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No Christmas Treats for Prisoners from Sentencing Commission – Update for December 20, 2024

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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.

SENTENCING COMMISSION ROLLS OUT MINIMALIST 2025 AMENDMENT PROPOSAL

The United States Sentencing Commission yesterday adopted a slate of proposed amendments to the Federal Sentencing Guidelines for the amendment cycle that will end on or before May 1, 2025, with the adoption of amendments to become effective next November.

Anyone who thought the Commission might roll out a proposal to no longer enhance methamphetamine sentences because of purity – something that US District Judge Carlton Reeves (who is currently chairman of the USSC) ruled from the bench two years ago makes no sense – was disappointed (but see below).

lumpofcoal221215Likewise, any federal prisoners hoping for a resolution to last August’s surprise decision to table retroactivity for four amendments that became effective last fall just found coal in their stockings. The Commission had proposed retroactivity for changes in Guidelines covering acquitted conduct, gun enhancements, Guidelines calculation where a defendant is convicted of an 18 USC § 922(g) felon-in-possession count, a 21 USC § 841 drug trafficking count and a separate 18 USC § 924 gun conviction; and a change in the drug Guidelines to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that inflate sentencing ranges.

Generally, changes in the Guidelines do not apply to people who have already been sentenced, but Guideline 1B1.10 addresses the rare occasions where a Guideline change is retroactive, providing prisoners already sentenced with a chance for a time reduction.

I wrote at the time that the Commission was perhaps responding to criticism heaped on it for adopting amended Guideline 1B1.13(b)(6), which permits judges to grant compassionate release where a prisoner’s sentence could not be imposed today because of changes in the law that occurred after the sentence was imposed. After the Commission adopted the amended 1B1.13 in April 2023, Sens John Kennedy (R-LA), Ted Cruz (R-TX), John Cornyn (R-TX), Tom Cotton (R-AR) and Marco Rubio (R-FL) introduced the Consensus in Sentencing Act (S.4135) to require the Commission to achieve “bipartisan agreement to make major policy changes” by ”requiring that amendments to the Guidelines receive five votes from the Commission’s seven voting members.”

whine160814At the time, Kennedy complained that “[i]n recent years, the Commission has lost its way and begun forcing through amendments on party-line votes.” The Commission has seven voting members. No more than four members can belong to the same political party.

S.4135 never went anywhere, and it will die with the end of the 118th Congress in 10 days or so. Nevertheless, last June, retired US District Judge John Gleeson, a member of the Commission, met with Kennedy and – according to the Senator – “acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.”

“I look forward to seeing the fruits of this commitment,” Kennedy said at the time.

The Commission is now seeking to harvest those fruits by issuing a request that the public comment on whether “it should provide further guidance on how the existing criteria for determining whether an amendment should apply retroactively are applied” and “[i]f so, what should that guidance be? Should it revise or expand the criteria? Are there additional criteria that the Commission should consider beyond those listed in the existing Background Commentary to § 1B1.10?”

The answer to whether there should be additional criteria is self-evident, especially because the same players (except for Rubio, leaving Congress for a position in President-elect Trump’s Cabinet) will be back in the Senate.

usscretro230406What the Commission decides will only partially address the Senators’ principal beef against any USSC proposal that passes on a 4-3 vote (at least until the Republicans again hold a majority on the Commission).

Third Circuit Judge L. Felipe Restrepo’s USSC term expires next October, the earliest chance Trump will have to tip the balance of the Commission to conservative. Given that Trump’s previous nominees to the Commission (never approved by the Senate) included US District Judges Danny Reeves and Henry “Hang ‘em High” Hudson, the likelihood that 4-3 Commission decisions will start looking good to Kennedy, Cruz and the others is fairly high.

Other USSC proposals for the amendment cycle include

• creating an alternative to the “categorical approach” used in the career offender guideline to determine whether a conviction qualifies a defendant for enhanced penalties;

• addressing the guidelines’ treatment of devices designed to convert firearms into fully automatic weapons (Glock switches and drop-in auto sears);

• adding a provision to the use of a stolen gun enhancement that requires that the defendant knew the gun was stolen; and

• resolving a circuit split on whether a traffic ticket in an “intervening arrest” that can serve to bump up criminal history.

Public comments are due by February 3, 2025, with replies due by February 18, 2025.

alicecuriouser230317Curiously, Judge Reeves said, “Over the next month, the Commission will consider whether to publish additional proposals that reflect the public comment, stakeholder input, and feedback from judges that we have received over the last year – including at the roundtables we have held in recent months on drug sentencing and supervised release.”

Whether this is a teaser that changes in the Commission’s approach to meth will be on the table is unclear.

