We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
GRANDMA GOES HOME AS ADVOCATES BEAT UP BIDEN ON HOME CONFINEMENT
FAMM, the American Civil Liberties Union, and the Justice Action Network last week called on President Biden to use his clemency authority to prevent about 4,000 people now on CARES Act home confinement from being sent back to prison when the pandemic ends. Nothing new there. But then, into the middle of this brouhaha stepped the Bureau of Prisons.
A month ago, Gwen Levi, a Baltimore grandmother who had been sent to home confinement under the CARES Act, was returned to prison by the BOP. Her offense was “escape.” In the BOP, that means that she was taking a computer class, and during class, she turned off her phone. The halfway house called to check on her whereabouts, but she did not call back until after class. For that, she went back to prison for another eight years.
The BOP didn’t reckon on the media outcry. After all, who doesn’t like grandmas? The Washington Post trumpeted, “A grandmother didn’t answer her phone during a class. She was sent back to prison.” USA Today blared, “‘Scared and confused’: Elderly inmate sent home during COVID is back in prison after going to computer class.” A grandmother didn’t answer her phone during a class in Baltimore. The Mayor of Baltimore issued a statement complaining that
Following Gwen’s early release from prison last year, the 76-year-old chose to rewrite her story by volunteering for advocacy organizations around Baltimore. But while grace is a rare occurrence, judgment in America flows abundantly. Gwen recently made national headlines after being sent back to prison for failing to answer her phone during a computer class. This lack of patience and empathy was wrong…
Last Tuesday, Gwen’s district court judge granted her compassionate release.
However, the media hue-and-cry may be having an effect. Every movement needs an icon, and Gwen may be it. For months advocacy groups have been asking Biden to address the issue, resulting from a Trump DOJ Office of Legal Counsel memo holding that CARES Act home confinees should be sent back to prison once the COVID-19 emergency ended. Biden has not withdrawn the memo, despite bipartisan calls for the Administration to do so.
Maybe now, the issue will get traction.
Rep. Bonnie Watson Coleman (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said. Other advocates are considering it a misstep for Biden to not discuss the program as part of the administration’s crime portfolio.
A BOP spokeswoman said, “This will be an issue only after the pandemic is over. The president recently extended the national emergency and the Department of Health and Human Services has said the public health crisis is likely to last for the rest of the year.” The White House revisits the emergency declaration every three months, leaving the former prisoners in a constant state of limbo. The next deadline is later this month.
“This is not a heavy lift for the Biden administration. All these people were moved out of prison because Trump officials felt it was safe enough for them to go home, said Holly Harris, president and executive director of Justice Action Network. “What more political cover does President Biden possibly need? Lawmakers and advocates from both sides of the aisle agree: it’s time for President Biden to grant clemency to these men and women so they can fully connect with their families, secure jobs, and move on with their lives. Anything less is unconscionable.”
ABA Journal, Judge rules for grandma on home confinement after arrest for not answering calls during computer class (July 7, 2021)
ACLU, Bipartisan Organizations Call on President Biden to Immediately Prevent Thousands on Home Confinement From Being Sent Back to Federal Prison (June 28, 2021)
The Hill, Biden faces criticism for not extending home confinement for prisoners (June 26, 2021)
New York Times, Thousands of Prisoners Were Sent Home Because of Covid. They Don’t Want to Go Back (June 27, 2021)
BORDEN NOTCHES ITS FIRST COLLATERAL WIN
Kristen Brenner was convicted of being a felon in possession of a gun in violation of 18 USC § 922(g)(1). Because of her prior convictions, the government sought to get Krissy a minimum 15-year Armed Career Criminal Act sentence. Her district court refused the government, however, agreeing with Krissy that her Tennessee reckless aggravated assault conviction (related to impaired driving) was not a crime of violence.
The government appealed, but the case was held in abeyance pending the Supreme Court decision in Borden v. United States. After that June 10 decision held that crimes that could be committed with a “reckless” intent did not fit the “crime-of-violence elements” definition, the government moved to dismiss its appeal in Krissy’s case.
Last week, the 6th Circuit dismissed the government appeal. “Because we apply the law as it currently stands, Borden controls Brenner’s case. Borden analyzed the very statute under which she was convicted, which refers to a person ‘recklessly committing an assault’… Under Borden, that mens rea is insufficient.”
United States v. Brenner, Case No 19-5647, 2021 US App LEXIS 19657 (6th Cir. July 1, 2021)
– Thomas L. Root