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‘How Are We Doing?’ Attorney General Asks (Rhetorically) – Update for January 5, 2021

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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.

FIRST STEP REPORT ISSUED

The First Step Act required that starting in 2020, the Attorney General generate an annual report on the Bureau of Prisons’ implementation of the various provisions of the law. The AG issued the report two weeks ago, which reads more like a hagiography of First Step compliance than a dispassionate recitation of how rocky the road to First Step implementation has been.

awesome210105Example: The AG says the BOP and Department of Justice “also implemented and responded to changes the FSA made involving retroactive application of the Fair Sentencing Act, compassionate release, and good conduct time.” If “implemented and responded to changes” means fighting compassionate release (10,929 out of 10,940 requests to the BOP for compassionate release denied) and Fair Sentencing Act reduction motions hammer-and-tong, DOJ and BOP have surely overperformed.

Surprisingly (or maybe not, given the political roar coming from Washington over the last two months), the First Step Report seems to have landed silently. Yet there are some interesting gold nuggets in the 59 pages of dross. I’m still reading it, and I’ll report more on it next week, but a few stats have jumped out already:

•      70% of all BOP inmates are designated to facilities within 500 miles of their release residences (but the Report does not compare this to the stats prior to passage of First Step);

•    the BOP has transferred over 19,000 people to home confinement since last March;

•         in 2020, one out of every four BOP inmates did not get any halfway house or home confinement prior to release

The most interesting tables I have seen so far are the recidivism tables. The Report found recidivism among people released under the First Step Act to be 11.3%, much less than the one-third or higher numbers usually cited. One curious finding: people who served less than 5 years had a recidivism rate of 10.9%; those serving between 5 and 10 years, 12.6%; those serving between 10 and 15 years, 13.1%; and those serving over 15 years, 7.8%.

tableB210105 copy

These stats present a strong argument about the deterrence value (or lack thereof) of sentences, a point which should be part of any 18 USC § 3553(a) analysis in a compassionate release or Fair Sentencing Act determination.

Dept of Justice, The Attorney General’s First Step Act Section 3634 Annual Report (December 21, 2020)

– Thomas L. Root

Where Did The HEROES Go? (And Other Stories That Puzzle Inmates) – Update for January 4, 2021

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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.

DEAD HEROES

deadheroes210104Last May, the House of Representatives passed the HEROES Act, intended to be the second coronavirus stimulus. The bill, which included in its $3 trillion giveaway a number of criminal justice changes (like letting eligible elderly offenders get home confinement after two-thirds of their good-time adjusted sentences, instead of gross sentences), was promptly denounced by Republicans appalled at its price tag and then ignored by the Senate.

Eight months later, I am still getting questions about it, mostly from people who may have been sleeping in the back of the classroom during high school government class.

A bill passed by the House must then be passed by the Senate and then signed by the President in order to become law. In the case of HEROES, the Senate refused to consider the bill. Rather, the Senate passed the HEALS Act in response to HEROES, a bill that was then immediately not considered by the House.

sleep210104What finally happened last month was that the Senate and House worked out a compromise bill that was neither HEROES nor HEALS. The compromise bill included no sentencing provisions at all, a fact that seems not to detain prisoners at all. One inmate wrote me last weekend, asking me to confirm the rumor that § 205 of the stimulus bill gave elderly offenders the home confinement adjustment they sought. Alas, § 205 is entitled “Pipeline Safety Management Systems,” a provision of interest to elderly offenders only if they’re in the natural gas transmission business.

Another inmate asked me whether HEROES might still pass in January or February. Remember this from high school civics, boys and girls: every Congress lasts two years, and ends on January 3. The 116th Congress ended yesterday, and the 117th Congress starts its two-year run today. When a two-year Congress ends, any bill not passed by both the House and Senate is dead.

That means the sentencing changes contained in HEROES will have to be introduced all over in a new bill.

caresbear210104Someone else wondered how long the BOP’s home confinement authority will last under the CARES Act. There are three answers to that. First, the BOP’s authority lasts until 30 days after the COVID-19 national emergency declared by Trump ends. The National Emergencies Act requires any emergency to end one year after it is declared, unless extended by the President. Since some national emergencies (such as with respect to Iranian assets) have continued for four decades. The current COVID emergency ends in March, but there is little doubt Biden will extend it.

Second, the BOP’s authority only lasts as long as the Attorney General’s determination that the emergency conditions are “materially affect[ing] the functioning of the BOP.” Attorney General Barr made that determination last April, but he or the new AG could withdraw the finding at any time.