Sentencing Commission meeting video (December 19, 2024)

Sentencing Commission Public Hearing (Video) (August 8, 2024)

Sentencing Commission, Final Priorities for Amendment Cycle (August 8, 2024)

S.4135, Consensus in Sentencing Act

Sen John Kennedy, Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines (June 3, 2024)

USSC, Issue For Comment: Criteria for Selecting Guideline Amendments Covered by §1B1.10 (December 19, 2024)

USSC News Release, U.S. Sentencing Commission Seeks Comment on Proposals to Promote Public Safety And Simplify Federal Sentencing (December 19, 2024)

USSC, Summary of Proposed 2025 Amendments (December 19, 2024)

– Thomas L. Root

Making Them Pay – Update for December 19, 2024

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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.

BOP TO PAY 115 MEGABUCKS TO 103 FCI DUBLIN VICTIMS

Misny241218The Federal Bureau of Prisons continues to try to bring the horrific saga of the FCI Dublin “Rape Club” to an end by agreeing to settle dozens of lawsuits brought by women prisoners who were victimized by sexual abuse – including rape – by BOP staff at the now-permanently closed women’s prison.

The settlement, announced Tuesday, will apportion $115 million among 103 victims, paying an average of $1.1 million to each victim. Along with a proposed consent decree in a separate class action addressing the abuse and retaliation against those who spoke up about it, announced December 6, the settlement will close most (but not all) of the pending FCI Dublin litigation (lawsuits which up to now have been vigorously defended by a government unwilling to shoulder responsibility for the culture at the former women’s facility)

“I hope this settlement will help survivors, like me, as they begin to heal – but money will not repair the harm that BOP did to us, or free survivors who continue to suffer in prison, or bring back survivors who were deported and separated from their families,” former prisoner Aimee Chavira said in a statement released by her attorneys. “And money will not stop prison officials from continuing to abuse incarcerated people. I am speaking out to demand justice for all survivors of prison abuse, and to show other survivors that we can stand up against this culture of abuse together. Our government can and must take real action to make sure that no one else suffers like we did at FCI Dublin.”

The BOP, after years of fighting prisoner claims of sexual abuse and retaliation at the Dublin prison – located 25 miles southeast of San Francisco Bay – said Tuesday that it

strongly condemns all forms of sexually abusive behavior and takes its duty seriously to protect the individuals in our custody as well as maintain the safety of our employees and community… The FBOP is dedicated to appropriately addressing the consequences of sexually abusive behavior at FCI Dublin [and] remains committed to rooting out criminal behavior and holding accountable those who violate their oath of office.

Uh-huh.  Message: The BOP cares about its Adults In Custody. See here and here if you don’t believe me. Or just ask “Dirty Dick.”

femalesexprisoner241219Since 2021, at least eight FCI Dublin employees have been charged with sexually abusing inmates. Five pleaded guilty. Two were convicted at trial. Another case is pending. Virtually all FCI Dublin inmates were transferred to other institutions in an unannounced “fire drill” movement last April that generated multiple reports of retaliation and cruelty by BOP employees. Some former FCI Dublin inmates report that they have been the victims of similar misconduct at other institutions, according to the Associated Press.

The Dublin scandal was among the catalysts for passage of the Federal Prison Oversight Act last July, which establishes an independent ombudsman to field and investigate complaints by prisoners, their families, and staff about misconduct and deficiencies. It also requires that the Dept of Justice inspector general conduct regular inspections of all 122 federal prison facilities, issue recommendations to address deficiencies and assign each facility a risk score. Higher-risk facilities would receive more frequent inspections.

Associated Press, US to pay nearly $116M to settle lawsuits over rampant sexual abuse at California women’s prison (December 17, 2024)

Rosen Bien Galvan & Grunfeld, Over 100 Survivors of Staff Sexual Violence at FCI Dublin Reach Historic $115M Settlement With Bureau of Prisons (December 18, 2024)

Federal Prison Oversight Act, Pub.L. 118-71 (July 25, 2024)

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– Thomas L. Root

Sorry Seems to be the Hardest Word – Update for April 18, 2024

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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.

BOP ROLLS OVER IN DUBLIN SUIT

Sir Elton was right: “Sorry” has been such a hard word to get out that the Federal Bureau of Prisons has fought hammer and tong for over 16 months to avoid having to accept responsibility for the horrendous mess that preceded the closing of FCI Dublin.

sorryA241218The BOP has finally agreed to a settlement in the FCI Dublin class action sexual abuse injunctive action lawsuit that will require the agency to open its doors to a court-appointed monitor and publicly acknowledge the systemic and rampant abuse of women at the permanently closed prison.

The BOP and plaintiffs filed a proposed consent decree that mandates increased transparency and key protections for victims, including eased routes for compassionate release and home confinement. BOP Director Colette S. Peters “will issue a formal, public acknowledgment to victims of staff sexual abuse at FCI Dublin” as part of the settlement.

