Beatings Will Continue at BOP Until Employee Morale Improves – Update for April 1, 2025

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BOP EMPLOYEES TAKE IT ON THE CHIN (AGAIN)

Last Monday, 23,000 BOP employees lost their retention bonuses, reducing their pay by up to 25%. Last Thursday, President Trump stripped the prison workers, along with thousands of other federal employees, of the right of collective bargaining.

morale250225As Walter Pavlo described it in Forbes last week, “Despite already ranking last among federal agencies in employee satisfaction, morale [at the BOP] has worsened. President Trump’s recent aims to eliminate BOP employees’ ability to unionize [is] a move condemned by AFGE Council 33 President Everett Kelley as a “disgraceful and retaliatory attack” on civil servants.

The Marshall Project (TMP) reported yesterday that “[l]abor leaders say the move is devastating for the Bureau, and silences a union representing over 30,000 people at more than 120 federal prisons nationwide. It’s the latest and biggest hit to a workforce that includes many supporters of Trump’s ‘tough on crime’ campaign rhetoric.”

Director Peters is gone... and so is the union.
Director Peters is gone… and so is the union.

There is little doubt that loss of collective bargaining clout and union protection for BOP employees facing disciplinary action for misconduct “will exacerbate an ongoing staffing crisis,” as TMP put it.  The union “has consistently sounded the alarm on the chronic staffing shortages in the federal prison system,” David Fathi, director of the American Civil Liberties Union National Prison Project, told TMP.  While there are cases where the union has “frustrated and undermined accountability,” Fathi said, “we have frequently seen prison staff unions align themselves with incarcerated people to press for safer conditions.”

“People are still in shock,” said Brandy Moore White, national president of the Council of Prison Locals. “I think a lot of people felt secure in the fact that while we are a union, we are a law enforcement union, and we do work with both sides,” referring to Republicans and Democrats.

Compounding this frustration, the Department of Government Efficiency (DOGE) has reportedly pressured staff to resign, while long hours and severe shortages persist. The likelihood of mass resignations only increases instability within the agency.”

Executive Order, Exclusions From Federal Labor-Management Relations Programs (March 27, 2025)

Forbes, Bureau of Prisons Is ‘Rudderless’ Operation, Says Former Director (March 28, 2025)

The Marshall Project, Trump’s Union Order Endangers Federal Prison Officers, Labor Leaders Say (March 31, 2025)

– Thomas L. Root

Another Incremental Victory for Felon-In-Possession – Update for March 31, 2025

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5TH CIRCUIT UPHOLDS FELON-IN-POSSESSION CONSTITUTIONALITY AS APPLIED TO DEFENDANT WITH VIOLENT PAST

The 5th Circuit last week upheld the constitutionality of 18 USC § 921(g)(1)’s felon-in-possession statute as applied to a defendant with a prior aggravated battery conviction.

Comparing the battery offense to Colonial era “armed and affray” laws, the Circuit ruled that the 2nd Amendment permits disarming people like the defendant, Jeremy Schnur.

violent160620The 5th said Jeremy’s “violent aggravated battery conviction is analogous to, and arguably more dangerous than, the ‘prototypical affray [which] involved fighting in public,’ the precursor to the ‘going armed’ laws punishable by arms forfeiture… These affray and going armed laws were intended to “mitigate demonstrated threats of physical violence similar to that displayed by Schnur when he perpetrated the aggravated battery offense [and] supports a tradition of disarming individuals like Schnur pursuant to § 922(g)(1), whose underlying conviction stemmed from the threat and commission of violence.”

The 5th’s approach continues to suggest that those with nonviolent felonies in their background cannot be held subject to the felon-in-possession statute consistent with the 2nd Amendment. This approach has been adopted by the 3rd Circuit in Range v. Atty General and suggested by the 6th Circuit in United States v. Williams. The same question is currently on en banc review in the 9th Circuit’s United States v. Duarte.

United States v. Schnur, Case No. 23-60621, 2025 U.S. App. LEXIS 7030 (5th Cir. March 26, 2025)

– Thomas L. Root

Trouble On The Line and Other Federal Prison News – Update for March 28, 2025

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BOP SHORTS

cellphones230428Cotton Introduces Bill to Jam Cellphones:  Sen Tom Cotton (R-AR) and Rep David Kustoff (R-TN) have introduced companion bills in the House and Senate to permit prisons to use cellphone jamming devices to block  prisoners  from using contraband cellphones.

