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For The Want of a Nail… – Update for December 15, 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.

COMPASSIONATE RELEASE AIN’T JUST ANOTHER 2255

career160509Stephen Fine pled guilty in 2014 to a methamphetamine distribution conspiracy (21 USC § 846) and money laundering (18 USC § 1956). At sentencing, the district court found Steve was a Guidelines career offender (USSG § 4B1.1) based on two prior state drug convictions.

As regular readers know, being christened a “career offender” exposes a defendant to dramatically higher Guidelines sentencing ranges.

After conviction, Steve attacked his conviction in a 28 USC § 2255 habeas corpus action, alleging his lawyer had been ineffective. The motion failed. Then in July 2019, Steve filed an 18 USC § 3582(c)(1)(A)(i) sentence reduction motion, asking the court for what is generally known as “compassionate release.”

kleenix201215A momentary frolic into grammar and language: The statute calls the action of a court modifying a sentence in response to a proper motion under § 3582(c) as a “sentence reduction.” Originally, the § 3582(c)(1)(A) motion could only be brought on a prisoner’s behalf by the Bureau of Prisons, something that happened seldom enough to make a Blue Moon seem commonplace by comparison. Nevertheless, the BOP started referring to the motion it alone was authorized to bring as “compassionate release,” and the term – like a brandnomer – stuck. Think “tissue” (sentence reduction) versus “Kleenex” (compassionate release).

A § 3582(c)(1)(A)(i) compassionate release motion must show “extraordinary and compelling reasons” for a sentence reduction. Steve’s extraordinary and compelling reasons were (1) his “post-sentencing rehabilitation” and (2) that he was actually innocent of his sentence, because court decisions since his sentencing had held that the state convictions his judge relied on in declaring him a career offender should not have been counted in that calculus.

His district court turned down the compassionate release motion. Last week, the 8th Circuit agreed.

rehabilitation201215Citing Guideline § 1B1.13 (which, by the way, the 2nd, 4th, 6th and 7th have held does not apply to an inmate-filed compassionate release motion), the 8th Circuit held that rehabilitation alone was not a proper basis for a sentence reduction motion. As for Steve’s claim that he was not properly a career offender – his other extraordinary and compelling reason – the Court noted that his “challenge to the career offender determination was still a challenge to his sentence. A federal inmate generally must challenge a sentence through a § 2255 motion, and a post-judgment motion that fits the description of a motion to vacate, set aside, or correct a sentence should be treated as a § 2255 motion… Even an intervening change in the law does not take a motion outside the realm of § 2255 when it seeks to set aside a sentence… The district court was therefore correct that his challenge to the career offender determination and resulting sentence was an unauthorized successive motion to vacate, set aside, or correct a sentence.”

In a compassionate release motion, a defendant who has established an extraordinary and compelling reason must also show that grant of the motion would be reasonably consistent with the sentencing factors set out in 18 USC § 3553(a). That was where Steve’s sentence argument would have fit. Had he suggested that a sentence reduction would have been consistent with § 3553(a) factors, because the correct punishment – and thus, the punishment society suggests would be adequate but not too great – was really a lot less than what he got.

nail201215Of course, Steve still would have lost, because he was missing an “extraordinary and compelling reason.” Without one of those, none of the rest of § 3582(c)(1)(A)(i) matters at all. For the want of a nail…

United States v. Fine, Case No 19-3485, 2020 U.S. App. LEXIS 38786 (8th Cir Dec 11, 2020)

– Thomas L. Root

Director Says BOP “Has A Sound Pandemic Plan In Place…” As COVID-19 Spirals Out of Control – Update for December 14, 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.

COURT ORDERS BOP TO HONOR SETTLEMENT, WHILE INMATE COVID CASES INCREASE 30% IN ONE WEEK

Ten days ago, the number of Bureau of Prisons inmate COVID-19 cases passed 5,000. That was a first… but it was nothing compared to last week.

As of last Friday, the BOP reported 7,278 ill inmates (a 30% from the week before),1,716 sick staff (up 9% from last week), COVID-19 in 127 BOP facilities and 167 dead inmates. The BOP has tested 58% of all inmates at least once, with the positivity rate continuing to ratchet up. As of last Friday, 34% of all inmate tests are positive for COVID.

BOPCOVID201214

Recall that on December 2, BOP Director Michael Carvajal told a House Subcommittee that the BOP’s COVID-19 “procedures have proven effective as this is evidenced by the steep decline in our inmate hospitalizations, inmates on ventilators and deaths.” Some feel differently.

