Amicus Curiae Brief — Carlos Concepcion, Petitioner v. United States

No. 20-1650

In The

Supreme Court of the United States

___________

CARLOS CONCEPCION,

v.

Petitioner,

UNITED STATES OF AMERICA,

___________

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

___________

BRIEF OF AMERICAN CONSERVATIVE UNION

FOUNDATION AS AMICUS CURIAE

SUPPORTING PETITIONER

___________

David H. Safavian

John M. Masslon II

General Counsel

Counsel of Record

AMERICAN CONSERVATIVE PO Box 2602

UNION FOUNDATION

Arlington, VA 22202

1199 N. Fairfax St. Ste. 500 (703) 791-9483

Alexandria, VA 22314

john@johnmasslon.com

(202) 347-9388

dsafavian@conservative.org

November 22, 2021

QUESTION PRESENTED

Whether, when deciding if it should “impose a

reduced sentence” on an individual under Section

404(b) of the First Step Act of 2018, 21 U.S.C. § 841

note, a district court must or may consider

intervening legal and factual developments.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES .......................................v

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION .......................................................1

SUMMARY OF ARGUMENT.....................................3

ARGUMENT ...............................................................5

I.

REQUIRING DISTRICT COURTS TO CONSIDER

INTERVENING

FACTUAL

AND

LEGAL

DEVELOPMENTS

FITS

WITH

OTHER

SENTENCING PROCEDURES.....................................5

A. Considering Intervening Legal And

Factual Developments Furthers

Congress’s Sentencing Goals .....................5

B. Congress Has Recognized Courts’

Ability To Consider Intervening

Legal And Factual Developments .............9

C. The Federal Rules Of Criminal

Procedure Recognize That District

Courts Can Consider Intervening

Developments ...........................................11

iv

TABLE OF CONTENTS

(continued)

Page

II. RELIGIOUS

CONVERSIONS

ARE

AN

IMPORTANT FACTOR THAT COURTS SHOULD

CONSIDER DURING RESENTENCING......................13

A. Many Inmates Convert In Prison............13

B. An Inmate’s Religious Journey Is

Relevant To The Section 3553(a)

Factors ......................................................15

CONCLUSION ..........................................................20

v

TABLE OF AUTHORITIES

Page(s)

Cases

Pepper v. United States,

562 U.S. 476 (2011)..............................................10

Rosales-Mireles v. United States,

138 S. Ct. 1897 (2018)............................................5

Terry v. United States,

141 S. Ct. 1858 (2021)............................................6

United States v. Booker,

543 U.S. 220 (2005)................................................5

United States v. Easter,

975 F.3d 318 (3d Cir. 2020) ...................................5

United States v. Edwards,

2021 WL 1105341

(E.D. Pa. Mar. 23, 2021) ......................................11

United States v. Hendrickson,

25 F. Supp. 3d 1166

(N.D. Iowa 2014) ....................................................7

United v. Tadio,

663 F.3d 1042 (9th Cir. 2011)..............................12

Wasman v. United States,

468 U.S. 559 (1984)................................................9

Williams v. New York,

337 U.S. 241 (1949)................................................9

Statutes

18 U.S.C. § 3553 ................................ 4, 5, 6, 12, 15, 16

18 U.S.C. § 3559 ........................................................10

18 U.S.C. § 3582 ........................................................10

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

18 U.S.C. § 3661 ..........................................................9

An Act Relating to the Control of

Organized Crime in the United

States, Pub. L. No. 91-452,

84 Stat. 922 (1970). ................................................9

Fair Sentencing Act of 2010, Pub.

L. No. 111-220, 124 Stat. 2372 ..............................6

First Step Act, Pub. L. No. 115-391,

132 Stat. 5194 (2018) .......................................1, 10

Sentencing Reform Act of 1984, Pub. L.

