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KUMBAYA MOMENT PAST FOR COMPASSION FOR SEXUAL ASSAULT VICTIMS

Last November, prosecutors asked female inmate Ilene Wahpeta to provide a victim impact statement at the sentencing of Andrew Jones, a former BOP employee convicted of sexually assaulting three inmates at FCI Dublin and sentenced to eight years..

Reason reported last week that six months later, the same Dept of Justice that presented her victim testimony as a compelling basis to sentence the former CO to 96 months is arguing against Ilene’s compassionate release motion on the basis that Ilene wasn’t a named victim in Jones’s criminal case and that her claims aren’t credible.

In September 2022, Deputy Attorney General Lisa Monaco wrote a letter to FAMM saying that she had ordered BOP Director Peters to “review whether BOP’s policy regarding compassionate release should be modified” to accommodate female prisoners who had been assaulted by federal employees. Peters responded that “she has begun to consider requests from inmates who have been abused and are not deemed to be threats to the community if they are granted their release,” according to the New York Times.

Then, Sentencing Commission Guideline § 1B1.13(b)(4) was modified effective last November to include as an extraordinary and compelling reason justifying sentence reduction cases where “the defendant, while in custody… was a victim of sexual abuse involving a “sexual act,” as defined in 18 USC § 2246(2) (including the conduct described in 18 USC § 2246(2)(D) regardless of the age of the victim…”

Last week, Reason said that DOJ is actively undercutting its own policy as well as § 1B1.13(b)(4). Ilene’s case is such an example. “Lawyers representing incarcerated women filing for early release based on their status as sexual assault survivors say federal prosecutors are now routinely fighting to disqualify their clients because of an unreasonably narrow definition,” Reason reported.

DOJ has been arguing that the cases against the BOP employees accused of sexual abuse have to be completed prior to granting compassionate release under § 1B1.13(b)(4). In other cases (like Ilene’s), DOJ is saying that the victims’ claims are not credible.

“Before November 1, 2023, when this policy statement went into effect, in almost every single case the government was agreeing or not opposing the compassionate release motion,” FAMM attorney Shanna Rifkin, who has been working with BOP inmate abuse victims, says. “Since then, there has been a lot more resistance to compassionate release motions based on sexual abuse.”

When the Sentencing Commission was considering adopting what became § 1B1.13(b)(4), DOJ argued in written comments that “permitting compassionate release hearings only after the completion of other administrative or legal proceedings will help ensure that allegations are more fairly adjudicated, prevent mini-trials on allegations, and reduce interference with pending investigations and prosecutions.”

“It effectively puts the DOJ back in the driver’s seat,” Rifkin told Reason, “because who drives a criminal case? The Department of Justice. Victims of abuse have no say over when a case against their abuser will be brought, if it will be brought, and who will be charged as the victims in the case.”

And while a finding of guilt may sound like a reasonable standard, Reason said, it is a surprisingly difficult one to meet in cases of sexual assault perpetrated by government employees… So women who are survivors of his abuse ostensibly have to wait until the government has concluded their case in order to have a cognizable claim under this policy statement.”

According to the Bureau of Justice Statistics, from 2016 to 2018 perpetrators of staff sexual misconduct were only convicted, sentenced, fined, or pleaded guilty in 6 percent of substantiated incidents in federal and state prisons.

Reason, Advocates Say the Justice Department Is Failing To Provide Relief to Women Who Were Abused in Prison (June 10, 2024)

New York Times, Justice Dept. Considers Early Release for Female Inmates Sexually Abused Behind Bars (Dec 13, 2022)
– Thomas L. Root