Our apologies, rape victims. It’s just that we didn’t believe you because you were prisoners.

sorryC241218The BOP is getting a major concession in the consent decree, however. Originally, the class included “[a]ll people who are now, or will be in the future, incarcerated at FCI Dublin and subject to FCI Dublin’s uniform policies, customs, and practices concerning sexual assault, including those policies, customs, and practices related to care in the aftermath of an assault and protection from retaliation for reporting an assault.” As part of the consent deal, the Court is being asked to approve the “revised class definition of ‘all people who were incarcerated at FCI Dublin between March 15, 2024 and May 1, 2024, and all named Plaintiffs’.”

This change in definition eliminates from the protected class hundreds of inmates who passed through Dublin and experienced sexual abuse as far back as 2018.

Under the proposed consent decree, set for a February 25, 2025, hearing, the plaintiff class will be protected against retaliation, including a ban on putting class members in the SHU for low-level disciplinary matters. The BOP will also be required to expunge invalid disciplinary reports by FCI Dublin staff that, in some instances, may have been issued to punish or silence inmates.

sorryB241218The plaintiff class will also have confidential access to the court-appointed monitor, lawyers and community-based counselors to report abuse and consent decree violations.

Associated Press, Bureau of Prisons agrees to court monitor, public acknowledgment of staff-on-inmate sexual abuse (December 6, 2024)

California Coalition for Women Prisoners v. BOP, [Proposed] Order Granting Motion for Preliminary Approval of Proposed Consent Decree(ECF 438-4), filed Dec 6, 2024)

California Coalition for Women Prisoners v. BOP, Proposed Consent Decree (ECF 438-2), filed December 6, 2024)

– Thomas L. Root

Does Backlash on CARES Act Clemency Threatens Further Action? – Update for December 16, 2024

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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.

IS THE BIDEN COMMUTATION WAVE BREAKING ON POLITICAL SHOALS?

As I reported last Thursday, President Biden granted clemency to nearly 1,500 Americans on CARES Act home confinement, people who the White House says “were placed on home confinement during the COVID-19 pandemic and who have successfully reintegrated into their families and communities.”

Biden has promised additional clemencies, and there is no shortage of candidates. But if he anticipated the congratulations of a grateful nation, hw ia probably disappointed.

clemencypitch180716In Pennsylvania, there’s a firestorm over one of those receiving commutation. Michael Conahan was convicted of funneling juvenile defendants to two private, for-profit detention centers in exchange for $2.1 million in kickbacks, a scandal known as “Kids-for-Cash.” That is, he took bribes to send kids to for-profit juvenile prisons with sentences disproportionate to their crimes He pleaded guilty to racketeering conspiracy and was sentenced in 2011 to 17½ years in prison. He was released to home confinement in Florida under the CARES Act in June 2020.

Sandy Fonzo, a mother who blames her son’s suicide on the emotional toll that being wrongly placed in detention exacted, said, “Conahan’s actions destroyed families, including mine, and my son’s death is a tragic reminder of the consequences of his abuse of power. This pardon feels like an injustice for all of us who still suffer.”

(Conahan was not pardoned. Rather, his sentence was commuted, but his conviction remains intact).

The Pennsylvania governor, Josh Shapiro, also condemned Biden’s decision, telling reporters that his fellow Democrat “got it absolutely wrong”, the Pennsylvania Capital-Star reported.

The Washington Post said:

For Biden, this is another unforced error. More broadly, it raises fresh questions about presidential clemency going too far and whether it should exist at all. There was outrage when former president Donald Trump pardoned allies such as Stephen K. Bannon, Paul Manafort and Charles Kushner, the father of his son-in-law. And there was outrage over Biden pardoning his son Hunter. It could all get even more outrageous if Biden grants preemptive pardons or Trump pardons the January 6 rioters.

Such dubious grants of presidential mercy reinforce a belief that America has a two-tiered justice system where the wealthy and connected fare much better than everyone else — and certainly better than the young people who came before Judges Conahan and Ciavarella in Luzerne County.

takethemoney191015Meanwhile, Biden has been blasted for commuting the sentence of an Illinois CARES Act confinee. A former city official in Illinois who orchestrated the largest municipal embezzlement in state history. Rita Crundwell—with four years to go on a 235-month sentence for fraud, is among the people granted clemency. Crundwell, who was taken out of Dixon, Illinois, city hall in handcuffs back in 2012, stole something like $53 million in city funds during her tenure as city comptroller.. She used the funds to pay for a lavish lifestyle that included raising champion quarter horses and buying a $2 million tour bus, jewels, furs, multiple homes and other trappings. All the while, the City of Dixon struggled to pay for infrastructure and other projects.