Last Friday, a Connecticut U.S. District Court found that the BOP had violated its settlement agreement in a class action of 450 medically vulnerable prisoners brought last spring over COVID-19 conditions at FCI Danbury. The unhappy judge ordered the BOP to release 17 medically vulnerable inmates by 5 p.m. the next day (a Saturday), prohibited the BOP from relying on administrative roadblocks to delay the release of those granted home confinement, and directed the BOP to report to the plaintiffs’ attorneys whenever the agency expects to fail to release inmates granted CARES Act home confinement within 14 days of grant.

The court order followed a long hearing the day before, where the court heard about a new Danbury COVID-19 outbreak and the BOP’s corresponding failure to mitigate the spread of the disease. In one week, the number of Danbury COVID-19 cases went from zero to nearly 50. The plaintiffs said despite the BOP’s promise to check daily for symptoms for the duration of the pandemic, the BOP failed to follow this pledge for two weeks during a surge of the disease around the country.

A July settlement of the lawsuit required the BOP to promptly identify prisoners who are low security risks and have a greater chance of developing serious complications from the virus and release them to home confinement. The settlement called for prisoners to be released within 14 days of being approved. But the plaintiffs’ lawyers say some of them have been waiting nearly three months to be released after being approved for home confinement.

whoyabelieve201214The BOP cited several reasons for the delays in releasing the inmates, including required 14-day quarantines due to the virus and BOP guidelines in releasing inmates to the community. The Court was not impressed.

Meanwhile, in Minnesota, the ACLU last week filed suit alleging the BOP’s FCI Waseca has “failed to respond in any meaningful way to the pandemic.” The ACLU says the prison did not release medically vulnerable people from the prison, where two out of three inmates contracted COVID-19, making social distancing impossible.

New Jersey congressional leaders last week renewed their call to end inmate transfers to FCI Fort Dix. Led by Senators Robert Menendez and Cory Booker (both D-New Jersey), the state’s congressional delegation sent a second letter to BOP Director Carvajal week calling for the end of inmate transfers and asking the BOP to outline its plan for allocating and administering the COVID vaccine.

The BOP had previously instituted a moratorium on all inmate transfers to Ft Dix through Nov. 23 as active cases hit 300. The lawmakers and BOP staff have pointed to the October transfer of inmates from FCI Elkton to Ft Dix as the cause of the outbreak. BOP officials have denied the accusation. The moratorium was not extended, the BOP said last week, despite a previous letter from the state’s lawmakers demanding the moratorium continue until there are no active cases at the prison.

“By resuming transfers of incarcerated individuals into and out of the facility in the midst of a severe outbreak, BOP is putting at risk the lives of both staff and incarcerated individuals,” the lawmakers wrote in the letter.

COVIDheart200720The BOP is seeing a resurgence of COVID at institutions where it had previously been controlled. The virus is again at FCC Lompoc, site of one of the worst prison COVID outbreaks in the country, according to the Santa Barbara Independent. An investigation last summer by the Dept. of Justice Inspector General found that the BOP’s initial response to COVID “failed on a number of fronts and likely contributed to the severity of the outbreak, including staffing shortages, inadequate screenings, and a scarcity of protective equipment.”

As of Friday, Englewood and Loretto each have more than 600 sick inmates, Texarkana and Pekin more than 300 each, five more facilities with more than 200, and 12 more BOP institutions with over 100 active COVID cases.

When a local newspaper asked the BOP about Loretto, a spokesman said the prisons are following accepted guidelines. While declining to address the Loretto situation “due to privacy, safety and security reasons,” the spokesman told the paper, “we can tell you all institutions have areas set aside for quarantine and medical isolation.”

Meanwhile, The New York Times last week criticized the BOP for its management of COVID at FDC Brooklyn. Noting that 55 inmates had tested positive for COVID-19, The Times said, “many months into this pandemic, the Federal Defenders of New York, a legal advocacy group, said officials at the jail aren’t following basic public health guidelines to prevent the spread of the virus, to care for sick inmates or to protect those who are most vulnerable. The reports… are disturbing. Corrections officers, they say, aren’t properly wearing masks, including while interacting with inmates. Sick inmates aren’t receiving proper medical attention and are being placed in cells with healthy individuals. One person incarcerated at the facility told an attorney with the Federal Defenders that severely ill inmates who asked for medical attention didn’t get it.”