No. 98-473, 98 Stat. 1987. .....................................9

Regulation

United States Sentencing

Guideline § 5K1.1 ................................................12

Rule

Federal Rule of Criminal Procedure 35 ...................12

Other Authorities

164 Cong. Rec. H10,430 (2018) ...................................2

164 Cong. Rec. S7,781 (2018)......................................2

Adam L. Pollock, Using Parole to

Constitutionally Reconcile the

Criminal Punishment Goals of

Desert and Incapacitation,

8 U. PA. J. CONST. L. 115 (2006) ............................7

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Byron R. Johnson, Assessing the impact

of religious programs and prison

industry on recidivism: An

exploratory study,

28 TEX. J. CORRS. 7 (2002) ...................................19

Byron R. Johnson, Can a faith-based

prison reduce recidivism,

73 CORRECTIONS TODAY 60

(June 2012)...........................................................17

Byron R. Johnson & David B. Larson,

The InnerChange Freedom Initiative

A Preliminary Evaluation of a FaithBased Prison Program, Center for

Research on Religion and Urban

Civil Society (2003) ........................................17, 18

Jonathan Michael D’Andrea, Article,

The Prison Litigation Reform Act: A

Legislatively-Enacted and

Judicially-Ratified Barrier

Separating Prisoners from the

Protections of the First Amendment,

43 OHIO N.U. L. REV. 489 (2017) .........................15

Kent R. Kerley, Participation in

operation starting line, experience of

negative emotions, and incidence of

negative behavior,

49 INT’L J. OF OFFENDER THERAPY &

COMP. CRIMINOLOGY 410 (2005) ..........................16

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Leslie E. Scott, Federal Prosecutorial

Overreach in the Age of Opioids: The

Statutory and Constitutional Case

Against Duplicitous Drug

Indictments,

51 U. TOL. L. REV. 491 (2020) ................................7

Michelle Mark, Most Americans

approve of the bipartisan, Trumpbacked criminal-justice reforms that

the Senate just passed

(Dec. 19, 2018)........................................................2

P. Elizabeth Kelly et al., Religion,

delinquency, and drug use: A metaanalysis,

40 CRIM. JUSTICE R. 505 (2015) ...........................18

Pew Research Center, Religion in

Prisons – A 50-State Survey of

Prison Chaplains (Mar. 22, 2012) .................14, 15

Robert R. Ross et al., Reasoning and

Rehabilitation,

32 INT’L J. OF OFFENDER THERAPY &

COMP. CRIMINOLOGY 29 (1988) ..............................8

Shadd Maruna et al., Why God Is Often

Found Behind Bars: Prison

Conversions and the Crisis of SelfNarrative,

3 RESEARCH IN HUMAN

DEVELOPMENT 161 (2006) ..............................13, 17

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Sung Joon Jang et al., Religion and

Misconduct in “Angola” Prison:

Conversion, Congregational

Participation, Religiosity, and SelfIdentities,

35 JUSTICE QUARTERLY 1 (2018) ..........................16

The Murderer, St. Maria Goretti..............................14

U.S. Sentencing Comm’n, Special

Report to the Congress: Cocaine

and Federal Sentencing Policy

(Feb. 1995)..........................................................6, 7

INTEREST OF AMICUS CURIAE*

American Conservative Union Foundation is a

tax-exempt organization dedicated to advancing

conservative solutions to issues facing Americans of

every race, creed, and ideology. ACUF’s Nolan Center

for Justice focuses on criminal-justice policies that

strengthen public safety, advance human dignity, and

improve government accountability. In this context,

ACUF believes that criminal sentences should protect

the public while still advancing defendants’ dignity.

That includes recognizing the changes that occur

while a prisoner is incarcerated. Failure to consider a

prisoner’s decreased risk to the public, increased

vocational skills, or religious conversion makes that

person feel less human. It also decreases government

accountability by expending resources that benefit

only the prison industry.

This is just one reason that ACUF pushed for

Congress to pass the First Step Act, Pub. L. No. 115391, 132 Stat. 5194 (2018). It believes defendants

should enjoy the benefits of intervening factual and

legal developments since they were first sentenced.

The First Circuit’s decision, however, does not provide

defendants with this chance. ACUF therefore urges

the Court to give the First Step Act its plain-language

meaning—a meaning that tracks general sentencing

principles and common sense.

INTRODUCTION

It is no secret that we live in an immensely

polarized and politicized country. Politicians from

No party’s counsel authored any part of this brief. No

person or entity, other than ACUF and its counsel, paid for the

brief’s preparation or submission. All parties consented to

ACUF’s filing this brief.

*

2

different parties rarely agree on whether the sun sets

in the East or West. Even those in the same party

often disagree over what policy proposals are best for

the country—and their political futures.

But only three years ago, politicians set aside

these differences to pass the First Step Act. The bill

passed the Senate 87-12 and passed the House 35836. 164 Cong. Rec. S7,781, H10,430 (2018). So over

90% of Congress supported the bill. Then tough-oncrime President Donald J. Trump signed the

legislation and hailed it as a victory for everyone.