Meera Sachdeva, a former Mississippi oncologist, received clemency on her 20-year sentence handed down in 2012 for defrauding Medicare by providing diluted chemotherapy drugs and using old needles at her cancer clinic. Her clinic was said to be so unsanitary that multiple patients were admitted to local hospitals with infections after being treated there. One of Sachdeva’s patients claimed to have contracted HIV because of old needles.

The Washington Free Beacon said in a review of those who received clemency that “many of the recipients were serving sentences for serious crimes.”

Advocacy groups have been calling for a broad range of additional clemency grants, including for people on federal death row and with marijuana convictions. Biden has previously issued blanket pardons for those convicted of minor marijuana-related crimes, but those didn’t make any federal inmates eligible for release, because none of the recipients was in prison.

Rachel Barkow, a New York University law professor and expert on federal clemency, said during an Ohio State clemency conference that commuting the sentences of those on CARES Act home confinement is “low-hanging fruit” because they’re already out of prison.

Barkow expressed concern last Wednesday, the day before the clemency was announced, that CARES Act commutation would be the limit of Biden’s clemency actions. “I’m a little worried that he’s only going to do that and he’s going to try to make it out like that’s some big deal when that’s not a big deal at all. That’s not even the bare minimum,” she said. The hue and cry from both sides of the aisle—focusing on individual cases rather than the common-sense commutation of the entire cohort—could make Biden shy away from anything further.

clemency170206At the same time, the CARES Act clemency was unreasonably opaque, leaving out some people with perfect home confinement records and unremarkable crimes while including people whose offenses – like the kids-for-cash judge and the horse-breeding embezzler – whose commutations sparked predictable media anger. I am aware of at least three people – including a woman who was raped at FCI Dublin but is now on CARES Act home confinement – who were omitted from the list without explanation.

Nevertheless, Biden continues to come under intense pressure from a coalition of civil rights, criminal justice, and religious groups urging him to grant relief to several classes of federal offenders, including the 40 people on federal death row and nonviolent drug offenders.

Last week, faith leaders – including black pastors, Catholics, former corrections officials, civil rights advocates, and current and former prosecutors – called on Biden to commute all federal death row sentences before Trump, who supports capital punishment, takes office.

Others are calling for commutation of sentence for women who suffered sexual abuse at FCI Dublin. “We all just feel so passionately that if Biden can pardon his son, he can definitely grant clemency to survivors of this heinous abuse by federal government employees,” former Dublin prisoner Kendra Drysdale told The Guardian.

jan6riot241216Meanwhile, President-elect Trump told Time Magazine last week that he would offer clemency to most of the rioters who stormed the Capitol. “It’s going to start in the first hour,” he said. “Maybe the first nine minutes.” However, in a filing in a DC sentencing last week, the government warned that a “pardon would not unring the bell of conviction. In fact, quite the opposite. The defendant would first have to accept then pardon, which necessitates a confession of guilt.”

Harrisburg, WBRE-TV, ‘Kids for Cash’ victim reacts after Biden commutes sentence for Pennsylvania judge (December 13, 2024)

Sauk Local News Network, Biden commutes prison sentence of Rita Crundwell, former comptroller who embezzled $53M from city of Dixon (December 12, 2024)

Washington Free Beacon, Drug Lords, Ponzi Schemers, and Corrupt Officials: Meet Joe Biden’s Clemency Recipients (December 13, 2024)

Daily Beast, Mom’s Outrage Over Biden’s Presidential Clemency for Corrupt Kids-for-Cash Judge and Cohort (December 13, 2024)

Newsweek, She Stole Millions From Taxpayers to Buy Show Horses. Biden Set Her Free (December 13, 2024)

The Hill, Who are the people convicted in Capitol Riot Trump could pardon? (December 14, 2024)

Reason, Biden Issues More Pardons and Commutations Under Pressure From Criminal Justice Groups (December 12, 2024)

Newsweek, Could Joe Biden Pardon Everyone on Death Row? (December 10, 2024)

Guardian, US shuts down prisons amid scrutiny over sexual abuse and crisis of suicides (December 5, 2024)

– Thomas L. Root

Circuit Split Happens Fast on § 2113(a) ‘Crime of Violence’ Holding – Update for December 13, 2024

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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.

PAY YOUR MONEY AND TAKE YOUR CHANCE

I had a contracts professor in law school a half-century ago who would every so often wave his arm expansively in the general direction of the library and remind us, “Remember, there’s enough law in there for everyone.”

circuitsplit220516Fifty years later, I get his point.

This week, two federal courts of appeal found enough law to let them answer the same question in opposite ways.

For a criminal statute to constitute a crime of violence that will support a conviction under 18 USC § 924(c) – possessing or using a gun during a crime of violence or drug offense – an offender must be unable to commit the crime without attempting or using or threatening to use physical force. Kidnapping? Sounds violent as hell, but one can kidnap someone by walking out of a room they’re in and locking the door so they cannot get out. You and your friends can plan to shoot the CEO of the Wesayso Corporation for poisoning society with low-quality honeybuns, but conspiring to murder someone is not a crime of violence, because you can conspire without using physical force.