The Republican lawmakers are reintroducing identical legislation in their respective chambers of Congress that would amend § 302a(a) of the Communications Act of 1934 – which lets the Federal Communications Commission regulate “devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference to radio communications” – to prohibit the FCC from banning cellphone jammers used in prison housing units.

Currently, the FCC says, “The Communications Act prohibits non-Federal entities from using cell jammers. The FCC cannot waive this statutory prohibition absent a change in the law by Congress.”  The Cotton-Kustoff bill is intended to solve this problem,  stating that the FCC “prevent a State or Federal correctional facility from operating a jamming system within the correctional facility to prevent, jam, or otherwise interfere with a wireless communication that is sent” by a contraband cellphone.

In announcing the bill, Cotton trotted out the overused refrain that “[f]or far too long, contraband cellphones have been a major security threat in our prisons, allowing criminals to coordinate crimes from behind bars. This legislation is a common-sense step to cut off their ability to threaten witnesses, organize drug trafficking, and endanger law-abiding citizens from within prison walls.” While there are instances of such crimes, the numbers pale next to cellphones’ real utility, to let prisoners get past telephone time and availability limitations on communications with friends and family.

Walter Pavlo described the phenomenon:

The risk of possessing and using a cell phone is something many prisoners wrestle with when they are in prison, but it is also a symptom of other problems in prison. It begs the question as to why prisoners take the extraordinary risk of having a cell phone. Federal prisoners are subject to lockdowns in prison where they are confined to their cells and not allowed to use sanctioned methods of communication like monitored calls and emails (Corrlinks, the prison email system, tracks and reads email messages). Lockdowns occur because of staff shortages or because of disturbances in the prison. Some of these lockdowns can last days, weeks or months. During lockdowns there is no television, no phone, no email and no visitation. In this isolation, prisoners long for some communication with the outside world, to talk to their family, to get some news, and to have some entertainment in stark confines of prison. The cell phones offer an escape from prison.

cellsandwich180216As a result, prison cellphones are at the heart of booming commerce: someone who has invested the $2,000 to $3,000 needed for a cellphone can then rent it out to other prisoners, who often have their own sim cards to insert into the phone.  Pavlo said, “A cell phone can be purchased by a prisoner for up to $3,000 and to cover the costs many are rented out to other prisoners for prices of $100-$200/hour, a price mostly determined by the number of phones in the prison. When cell phone inventory is high among the general population, prices tend to go down.”

Cellphone jamming unit prices currently range from about a hundred to several thousand dollars a unit, but with demand, the price would probably drop.

If the Cotton-Kustoff bill would pass, the effect on prisoner communication and commerce would be substantial, depending on how quickly prisons adopt and deploy the technology. While it is difficult to gauge the likelihood that the bill will pass, there is unlikely to be much opposition to the program.  The FCC has traditionally opposed any change in the law that permits use of devices intended to jam telecommunications, but this is now a different FCC, so its position (not to mention its influence with legislators) is unknown.

Transgender Injunction: A judge last week ordered the Bureau of Prisons to transfer two transgender inmates back to women’s prisons after they had been sent to male facilities due to Trump’s executive order withdrawing transgender protections.

U.S. District Judge Royce Lamberth (District of Columbia) issued a preliminary injunction in a suit over the impact of Trump’s executive order on transgender women in federal prisons.

Lamberth ordered the BOP to “immediately transfer” the two – identified in court papers as “Rachel and Ellen Doe” – back to women’s facilities and to continue to provide them with gender dysphoria treatment.

The inmates said in court papers that they were living in constant fear of sexual assault and violence after being moved to male prisons.

peters220930Colette Peters Lands on Her Feet: With inmate suicide rates in the California state prison system at an all-time high, Senior U.S. District Judge Kimberly Mueller (Eastern District of California) last week appointed former BOP Director Colette Peters as a “receiver-nominee” to develop an oversight plan for psychiatric services for California’s prison population intended to address the epidemic.

Peters was fired from her BOP position on January 20th within hours of Trump being sworn in as President. She has since filed with the Merit Systems Protection Board claiming that she was improperly fired.