Politicians’ support tracked the public, which

supported the First Step Act by a margin of four to

one. See Michelle Mark, Most Americans approve of

the bipartisan, Trump-backed criminal-justice

reforms that the Senate just passed (Dec. 19, 2018),

https://tinyurl.com/6tdestys.

The overwhelming support for the First Step Act

shows that Congress recognized there was a major

problem that needed fixed. Thousands of defendants

were serving disproportionately long prison sentences

for selling crack cocaine while those who dealt powder

cocaine had long ago been set free. The easy solution

was to allow those who were serving such sentences

to be resentenced under the more modern, sensible

sentencing regime.

But some courts of appeals, including the First

Circuit, have tried to thwart the First Step Act’s

purpose. Rather than give individuals a second

chance to appear before a federal judge and receive

individualized consideration of the statutory

sentencing factors, some appellate courts have

allowed district courts to pretend that the past few

decades never happened. In their view, district judges

can

ignore

intervening

factual

and

legal

3

developments. This slashes the chance of defendants

receiving meaningful relief under the First Step Act.

Not allowing district courts to engage in real-world

resentencing under the First Step Act undermines the

entire statute’s purpose. Both politicians and the

public agree that these prisoners deserve a second

chance. And the law supports their position. Both

general and specific principles of sentencing law

bolster Concepcion’s argument. This Court should

allow the First Step Act to function as designed and

hold that district courts must consider intervening

legal and factual developments when resentencing

defendants.

SUMMARY OF ARGUMENT

I.A. District courts must consider factors related

to the four purposes of incarceration. But the First

Circuit’s decision allows district courts to skirt this

requirement. A court cannot consider retribution

factors without considering intervening legal

developments. Nor can a court consider protecting the

public without considering current facts. Finally,

district courts ignore rehabilitative needs when they

ignore changed circumstances since they originally

sentenced defendants.

B. Multiple statutes explicitly recognize the need

for district courts to consider intervening factual and

legal developments when resentencing defendants.

One bars district courts, or courts of appeals, from

prohibiting consideration of any factor relevant to a

sentencing proceeding. Another statute, by its very

terms, requires that district courts consider

intervening factual developments when imposing a

sentencing.

4

C. The Federal Rules of Criminal Procedure also

recognize the need for district courts to consider

intervening factual and legal developments when

resentencing defendants. The government may move

for a reduction in sentence when defendants provide

substantial assistance after sentencing. This, of

course, considers the intervening factual and legal

developments. So requiring district courts to consider

intervening legal and factual developments when

resentencing under the First Step Act fits with the

rest of the federal sentencing regime.

II.A. Often, adversity brings out the best in

humans. That holds true for criminals too. Some

prisoners face the toughest test of their lives when

they are in jail. And this adversity spurs inmates to

seek meaning in their lives. Many find this meaning

in religion. They find religion for the first time in their

lives, convert religions, or return to a religion that

they long ago abandoned. These religious conversions

happen around the world. But they are particularly

prevalent in American prisons.

B. When inmates have religious conversions in

prison, there are key changes to the 18 U.S.C.

§ 3553(a) factors. Studies show that those who

convert in prison gain valuable anger-management

skills that leads to fewer disciplinary problems in

prison. The ability to productively manage anger

means that converts need fewer correctional

programs—a Section 3553(a) factor.

More importantly, those who convert in prison are

less likely to pose a danger to the public when

released from jail. The ability to cope with anger is

one factor; rather than commit a crime when angry,

religious converts often use other coping mechanisms.

Other factors include the sense of community that

5

religious converts have when released from jail and

the peer pressure to act lawfully.

The need to protect the public is one of the most

important Section 3553(a) factors. Studies show that

those who convert in prison are less likely to be

rearrested or reincarcerated when released. District

courts should therefore consider these conversions

when resentencing defendants under the First Step

Act. Thus, the Court should vacate the First Circuit’s

contrary holding.

ARGUMENT

I.

REQUIRING DISTRICT COURTS TO CONSIDER

INTERVENING

FACTUAL

AND

LEGAL

DEVELOPMENTS

FITS

WITH

OTHER

SENTENCING PROCEDURES.

When sentencing defendants, “district courts must

operate within the framework established by

Congress.” Rosales-Mireles v. United States, 138 S.