Here’s the rub. In order to avoid the crime of violence label, the crime cannot be divisible. The statute must express the alternatives as “means” and not “elements.” If in a statute such as the bank robbery statute (18 USC § 2113), Congress created two separate criminal offenses —one violent (done by force or threat of force) and the other not—the statute is divisible. Then, the part of the statute that defines a violent crime will support the § 924(c) conviction. But if the statute is indivisible and merely sets forth three alternative means—such as force, threat of force, and extortion—of completing the same crime, then if extortion can be done without violence, the statute will not support a § 924(c) conviction, no matter how weird it might seem that a law prohibiting armed bank robbery cannot support a mandatory gun penalty statute like 18 USC § 924(c).

violence181008Bryan Burwell and Aaron Perkins have spent the last 23 years or so in prison for their bit parts in a string of armed bank robberies. Unfortunately, the ringleaders armed themselves with fully automatic AK-47s, which led to 18 USC § 924(c) consecutive sentences of 30 years apiece.

Even more unfortunately, the ringleaders had the foresight to make deals to testify against Bryan and Aaron. The ringleaders had their § 924(c) counts dropped and are out of prison. Bryan and Aaron have another 15 years to go.

On Monday, the D.C. Circuit ruled that the federal bank robbery statute is not divisible. It prohibits bank robbery committed by use of force, threat of force, attempted use of force or extortion. Because extortion is committed not only by threatening someone with future violence but with the future accusation of a crime, an embarrassing revelation or loathsome disease, a bank robbery could conceivably be accomplished by threatening to tell the branch manager’s wife that he was having an affair if he didn’t empty the vault into your duffel bag.

The Circuit concluded that the statute, which criminalizes bank robbery completed “by force and violence, or by intimidation,” or “by extortion” is not divisible. Because of that, a § 2113(a) bank robbery cannot support a § 924(c) conviction:

Force and violence, intimidation, and extortion are three ways a person might rob a bank. The text and structure of the statute indicate that extortion is a factual means of bank robbery, rather than an element of an entirely separate offense. That conclusion is reinforced by the statutory history and common law roots of robbery and extortion. As an indivisible offense, bank robbery is not a § 924(c) crime of violence

As a result, Bryan and Aaron will walk free after over 20 years in prison.

violence180508Not so John Armstrong, convicted in Florida of § 2113(a) bank robbery and multiple § 924(c) offenses. Like Bryan and Aaron, John argued that § 2113(a) cannot be a crime of violence because it can be committed through use of extortion. Two days after the D.C. Circuit said extortion and force were just means of violating § 2113(a), the 11th Circuit said they were really elements, meaning that § 2113(a) describes two divisible crime, robbery by force and robbery by extortion.

John was convicted of aiding and abetting a robbery by force, and thus must continue serving his 35-year sentence (resulting from multiple § 924(c) counts).

Agreeing with a prior 1st Circuit decision, the 11th held that “the fact that the language ‘or obtains or attempts to obtain’ immediately precedes the phrase ‘by extortion’ (as opposed to ‘takes, or attempts to take,’ which relates to the ‘by force or violence’ and ‘intimidation’)… suggests that extortion is not an alternative means of commission. We agree that a plain reading of the text supports the conclusion that robbery and extortion are alternate elements—amounting to separate crimes—not alternate means of committing one crime.”

The 11th ruled that § 2113(a)’s distinction between ‘taking’ and ‘obtaining’ “reflects the fundamental division between robbery and extortion, namely, that robbery involves taking possession of the property of another against his will while extortion involves taking possession of the property of another with consent—albeit grudging or coerced.”

splithair170727Circuit splits – where two federal appellate courts reach diametrically opposed conclusions – happen regularly enough. Such matters are routinely settled by the Supreme Court, as this one surely will be. However, rarely do the conflicting decisions get handed down within 48 hours.

Count on this one to be settled by SCOTUS. Meanwhile, Bryan and Aaron will have Christmas at home, John will not – all due to there being enough law out there for two Circuits to answer the same legal question in two irreconcilable ways in the same week.

United States v. Burwell, Case Nos. 16-3009 (D.C. Cir. Dec. 9, 2024), 2024 U.S. App. LEXIS 31086

United States v. Armstrong, Case No. 21-11252 (11th Cir. Dec. 11, 2024), 2024 U.S. App. LEXIS 31549

– Thomas L. Root

Biden Commutes CARES Act Home Confinement Sentences – Update for December 12, 2024

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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.

BIDEN COMMUTATION WAVE BEGINNING?