A BOP spokesman disputed the Defenders’ claims. Nevertheless, the Times said, “if the conditions are anything like what the Federal Defenders describe, they are an affront to human dignity and a threat to the public health of Americans in and out of the Brooklyn facility.”

lies170310And here’s an interesting glimpse at the BOP’s record-keeping, a factoid that could suggest to reasonable people that the BOP’s numbers cannot necessarily be trusted. A Youngstown, Ohio, news website, reporting on Columbiana County, Ohio, COVID numbers, was trying to derive a number of people recovered from the virus. It noted that FCI Elkton – located in the county – reported “896 incarcerated people and 54 employees had recovered from COVID-19 as of today… That number has declined in recent weeks, suggesting the bureau removes cases from its total when people are transferred out of the prison.”

Yale University Law School, CJAC Wins Speedy Release of Medically Vulnerable Individuals from Federal Prison in Danbury (December 12, 2020)

Order, Whitted v Easter, Case No 3:20-cv-00569 (D. Conn, December 11, 2020)

WWLP-TV, Judge orders release of 17 virus-vulnerable federal inmates (December 12, 2020)

KMSP-TV, ACLU sues federal prison in Waseca, Minn. after 67% of inmates test positive for COVID-19 (December 10, 2020)

Burlington County Times, More NJ lawmakers renew call for end to inmate transfers at FCI Fort Dix (December 10, 2020)

Johnstown Tribune-Democrat, Feds: Loretto prison following guidelines (December 11, 2020)

Mahoning Matters, Columbiana County reports 244 new COVID-19 cases, 2 new deaths (December 11, 2020)

New York Times, Stop the Coronavirus Outbreak at Brooklyn’s Federal Jail (December 8, 2020)

– Thomas L. Root

Whither Vaccine? – Update for December 10, 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.

VACCINE DELIVERY TO FALL SHORT WHILE DEBATE OVER INMATE ACCESS INTENSIFIES

The Washington Post reported last Saturday that federal officials have slashed the amount of coronavirus vaccine they anticipate will ship in December because of constraints on supply, sending local officials into a scramble to adjust vaccination plans and highlighting how early promises of a vast stockpile before the end of 2020 have fallen short.

COVIDstockpile201210

And if that were not enough, it now appears that before Pfizer’s coronavirus vaccine was proved highly successful in clinical trials last month, the company offered the Trump administration the chance to lock in supplies beyond the 100 million doses the pharmaceutical maker originally agreed to sell the government. The New York Times reports, however, that the administration, according to people familiar with the talks, never made the deal, “a choice that now raises questions about whether the United States allowed other countries to take its place in line.”

papertiger201210

The President issued an executive order on Tuesday that proclaimed other nations will not get the U.S. supplies of its vaccine until Americans have been inoculated. But, the Times said, “the order appears to have no real teeth and does not expand the U.S. supply of doses…”

Instead of the delivery of 300 million or so doses of vaccine immediately after emergency-use approval and before the end of 2020, as the administration had originally promised, current plans call for availability of around a tenth of that, or 35 to 40 million doses. And that is out of a maximum delivery of 100 million Pfizer doses, enough to inoculate 50 million people.

Meanwhile, The New York Times reported a week ago that as public health officials are scrambling to develop guidelines for the equitable allocation of limited vaccine supplies, “inmates are not ranked in the top tiers of the federal criteria, even though some of the largest outbreaks have occurred in the nation’s prisons.” The CDC advisory committee has prioritized correctional officers and others who work in jails and prisons for the first phase of immunizations, a decision the Times says “raises a chilling prospect: another prison outbreak that kills scores of inmates after the only preventive was reserved for staff.”

corona200313Several groups, including the American Medical Association, are calling for coronavirus vaccines to be given to inmates and employees at prisons, jails and detention centers, citing the unique risks to people in confinement — and the potential for outbreaks to spread from correctional centers, straining community hospitals. “We aren’t saying that prisoners should be treated any better than anybody else, but they shouldn’t be treated any worse than anybody else who is forced to live in a congregate setting,” said Dr. Eric Toner, co-author of a report on vaccine allocation published by the Johns Hopkins Center for Health Security.

But a political backlash has been brewing over the idea that inoculating people behind bars should be a priority. “Killers and rapists set to get COVID vaccines before Granny,” a recent Fox News segment proclaimed.