Ct. 1897, 1903 (2018) (citing United States v. Booker,

543 U.S. 220, 264 (2005)). The framework that

Congress established requires district courts to

consider factual and legal developments when

resentencing defendants under the First Step Act.

(But this does not mean that defendants are entitled

to a “plenary resentencing.” United States v. Easter,

975 F.3d 318, 326 (3d Cir. 2020) (collecting cases)).

A.

Considering Intervening Legal And

Factual Developments Furthers

Congress’s Sentencing Goals.

Congress has established a set of standards to

advance its sentencing goals. District courts must

“impose a sentence sufficient, but not greater than

necessary, to” achieve several goals. 18 U.S.C.

6

§ 3553(a). These goals are grouped by the four

purposes of incarceration.

First, district courts must consider retribution

factors. These include the need for the sentence “to

reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment

for the offense.” 18 U.S.C. § 3553(a)(2)(A). Second,

district courts must impose a sentence that will serve

as “adequate deterrence to criminal conduct.” Id.

§ 3553(a)(2)(B). Third, the sentence should “protect

the public from further crimes of the defendant.” Id.

§ 3553(a)(2)(C). Finally, district courts must consider

rehabilitative needs. These include “provid[ing] the

defendant with needed educational or vocational

training, medical care, or other correctional

treatment in the most effective manner.” Id.

§ 3553(a)(2)(D).

1. The Frist Circuit’s decision, however, allows

district courts to ignore three of the four purposes of

incarceration. First, by ignoring legal developments,

district courts sidestep retribution factors. Congress

decided that it erred when it made crack cocaine

offenses 100 times more serious than powder cocaine

offenses. Now, Congress deems crack cocaine offenses

eighteen times worse than powder cocaine offenses.

See Terry v. United States, 141 S. Ct. 1858, 1861

(2021) (citing Fair Sentencing Act of 2010, Pub. L. No.

111-220, § 2(a), 124 Stat. 2372, 2372). District courts’

consideration of this new 18:1 ratio ensures that they

are considering the seriousness of the offense.

Similarly, failure to consider the altered legal

landscape allows district courts to ignore what

sentence is just punishment for an offense. The 100:1

ratio for crack cocaine to powder cocaine was unjust.

See U.S. Sentencing Comm’n, Special Report to the

7

Congress: Cocaine and Federal Sentencing Policy 192

(Feb. 1995). Congress fixed this injustice by reducing

the ratio to 18:1. Yet the First Circuit’s decision

allows district courts to perpetuate the injustice by

imposing excessive sentences. This approach conflicts

with Section 3553(a)’s command.

2. Next, ignoring factual developments allows

district courts to impose sentences that exceed what

is necessary to protect the public. As expounded on in

§ II, infra, many individuals transform themselves in

prison and pose a reduced threat to the community.

These changes often involve religious conversions.

But other changes that happen over years or decades

also reduce the risk to the public.

Many people deal drugs because they were addicts

and needed the money to fuel their habit. See Leslie

E. Scott, Federal Prosecutorial Overreach in the Age

of Opioids: The Statutory and Constitutional Case

Against Duplicitous Drug Indictments, 51 U. TOL. L.

REV. 491, 500 (2020) (citing United States v.

Hendrickson, 25 F. Supp. 3d 1166, 1174 (N.D. Iowa

2014)). After decades-long prison stays, most of these

prisoners are now sober. They also may have learned

trade skills so that they can earn an honest living in

society. But district courts can ignore these facts

under the First Circuit’s decision.

The First Circuit’s decision also ignores another

reality. Often, long “sentences are imposed for the

purpose of preventing future crimes that will likely

never occur because the offender is so elderly or

crippled that he simply cannot recidivate.” Adam L.

Pollock, Using Parole to Constitutionally Reconcile the

Criminal Punishment Goals of Desert and

Incapacitation, 8 U. PA. J. CONST. L. 115, 130 (2006)

(citations omitted). The eighty-year-old prisoner who

8

is confined to a hospital bed is less likely to recidivate

than a healthy thirty-year-old man. Yet district courts

can ignore that reality under the First Circuit’s

reasoning.

3. Finally, the decision below allows district courts

to ignore rehabilitative factors. A defendant who had

dropped out of school in eighth grade at the time of

his original sentencing is more likely to reoffend than

that same defendant who has since earned a GED and

college degree in prison. So too for the high school

graduate with no work skills who can now re-join

society as a skilled welder, earning a meaningful

salary.