Concerns Over BOP Pay Cuts: Sens Richard Durbin (D-IL), Cory Booker (D-NJ), Adam Schiff (D-CA), and 12 others wrote to Attorney General Pam Bondi last Friday expressing “deep[] concern” over BOP plans to cut retention pay by 50 percent at 42 facilities and eliminate it outright at seven others.

pooremptypockets231017Last month, 23,000 BOP employees were notified of the retention bonus change, effective Mar 23. The letter notes that the BOP “is already grappling with extreme understaffing at BOP institutions… Understaffed prisons already face immense challenges in keeping current populations and staff safe, ensuring access to necessary medical and dental care, and fully implementing the First Step Act in order to reduce recidivism risk and promote public safety… Reducing and eliminating staff retention incentives are certain to exacerbate staffing shortages.”

Newsbreak, Prisons could use cellphone jamming systems under bill in Congress (March 27, 2025)

Press Release, Cotton, Kustoff Introduce Bill to Keep Cellphones Out of Jails (March 26, 2025)

Forbes, Federal Prisoner’s Dilemma, Cell Phone Or Not (June 7, 2024)

Associated Press, Judge orders Trump administration to return two transgender inmates to women’s prisons (March 19, 2025)

Corrections1, Former BOP director named to lead overhaul of Calif. prison mental health system (March 21, 2025)

Sen Richard Durbin, Letter to Attorney General (March 21, 2025)

– Thomas L. Root

 

 

 

Never a Dull Moment in D.C. – Update for March 27, 2025

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WASHINGTON WEEK

Last week was a busy one in Washington (at least, according to a Signal chat group I was accidentally invited to join):

Gun rights: The Dept of Justice last week proposed a rule change that will clear the way for letting it set up an office to restore gun rights to people who have been convicted of nonviolent crimes.

guns200304The Bureau of Alcohol, Tobacco, Firearms and Explosives – an agency within the DOJ – has the authority to do so now, having been tasked with running the 18 USC § 925 program by the Secretary of the Treasury since 1965 passage of amendments to the Federal Firearms Act of 1938. At the time, ATF was an agency of the Dept of Treasury, and thus it was delegated authority of the Treasury Secretary to hand out gun forgiveness.

The Homeland Security Act transferred the enforcement side of ATF to DOJ in 2002, and substituted the Attorney General for former § 925’s designation of the Secretary of the Treasury.

Back in 1992, Congress could not generate the votes to kill the rights restoration program but Senator Charles Schumer (then a congressman) was able to slip a provision into the ATF’s budget that prohibited the agency from spending any of its budget to operate the program. So while the program remains on the books, no government employee (assuming any are left, Elon) is permitted to spend a second of official time processing applications.

Last week’s proposed rule will withdraw the “effectively moribund” Attorney General’s delegation of authority to the ATF to run the program, letting DOJ handle the rights restoration in house. Presto. ATF may not be able to spend any of its budget on the § 925 program, but nothing will stop DOJ from doing so (unless the Democrats in Congress are able to slide another budget prohibition into the budget).

DOJ said the proposed rule “reflects an appropriate avenue to restore firearm rights to certain individuals who no longer warrant such disability based on a combination of the nature of their past criminal activity and their subsequent and current law-abiding behavior.”

DOJ will take comments on the proposed rule until June 18, 2025.

President Floats Imprisoning Americans in El Salvador: After several incidents of vandalism against Tesla property, President Donald Trump said on Truth Social that such acts would be treated as “domestic terrorism” and the perps could be sent to prison in El Salvador.

“I look forward to watching the sick terrorist thugs get 20-year jail sentences for what they are doing to Elon Musk and Tesla,” Trump posted on Truth Social last Friday. “Perhaps they could serve them in the prisons of El Salvador, which have become so recently famous for such lovely conditions!”

President Suggests Some Biden Clemencies Are Void: President Trump announced that President Biden’s preemptive pardons of people who served on the January 6th committee are of “no further force or effect” in a social media post just after midnight on Monday.

autopen250327Trump alleged that Biden used an autopen on a number of official documents, including presidential clemencies. Autopens are machines designed to automatically replicate a handwritten signature and have been used for years by presidents to sign large volumes of documents.

Speaking to reporters onboard Air Force One a week ago, President Trump maintained the autopen signature made the clemencies void. However, he said “it’s not my decision” whether Biden’s pardons can be voided, and that it would ultimately be up to the courts.