Finally, the CARES Act lets the BOP Director put prisoners in home confinement “as the Director determines appropriate.” This provision delegates virtually unreviewable power to the BOP. If the Director decided tomorrow that he had sent all the people he needed to send, he could pull the plug.

A year ago, the BOP population stood at 175,858 inmates. As of last week, the number had fallen 13.5% to 152,184. That’s a 31% drop from six years ago.

No one knows when the BOP will no longer place prisoners in home confinement. But we’re much closer to the end than we are to the beginning.

HEROES Act, H.R. 6800 (May 15, 2020)

HEALS Act, S.4318 et al. (July 27, 2020)

Section 205, Consolidated Appropriations Act, 2021 (December 27, 2020)

Section 12003(b)(2), CARES Act, H.R. 748 (March 28, 2020)

Sentencing Law and Policy, Federal prison population closes out 2020 at new modern low of 152,184 according to BOP (December 31, 2020)

– Thomas L. Root

Light at the End of the Tunnel is an Oncoming COVID Train – Update for December 31, 2020

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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.

STILL LOOKING FOR THE PEAK?

Last week, I reported that the Bureau of Prisons’ numbers had dropped 25% from the week before, suggesting that maybe the latest BOP COVID spike had peaked, and recovery was at hand.

BOPCOVID201230

No such luck. As of last Monday, the system’s active cases had jumped 12% from a week earlier, to 7,690 active inmate cases and 1,616 sick staff, COVID in 127 BOP facilities and 188 dead inmates. The number of sick inmates fell yesterday to 6,949, still 11% higher than two weeks ago. As of last night, BOP has tested 64% of all inmates at least once, with a worrisome positivity rate of 40%.

lighttunnel201231Last week, I noted that despite official pronouncements that only BOP staff were getting COVID-19 vaccine, I had received inmate reports that some prisoners had been vaccinated at two Texas facilities and one in North Carolina. Last Tuesday, the BOP told Associated Press that the vaccine had been delivered to four facilities that had been among some of the hardest hit during the pandemic, including FCC Butner. AP quoted a BOP spokesman as saying that while it continued to plan to offer vaccines to full-time staff, “at this time, we can confirm high risk inmates in a few of the BOP facilities in different regions of the country have received the vaccine.” AP noted the BOP did not say how many inmates had been vaccinated, how the inmates were selected, or how many doses of the vaccine the agency had received.

The agency told the AP about half of the staff at each of the four facilities that received the vaccine had been inoculated. The balance was offered to inmates.

COVIDvaccine201221Forbes magazine reported last Monday that “word came from someone who is an inmate in an institution in the mid-Atlantic US that they are on a list to receive the vaccination at the first of the year. The vaccinations represent the first step in curbing the spread of COVID-19 in prisons. The roll-out of the vaccines to inmates will certainly cause a disruption in the number of compassionate release cases and the release of inmates under the CARES Act.” Forbes is a usually reliable publication, but the report – from a single unidentified inmate – is pretty thinly sourced.

As of last night, Fort Dix, Terre Haute, Safford, Pekin, Lexington, Schuykill and Atwater were all reporting more than 200 inmate COVID-19 cases. Another 14 facilities had more than 100 inmate cases.

Every inmate death is concerning, but three last week were especially troubling. An inmate at Talladega died of COVID-19 without ever being diagnosed with the disease or presenting symptoms. A Lompoc inmate had COVID in May and was declared “recovered,” but was hospitalized in August with COVID. He remained there until dying December 15. In a third case, a Memphis inmate with no prior medical conditions whatsoever fell ill on December 2, was hospitalized 10 days later, and died December 19.

Finally, a most unusual compassionate release: After a mix-up by the BOP, a Guam federal judge granted Jesse Cruz’s sentence reduction motion and ordered his immediate release.

Jesse had health issues including post-traumatic stress disorder, degenerative spinal disc disorder, sciatica, sleep apnea and other issues, according to US District Court Judge Frances Tydingco-Gatewood.

release161117There was also an “extremely rare and unique situation” in Jesse’s case: the BOP miscalculated his release date, releasing him from FCI Sheridan on October 14, although his home confinement was not supposed to start until next February. The BOP didn’t give Jesse any medication when he was sent to Guam, even though the FCI Sheridan doctor had ordered he get his medication upon release.