Many prisoners eligible for relief under the First

Step Act have different medical needs now than they

did decades ago. Rather than need care for opioid

addiction, they may now need dialysis or palliative

care. Again, district courts’ inability to consider these

changed circumstances means they cannot fulfill

Section 3553(a)’s command to consider these

rehabilitative factors.

Some prisoners have received other correctional

services during their long prison stays. These services

may include life and parenting skills and cognitive

behavioral therapy—a resetting of one’s moral

compass. Defendants who participate in such

programs are statistically less likely to reoffend. See

Robert R. Ross et al., Reasoning and Rehabilitation,

32 INT’L J. OF OFFENDER THERAPY & COMP.

CRIMINOLOGY 29, 34 (1988). Moreover, there may be

no other correctional services that a prisoner can

participate in that will contribute to his ability to

operate inside or outside the prison’s walls. District

courts should consider these facts when resentencing

defendants under the First Step Act.

9

B.

Congress Has Recognized Courts’

Ability To Consider Intervening

Legal And Factual Developments.

1. The Court has long recognized that because “the

punishment should fit the offender and not merely the

crime,” courts have “wide discretion in the sources

and types of evidence” they consider when sentencing

a defendant including “the fullest information

possible concerning the defendant’s life and

characteristics.” Williams v. New York, 337 U.S. 241,

246-47 (1949) (citations omitted); see Wasman v.

United States, 468 U.S. 559, 564 (1984). In 1970,

Congress codified this long-standing sentencing

principle. See An Act Relating to the Control of

Organized Crime in the United States, Pub. L. No. 91452, Title X, § 1001(a), 84 Stat. 922, 951 (1970).

Even when Congress overhauled sentencing

procedures in 1984, it kept this practice. See

Sentencing Reform Act of 1984, Pub. L. No. 98-473,

Ch. II, § 212(a)(1), 98 Stat. 1987, 1987. That statute

provides that “[n]o limitation shall be placed on the

information concerning the background, character,

and conduct of a person convicted of an offense which

a court of the United States may receive and consider

for the purpose of imposing an appropriate sentence.”

18 U.S.C. § 3661.

The First Circuit’s decision requires district courts

to limit the types of information that they may

consider when resentencing defendants under the

First Step Act. The background of the defendant

includes the intervening factual developments. And

intervening legal developments affect the seriousness

of the defendant’s criminal conduct. Section 3661 does

not require courts to use blinders when resentencing

defendants.

10

Ten years ago, the Court held that “a district court

at resentencing may consider evidence of the

defendant’s postsentencing rehabilitation.” Pepper v.

United States, 562 U.S. 476, 481 (2011). As this Court

explained, “Congress could not have been clearer”

when it passed Section 3661. Id. at 490. And, as

discussed above, considering these intervening

factual and legal developments is necessary to make

the Section 3553(a) factors meaningful. See id. at 49193.

The First Circuit’s decision conflicts with the

Court’s decision in Pepper. Rather than require that

district courts apply Section 3661’s language as

written, the First Circuit blessed skirting that

statutory command. This Court should vacate and

reaffirm its Pepper holding.

2. Section 3661 is not the only statute recognizing

that courts should consider intervening factual

developments when deciding whether to reduce a

sentence. If “extraordinary and compelling reasons”

exist, district courts may grant motions to modify an

otherwise final sentence after considering the Section

3553(a) factors. 18 U.S.C. § 3582(c)(1)(A)(i). The same

is true “if the defendant is at least 70 years of age, has

served at least 30 years in prison, [under 18 U.S.C.

§] 3559(c), and a determination has been made by the

Director of the Bureau of Prisons that the defendant

is not a danger to the safety of any other person or the

community.” Id. § 3582(c)(1)(A)(ii). (The First Step

Act expanded who could seek relief under this

provision. See 132 Stat. at 5239.)

Both parts of Section 3582(c)(1)(A) require courts

to consider intervening factual and legal

developments when reducing an otherwise final

sentence. For example, many district courts used

11

Section 3582(c)(1)(A)(i) to grant compassionate

release because of COVID-19 concerns. See generally,

e.g., United States v. Edwards, 2021 WL 1105341

(E.D. Pa. Mar. 23, 2021). COVID-19 did not exist at

the time these defendants were sentenced. The

intervening

factual

developments,

however,

convinced district courts that compassionate release

was appropriate under the Section 3553(a) factors.