Curiously (and this should be treated as probably true but unconfirmed) two inmates from two very different locations – FCI Petersburg Medium and FMC Carswell – told me yesterday that BOP health services personnel were surveying inmates at each location to determine their willingness to be vaccinated.

Can we pronounce the word “optimism,” boys and girls?

The Washington Post, Trump’s Operation Warp Speed promised a flood of COVID vaccines. Instead, states are expecting a trickle (December 5, 2020) 

The New York Times, Trump administration officials passed when Pfizer offered months ago to sell the U.S. more vaccine doses (December 7, 2020)

The New York Times, Prisons Are Covid-19 Hotbeds. When Should Inmates Get the Vaccine? (December 2, 2020)

– Thomas L. Root

Higher and Higher… – Update for December 8, 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.

BOP COVID CASES BREAKS 5,000 AS LEGISLATORS GRILL CARVAJAL

rocket-312767BOP inmate COVID-19 cases passed a grim milestone last Friday, rocketing past the 5,000 mark. That number jumped another 10% over the weekend. As of last night, the BOP had ended with

•     5,634 ill inmates (up 15% from the week before);

•    1,613 sick staff (up 12% from last week);

•    COVID in 128 BOP facilities; and

•    163 dead inmates.

The BOP has tested 57% of all inmates at least once, with the positivity rate climbing from 25% – where it has hovered for months – to over 32%.

To put this in perspective, one out of every five federal inmates who has ever had the virus has it right now.

BOPCOVID201208jpg

Two BOP facilities have more than 300 sick inmates, Loretto and Texarkana, three more with over 200 ill, andand another 16 with over 100 COVID cases. USP Tucson has 75 sick staffers, with Pollock in second place with 60 and Oklahoma FTC with 50.

Last Wednesday, BOP Director Michael Carvajal testified before the House Subcommittee on Crime, Terrorism, and Homeland Security. It wasn’t pretty. After he delivered his prepared statement – a BOP puff piece about how in response to COVID-19, the BOP had “implemented a decisive and comprehensive action plan to protect the health of the inmates in our custody, the staff, and the public, to the greatest extent possible, consistent with sound medical and corrections principles” and how the BOP’s “procedures have proven effective as this is evidenced by the steep decline in our inmate hospitalizations, inmates on ventilators and deaths” – the knives came out.

fired161227Subcommittee Chair Karen Bass (D-California) quoted a Dept of Justice Inspector General report that found up to six days elapsed before FCI Oakdale inmates who had been exposed or tested positive for COVID-19 were isolated, and wondered how that squared with the BOP’s representations. Carvajal insisted that the situation in Oakdale was not representative of BOP policies, and blamed the then-warden. “In a nutshell, we had some leadership issues there,” he said. “Our regional director had some concerns about the procedures not being enforced or followed. In essence, without getting into details, I removed the leadership.”

Carvajal pushed back at Subcommittee demands the BOP institute a blanket staff testing plan (arguably a good idea considering that 43% of all staff who have had COVID since March are sick right now). He argued that the BOP could not compel employee COVID tests. But a written statement filed with the Subcommittee by Shane Fausey, national president of the BOP employees’ unions, disputed that, complaining that despite unions’ urging, the BOP “has repeatedly refused” to offer voluntary coronavirus testing to staff members at the prison facility where they work. Instead, Fausey said, “employees who believe they were exposed or might be infected with the coronavirus must get tested on their own time and in their own communities.” For good measure, Fausey also blasted BOP and Marshals Service for transferring inmates without adequate quarantining, which he said has put “the health and safety of tens of thousands of federal correctional workers, their families, and their communities at risk.”

covidtest200420In a separate exchange with Representative Sheila Jackson Lee (D-Texas), the director said he could not force his employees to get tested for Covid-19, although the BOP waives insurance copays for those tests.

“I understand civil liberties, civil rights the Constitution, but you’re talking about individuals coming into contact with incarcerated persons who can’t walk away, who can’t get out,” Jackson Lee said. “And that means they are endangering themselves, their families at home.”

Rep. Hakeem Jeffries (D-New York) braced Carvajal about underutilization of compassionate releases. Before filing for a compassionate release, an inmate must first ask the BOP to bring the motion for him or her, a vestige of the procedure before the First Step Act broadened the law to let inmates bring their own motions. Jeffries noted that while about 2,000 such motions had been granted by courts, the BOP had approved only 11 requests when inmates first asked to the agency to do so. Jeffries asked Carvajal, “10,929 requests out of 10,940 requests were rejected, does that sound right?”