Upon arriving on Guam, Jesse had to quarantine at a government facility. While Jesse was in quarantine, the BOP realized its mistake and had Cruz arrested when he left the quarantine facility.

During a hearing last Wednesday, the Judge learned Jesse hasn’t received any medication at all while incarcerated on Guam, even after Jesse and his wife presented numerous requests for medication and a CPAP machine to the detention facility and the U.S. Marshals. While Jesse’s health conditions would not normally justify compassionate release, the Judge ruled, “the disturbing failure of the BOP to properly calculate his release date from FCI Sheridan has resulted in a total lack of care for Cruz’s ailments.” Jesse “has been forced to serve several months of his sentence at a non-BOP facility while suffering from numerous maladies of the mind and body without respite,” the Judge held.

The Hill, Federal Bureau of Prisons reverses on withholding COVID-19 vaccine from inmates (December 22, 2020)

Greensboro, N.C. News & Record, Reversing course, feds say some N.C. inmates got virus vaccine (December 23, 2020)

Forbes, Federal Bureau of Prisons Starts Vaccination of Staff, Inmates Soon Thereafter (December 21, 2020)

Pacific Daily News, ‘Extremely rare and unique situation’: Sentence reduced for man mistakenly released (December 24, 2020)

– Thomas L. Root

“Pardon Me” Is a Request, Not an Apology, at the White House – Update for December 29, 2020

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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.

IT’S WHO YOU KNOW…

alice201229A week ago today, President Donald J. Trump pardoned 15 people and commuted the sentences of five more. The next day, he pardoned 26 more people and commuted three additional sentences. And sources say there are more to come…

That’s the good news for federal inmates. The bad news is this: virtually everyone receiving clemency was supported by political figures or friends of the President. Perhaps the least celebrity of the lot was Alice Johnson, who was released from a drug conspiracy sentence in 2018 after Kim Kardashian lobbied Trump.

Alice has apparently become a Trump favorite after speaking at the Republican Convention last August (after which the President raised her commutation of sentence to a full pardon). Alice is using her access to successfully recommend a number of people for clemency (and who can blame her… she’s looking out for people she did time with, something anyone who’s ever been locked up understands).

But Alice’s support of average inmates she knew while doing 20 years aside, Politico said “the raft of pre-Christmas pardons and commutations… favored the well-connected and those with A-list advocates, while appearing to shunt aside — at least for now — more than 14,000 people who have applied for clemency through a small Justice Department office that handles such requests.

who201229None of the clemency applications granted last week went through the Dept of Justice Office of Pardon Attorney. The New York Times reported that more than half of the cases granted did not meet the DOJ’s standards for consideration. “It looks as if the president is relying very heavily on recommendations from members of Congress and people he knows personally and not on the Justice Department pardon process that’s served presidents well for 150 years,” said Margaret Love, who served as pardon attorney under two presidents.

henhouse180307(Editor’s note: The DOJ pardon process has been a clattering disaster, despite what Ms. Love says, a classic illustration of the fox being placed in charge of deciding whether any chickens should be spared from being eaten. But replacing it with a process favoring only the friends [or friends of the friends] of the President is not an improvement.)

A tabulation by Harvard Law School professor Jack Goldsmith found that of Trump’s 45 pardons or commutations before last week, 88% went to people with personal ties to the president or to people who furthered his political aims. The pardons “continue Trump’s unprecedented pattern of issuing self-serving pardons and commutations that advance his personal interests, reward friends, seek retribution against enemies, or gratify political constituencies,” Goldsmith told The New York Times. “Like his past pardons, most if not all of them appear to be based on insider recommendations rather than normal Justice Department vetting process.”

The President “has largely overridden a highly bureaucratic process overseen by pardon lawyers for the Justice Department and handed considerable control to his closest White House aides, including Kushner,” Report Door said. “They, in turn, have outsourced much of the vetting process to political and personal allies, allowing private parties to play an outsize role in influencing the application of one of the most unchecked powers of the presidency.”

pardon160321Trump’s son-in-law and top adviser, Jared Kushner, has played a key role in managing the avalanche of clemency requests that have come into the White House as the administration nears its end next month, according to multiple sources, Yahoo News reported. “Everyone’s sending emails to Jared,” a source familiar with the process reportedly said. “If you want to make something happen, go to Jared.”

The source, who requested anonymity due to the sensitivity of the ongoing process, spoke with Yahoo News before Trump issued the spate of pardons and commutations. “It’s going to be a free-for-all,” the source said.