The concern is that if even one Biden clemency can be voided by a later president, none of them is safe.

Fire the Judge: If I had a nickel for every time a prisoner has asked me how to get his or her judge taken off the case, I’d own my own Caribbean island by now.

Removing a judge is a hard thing to do, especially if the judge’s bias resulted from what she had read and heard in your own case. The U.S. Attorney will always fight removal, too, which is why the DOJ’s sudden push to remove federal judges for the sin of not being Donald Trump fans is so surprising.

Politico reports, “As tensions between the White House and the federal judiciary continue to rise, litigators at the Justice Department are increasingly seeking to have judges removed from cases where they have ruled against the administration.”

Last Friday, DOJ filed a motion to disqualify U.S. District Judge Beryl Howell (District of Columbia) from a lawsuit brought by big-law firm Perkins Coie challenging a Trump executive order that lawyers said was designed to destroy the firm in retaliation for work it had done on behalf of his political enemies. DOJ has accused her of “partiality against and animus toward” the President.

On Tuesday, Judge Howell entered a 21-page Memorandum Opinion and Order eviscerating the DOJ’s motion, noting that litigants’ right to a fair and impartial hearing “does not entitle any party—not even those with the power and prestige of the President of the United States or a federal agency—to demand adherence to their own version of the facts and preferred legal outcome.”

Earlier last week, a separate DOJ attorney asked the U.S. Court of Appeals for the D.C. Circuit, calling for U.S. District Judge James Boasberg to be removed from case regarding the deportation of alleged Venezuelan gang members. The letter took issue with what it called Boasberg’s “highly unusual and improper procedures.”

signal250327After Judge Boasberg was selected at random this week to hear a lawsuit against the Administration for the Signal chat debacle, President Trump went ballistic on his Truth Social account last night: “How disgraceful is it that ‘Judge’ James Boasberg has just been given a fourth ‘Trump Case,’ something which is, statistically, IMPOSSIBLE,” Trump wrote.

Newsweek said this morning that “Trump’s statements continue his long trend of claiming that the legal system is rigged against him, which he used as a platform throughout the 2024 presidential campaign.”

DOJ, Delegation of Authority, 90 FR 13080 (March 20, 2025)

The Hill, DOJ creating path for people with criminal convictions to again own guns (March 20, 2025)

Fortune, After the Justice Department charged three people with vandalizing Tesla property, the president floated sending the accused to prisons in El Salvador (March 21, 2025)

Politico, Trump floats sending Americans to foreign prisons. Civil rights groups say that would be illegal. (March 21, 2025)

Newsweek, Donald Trump Sends Warning To Enemies As He Says Biden Pardons Void (March 17, 2025)

Politico, DOJ moves to boot federal judge from Perkins Coie case (March 21, 2025)

New York Times, Judge Assails White House Efforts to Kick Her Off Perkins Coie Case (March 26, 2025)

Newsweek, Donald Trump Rages at Judge Boasberg Getting Signal Case: ‘Disgraceful’ (March 27, 2025)

– Thomas L. Root

Tell Me Lies, Tell Me Sweet Little Lies… – Update for March 25, 2025

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OF TIMBITS AND PILES OF CASH

The Supreme Court handed down a unanimous opinion last Friday in favor of Patrick Daley Thompson, scion of a Chicago political family (yes, that “Daley” family) turned businessman. Pat took a $110,000 loan – and then two more for a total of three loans worth $219,000 in the aggregate – from Bridgeport, Illinois’s Washington Federal Bank for Savings.

washfd250325The Washington Federal Bank for Savings had been compared to Bailey Building and Loan in “It’s a Wonderful Life.” There were a lot of parallels, right down to the bank president trying to kill himself as Christmas approached. Except he had no guardian angel to intercede. “Unlike the classic Jimmy Stewart movie,” the Chicago Sun-Times reported, “there was no storybook ending for Washington Federal or John F. Gembara, who ran the bank that his late grandfather founded in 1913.”

On December 3, 2017, Gembara hanged himself at the million-dollar Park Ridge home of a longtime friend and bankå customer who was on the hook himself for $1.8 million in loans from the beleaguered bank. Within two weeks, fed­eral bank regulators swooped in and shut down Washington Federal for “unsafe or unsound practices.” The bank was one of only eight nationwide to fail that year.