Carvajal said the BOP has been intentionally careful. Given public safety considerations, Carvajal said, the BOP’s approval rate of 0.1% makes sense: it is “not a process that should be rushed.” This suggests that the courts, with compassionate release approval rates that are 182 times higher than the agency, are profligate.

The day before the hearing, Government Executive magazine published a sobering piece in which BOP employees said that staffing shortages and COVID-19 are creating a crisis. “If not for COVID, we would still have augmentation but it wouldn’t be as crazy,” Joe Rojas, a union official. “It’s already a dangerous workplace with COVID and it’s made worse by understaffing.”

quit201208Several employees said they expect that attrition to accelerate in the coming months. Rojas said he and many others have stuck around in part due to a retention bonus the BOP offered to veteran workers in recent years. That incentive is disappearing next year, he said. A BOP spokesman said the Bureau is providing incentives “where appropriate” and taking other steps to boost recruiting. He noted the agency has hired 3,400 employees in 2020, a sharp uptick over recent years.

Already some of the prisons in the Southeast, Rojas said, are operating at 70% or less of their expected workforce level. “You can’t run a prison like that. The seams are going to burst,” he said. “I’m afraid.”

DOJ, Statement of Michael D. Carvajal, Director Federal Bureau Of Prisons (December 2, 2020)

Courthouse News Service, Officials Spar Over Covid Spread Through Prison System (December 2, 2020)

Statement of Shane Fausey, National President, Council of Prison Locals (December 2, 2020)

Government Executive, Federal Prison Employees Fear Staff Shortages and Mass Reassignments as COVID-19 Cases Spike (Dec 1)

– Thomas L. Root

4th Circuit Endorses Compassionate Release for Stacked 924(c) Sentences – Update for December 7, 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.

THE REAL MCCOY


mccoy201207The compassionate release statute, 18 USC § 3582(c)(1)(A)(i), requires that any sentence reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” The policy statement implicated by the statute is set out in USSG § 1B1.13, a Guideline which lists three very specific reasons for granting compassionate release, and a fourth “catch-all” provision permitting grant of a compassionate release motion if “as determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the [other three] reasons.”

USSG § 1B1.13 was written before the First Step Act authorized inmates to file their own sentence reduction motions. The Guideline has never been changed, because the Sentencing Commission has lacked a quorum, and thus has been able to conduct no business, since 2018. But that has not stopped the government from arguing that compassionate release motions could not be granted because the Director of the BOP has not decided that possessing COVID-19 risk factor is an extraordinary and compelling reason for a sentence reduction.

Many judges decided that because § 1B1.13 was written back in the day when only the BOP could file the motion, it was a relic that could be ignored. But not all. The result has been a terrible disparity between district courts in granting compassionate release motions: the same set of facts that justify a sentence reduction in front of one judge would be rejected by another.

Last September, the 2nd Circuit laid down the law on compassionate release in United States v. Brooker (some are calling the case United States v. Zullo), ruling that district courts have broad discretion to consider “any extraordinary and compelling reason for release that a defendant might raise” to justify a sentence reduction under § 3582(c)(1)(A), and that Guideline § 1B1.13 only applies to compassionate release motions brought by the BOP (which would be virtually none of them). Then, two weeks ago, the 6th Circuit followed Brooker/Zullo in United States v. Jones, and the 7th agreed in United States v. Gunn.

Sentencestack170404It may be hard to remember that compassionate release motions get filed for reasons other than COVID-19. One reason advanced by some defendants has been that they received horrific sentences because of stacked § 924(c) convictions. Recall that before First Step, if you robbed a bank with a gun, you got maybe 87 months for the robbery and a mandatory 60 months more for the gun. But rob three banks on successive days, and you would get 87 months for the robbery, 60 more months for the gun used in the first robbery, 300 months more for the gun used the next day, and 300 more months for the gun used the third day. This was because § 924(c) specified that each subsequent § 924(c) conviction carried 300 months. First Step changed that, making clear that the 300-month sentence only applied if you committed a § 924(c) offense after being convicted of the first offense.

First Step did not make the § 924(c) changes retroactive. Nevertheless, after it passed some guys with stacked § 924(c) violations filed compassionate release motions, arguing that it was extraordinary and compelling to make them serve much longer sentences when the law had changed, and people being sentenced now did not face the same penalty.