So

too

for

reductions

under

Section

3582(c)(1)(A)(ii). The only way to obtain relief under

this section is to have served over thirty years in

prison and be over seventy years old—intervening

factual developments. Most importantly, the BOP

must certify that the defendant is no longer a threat

the community. Because the defendant was originally

sentenced under Section 3559(c), the defendant

threatened the public at the time of the original

sentencing.

Thus, Section 3582(c)(1)(A) also requires courts to

consider intervening developments when deciding

whether to grant compassionate release. The only

way to consider a compassionate-release motion is to

ponder these changed factual circumstances. If

district courts do not consider those factors, they

abuse their discretion.

C.

The Federal Rules Of Criminal

Procedure Recognize That District

Courts Can Consider Intervening

Developments.

Congress is not alone in acknowledging that courts

must consider changed factual and legal

circumstances when resentencing a defendant. There

is a mechanism for reducing a sentence because the

defendant “provided substantial assistance in

12

investigating or prosecuting another person.” Fed. R.

Crim. P. 35(b). Typically, the government must file

the motion within one year of the original sentencing.

See Fed. R. Crim. P. 35(b)(1). But the rule also

recognizes that in some cases the government must

file the motion more than one year after the original

sentencing. See Fed. R. Crim. P. 35(b)(2).

A district court cannot grant a Rule 35(b) motion

without considering intervening factual and legal

developments. If the substantial assistance happened

before sentencing, the court could impose a lesser

sentence by using 18 U.S.C. § 3553(e) or United

States Sentencing Guideline § 5K1.1. Rule 35

recognizes that sometimes a defendant cannot

provide the substantial assistance until after

sentencing. In these cases, district courts must

consider these changed circumstances when

resentencing a defendant. See United v. Tadio, 663

F.3d 1042, 1046-47 (9th Cir. 2011) (collecting cases).

True, the government did not file a Rule 35 motion

here. But the point is that resentencing under the

First Step Act should be considered in pari materia

with other sentencing procedures. Rule 35’s

consideration of intervening factual developments fits

the general pattern. The United States fails to explain

why the First Step Act is an outlier that does not

require district courts to consider intervening factual

and legal developments. Thus, the Court should

assume that the First Step Act tracks these general

sentencing principles.

13

II.

RELIGIOUS CONVERSIONS ARE AN IMPORTANT

FACTOR THAT COURTS SHOULD CONSIDER

DURING RESENTENCING.

Religious converts “experience a new-found or

greatly revitalized faith accompanied by substantial

changes in attitudes, thoughts, and selfunderstandings.” Shadd Maruna et al., Why God Is

Often Found Behind Bars: Prison Conversions and the

Crisis of Self-Narrative, 3 RESEARCH IN HUMAN

DEVELOPMENT 161, 162 (2006). Unfortunately, many

in the judiciary and government think that “[f]inding

God behind bars [is] too convenient to be believable.”

Id. Because of this hesitancy to believe that religious

conversions happen in prisons, district courts often

ignore a conversion when resentencing defendants

under the First Step Act. The Court should require

them to, at a minimum, explain why the changed

factual circumstance does not support a shorter

sentence.

A.

Many Inmates Convert In Prison.

In 1902, twenty-year-old Alessandro Serenelli

demanded that eleven-year-old Maria Goretti have

sex with him. When she refused, he stabbed her elven

times with a bradawl. Yet she managed to survive. So

he stabbed her three more times. She died after

suffering for twenty-four hours.

Serenelli pleaded insanity, but he was ultimately

convicted of killing Maria Goretti. Six years later

began one of the greatest conversion stories of the

twentieth century. He had a dream in which Maria

Goretti picked fourteen white lilies—one for each stab

wound—and gave the flowers to him. She told him

that she had forgiven him for his murderous act while

she lay dying from the stab wounds.

14

Before that dream, Serenelli admitted that he

“paid no attention to [Christians. He] was blinded by

a brute impulse that pushed [him] down the wrong

way of living.” The Murderer, St. Maria Goretti,

https://tinyurl.com/xtym5x7y (last visited Nov. 21,

2021) (citation omitted). He was also in solitary

confinement because of his frequent violent outbursts

in prison. But that dream caused Serenelli to

immediately convert to Catholicism.

After the conversion, Serenelli became a model

prisoner. He was docile and caused no problems for

prison guards. He was eventually released early

because of his good behavior in the twenty-one years

after the conversion. When freed from prison, he knelt

before Maria Goretti’s mother seeking, and receiving,

her forgiveness.