The bank’s paperwork was a mess. Loans were poorly documented or not documented at all. As the Federal Deposit Insurance Corporation tried to figure out who owed what, investigators talked to Pat.

timbits250325Pat apparently figured out pretty quickly that the FDIC couldn’t document what he had borrowed. So when the bank examiners asked him about his loans, he said something to the effect that “I borrowed… $110,000.” Sort of like my wife asking me what I bought at Tim Horton’s while she shopped for shoes last weekend. (I know better than to step into a women’s shoe store). I told her, “I got a cup of coffee.” Literally true, but somewhat incomplete: I failed to mention the dozen Timbits I also bought and washed down with the java.

Pat’s statement was literally true: he had in fact taken out a loan for $110,000 just as he said. But he failed to mention subsequent loans for another $109,000, obviously hoping that – like the empty Timbits box – it would just disappear into the refuse can and no one would be the wiser.

The FDIC did end up being the wiser. Pat was convicted under 18 USC § 1014 for making false statements to the agency. At trial, he argued that his statement wasn’t false, just misleading. My wife wouldn’t forgive me for my failure to mention the Timbits, and neither the district court nor the 7th Circuit forgave Pat. In their view, the 18 USC § 1014 prohibition against false statements extended to misleading ones as well.

pinnoc160523SCOTUS disagreed. In a unanimous opinion, it held that “false” means “false,” not “misleading.” The Court ruled, “In casual conversation, people use many overlapping words to describe shady statements: false, misleading, dishonest, deceptive, literally true, and more. Only one of those words appears in the statute. Section 1014 does not criminalize statements that are misleading but true. Under the statute, it is not enough that a statement is misleading. It must be ‘false.’”

My wife should be more like Justice Amy Coney Barrett or Ketanji Jackson Brown. Then she would shrug and say what I had told her was literally true. And all would be forgiven.

Thompson v. United States, Case No. 23-1095, 2025 U.S. LEXIS 1071 (March 21, 2025)

– Thomas L. Root

In the World of Violence, Nothing is Something – Update for March 24, 2025

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DOING NOTHING IS A VIOLENT OPTION

nothing250324A conviction for using a gun in a crime of violence under 18 USC § 924(c) requires that the underlying offense being committed while using the gun be a felony involving the “use of physical force” against another person. Shooting someone obviously qualifies, but what if the underlying crime can be committed by doing nothing? Doing nothing hardly involves the “use of physical force” against another person.

Because the underlying offense must be categorically a crime of violence, you might think that if it can be committed without the “use of physical force,” it’s not violent. The Supreme Court disagreed in a 7-2 decision last Friday.

Salvatore Delligatti was convicted of a § 924(c) offense for recruiting some people to kill a suspected snitch and giving them a gun to do the job. The underlying offense was second-degree murder under state law, which could be accomplished simply by failing to act, such as letting a nursing home patient starve to death by not feeding him. Sal argued that a failure to act resulting in death meant that the second-degree statute was categorically not a crime of violence, and his § 924(c) conviction had to be thrown out.

nothinghere190906SCOTUS held that it was a crime of violence. The high court ruled that while Sal argued that an offender can commit 2nd-degree murder without being the actual cause of the victim’s death because the offender can do so through “omission of a legal duty. But the test for ‘actual causality’ is whether the victim’s death ‘would not have occurred in the absence of—that is, but for—the defendant’s conduct…’ When a child starves to death after the parents refuse to provide food, the parents’ conduct is no less a cause of death than if the parents had poisoned the child.”

What’s more, the Court ruled, an offender who causes harm by omission still makes “use” of physical force “against the person… of another.” The Justices said, “[I]t is natural to say that a person makes ‘use’ of something by deliberate inaction. A mother who purposely kills her child by declining to intervene when the child drinks bleach makes ‘use’ of the bleach’s poisonous properties.”

nothingcoming181018Justice Neil Gorsuch wrote a spirited dissent, in which Justice Ketanji Jackson joined, but the decision suggests that SCOTUS is finding some practical limits to its “crime of violence” jurisprudence. After all, if doing nothing is physical force, there seem to be no practical limits on what might be a crime of violence.

