This is a copy of the newsletter sent to subscribers in the federal prison system on April 28, 2024.
Biden Brings Forth a Mouse – LISA Newsletter for April 29, 2024
LISA publishes a free newsletter sent every Monday to inmate subscribers in the Federal system.
Edited by Thomas L Root, MA JD
Vol 10, No 18
The Incredible Shrinking Clemency
Clarity 1, Defendants 0
The Wheels on the Bus
News Briefs
THE INCREDIBLE SHRINKING CLEMENCY
President Joe Biden capped off Second Chance Month last week by granting clemency to 16 people. Of these, 11 were pardons of people who have been out of prison for an average of about 20 years. Only five were commutations of sentences for inmates, and of the five, none walked out of prison last week.
Biden said that most of the people getting clemency had received “disproportionately longer” sentences than they would have under current law. Biden trumpeted that “[l]ike my other clemency actions, these pardons and commutations reflect my overarching commitment to addressing racial disparities and improving public safety.”
An “overarching commitment” but an underwhelming performance. Biden promised during his 2020 campaign to reform the clemency system. He has done slightly better than President Trump, but that’s a pretty low bar. At this point in his presidency, Trump had pardoned 28 to Biden’s 24, but only commuted sentences on 11 to Biden’s 129. At this point in his first term, President Obama had pardoned 39 to Biden’s 24, but only commuted the sentence of a single inmate.
Of course, by the time he was done, Obama had granted commutations to 1,712 prisoners.
Biden apparently didn’t find as many commutation petitions to love as he did during last year’s Second Chance Month, when he granted commutations to 31 people. This year, he said the five who had their sentences commuted “have shown that they are deserving of forgiveness and the chance at building a brighter future for themselves beyond prison walls.”
He didn’t think the same of the 2,501 pardon and 5,402 commutation petitions he has quietly denied in the last six months. What’s more, Biden’s commutations have fallen from 79 in Fiscal Year 2022 (October 2021-September 2022) to 34 in FY 2023 and only 16 in the first half of FY 2024. He is not likely to grant clemency to any more people before next Christmas.
Over the last six months, a prisoner’s commutation petition had a 44.77 pct chance of being denied, a 55.19 pct of not being acted on, but only a 0.04 pct chance of being granted.
At least in Vegas, when the house gives you odds that long, it usually comps you drinks.
Associated Press, Biden pardons 11 people and shortens the sentences of 5 others convicted of non-violent drug crimes (Apr 24)
The White House, Clemency List (Apr 24)
The White House, Statement from President Joe Biden on Clemency Actions (Apr 24)
CLARITY 1, DEFENDANTS 0
When I reported last week on the Sentencing Commission proposals for 2024, I failed to mention its proposed change to the new USSG 4C1.1, the criminal history guideline for the zero-point reduction.
Under 4C1.1, someone with no criminal history points is still Criminal History Category I but gets a 2-level reduction in his or her offense category. The Guideline has a list of conditions: no guns, no sex crime, no violence, and more. Condition 4C1.1(a)(10) requires that “the defendant did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC 848.”
If you stayed awake in high school English, you will read this as excluding people if they both got a 3B1.1 aggravating role AND were convicted of an 848 CCE. That would be a pretty small number of people. The government naturally has argued to courts that the condition doesn’t mean that at all.
The government says “and” really means “or”, and district courts have largely agreed with that. We should hardly be surprised: the Supreme Court held as much in a case interpreting the 18 USC 3553(f) drug “safety valve” just a month ago in Pulsifer v US.
Admitting that the current 4C1.1 condition 10 has created “confusion,” the USSC propose breaking condition 10 into two conditions, so it will read:
(10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and;
(11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 USC 848.
Like the other proposed amendments, this change is intended to be effective in November. I apologize for not mentioning this last week.
USSC, Amendments to the Sentencing Guidelines (Preliminary) (Apr 17)
Pulsifer v US, 144 SCt 718, 218 LEd2d 77 (Mar 15, 2024)
THE WHEELS ON THE BUS
Nearly all inmates had been transferred out of the beleaguered FCI Dublin by last Tuesday, according to a Bureau of Prisons spokesman, with about 23-40 prisoners who have pending releases or RRC transfers remaining.
Several news outlets reported that prisoners were mistreated during the transfer. The inmates reported they went without water or sanitary products, and some ended up sitting in their own waste. A prisoner’s parent told KTVU-TV in Oakland that when the inmates asked where they were going, the driver told them
“none of your business, or STFU, see, this is why Dublin is closing, you all need to learn to keep your mouths shut. I gave up my Saturday off to move you girls. The other CO said, ‘I came out of retirement to help move you bitches.’
“The bus driver played a children’s recording of the Wheels on the Bus over and over again at full volume, and then played loud rap music with sexually explicit language about sex acts.
“He told them the more they fussed, the louder it was going to be,” [the parent wrote to the TV station]. “All thru the 12 hours they were called bitches. They were told they were the reason for the closing of Dublin. They should have kept their mouths shut.”
The San Jose Mercury News reported that one source said of the closure and transfer, “I have witnessed people fighting. I have witnessed people crying. I have witnessed people drinking pills because they just want to pass out and not think about it. I have witnessed people vomiting. Another lady over here next to me, she was cutting herself. We have witnessed all of that. And even officers over here are crying because that’s how crazy it is.”