CARESEnd230131Early this morning, President Biden announced that he is granting clemency to nearly 1,500 Americans – the most ever in a single day – sent to home confinement under the CARES Act, people who the White House says “were placed on home confinement during the COVID-19 pandemic and who have successfully reintegrated into their families and communities.”

He is also pardoning 39 people convicted of non-violent crimes, whose names are not yet available. The White House said, “These actions represent the largest single-day grant of clemency in modern history.”

Biden said in a separate statement,

I am pardoning 39 people who have shown successful rehabilitation and have shown commitment to making their communities stronger and safer. I am also commuting the sentences of nearly 1,500 people who are serving long prison sentences – many of whom would receive lower sentences if charged under today’s laws, policies, and practices. These commutation recipients, who were placed on home confinement during the COVID pandemic, have successfully reintegrated into their families and communities and have shown that they deserve a second chance.

I will take more steps in the weeks ahead. My Administration will continue reviewing clemency petitions to advance equal justice under the law, promote public safety, support rehabilitation and reentry, and provide meaningful second chances.

Associated Press reported that the second largest single-day act of clemency was by Barack Obama, with 330, shortly before leaving office in 2017.

earlychristmas241212

Back in the final hours of the first Trump Administration, the Department of Justice Office of Legal Counsel issued an opinion that those persons serving sentences on CARES Act home confinement  would be required to return to secure custody once the national COVID emergency ended. The Justice Department subsequently withdrew that opinion, but with the election of President Trump, there has been substantial speculation – such as this, this and this –that the 2021 opinion could be once again adopted along with calls for Biden to preemptively block such a step with a blanket commutation.

Advocacy groups have been calling for a broad range of pardons, including for people on federal death row and with marijuana convictions. Biden has previously issued blanket pardons for those convicted of minor marijuana-related crimes, but those didn’t make any federal inmates eligible for release, because none of the recipients was in prison.

When Biden issued the blanket pardon in October 2022 for people convicted of marijuana possession on federal property, those benefitting were required to make individual applications to the Dept of Justice for the pardon specific to their cases. As of 6 a.m., details of what, if any, steps CARES Act recipients may have to take to obtain their personal commutations is not yet known.

White House, Release on CARES Act Clemency (December 12, 2024)

White House, Statement on CARES Act Clemency (December 12, 2024)

Associated Press, Biden commutes roughly 1,500 sentences and pardons 39 people in biggest single-day act of clemency (December 12, 2024)

Wall Street Journal, Biden to Commute Sentences of Around 1,500 People (December 12, 2024)

Dept. of Justice, Memorandum Opinion for the General Counsel of the Federal Bureau of Prisons (January 15, 2021)

Dept. of Justice, Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency  (December 21, 2021)

Hurwitz, Hugh, Biden’s easy case for clemency: prisoners in home confinement (The Hill, November 26, 2024)

Pavlo, Walter, The Bureau of Prisons Under A Trump Administration (Forbes, November 7, 2024)

Ward, Myah, Clemency groups use Hunter pardon to pressure Biden (Politico, December 5, 2024)

– Thomas L. Root

Local Lawyer Makes Bad – Update for December 10, 2024

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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.

PLEA AGREEMENT BY COMMITTEE

pleadeal161116Elvin Torres-Estrada hired a pair of New York City lawyers to represent him in a Puerto Rican drug conspiracy case. When out-of-district laws come to town in a case like this, they have a local lawyer sponsor them to appear pro haec vice, literally “for this event,” without having to get admitted to practice before the district court. Elvin hired a local lawyer, Garcia, to do so and to act as local counsel to his out-of-town hired guns.

Early on, Elvin’s lawyers concluded that he might benefit from a joint plea deal with one of his co-defendants. With Elvin’s OK, the two attorneys began coordinating with the co-D’s attorneys and learned the government had refused a proposed 11-year term of imprisonment for the co-defendant and would be seeking a sentencing recommendation for Elvin roughly two years longer than whatever the co-D ultimately got. Local lawyer Garcia did not attend most of their meetings with the co-D’s people, consistent with his limited role as local counsel.

The government offered Elvin 188 months. Elvin’s NYC lawyers got the co-D’s lawyers to agree that the defendants would jointly counteroffer with 144 for the co-D and 168 for Elvin. Elvin reluctantly OK’d the deal. But before the scheduled meeting with the government, Garcia met with his client and talked him into authorizing a 156-month counter instead of the previously agreed-to 168. When the New York lawyers found out, they convinced Elvin to raise it to 164.

Garcia then blindsided the NYC lawyers by throwing the 156-month counteroffer out in the middle of the meeting anyway, and then upping it to 162 when the government rejected the 156 months out of hand. The government said it would “think about” it.

Plea negotiations broke down, the government obtained a second indictment against Elvin for a separate conspiracy, and he ended up with a 288-month sentence. Elvin filed a 28 USC § 2255 petition arguing that Garcia rendered ineffective assistance by undercutting the New York lawyers’ careful plea negotiations.