Kevin Ring, president of criminal justice reform group FAMM, told The New York Times he was optimistic that Mr. Trump would still consider average and unconnected inmates, the kind of people his group backs. He predicted that the clemencies to come over the remaining three weeks of Trump’s presidency will include “head-scratchers mixed in with the ones that look good.”

Yet despite the likelihood of clemencies to come, criminal justice activists are not encouraged by Trump’s spotty and sparse record to date. Goldsmith said the president “is stingy” with his pardon power, “even as he abuses it.”

The White House, Statement from the Press Secretary Regarding Executive Grants of Clemency (December 22, 2020)

The White House, Statement from the Press Secretary Regarding Executive Grants of Clemency (December 23, 2020)

Politico, Trump’s latest batch of pardons favors the well-connected (December 22, 2020)

The New York Times, Trump Pardons Two Russia Inquiry Figures and Blackwater Guards (December 22, 2020)

Report Door, Behind Trump Clemency, a Case Study in Special Access (December 26, 2020)

Yahoo News, Jared Kushner played a key role in White House pardon ‘free-for-all’ (December 24, 2020)

The New York Times, Outside Trump’s Inner Circle, Odds Are Long for Getting Clemency (December 28, 2020)

– Thomas L. Root

Money and Education… Just No Sentence Relief – Update for December 28, 2020

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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.

‘WHAT THE PELL?’ – NO SENTENCE REFORM IN STIMULUS, BUT THERE’S COLLEGE MONEY AND CASH FOR INMATES

Remember all of the sentence reform bennies in last May’s HEROES Act, passed by the House? Forget about them.

HR133-201228The 5,593-page stimulus package passed by Congress and signed last night by President Trump had none of the changes to compassionate release, CARES Act home confinement or elderly offender home confinement included in HEROES. However, the bill does resume federal college financial aid to prison inmates – Pell grants – that was banned in the 1994 crime bill championed by then-Senator Joseph R. Biden Jr.

The measure was part of a bipartisan deal struck by House and Senate education leaders to address affordability and equity in higher education. Two years ago, leaders in both houses, as well as the education secretary, Betsy DeVos, agreed that the 1994 ban should be revisited. In 2015, President Barack Obama’s Education Department piloted an experimental program called “Second Chance Pell” that allowed 12,000 incarcerated students to be eligible for the financial aid for distance learning and other programs that required tuition. Secretary DeVos expanded the program and urged Congress to make it permanent.

takethemoney191015The other curious feature – omission, perhaps – in the new stimulus package is this: after the uproar over inmates being eligible to receive the $1,200 stimulus payment in the CARES Act, there was no doubt that inmates would be cut out of any stimulus payment in the bill signed last night. But the legislation contains not a whisper that incarcerated people are exempt. Rather, it merely adopts the CARES Act eligibility requirement without change, meaning that inmates remain eligible for the stimulus payment, just like they were last spring.

The New York Times, Financial Aid Is Restored for Prisoners as Part of the Stimulus Bill (December 23, 2020)

Rules Committee Print, Consolidated Appropriations Act, 2021 (Senate Amendment to HR 133) (December 21, 2020)

– Thomas L. Root

What You Don’t Know Can Hurt You – Update for December 24, 2020

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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.

AND WHAT MIGHT THIS BE?

A drug is a drug is a drug.

puzzled201223It has been the law for at least 30 years that a defendant doesn’t have to know what illegal drugs he might be involved with, as long as he knows that whatever he possesses is illegal. This may make some sense, until you stop to think that carrying around a kilo of crack will get you a dramatically higher sentence than, say, a kilo of pot (the difference between six months and 10 years).

Trontez Mahaffey was busted at Cincinnati Airport with 40 lbs. of vacuum-sealed marijuana. But hidden in one of Tron’s bales was a packet containing 4 lbs. of meth. Tron claimed he knew about the pot, but not about the meth. He argued that under Rehaif v. United States – which required that a felon in possession of a gun really know he was a felon – the government has to show that Tron was aware of what drugs he possessed, not just that he knew he had some kind of illegal substances.

Tron said a drug is not a drug is not a drug.

Last week, the 6th Circuit disagreed. Instead, it joined the 1st and 5th in holding that while there is a “longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct,” the ordinary meaning of 21 USC § 841(a)(1) only “requires a defendant to know only that the substance he is dealing with is some unspecified substance listed on the federal drug schedules.”

gotcha170207Under the statute’s plain language, the Circuit ruled, the government need only show “the defendant knew he possessed a substance listed on the schedules, even if he did not know which substance it was.” Not know what he was carrying cost Tron a 10-year mandatory minimum sentence. Forty lbs. of pot, by contrast, carries no mandatory minimum sentence and a Guidelines range of about six months.

