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

SOME RUMORS ARE STRANGE ENOUGH TO BE TRUE

I hear from a lot of people, and unfortunately, most of what I hear is rumor. So I was skeptical last Friday when a guy at FCI Big Springs reported a friend of his had just gotten released on his recalculated 54 days of good time.

You should remember that in the First Step Act, Congress clarified its intent from 30 years ago that federal inmates receive 54 days of good-conduct time per year. Previously, the provision was so poorly written that the Bureau of Prisons read it to mean that after 365 days, a prisoner would get an award of 54 days. What Congress meant was that 311 days of good conduct, an inmate would be awarded 54 days (which would make a year).

What’s the difference?  Seven days a year, which the First Step Act made retroactive to the beginning of the current  sentence.  I talked to one inmate at the end of his 23-year sentence who is in line to get an additional five months off. Instead of being home for Thanksgiving, he’ll be there for July 4th.

Or he would have been. But in correcting its prior screw-up, Congress committed a new one: the effective date for the seven days additional good time was placed in the wrong section of First Step (Section 102(b)(1)(A), along with the earned-time credits). Congress intended that the earned-time credits become effective only after giving the Attorney General time to adopt a risk assessment algorithm. But it neither intended nor saw a need to delay application of the additional seven days, which the BOP can apply to inmates’ sentences with the push of a button.

Despite its intent, Congress goofed, so that instead of taking effect when the First Step Act was signed, the additional good time will not be effective until July 19, 2019. This has made a mess of halfway house and release dates for a lot of people whose date would have moved by weeks or months. Just last week, Mother Jones reported that “4,000 prisoners who hoped to be out for the holidays remain stuck behind bars waiting for answers.”

So when I heard on Friday that federal prisoner Mark J. Walker had been given his extra good time and immediately released by a Federal District of Oregon judge, I doubted it.

It happened.

There is a lot of story to this case, such as what drove Mark’s public defender to file the motion, that I just do not know. But file the PD did, delivering to the Court a 14-page petition for writ of habeas corpus on Jan. 25 that argued the only rational interpretation of the First Step Act was that the Sec. 102(b)(2) 210-day delay applied only to the new extra time credit and not to the seven days additional good time. Plus, the PD argued, delaying the effectiveness of the extra seven days violated due process by being arbitrary and capricious, and Mark’s immediate release was necessary to avoid irreparable harm.

The argument is creatively, innovatively weird. The government’s response, on the other hand, was just plain weird. The AUSA chose to ignore Mark’s substantive arguments, instead opposing the petition solely on the ground that the Oregon court lacked jurisdiction, and that Mark should have filed in the Northern District of Texas, where he was confined.

Last Thursday, an Oregon federal district court ruled that “given the Government’s failure to address the merits… and the equities of the situation” it would grant “the relief requested… without a final determination of the merits of the legal issues raised by Defendant.” Senior US District Judge Ralph R. Beistline ordered the BOP to recalculate Mark’s sentence and to release him “without delay if the recalculation confirms that the Defendant’s term of imprisonment has expired.” Mark was released the same day.

By its terms, the decision is not intended to rule on the merits, and as a district court order, it lacks precedential value, but it is a creative and audacious filing that let Mark go free two months before he otherwise would have.

Order, United States v. Walker, Case No. 3:10-cr-00298 (D.Oregon, Feb. 7, 2019)

Mother Jones, Trump’s One Real Bipartisan Win Is Already Turning Into a Mess (Feb. 5)

– Thomas L. Root