Last week, the 1st Circuit upheld the denial of Elvin’s 2255.

chinashop241210The Circuit seemed to acknowledge that Garcia was a bull in a china shop but said that he had compromised with a counteroffer that was only two months lower than what Elvin had authorized and that the government “still responded by saying he would think about it.” The 1st said, “The circumstances surrounding the meeting thus diminish the force of Elvin’s claim that Garcia’s disruptive actions were incompatible with an attempt by competent counsel to secure the best possible deal for his client. Given the government’s stated willingness at the meeting to consider the rogue 162-month proposal, one could reasonably say that Garcia’s aggressive (though discourteous) tactics had advanced the plea negotiations and, accordingly, were within the range of competence demanded of attorneys in criminal cases.”

reallawyer170216Even if Garcia’s performance had been deficient, the Circuit said, Elvin had not been prejudiced. The record “makes plain that Garcia’s conduct did not result in termination of the plea-bargaining process. Rather… after [the government] was told that Garcia “spoke out of turn and inconsistent with Elvin’s instructions,” it “agreed to revisit” the possibility of lowering the offers to both defendants. And more than two weeks after Garcia’s hijacking of the negotiation session, the original offer of fifteen years/eight months (188 months) remained on the table.”

“In sum,” the Circuit held, “we need not view Garcia’s disruptive performance in advance of, and during, the meeting as entirely defensible to conclude that Elvin has failed to establish a violation of his 6th Amendment right to the effective assistance of counsel…

Torres-Estrada v. United States, Case No. 19-1485, 2024 U.S. App.  LEXIS 30919 (1st Cir., December 6, 2024)

– Thomas L. Root

Post-Conviction Amendments Taken Up by Supreme Court – Update for December 9, 2024

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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.

SCOTUS GRANTS REVIEW ON 2255 AMENDMENT QUESTION

The law is clear that a prisoner can amend a pending 28 USC § 2255 motion while it is pending in front of the district court. But if the district judge has already denied the § 2255 motion, whether an amendment is allowed while the inmate is appealing the denial is in doubt.

Amending a denied § 2255 motion – second bite of the apple?
Amending a denied § 2255 motion – second bite of the apple?

Last Friday, the Supreme Court granted certiorari to decide whether a prisoner has to make the 28 USC § 2244 “second-or-successive” showing to amend a § 2255 motion while on appeal—which six circuits require—or whether such an amendment is allowed in some cases (as two circuits hold) or any time (allowed by the 2nd Circuit).

The precise issue raised is “[w]hether [28 USC] § 2244(b)(2) applies (i) only to habeas filings made after a prisoner has exhausted appellate review of his first petition, (ii) to all second-in-time habeas filings after final judgment, or (iii) to some second-in-time filings, depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.”

A decision will be made by the end of June 2025.

Rivers v. Lumpkin, Case No. 23-1345 (certiorari granted December 6, 2024)

– Thomas L. Root

Addition By Subtraction At The BOP – Update for December 6, 2024

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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.

THAT’S ONE WAY TO DO IT, I GUESS

additionbysubtraction241206Federal Bureau of Prisons Director Colette S. Peters announced yesterday that the agency will not reopen FCI Dublin – no surprise there – but additionally will close six other minimum-security facilities in Colorado, Minnesota, Wisconsin, Pennsylvania, West Virginia, and Florida.

Associated Press obtained a letter to Congress in which Peters said the agency was taking “decisive and strategic action” to address “significant challenges, including a critical staffing shortage, crumbling infrastructure and limited budgetary resources.”

Addition by subtraction… but that doesn’t make the decision wrong.

Three of the closures are satellite prison camps to low-security prisons: FCI Oxford, Wisconsin, camp; FCI Englewood, Colorado, camp (72 inmates); and FCI Loretto, Pennsylvania, camp (76 inmates). FCI Oxford has already been emptied, having relocated its camp-eligible inmates last June.

The Oxford, Englewood and Loretto closures will free up BOP staff for assignment to the low-security facilities on site. The Duluth, Morgantown and Pensacola stand-alone camp closures, which will affect 1,647 prisoners, will let the BOP reassign staff who want to remain with the BOP to prisons in other parts of the country where staffing levels are low.

About 400 employees will be freed up for assignment elsewhere. A BOP statement said, “Many employees affected by this decision will move from one part of a facility to another part of the same facility. The remaining employees will have the opportunity to move to different FBOP facilities. The FBOP is not downsizing and we are committed to finding positions for every employee who wants to remain with the agency.”