One guy in Virginia, Thomas McCoy, and three others from Maryland filed such cases. Their respective district courts agreed with the motions, cutting their sentences to time served. But the government appealed, arguing that the sentence reduction did not fit § 1B1.13, and even if they did, the fact that the defendants had stacked § 924(c) sentences was not extraordinary and compelling because in First Step, Congress decided against retroactivity of the First Step changes to § 924(c). Last week, the 4th Circuit sided with the defendants, in the process pushing the bounds of compassionate release to new horizons.

The 4th Circuit agreed with Brooker, Gunn and Jones that § 1B1.13 – because it refers only to compassionate release motions filed by the BOP – is not an “applicable policy statement” within the meaning of the statute, and thus may be ignored.

draco201207Beyond that, the 4th rejected the Government’s argument that there was nothing wrong with holding the defendants to their draconian sentences, ruling instead that “the district courts in these cases appropriately exercised the discretion conferred by Congress… We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions…”

The appellate holding is huge, suggesting that sentence unfairness and rehabilitation gives sentencing judges the right to make sentence reductions under § 3582(c)(1)(A)(i).

United States v. McCoy, Case No 20-6821, 2020 U.S. App. LEXIS 37661 (4th Cir., Dec. 2, 2020)

– Thomas L. Root

Pinching a Statute ‘Til It Hollers: BOP and Earned Time – Update for December 2, 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.

BOP ROLLS OUT PROPOSED FSA EARNED TIME RULES

Twenty-three months after passage of the First Step Act authorized the Federal Bureau of Prisons to give earned time credits to inmates who complete programs that have been shown to reduce recidivism, the BOP is finally getting around to adopting rules on how such credits will be rewarded. And, unsurprisingly, the BOP is making Ebenezer Scrooge look like Santa Claus.

scrooge201202First Step focused on assessing each prisoner’s likelihood of recidivism and rolling that assessment into a recidivism and needs assessment system known as PATTERN. The BOP was then to determine which of the programs identified as likely to reduce recidivism each inmate needed. As the inmate completed the programs, he or she would see the PATTERN score – ranging from “high risk” down to “minimum risk” – decrease. To encourage the prisoners to complete the programs, First Step authorized the award of “earned time credits,” equal to 10 to 15 days for each 30 days of programming completed. The earned-time credits can be used for more halfway house, more home confinement, or up to 12 months of early release.

Of course, the devil’s in the details. The language in the Act says:

A prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.

rules201202What exactly does First Step mean by “30 days of successful participation?” The BOP has finally announced proposed rules to define that, and the definition is a doozy.

The proposed rule figures that “30 days” means 30 program days. A “program day” is eight hours, the BOP says. In other words, a 500-hour program would be worth 500 hours/8 hours-to-a-day, or 62.5 program days. Completion of the 500-hour program would award an inmate two months (60 days) of program credit, which is worth 20 days earned time credit for inmates with medium or high recidivism risk, and 30 days credit for inmates with minimum or low risk.

In the BOP, a 500-hour program takes 12-18 months to complete.  That may seem like a fairly substantial commitment for a month more of home confinement. But it is consistent with what we’ve come to expect from the BOP: given a chance to interpret the extent of its authority to be lenient, it invariably interprets that authority in the most chary way possible.

results201202The proposed rule does settle one question which has been coming up often in the last few months: FSA earned time credits may only be earned for successful completion of an Evidence-Based Recidivism Reduction Program and Productive Activity assigned to the inmate based on the inmate’s risk and needs assessment, and only for those successfully completed on or after January 15, 2020.

The proposed rule does not address the procedures for determining whether an individual inmate will have FSA earned time credits applied towards prerelease custody, early transfer to supervised release, a combination of both, or neither. Instead, it only addresses the procedures for earning, awarding, loss, and restoration of FSA credits.

The public may submit comments to the BOP on the proposed rule until January 25, 2021.

Federal Register, Proposed Rule: FSA Time Credits (November 25, 2020)

– Thomas L. Root

COVID Peaks, Vaccine on the Horizon – Update for December 1, 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.

BOP HITS UGLY COVID MILESTONE AS VACCINE IS PROMISED

With yesterday’s numbers, the Bureau of Prisons continues into new  COVID-19 record with 4,792 sick inmates, topping previous records of 3,461 on May 11 and 4,454 on July 23. The inmate death toll hit 157 last week, with one fatality – Louis Rector at FMC Butner – having been declared recovered in July, only to be hospitalized two months later and then to linger for two months before dying.