Delligatti v. United States, Case No. 23-825, 2025 U.S. LEXIS 1072 (March 21, 2025)

– Thomas L. Root

The Tax Man Cometh – Update for March 21, 2025

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ADDING INSULT TO INJURY

Lonnie Hubbard is a prudent man. Although he is not yet 50, he has been saving for his golden years for a long time.

feelgood160805Unfortunately, his prudence did not extend into his professional life. Through his drug store, Rx Discount of Berea, PLLC, Lonnie provided large quantities of oxycodone to people who craved it but lacked the prescriptions that many pharmacists – at least those operating inside the law – normally require.

Lon also got into wholesaling, providing pseudoephedrine to illegal methamphetamine manufacturers.

In the vernacular, Lonnie ran a “pill mill.”

Business was good for a long time. Lonnie used over $2 million of the company’s income to pay for two homes, multiple Corvettes and a Mercedes, a boat and jet skis. At the same time, he set up an IRA to save for retirement.

Unfortunately for Lon, his fast and loose sales practices finally caused his money train to jump the tracks. After a trial, he was convicted in 2017 on 71 counts of a 73-count superseding indictment and sentenced to 360 months in prison. The court also ordered him to forfeit millions of dollars he had obtained through his illegal drug distribution.

That’s where today’s saga begins. Lonnie had $427,518 in his IRA when the government seized it to apply to his forfeiture obligation. The nature of a traditional IRA, of course, is that one is not taxed on the funds put into an IRA, instead paying taxes on the money when it is withdrawn during retirement. If money is withdrawn prior to retirement age, taxes and a penalty are paid.

taxreturn200401After Lonnie’s Uncle Sam seized the IRA, the IRS suggested that the seizure qualified as “income” for Lonnie that he should have paid taxes on from prison. The tax court agreed and ordered him to pay over $180,000 in taxes and penalties on the IRA he had lost.

This week, the 6th Circuit reversed. The Circuit ruled that because Lon had forfeited his IRA under the district court’s forfeiture order, the law made the IRS—not Lon—the owner of the IRA. The IRS thus gained “the kind of control over this account that any normal owner would possess” and did so – under the “relation back” doctrine (that holds that the government becomes the owner of forfeited funds as of the moment the defendant commits his crime – it already owned the IRA when it liquidated the funds by “[e]xercising this ownership interest.”

The 6th held:

We fail to see why Hubbard must pay taxes on the IRS’s choice to withdraw the funds given that he no longer owned or controlled the IRA. From a bird’s-eye view, Hubbard obtained no “economic gains” (that is, income) when the IRS withdrew the IRA funds. Most people would have described the earlier forfeiture of the IRA as an economic loss—not an economic gain. And the later withdrawal of funds also did not reduce any “indebtedness” that Hubbard owed the IRS. Since the forfeiture order merely transferred ownership of the IRA to the IRS, that order no more created a “debt” than did the forfeiture of Hubbard’s homes and cars. And because Hubbard did not own the IRA at the time of the withdrawal, he did not receive (and had no right to receive) its funds. Just as “the difference between what is yours and what is mine” matters for the forfeiture laws, so too it should matter for the tax laws. The IRA was not Hubbard’s. He should no more have to pay taxes on its funds than a person randomly selected from the Kentucky voter rolls.

forfeiture161215

Lonnie still has 15 years to serve on his sentence. He will walk as a free man in 2041, just in time to start collecting social security.

Hubbard v. Commissioner, Case No. 24-1450, 2025 U.S. App. LEXIS 6389 (6th Cir. Mar. 19, 2025)

– Thomas L. Root

Judge Assails ‘Paying Rent on the Courtroom’ – Update for March 20, 2025

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DISTRICT COURT HOLDS USSG 3E1.1 THIRD POINT UNCONSTITUTIONAL

In federal criminal justice, the “trial penalty” is the difference between the sentence criminal defendants typically receive after a plea bargain and the much higher sentence they get if they are convicted at trial.

pleadeal180104An experienced federal defense attorney I once knew called it paying rent on the courtroom. The expression is not uncommon.

That difference can be huge. The National Association of Criminal Defense Lawyers says that “federal trial sentences are roughly three times higher than plea sentences for the same crime on average and sometimes as much as eight or ten times higher. This sentencing differential is extremely coercive. As a result, only 2-3% of federal convictions are the result of trial. The rest are plea bargains.”