I guess a drug is not a drug is not a drug. But to a defendant, it is…

United States v. Mahaffey, Case 19-6061, 2020 U.S. App. LEXIS 39797 (6th Cir. Dec 18, 2020)

– Thomas L. Root

It’s Not a Sentence Until It Is, 6th Circuit Says – Update for December 22, 2020

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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.

DOING IT OVER UNTIL YOU GET IT RIGHT

mulligan190430Mike Henry and an accomplice robbed three banks. In each robbery, Mike’s co-conspirator used a gun. A jury convicted Mike of the three robberies and three counts of using a gun in a crime of violence under 18 USC § 924(c). A § 924(c), you may recall, carries a mandatory sentence of at least five years (more if you brandish it or, God forbid, actually fire it).

In 2013, Mike got 70 months concurrent for the three robberies and 60 months for the first § 924(c) conviction. Because back then, a second or subsequent § 924(c) conviction carried a mandatory sentence of 300 extra months got a total of 600 months (50 years, that is),  for each of the next two § 924(c)s. Mike ended up with a sentence of  730 months (about 61 years in prison).

Mikes’s conviction was reversed because of the intervening Supreme Court decision in Rosemond v United States, which held that an accomplice had to have some level of knowledge that is co-conspirator had a gun. But after retrial, Mike’s sentence got marginally worse, increasing by eight months to 738 months. But while Mike was on appeal the second time, the Supreme Court’s Dean v. United States decision was handed down (holding that judges could adjust the underlying sentence to account for the mandatory § 924(c) sentence), and Mike’s sentence got reversed again in 2018.

By the time Mike was resentenced a second time, the calendar had flipped to 2019, and the First Step Act had passed. First Step Act § 403 amended 18 USC § 924(c) so that subsequent convictions of the statute carried a 300-month mandatory minimum only if the defendant had been previously been convicted of a § 924(c) offense. Which, of course, Mike had not.

Robber160229But First Step was not retroactive. Instead, § 403 applied only to an “offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” On his latest appeal, Mike argued that First Step § 403 applied to his case, and his sentences for the second and third § 924(c) offenses should have only been 60 months apiece, not 300 months apiece.

Last week, the 6th Circuit agreed. The Court said the plain language of § 403(b) supported its conclusion that the First Step Act applies to defendants whose cases were remanded prior to the First Step Act’s enactment but who were resentenced only after its enactment.  At the time of the First Step Act’s enactment, the Circuit ruled, Mike “did not have ‘a sentence” for the purposes of § 403(b), because his case had been remanded case to the district court for resentencing. “Only when the district court ‘imposed’ Henry’s sentence for his various convictions at his 2019 resentencing did he have a sentence for the purposes of § 403“, the 6th said. “The better reading of ‘a sentence’ requires the defendant to have a valid sentence at the time of the First Step Act’s enactment, not a sentence at some point… Therefore, Henry is eligible for sentencing under First Step Act § 403.”

oldmangrandkids201222This time, some 480 months should come off the sentence, leaving him with a still hefty 250 months (about 21 years). But it leaves Mike with a chance of hugging his grandkids someday.

United States v. Henry, Case 19-2445, 2020 U.S. App. LEXIS 39799 (6 Cir Dec 18, 2020)

– Thomas L. Root

Inmate Vaccine Not In The Near Term? – LISA Newsletter for December 21, 2020

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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.

INMATES NO PRIORITY FOR VACCINE, ADVISORY PANEL RECOMMENDS

COVIDvaccine201221The Federal Bureau of Prisons received its first shipment of COVID-19 vaccines last Wednesday, and began administering the drug to its correctional officers and health care staffers. The agency said inmates will follow “when additional doses are available.”

And that’s not going to be anytime soon. Earlier this month, the Advisory Committee on Immunization Practices said health care workers and nursing home residents — about 24 million people — should be at the very front of the line for the vaccines. Sunday afternoon, the panel voted 13-1 that next in line should be people 75 and older, who number about 20 million, as well as certain front-line workers, who total about 30 million. Those essential workers include firefighters and police; teachers and school staff; those working in food, agricultural and manufacturing sectors; corrections workers; U.S. Postal Service employees; public transit workers; and grocery store workers.