BOPCOVID201201A record 1,414 BOP staff are sick. COVID is in 126 BOP facilities. Fifteen joints have more than 100 inmates sick, and four have more than 200 COVID cases. The BOP says it has tested 54% of all inmates at least once, with a positivity rate of 29%.

The big news now is about vaccine. The Associated Press reported last week that the BOP would be “among the first government agencies to receive the coronavirus vaccine, though initial allotments of the vaccine will be given to staff and not to inmates, even though sickened prisoners vastly outnumber sickened staff,” citing documents it had obtained from the BOP.  AP said the BOP has “been instructing wardens and other staff members to prepare to receive the vaccine within weeks, according to people familiar with the matter. The people could not discuss the matter publicly and spoke to the AP on condition of anonymity.”

reinfection200831Government Executive reported that the BOP “would provide vaccines to all staff and inmates under the interim plan. Employees and inmates at private contract facilities are not slated for inclusion. In a recent memorandum for staff obtained by Government Executive, the bureau said employees, rather than inmates, would receive ‘initial allocations.’ CDC will determine the size of that allocation. The memo also provided a glimpse into the process federal workers will follow to receive a vaccine from their agencies: staff will follow a specific link that will allow them to register and, once registered, they can set up an appointment at their facility’s health services department.”

The government has not yet approved any vaccine, a necessary step before any doses can be delivered. Several vaccine makers have asked for expedited permission, and CBS reported yesterday that vaccine may be available by Christmas.

Advocates say the federal government should be doing more to ensure vulnerable, at-risk inmates have access to the vaccine as soon as possible. “If true, it’s a disgrace,” David Patton, the head of the federal defender office in New York, said of the Bureau of Prisons plan. “Prisoners are among the very highest-risk groups for contracting COVID-19. The conditions of confinement make social distancing and proper hygiene and sanitation nearly impossible. The government should certainly prioritize prison staff, but to not also prioritize the people incarcerated is irresponsible and inhumane.”

AP said the BOP “has been accused of missteps and scattershot policies since the virus reached the U.S. earlier this year.”

A prime example may be the one reported by WUSA-TV, Washington, DC, last week. Fabian Tinsley died of COVID last April at Butner, but no one told his family Fabian’s niece discovered news accounts of his death when she Googled him in August.

johndoe201201WUSA-TV said, “Officials with the Federal Bureau of Prisons failed to inform Tinsley’s family of his death in April. Staff from the North Carolina facility only notified next-of-kin after reports from the CBS News affiliates in Raleigh and Washington. “I think they thought we wouldn’t care enough, and that’s been the problem,” said Latesha Boyd, Tinsley’s niece. “We have no closure, that’s how I feel.”

The TV station reported that “After the communications breakdown became apparent in August, Boyd said Butner staff called frequently with apologies. Yet the family said they could only describe their current situation as being trapped in a bureaucratic runaround, with no firm details on where to find Tinsley’s body.”

In an October statement from the BOP, “a spokesperson said communication with the family continues,” WUSA-TV reported.

BOP, Inmate Death at FMC Butner (November 23, 2020)

Associated Press, Federal prisons to prioritize staff to receive virus vaccine (November 23, 2020)

Government Executive, Several Federal Agencies to Deliver COVID-19 Vaccines to Employees Directly (November 23, 2020)

CDC, COVID-19 Vaccination Program – Interim Playbook for Jurisdiction Operations (October 29, 2020)

WUSA-TV, 224 days after a DC man died of coronavirus, his family still has no idea where to find his body (November 26, 2020)

– Thomas L. Root

Clemency Stampede On the Horizon? – Update for November 30, 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.

FLYNN PARDON SETS OFF CLEMENCY SPECULATION

Just as predicted, President Trump pardoned turkeys Corn and Cob last Tuesday. But the act may have whetted the President’s appetite for something besides Big Macs, because the day after pardoning the turkey, Trump pardoned Michael T. Flynn, his first national security adviser.

innocent161024Flynn, you may recall, has been seeking to have the case against him dismissed after twice pleading guilty to lying to the FBI.  Much of the media (and opposing politicians) have responded with howls of indignation, believing that he must have pled guilty because he knew he was guilty. Those of us familiar with the federal criminal system, of course, know better: a plea of guilty is irrelevant to actual guilt: instead, it’s just a white flag waved at an enemy force of superior strength, hoping that negotiated surrender is better than being overrun and massacred.

