towards some non-traditional religious communities. The State monitors religious activities strictly, with a view to preventing extremism and to combating sects deemed destructive to peoples well-being. Many of the measures adopted for this purpose are not in line with international standards of freedom of religion or belief. Moreover, the mandatory registration of religious communities, in conjunction with tightly knit stipulations, largely hampers free religious practice, which takes place in an atmosphere of legal insecurity.
Further, the Special Rapporteurs conclusions include:
66. the 2011 Law on Religious Activity and Religious Associations shows restrictive features that are not in line with international standards of freedom of religion or belief. The most obvious problem concerns the mandatory status of official registration. Failure to obtain this status means that a religious community is deemed illegal, which has far-reaching negative repercussions on the enjoyment of freedom of religion or belief. Moreover, even those communities which are registered suffer to some extent from legal insecurity, inter alia due to the official confinement of permitted religious activities to certain predefined issues and territorial boundaries. In general, the 2011 Law is based on the assumption that the exercise of core aspects of freedom of religion depends on specific acts of Government approval – thereby turning the relationship between freedom and limitations, as generally understood in the framework of human rights, upside down.
67. While Kazakhstan has broadly embraced religious pluralism, members of non-traditional small religious communities, frequently branded as sects, continue to experience suspicion, mistrust and discrimination in society. Moreover, some provisions of the Criminal Code and of the Code on Administrative Offences – both the existing and the new Codes – which are aimed at combating religious hatred or religious extremism – are defined only vaguely, thus creating a climate of legal insecurity, which is further exacerbated by shortcomings in the handling of criminal procedures, long pretrial detention and related problems. Similar problems are associated with the 2005 Law on Countering Extremism.
Finally, the Special Rapporteurs recommendations include:
(a) The Special Rapporteur recommends that the Government consider amending the relevant provisions of the Constitution to bring them into line with article 18 of the International Covenant on Civil and Political Rights
(b) The Government should bring its constitutional provisions pertinent to freedom of religion or belief fully into line with article 18 of the Covenant and other relevant international human rights standards.
(d) Above all, the Special Rapporteur would like to recommend far-reaching reforms of the 2011 Law on Religious Activity and Religious Associations based on an understanding that registration should be in the service of freedom of religion or belief which, due to its status as a universal human right, inheres in all human beings, prior to – and independent of – any specific acts of administrative approval. The most important consequence would be that registration should be an offer, not a mandatory requirement, for religious community practice. Non-registered communities must be able to operate free from discrimination and free from fear of intimidation.
Also shared a recent UN Human Rights Committee decision that adopted views and conclusions that an individual-Viktor Yakovlevich Leven (the author)-was a victim of violations by Kazakhstan of his rights under Article 18 of the ICCPR. In the Consideration of the merits section of this decision against Kazakhstan are the following three points:
9.2 In the present case, the Committee notes that, not having been registered as a foreign missionary on behalf of his church, the author was convicted for conducting missionary activity, which consisted of preaching and praying and conducting meetings and religious rituals among the followers of the church
9.4 The Committee concludes that the punishment imposed on the author, and in particular its harsh consequences for the author, who is facing deportation, amount to a limitation of the authors right to manifest his religion under article 18, paragraph 1; that the limitation has not been shown to serve any legitimate purpose identified in article 18, paragraph 3; and neither has the State party shown that this sweeping limitation of the right to manifest religion is proportionate to any legitimate purpose that it might serve. The limitation therefore does not meet the requirements of article 18, paragraph 3, and the Committee accordingly finds that the authors rights under article 18, paragraph 1, have been violated.
10.The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it discloses a violation by the State party of the authors rights under article 18 of the Covenant.
Also shared the UN Human Rights Committee’s second periodic report of Kazakhstan. On July 11, 2016, the Committee adopted principal matters of concern and recommendations, including:
13.The Committee is concerned about the broad formulation of the concepts of extremism, inciting social or class hatred and religious hatred or enmity under the State partys criminal legislation and the use of such legislation on extremism to unduly restrict freedoms of religion, expression, assembly and association. It is also concerned about reports that counter-terrorism activities continue to target in particular members or presumed members of banned or unregistered Islamic groups, such as the Tabligh Jamaat.
14.The State party should bring its counter-terrorism and counter-extremism legislation and practices into full compliance with its obligations under the Covenant, inter alia by revising the relevant legislative provisions with a view to clarifying and narrowing the broad concepts referred to above, to ensure that they comply with the principles of legal certainty and predictability and that the application of such legislation does not suppress protected conduct and speech
47.The Committee is concerned about undue restrictions on the exercise of freedom of religious belief, including in the 2011 Law on Religious Activity and Religious Associations, such as the mandatory registration of religious organizations, the ban on unregistered religious activities, and the restrictions on the importation and distribution of religious materials. The Committee is further concerned about the use of broadly formulated crimes and administrative offences in the Criminal Code, including of articles 174 and 404, the Administrative Code, and the legislation on combating extremism to punish individuals exercising their freedom of religion and belief with severe sanctions.
48.The State party should guarantee the effective exercise of the freedom of religion and belief and freedom to manifest a religion or belief in practice. It should consider bringing article 22 of its Constitution in line with the Covenant and revise all relevant laws and practices with a view to removing all restrictions that go beyond the narrowly construed restrictions permitted under article 18 of the Covenant.
Also shared the Organization for Security and Co-operation in Europe (OSCE) call for Kazakhstan to make revisions to the Religion Law. The call came in its Preliminary Opinion on the Draft Amendments to the Legal Framework On Countering Extremism and Terrorism in the Republic of Kazakhstan, issued on 6 October 2016:
80. UN human rights monitoring bodies have recently reiterated their concerns about undue restrictions on the exercise of the right to freedom of religion or belief imposed by the 2011 Law On Religious Activities and Religious Associations of Kazakhstan the Law On Religious Activities and Religious Associations should be revised to ensure that religious groups/organizations can be formed and operate freely even in the absence of registration or without the States prior approval.