The committee also voted that behind those groups should be people aged 65 to 74, numbering about 30 million; those aged 16 to 64 with certain medical conditions such as obesity and cancer, that are at higher risk if they get infected with COVID-19, numbering as many as 110 million; and a tier of other essential workers. This group of as many as 57 million includes a wide category of food service and utility workers but also those in legal and financial jobs and the media.

How about vaccine for inmates? The BOP told CBS last week that it is up to Operations Warp Speed to decide when inmates will receive the vaccine. CBS reported, however, that a spokesperson for Operation Warp Speed said the BOP would decide about the timeline.

The National Commission on Covid-19 and Criminal Justice last week recommended that inmates receive priority consideration for Covid-19 vaccines equal to that for police and correctional officers. That recommendation, however, appears to be one of many rejected by the Advisory Committee.

inoculation201221And yet… I received several inmate emails last week (and this is totally unconfirmed) that a handful of BOP inmates at two facilities received vaccine last week. The emails gave no indication of how the inmates were selected for the vaccine. One – from a Texas BOP facility written two days ago – said

well the good news and vibes ran out on the [institution] compound. we ran out of vaccines before we completed even one building. of course the fact that no one was planned to receive it inmate wise. what we did get is hopefully helpful. my building has about 40% done on the first dose.

Another inmate email, received early this morning, independently reported that some inmates at the same institution (“at least a couple hundred,” the report stated) received vaccine.

An inmate in a separate Texas facility reported Friday night:

I thought you’d be interested in reports that 100 inmates received their first dose of the vaccine today. Some of these are known personally to me, so I can confirm that they were sent to the clinic and given a shot. They were told that they would be called back to the clinic in 21 days for their second dose. Reportedly, all staff who wanted the vaccine have received their first dose.

One can reasonably infer from the emails that perhaps the vaccine being administered was left over after staff inoculations had been completed, and – having been thawed – had to be used within five days.

[Later note: An inmate from a North Carolina facility reported by email on Monday, December 21, that he had gotten the vaccine: “Once the staff here at the [institution] received their vaccinations if they chose, there were doses left over. Instead of letting those doses go to waste, the staff chose to offer them to some of the inmates based on their medical conditions.  There were probably around 30 or so in my housing unit, including myself, that were offered the vaccine.  Most of us chose to take it.  I, myself, am thankful to the staff for making that decision and offering them to us and I felt that I needed to let you know that some of us are getting it.” ]

More than two dozen members of House of Representatives last Wednesday demanded details about how inmates will be vaccinated for COVID-19, questioning whether the most vulnerable prisoners will have priority access.

In a letter to BOP director Michael Carvajal and Centers for Disease Control and Prevention chief Dr. Robert Redfield, the 26 lawmakers, led by Rep. Bobby Scott (D-Virginia), wrote,

The BOP has provided informal information regarding the vaccine distribution plan. We are deeply concerned that the current plan places the most vulnerable incarcerated individuals who have a cancer diagnosis, chronic kidney disease, chronic obstructive pulmonary disease, heart conditions, compromised immune systems, sickle cell, diabetes, and individuals 65 years or older in priority level 3 behind incarcerated individuals in minimum security facilities who are in open bay housing and are currently listed in priority group 2. Incarcerated individuals with these types of medical conditions are at a high risk of complications if they contract COVID-19 as it spreads through federal prisons yet are slated to receive the vaccine after prison staffers in phase 1 and other incarcerated individuals listed in phase 2.

Despite reporting that over 1,500 inmates “recovered” from COVID-19 within just a few days of each other, the BOP still reported having 5,881 active inmate cases,1,694 sick staff, COVID in 126 BOP facilities and 180 dead inmates (up 13 in one week). The BOP has tested 62% of all inmates at least once, with the positivity rate continuing to ratchet up. As of last Friday, 36% of all inmate tests are positive for COVID.

Still, the trend apparently suggests that the latest BOP outbreak has peaked.

BOPCOVID201218

As of last Friday, Sandstone, Florence, Loretto and Pekin all reported over 200 inmate COVID-19 cases, another 12 facilities had more than 100 cases, and another 20 joints had 50 or more. Loretto had been written down from over 600 cases earlier in the week as inmates are declared to be recovered.