He then became a lay brother with the Capuchin

Franciscans. He spent the rest of his life working odd

jobs for the friars. In his open letter found sealed in

his personal belongings, he encouraged all to “desire

to follow the blessed teaching of avoiding evil and

following the good. May all believe with the faith of

little children that religion with its precepts is not

something one can do without.” The Murderer, supra.

Religious conversions are not limited to Italy or

murderers. Rather, they happen every day in the

United States. This includes people jailed for crimes

ranging from shoplifting to rape to murder. Many

religious conversions happen because of prison

chaplains or volunteers visiting with prisoners. But

many more occur after a fellow inmate proselytizes.

See Pew Research Center, Religion in Prisons – A 50State Survey of Prison Chaplains (Mar. 22, 2012),

https://pewrsr.ch/3bex9Tx (74% of prison chaplains

15

report that inmates commonly try to convert other

prisoners).

The same survey revealed that 77% of prison

chaplains said prison conversions happen with some

frequency in the prisons they serve. Pew Research,

supra. Prison chaplains are not the only ones

recognizing the frequency of prison conversions.

“Religious conversions in prison are nothing new.”

Jonathan Michael D’Andrea, Article, The Prison

Litigation Reform Act: A Legislatively-Enacted and

Judicially-Ratified Barrier Separating Prisoners from

the Protections of the First Amendment, 43 OHIO N.U.

L. REV. 489, 509 n.2 (2017) (citation omitted). These

religious conversions are important factual

developments that district courts must consider when

resentencing defendants under the First Step Act if

the Section 3553(a) factors are given meaning.

B.

An Inmate’s Religious Journey Is

Relevant To The Section 3553(a)

Factors.

An inmate’s religious conversion or other religious

transformation is relevant to the Section 3553(a)

factors. The First Circuit’s decision, however, allows

district courts to ignore these changes when

resentencing defendants under the First Step Act.

The Court should reject that holding and allow

district courts to faithfully apply the statute’s

command. See 18 U.S.C. § 3553(a) (district courts

“shall consider” the factors (emphasis added)).

Serenelli’s conversion is just one example. After

his religious conversion, his need for correctional

programming

plummeted.

Most

importantly,

however, a long prison sentence was no longer

necessary “to protect the public from further crimes.”

16

18 U.S.C. § 3553(a)(1)(C). He was living a peaceful life

and it was clear that he intended to live a life of

penance after his release from prison. Failure to

consider

these

changed

circumstances

at

resentencing would ignore Congress’s command.

1. Studies in American prisons confirm that

religious conversions affect the Section 3553(a)

factors. For example, one study “found that inmates

who participated in” prisons’ religious programs were

“less likely to experience negative emotions and to

engage in fights and arguments with other inmates

and prison staff in the year following the program as

compared to the year prior to the program.” Kent R.

Kerley, Participation in operation starting line,

experience of negative emotions, and incidence of

negative behavior, 49 INT’L J. OF OFFENDER THERAPY

& COMP. CRIMINOLOGY 410, 423 (2005).

Another study explained much variance in

inmates’ disciplinary convictions. Holding all other

factors constant, an inmate who had a religious

conversion had fewer disciplinary convictions at a

95% confidence interval. Sung Joon Jang et al.,

Religion and Misconduct in “Angola” Prison:

Conversion, Congregational Participation, Religiosity,

and Self-Identities, 35 JUSTICE QUARTERLY 1, 16

(2018). And of the two dozen factors considered in the

analysis, religious conversion was the second biggest

factor in explaining disciplinary convictions. Id. This

too shows that district courts should consider

religious conversions when resentencing defendants

under the First Step Act.

Qualitative research confirms this quantitative

research about the effect of religious conversions on

prisoners’ anger-management skills. A study that

interviewed dozens of prison converts concluded that

17

inmates’ conversion to Christianity “can integrate

disparate and shameful life events into a coherent,

empowering whole, renew prisoners’ sense of their

own personal biography, and provide them with hope

and a vision for the future.” Maruna, 3 RESEARCH IN

HUMAN DEVELOPMENT at 180. The converts put their

“shameful past to good use by devoting [their] future

to helping others.” Id. at 181. The study came to these

conclusions despite the authors’ skepticism about

prison conversions. See id. at 162.