The BOP anticipates the process will begin now at all the facilities (except Dublin and Oxford, which are already empty) and be concluded in about nine months.

paniccrowd240625As for FCI Dublin, AP said the permanent shutdown “seven months after a temporary closure in the wake of staff-on-inmate abuse” – that led to the widespread reporting of the abusive staff members’ nickname for the prison as the “Rape Club” – “is the clearest sign yet that the agency — which has more than 30,000 employees, 158,000 inmates and an annual budget of about $8 billion — is unable or unwilling to rehabilitate its most problematic institutions.”

All of the prisoners at the notorious female prison, located not far from the San Francisco Bay area, were hustled out of town on BOP buses last April in a BOP attempt to torpedo continued federal court litigation over sexual abuse of a yet-undetermined number of inmates (although the plaintiff class numbers in the hundreds). Alas, the Court was not fooled. Walter Pavlo wrote in Forbes yesterday that while there have been no prisoners at the facility since the last one left in early May, “one insider told me they had hoped it would reopen. That will not happen.”

Making the Dublin closure permanent surprises no one except perhaps that one insider, for the same reason that schools are demolished after mass shootings: the optics.

The BOP said that FPC Pensacola, which is owned by the Navy, is in “significant disrepair” and will be demolished. FPC Duluth camp has “aging and dilapidated infrastructure,” including several condemned buildings contaminated with asbestos and lead paint, the agency said.

The Morgantown camp inmates and about 150 employees will be relocated to “maximize existing resources” at the federal prison complex in Hazelton (known as “Misery Mountain”) about 23 miles to the east. The BOP expected to save the $26 million needed for repair at FCI Englewood by closing its camp.

hitroad240314American Federation of Government Employees National President Everett Kelley predictably whined about the closures: “This announcement jeopardizes the continued employment of 400 federal employees just weeks before the holidays. While the agency says it will attempt to place employees in other jobs, the reality is that most Bureau of Prisons facilities are in isolated locations far from each other, so many – if not most – employees affected will face disruptive relocations to remain employed.”

God forbid that government employees might face the same dilemma that private sector workers suffer on a regular basis.

The good news for the BOP is that the closures should cut costs slightly, reducing the number of facilities from about 121 to about 114 locations and reducing its staff shortage very slightly. Given that the BOP already ranks dead last in employee satisfaction among federal agencies, employee disappointment isn’t going to affect its status as a desirable place to work.

Associated Press, The US government is closing a women’s prison and other facilities after years of abuse and decay (December 5, 2024)

Forbes, Federal Bureau of Prisons Closing Prisons Ahead Of Trump Presidency (December 5, 2024)

KBJR-TV, Duluth, Federal Bureau of Prisons plans to ‘deactivate’ Duluth prison camp (December 5, 2024)

– Thomas L. Root

10th Circuit Deliberately Indifferent to Bivens – Update for December 5, 2024

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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.

10TH CIRCUIT KILLS BIVENS ‘DELIBERATE INDIFFERENCE’ CLAIM

The 10th Circuit minced no words: “The Supreme Court’s “abrogative process of Bivens has been ‘gradual, but relentless, such that the “‘right answer’ to whether to recognize a Bivens cause of action will always be no… Bivens is now all but dead.”

BivensdeadDustin Rowland’s lawsuit was pretty plain vanilla. He sued various BOP officials, claiming they were deliberately indifferent to his serious medical needs by repeatedly denying his requests for hernia surgery and post-operative treatment, seeking damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. It is the kind of medical indifference suit that inmates file across the country all the time.

Or used to.

On November 19th, the 10th Circuit held that under the 2022 Supreme Court decision in Egbert v Boule, John’s case presented an application of Bivens that was different from the situations recognized as raising a valid Bivens claim. Given the “expressed caution about extending the Bivens remedy, even significant parallels to one of the Court’s previous Bivens cases” may not be enough to show that a case arises in the same context,” the 10th said Dustin could not seek damages for any 8th Amendment violations he had suffered.

Dustin’s case was materially different from the one prior case that SCOTUS – back in its salad days – had held raised a valid Bivens claim. In the decision in Carlson v. Green, the record showed that the inmate victim had died because of deliberate indifference. “Small differences can easily satisfy the new-context inquiry,” the 10th said.

He was dead, Dustin. You’re not. Viva la difference.

bivensalive241205The 10th’s holding drives a stake through virtually any Circuit Bivens 8th Amendment claim and probably will embolden the Government (like it needs any such encouragement to stretch precedent enough to deny an aggrieved prisoner a remedy for legitimate constitutional claims) to make similar arguments in other Circuits. If any circuit split results, the Supremes would settle it (and probably not in favor of the prisoner).

Rowland v. Matevousian, Case No. 23-1343, 2024 U.S.App. LEXIS 29406 (10th Cir., November 19, 2024)

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971)

Egbert v. Boule, 596 U.S. 482 (2022)

Carlson v. Green, 446 U.S. 14 (1980)

– Thomas L. Root