A cautionary note about those “recovered” inmates. Of the 13 inmates who died last week, two – a 64-year old man at FCI Victorville I and a 72-year old man at FCI Lompoc – had contracted COVID-19 months ago, and were considered “recovered” before getting much sicker and dying. In fact, the State of Michigan Dept of Health said last week that it is currently investigating 115 of “recovered” state inmates testing positive for COVID-19 three months after they were believed to be COVID-free.

New York Post, Federal prison workers to start getting vaccinated Wednesday (December 14, 2020)

Chicago Tribune, Federal panel says people over 75, essential workers should be next in line for COVID-19 vaccine as Moderna shots begin shipping out (December 20, 2020)

CBS News, Federal prisons to prioritize staffers for COVID-19 vaccine and give to inmates when more doses are available (December 18, 2020)

National Commission on Covid-19 and Criminal Justice, Experience to Action: Reshaping Criminal Justice After COVID-19 (December 14, 2020)

Letter to BOP from Rep. Robert C. Scott (D-Virginia) (December 15, 2020)

Reuters, U.S. lawmakers press prison authorities on inmate COVID-19 vaccination plans (December 16, 2020)

Detroit Free Press, State reviewing possible COVID-19 reinfections after 115 prisoners test positive twice (December 12, 2020)

– Thomas L. Root

Will Inmates Get on Board the Trump Pardon Train? – Update for December 17, 2020

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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.

TRUMP REPORTEDLY MULLING PARDON FRENZY

trumptrain201218Since President Trump won the election in a landslide… er, make that “lost the election,” six weeks ago, requests for clemency have been flooding the White House from people looking to benefit from the presidential pardon power. CNN reported on Wednesday that the Administration staff have been “so inundated with requests for pardons or commutations that a spreadsheet has been created to keep track of the requests directed to Trump’s close aides.”

Trump is reportedly eager to engage on the subject – unlike his lack of interest in doing anything else, some report – and has been both reviewing case summaries  and soliciting advice from his network of associates about whom he should pardon. CNN said, “Unlike practically any other matter related to the end of his presidency, his clemency powers are a topic Trump actually seems to enjoy discussing, one person in communication with the President said, even though it amounts to another tacit reminder that his tenure at the White House is nearly over.”

Trump is reportedly considering or being asked to pardon Edward Snowden, Joe Exotic, Ross Ulbrecht, Duncan Hunter and even his own organization’s chief financial officer. The New York Times reported that Rudy Gulliani has discussed a pardon for himself with the President, a report Gulliani vehemently denies. Other reports predict pardons for Trump’s family.

pardonme190123Meanwhile, judging from my own email on the subject, large numbers of federal inmates – whose clemency requests have languished in line with the 13,000 others at the Department of Justice Pardon Attorney’s office – are sending copies of their petitions directly to the White House, in a desperate bid to jump on board the Clemency Express. If there is an Express to begin with.

Axios reported last week that President Trump isn’t just accepting pardon requests “but blindly discussing them ‘like Christmas gifts’ to people who haven’t even asked, sources with direct knowledge of the conversations” have said. Trump reportedly told “one adviser he was going to pardon ‘every person who ever talked to me,’ suggesting an even larger pardon blitz to come.”

Axios said the president “been soliciting recipients, asking friends and advisers who they think he should pardon.” White House attorneys are said to be “working through a more traditional process, even if it doesn’t cover every person Trump has discussed, a source familiar with the process said.”

“We’ve been flooded with requests,” said a senior White House official, who admitted a lot of the appeals have been nakedly political and partisan, as is expected at the end of a presidency.

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One Trump supporter lobbying on behalf of a prisoner said he realizes that Trump has his hands full and may not be receptive to this or other cases. “I’m a little worried that it might get crowded out,” he conceded.

The Daily Beast said, “It is unclear how much the outgoing president will end up delivering on these kinds of commutations and pardons, in large part because Trump is still consumed by pet grievances and his hopeless Rudy Giuliani-led legal effort to nullify Biden’s 2020 win.”

Walter Pavlo, writing in Forbes, put Trump’s wielding of the pardon power in perspective:

Pardons are all the rage these days but the system has been broken for years. President Trump, even if he pardons everyone in his administration, is still way behind other presidents who exercised their broad but constitutional power to pardon someone of a federal crime. Here are the facts, Trump has granted clemency/pardons to 44 people during the past four years… compare that to his predecessors;

Barack Obama: 1,927

George W. Bush:  200

Bill Clinton:  459

clemency170206Pavlo notes that “What is most interesting about Trump’s pardons/clemencies are that they are highly political and they are motivated by emotion to right something that he views as a personal wrong that has been done.”  