NPR reports that 98% of federal criminal cases end with a plea bargain.  A 2023 American Bar Association task force that included prosecutors, judges, defense attorneys and academics cited “substantial evidence” that innocent people are coerced into guilty pleas because of the power prosecutors hold over them, including the prospect of decades-long mandatory minimum sentences.

“Trials have become rare legal artifacts in most U.S. jurisdictions, and even nonexistent in others,” the ABA Plea Bargain Task Force concluded.

plea161116Last week, Southern District of New York U.S. District Judge Jeb Rakoff (who “has been complaining, in various ways in various fora, about the severity to the federal sentencing guidelines, mandatory minimum sentencing statutes and the “trial penalty” for many years,” as Ohio State University law professor Doug Berman as aptly put it), ruled that U.S. Sentencing Guideline § 3E1.1(b) exacerbates the “trial penalty” in a way that violates the 6th Amendment.

Section 3E1.1 awards two reduction points to defendants who accept responsibility for their offenses (admit guilt with a reasonable degree of convincingness). If a defendant qualifies for the two points allowed by § 3E1.1(a), she can earn an extra one-point deduction (at the government’s sole election) under § 3E1.1(b) if she saves the government’s resources by pleading guilty early, thus avoiding the need for the U.S. Attorney to prepare for trial. In practice, however, the government has occasionally used the point to cadge defendants into surrendering assets, waiving sentencing objections, forgoing appeal, and other surrenders of rights having nothing to do with timeliness of plea.

pleadealB250320Judge Rakoff’s objection to § 3E1.1(b) is more basic than a complaint about government overreach. He argues that the third point is an unconstitutional restriction on a defendant’s 6th Amendment right to a jury trial by making the “trial penalty” even higher.  Judge Rakoff wrote:

[T]he Sentencing Guidelines effectively reinforce the trial penalty by reducing the offense level calculation by two points if the defendant “clearly demonstrates acceptance of responsibility” by pleading guilty, and by a third point if, in the Government’s view, the defendant has pled guilty quickly enough to permit the prosecutor to avoid preparing for trial. U.S.S.G. § 3E1.1. While the underlying theory of the two-point reduction is that a guilty plea evidences, and rewards, a defendant’s remorse, the third-point reduction is justified simply on the ground of saving prosecutorial resources…

Because of the odd way in which 3E1.1 as a whole is phrased — as a reduction in offense level for a defendant’s not exercising his constitutional right to go to trial — the remedy for the Court’s conclusion that § 3E1.1(b) is unconstitutional is to reduce the penalty thereby effectively imposed on those who choose not to avail themselves of the “benefit” of § 3E1.1(b). The Court therefore concludes that in this, and indeed every case in which a defendant chooses to go to trial but is convicted by a jury, or in which the defendant simply chooses to consider going to trial until after the Government has already started preparing for trial, the formal calculation of the offense level must be reduced by one point…

United States v. Tavberidze, Case No. 23-cr-585-03, 2025 U.S. Dist. LEXIS 43082 (S.D.N.Y., March 10, 2025)

Sentencing Law and Policy, Judge Rakoff asserts USSG § 3E1.1(b) is “effectively an unconstitutional penalty” on Sixth Amendment trial rights
(March 12, 2025)

American Bar Association, Criminal Justice Section, Plea Bargain Task Force Report (February 2023)

– Thomas L. Root

Senate OKs Tougher Fentanyl Enforcement – Update for March 18, 2025

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SENATE PASSES TOUGH FENTANYL BILL

fentanyl210422The Senate last Friday passed S.331, a bill that expands the sweep of the Controlled Substances Act to include within the definition of fentanyl a wide number of analogues of the drug.

Called the HALT Fentanyl Act, the bill would permanently place all copycat versions of fentanyl — alterations of the drug that are often sold by traffickers — on Schedule 1, the Drug Enforcement Administration’s list of most dangerous drugs.