Members of the Senate Judiciary Committee sent a letter to BOP Director Colette S Peters expressing concern over claims of a chaotic transfer. The letter, signed by Committee Chairman Richard Durbin (D-IL) and four others, said the Committee had gotten
“alarming reports about the ensuing chaos. These reports include: unavailability of medical staff; inadequate-to-no medical attention, including for individuals expressing suicidal ideation; improper medical clearance prior to transport; lack of food and water for those remaining in the facility awaiting transfer; mistreatment, harassment, neglect, and abuse while in transit; and confiscation of personal property. This reporting is appalling and even more concerning in light of the well-documented abuses that have taken place previously at FCI Dublin…”
The letter demanded that the BOP Director provide the Committee with information on how the agency has prepared to close FCI Dublin, including its written plans on the “safe and humane release from custody.”
The same day the BOP announced Dublin would close, US District Judge Yvonne Gonzalez Rogers (ND CA) ordered a halt in the transfers so that the special master she had appointed to oversee Dublin could “ensure inmates are transferred to the correct location,” including “whether an inmate should be released to a BOP facility, home confinement, or halfway house, or granted a compassionate release.”
The BOP pushed back, questioning the special master’s authority and complaining that the “Court not only lacks jurisdiction to impose such a requirement, but it is also antithetical to the overall objective of safeguarding inmate safety and welfare… Extensive resources and employee hours have already been invested in the move.”
As of Sunday, Apr 28, the motion has not been ruled on, but given that over 90 pct of the Dublin inmates are gone the BOP appears to have presented Judge Gonzalez Rogers with a fait accompli.
KTVU reported that in an interoffice memo sent last Wednesday, Peters last “commended her staff for their ‘tireless efforts in facilitating the successful transition’ of women from FCI Dublin… Peters said that the transfer involved ‘careful planning and coordination to ensure the safe transfer of women to other facilities, with special attention given to their unique programming, medical, and mental health requirements.’”
It is perhaps unsurprising that the Federal Prison Oversight Act (HR 3019) was approved earlier this month by the House Committee on Oversight and Accountability.
Under the bill–which still must be approved by the House and Senate–the Dept of Justice’s Inspector General would conduct periodic prison inspections of BOP facilities. The bill would require the attorney general to ensure the inspectors have “access to any covered facility, including the incarcerated people, detainees, staff, bargaining unit representative organization, and any other information” needed. The assessments will cover “incarceration conditions; staff adequacy and working conditions; availability of FSA programs; SHU practices; prison medical and mental health services; and violence, sexual abuse and excessive-force allegations.” The bill would establish an ombudsman to whom prisoners and families could complain.
AP, Senators demand accounting of rapid closure plan for California prison where women were abused (Apr 24)
KTVU, FCI Dublin prison closure: Women describe horrific journey across US (Apr 22)
KTVU-TV, US Senators call FCI Dublin transfer of women ‘appalling’ (Apr 25)
Sens Richard Durbin, Cory Booker et al, Letter to Colette S Peters (Apr 24)
Mercury News, Chaotic Dublin prison closure leads to fighting, crying, cutting, inmates say (Apr 24)
AP, Feds push back against judge and say troubled California prison should be shut down without delay (Apr 18)
KTVU, BOP director commends FCI Dublin staff, despite accounts of abusive behavior (Apr 24)
HR 3019, Federal Prison Oversight Act
NEWS BRIEFS
Marijuana Rescheduling: Members of Congress last week again pushed the Drug Enforcement Administration to speed the removal of marijuana from the top of its list of controlled substances.
About 8 months ago, the Dept of Health and Human Services recommended that the DEA reclassify pot from Schedule I to Schedule III under the Controlled Substances Act. More than a year ago, Biden told federal agencies to review the drug’s classification.
That’s 18 too many months of DEA inaction, a group of Democrats led by Massachusetts Senator Elizabeth Warren told agency administrator Anne Milgram in a letter dated Wednesday. “It is time for the Drug Enforcement Administration… to act,” Warren told Milgram and Attorney General Merrick Garland.
Courthouse News Service, Lawmakers urge DEA to pick up the pace on marijuana scheduling review (Apr 25)
Sen Elizabeth Warren, Letter to Merrick Garland (Apr 24)
Latest Compassionate Release Data Issued: The Sentencing Commission last week released a compassionate release (CR) report including data on motions filed with the courts and decided during the first quarter of fiscal year 2024 (Oct-Dec 2023).
The average CR grant rate since the First Step Act passed in December 2018 is 16 pct. For the last three months of 2023, the rate was 16.9 pct, slightly higher. October and December 2023 saw the highest grant rates for these motions (22.3 and 23 pct respectively) than for any month since summer 2020, the heart of the COVID pandemic.
Writing in his Sentencing Law and Policy blog, Ohio State University law prof Doug Berman advanced two working hypotheses for the uptick, ‘one general and one 2023 specific: (1) maybe judges are slightly more likely in general to grant these sentence reductions toward the end of the year during the holiday season; and/or (2) maybe judges were influenced a bit by the new US Sentencing Commission policy statement governing compassionate release…”
USSC, Compassionate Release Data Report – FY 2024, 1st Quarter (Apr 23)
Sentencing Law and Policy, US Sentencing Commission’s new compassionate release data suggest (small) uptick in sentence reduction grants to close 2023 (Apr 23)
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