This suggests, sadly, that Ivan Inmate – unknown except to his family, the Bureau of Prisons and the court that sentenced him – can expect no more consideration from the White House than he’s gotten so far from the Pardon Attorney.

CNN, ‘It’s turned crazy’: Inside the scramble for Trump pardons (December 16, 2020)

Axios, Trump plots mass pardons, even to people not asking (December 8, 2020)

Daily Beast, Inside the Frantic Push to Get Trump to Pardon… Everyone (December 6, 2020)

Forbes, Trump And Pardons … Here’s A Case That Might Interest Him (December 11, 2020)

– Thomas L. Root

Orgeterix Mortuus Est… But I Had Help – Update for December 17, 2020

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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.

4th CIRCUIT EXTENDS BURRAGE HOLDING TO DRUG GUIDELINES

Several years ago… OK, several decades ago, I studied Latin in high school under the watchful eye of my sainted Latin teacher, Emily Bernges. When she had us reading Caesar’s Commentaries on the Gallic War, my fellow students and I were taken by Julius’s matter-of-fact report on the denouement of Orgeterix, the Helvetian (think “Swiss”) aristocrat. Orgeterix conspired to take over France, but was hauled off to trial for his nefarious plans, only to be sprung later by 10,000 of his closest friends. After being released, he mysteriously departed this mortal coil. Suicide? Murder? Death by misadventure? No one knows.

orgeterix201217Julius Caesar covered it in the Commentaries with a terse observation: Orgeterix mortuus est. That is to say, “Orgeterix died.”

The drug penalty statute, 21 USC § 841(b), specifies a sentencing enhancement when “death or serious bodily injury results from the use of” the drugs distributed by a defendant. The enhancement is steep: subsection (1)(C), for example, contains no mandatory minimum for distributing small amounts of drug, but “if death or serious bodily injury results from the use of such substance” the minimum is 20 years.

Of course, life is seldom neat, and neither is death. If a defendant hands Abbie Abuser a gram of fentanyl, for example (500 time the lethal dose), and she promptly swallows it all, the grounds for the enhancement are pretty clear. But usually, the victim’s blood turns out to be a toxic waste dump of multiple substances, only one of which came from the defendant. In that case, did “death or serious bodily injury result” from the defendant’s drugs so as to justify the enhanced sentence?

In 2014, the Supreme Court said “no” in Burrage v. United States. Instead, the Court said, when the use of a drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, that defendant cannot be liable for penalty enhancement under 21 USC 841(b)(1) unless such use is a “but-for” cause of the death or injury. Like Orgeterix, the victim mortuus est, but if the mortuus would not have happened but for the defendant’s drugs, no enhancement is appropriate.

sauce170307Burrage settled the issue for the statute. But the sentencing guidelines contain a similar enhancement. We know from Beckles v. United States that it would be a mistake to assume that what’s sauce for the statutory goose is likewise sauce for the Guidelines gander. That is, just because a decision modifies how a statute is applied does not mean that the decision will govern how the Guidelines are interpreted.

Bill Young was convicted of a drug trafficking offense. Because someone he sold drugs to died of an overdose, he received a Guidelines 2D1.1(a)(1) enhancement because death resulted from drugs he sold, setting his Guidelines Base Offense Level at 43.

Burrage only dealt with the 841(b) statute, not the Guidelines. Nevertheless, Bill filed a 2241 habeas corpus action, arguing Burrage was retroactive and the case applied to the Guidelines as well as 21 USC 841(b)(1). He claimed the victim mortuus est, and non one could say his product was the independent cause of death. Last week, the 4th Circuit agreed that Burrage applies to the Guidelines, and ordered the 2241 petition heard.

death200330“For starters,” the Court said, “the language of USSG 2D1.1 significantly parallels the language of 841(b)(1) that Burrage interpreted and that contains the statutory penalty for Young’s charged offense… Because of that parallel language, other courts have recognized that the Guidelines and statute mirror each other in several key respects… We see no reason to treat the Guidelines differently from the statute, especially since they were mandatory when applied to Young.”

Bill was able to take advantage of the 4th Circuit’s Wheeler decision, which permitted him to use a 2241 petition to claim actual innocence of a sentence, not just of a conviction.

Young v Antonelli, Case No 19-7176, 2020 U.S. App. LEXIS 38662 (4th Cir. Dec. 10, 2020)

– Thomas L. Root