This decrease in negative emotions reduces the

need for correctional treatment. One offering in most

prisons is anger management—for good reason. Many

violent crimes result from angry emotions boiling

over. The ability to control those emotions after

participating in religious activities in jail also allows

for the public’s protection without a long prison

sentence. Again, these are two critical factors courts

must consider under Section 3553(a).

2. Those who convert to Christianity in prison are

less likely to return. One study looked at what it

called Christian “spiritual transformations” in prison.

The study tracked over 2,100 prisoners for two years

after they were released from prison to see if they

were rearrested or reincarcerated during that time.

The results were stunning. For those who

successfully completed a spiritual transformation in

prison, 20% were rearrested within two years. Byron

R. Johnson & David B. Larson, The InnerChange

Freedom Initiative A Preliminary Evaluation of a

Faith-Based Prison Program, Center for Research on

Religion and Urban Civil Society, 19 (2003); see also

Byron R. Johnson, Can a faith-based prison reduce

recidivism, 73 CORRECTIONS TODAY 60, 61 (June

2012). On the other hand, over 35% of those who did

18

not complete this spiritual transformation were

rearrested within two years. Id. The numbers were

just as striking for reincarceration. Only 11.4% of

those who underwent a spiritual transformation

found themselves back in prison within two years. Id.

By contrast, over 20% of those lacked a spiritual

transformation were back in jail within two years. Id.

So

those

who

underwent

a

spiritual

transformation were almost one-half as likely to be

rearrested or be reincarcerated within two years. This

is a very big change in the risk to the public, which is

one of the most important Section 3553(a) factors. If a

prisoner has converted in prison and is about half as

likely to reoffend, the need for a longer prison

sentence plunges.

Yet the First Circuit said that doesn’t matter. In

its view, district courts may ignore these changed

circumstances when resentencing a defendant under

the First Step Act. Ignoring a key Section 3553(a)

factor conflicts with Congress’s command. It also

conflicts with well-settled precedent. The Court

should reject this approach to First Step Act

resentencing and permit district courts to consider

factual and legal developments when resentencing

defendants.

3. The positive effect that religious transformation

has on prisoners is not limited to adults. A metaanalysis of sixty-two studies over four decades found

that juveniles who participate in religious activities

are about 20% less likely to drink alcohol, use drugs,

or engage in other delinquent behavior. See P.

Elizabeth Kelly et al., Religion, delinquency, and drug

use: A meta-analysis, 40 CRIM. JUSTICE R. 505, 515

(2015).

19

That both juvenile and adult offenders are less

likely to reoffend if they find religion while

incarcerated is unsurprising. Many youths in juvenile

detention feel lonely and have no connection with a

community. Similarly, many adults who commit

crimes are society’s outcasts. Yet once they find

religion while incarcerated, both the old and the

young find a sense of belonging and community. This

community then helps them avoid future crimes.

4. All agree that vocational programs are

beneficial for prisoners. But when it comes to

recidivism, religious conversions are a better

predictor of future outcomes. A program that used

religious activities to transform prisoners saw a

recidivism rate of about one-third that of a similar

prison that provided vocational training for inmates.

Byron R. Johnson, Assessing the impact of religious

programs and prison industry on recidivism: An

exploratory study, 28 TEX. J. CORRS. 7, 9 (2002). This

effect was consistent for both high-risk and low-risk

offenders. See id. So religious conversions make

prisoners a lesser threat to the community. District

courts should consider this when resentencing

defendants under the First Step Act if we are to align

with Congressional intent, as embodied in Section

3553(a).

*

*

*

Most people change with age. Their physical

strength diminishes and they learn new skills that

are useful on the streets. They come to understand

the importance of family. Some even find religion.

Laws also change. Though rarely, sometimes

Congress recognizes an injustice and fixes it on a

bipartisan vote. But the First Circuit said that none

of these factual or legal developments matter. In its

20

view, district courts may ignore factual and legal

developments when resentencing defendants under

the First Step Act. The Court should reject this rule

that conflicts with most sentencing jurisprudence—

and principles of justice.

CONCLUSION

This Court should vacate and remand for further

proceedings.

Respectfully submitted,

David H. Safavian

John M. Masslon II

General Counsel

Counsel of Record

AMERICAN CONSERVATIVE PO Box 2602

UNION FOUNDATION

Arlington, VA 22202

1199 N. Fairfax St. Ste. 500 (703) 791-9483

Alexandria, VA 22314

john@johnmasslon.com

(202) 347-9388

dsafavian@conservative.org

November 22, 2021