Under current law, certain drugs that are not explicitly designated as controlled substances can be subject to requirements under the CSA. However, to proceed with criminal cases, prosecutors must prove that such drugs meet specific criteria related to chemical structure and psychoactive effects. By placing all fentanyl-related substances in Schedule I, S. 331 would lower the burden of proof in certain cases by removing that requirement, thus increasing the likelihood of conviction. The move would mean an increase in criminal convictions for distributing fentanyl-related substances, according to the Congressional Budget Office.

warondrugs211028The 16 nay votes all came from Democrats. One opponent, Senator Cory Booker (D-NJ), said, “Some fentanyl analogues may hold promise as antidotes to opioid overdoses or other medical treatments. By permanently scheduling these substances without more robust exceptions for research, this legislation could stifle innovation in developing life-saving therapies, sacrificing scientific progress for political expediency… It also borrows a page from the War on Drugs playbook that ushered in excessive mandatory minimum sentences under the misguided notion that giving more people harsh prison sentences would somehow reduce the availability of drugs.”

The bill next heads to the House, where a similar version of the bill has already passed with significant Democratic support, showing many in the party are eager to clamp down on fentanyl distribution. House Republicans passed a similar bill in 2023 with dozens of Democrats joining in support, but it languished in the Democratic-held Senate.

The new legislation is consistent with the Dept of Justice’s new criminal charging policy, first announced on the day after President Trump was inaugurated, to emphasize gangs, immigration and fentanyl.

S.331, HALT Fentanyl Act (passed Senate March 14, 2025)

Congressional Budget Office, S.331, HALT Fentanyl Act (March 10, 2025)

PBS, Senate approves bill that would increase penalties for fentanyl traffickers (March 15, 2025)

Sentencing Substack, The Department of Justice’s New Criminal Charging Policies (February 24, 2025)

– Thomas L. Root

Another Circuit Rules Against Sentencing Commission – Update for March 17, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THINGS WE DIDN’T SEE COMING JUST GOT WORSE

After the First Step Act passed and prisoners could file their own 18 USC § 3582(c)(1)(A) compassionate release motions, the 2nd and 4th Circuits led the nation in agreeing that people with overly long sentences due to stacked § 924(c) convictions (for using or carrying a gun during a drug or violent crime) could get relief.

guns200304Before First Step, someone with three § 924(c) counts would get a minimum of five years added on for the first count and stacked 25-year sentences added for each of the next two counts. If Danny Doper carried a gun while selling meth three times over a three-day period, the law required that he get a mandatory 55 years added on to whatever his drug sentence might be.

First Step corrected § 924(c) to make clear that for a second § 924(c) count to carry 25 years minimum time, the second gun offense had to be committed after a conviction on the first gun offense. If convicted after the Act’s passage, Danny would still face three § 924(c) sentences of 5 years each, but 15 years was still way less than the 55 years he faced before.

Three circuits disagreed that courts could on their own find First Step’s change in § 924(c) – which Congress did not make retroactive – as an extraordinary and compelling reason for a compassionate release. But when the Sentencing Commission amended its compassionate release policy statement to add Guideline § 1B1.13(b)(6) – in November 2023, we thought it had solved the debate by specifically providing that a non-retroactive change in the law – along with some other factors (like having served 10 years and having a grossly disparate sentence) – could be a basis for a compassionate release.

We didn’t see the government’s onslaught coming. The Dept of Justice immediately argued that the new Guideline policy statement exceeded the USSC’s authority. Only the 3rd Circuit had agreed with this position until last week, when in a 2-1 opinion, the 7th held that USSG § 1B1.13(b)(6) exceeded USSC authority by effectively making First Step’s nonretroactive change in § 924(c) retroactive.

interpretation210729“When Congress explicitly delegates to an agency the authority to interpret a statute, the agency’s interpretation supersedes the court’s unless the agency’s interpretation exceeds the scope of authority that Congress explicitly delegated,” the Circuit said. “Here, Congress explicitly delegated to the Commission authority to interpret extraordinary and compelling under § 3582(c)(1)(A)… But because the Commission exceeded the scope of its authority, we do not defer to its policy statement and instead follow our own interpretation.”

The margin of the Commission’s defeat was razor-thin. One of the three judges dissented, and another only reluctantly became part of the 2-1 majority, saying that “the doctrines of stare decisis and precedent require that I concur in the judgment and opinion of the court.”

The 7th Circuit admitted that courts of appeal were divided on the issue, saying that “[p]erhaps the Supreme Court will eventually resolve the split, but for now we will follow our precedent and join the only other court of appeals [the 3d Circuit] to so far resolve the battle of competing interpretations.”

You can bet on it.

United States v. Black, Case No. 24-1191, 2025 U.S.App. LEXIS 5634 (7th Cir. March 11, 2025)

– Thomas L. Root