But that’s a discussion for another day. The Flynn pardon was followed by a New York Times report that the White House is weighing a number of pardons and commutations for Trump to issue in his final weeks in office. The consideration is prompting jockeying by a range of clemency seekers and their representatives. Besides the usual cast of people connected to Trump and his campaign, several groups that have previously pushed for criminal justice reform are working with an ad hoc White House team under the direction of presidential advisor and son-in-law Jared Kushner, which has what the Times called a goal of announcing as many as hundreds of commutations for federal prisoners.

“Lists of people are being circulated,” federal post-conviction attorney Brandon Sample told The Times. In addition to a number of Trump associates who may benefit from clemency, Trump is said to be focused on ways to use clemency to further burnish his criminal justice reform credentials, which were made when he supported passage of the First Step Act. The Times said, “A blitz of late pardons or commutations for federal crimes — over which presidents have unchecked power — is seen by some criminal justice reform activists as another way to build his record on that issue.”

exotic201130Kodak Black, a rapper doing time on a § 922(g) felon-in-possession-of-a-gun conviction, publicly announced he would donate $1 million to charity if Trump granted him clemency, Another celebrity inmate,  Joseph Allen Maldonado-Passage (that’s “Joe Exotic” to you) – convicted in 2019 on two counts of murder-for-hire for plotting to kill his nemesis and Big Cat Rescue owner Carole Baskin, as well as eight counts of falsifying wildlife records and nine counts of violating the Endangered Species Act – has had representatives lobbying the White House for a pardon since last April. Trying to beat a 22-year sentence, Joe reportedly had his people stay in a Trump hotel, dropping $10,000 in an attempt to get the President’s attention. A group of celebrities, Republican officials and civil rights advocates sent a letter to President Trump last Wednesday, urging him to pardon or commute the sentences of people in federal prison for nonviolent federal marijuana offenses.

The New York Post said last week that the President’s “allies see the final two-month stretch of Trump’s term as an opportunity to cement his first-term legacy before handing over the reins to Biden, who authored some of the most punitive drug laws.”

Physical lists of convicts seeking commutations and pardons have swirled in the West Wing since June 2018, the Post said, when Trump freed Alice Johnson from a federal drug conspiracy sentence at the request of Kim Kardashian. Johnson spoke at this year’s Republican National Convention and traveled with Trump to the first presidential debate.

crazynumbers200519Trump often speaks proudly of freeing Johnson and turned to her for recommendations. During this year’s campaign, Trump pledged minority voters a new clemency commission if he won re-election. Yet, with over 13,000 clemency applications on file, Trump has used his clemency power less often than any president in modern history, according to data from the Dept of Justice. Trump’s sparse use of pardons, commutations and other forms of official leniency stands in sharp contrast to his predecessor, Barack Obama, who used the clemency power more frequently than any chief executive since Harry Truman.

As of Nov. 23, Trump had granted clemency 44 times, including 28 pardons and 16 commutations. That’s the lowest total of any president since at William McKinley, who was elected in 1897. Obama granted clemency 1,927 times during his eight-year tenure, including 212 pardons and 1,715 commutations. The only modern president who granted clemency almost as infrequently as Trump is George H.W. Bush, who granted 77 pardons and commutations in his single term.

Politico, Trump pardons Corn the turkey as a finishing White House act (November 24, 2020)

The New York Times, Trump’s Pardon of Flynn Signals Prospect of a Wave in His Final Weeks in Office (November 25, 2020)

Marijuana Moment, Republican Lawmakers And Celebrities Push Trump To Free Marijuana Prisoners Before Leaving Office
(November 25, 2020)

New York Post, Turkeys, Corn and Cob, expected to be first in slew of final Trump pardons (November 24, 2020)

Pew Research Center, So far, Trump has granted clemency less frequently than any president in modern history (November 24, 2020)

– Thomas L. Root

Happy Birthday to Us! – Update for November 30, 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.

LISA NEWSLETTER TURNS FIVE YEARS OLD

On November 29, 2015, LISA published its first newsletter. Volume 1, Number 1 was sent to 13 inmates. We’ve published one every Sunday night since then (except for one week in July 2019, skipped so the editor could take his wife on a 40th wedding anniversary trip). That’s 260 newsletters.

Happy birthday to us.

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In five years, our subscriber base went from 13 to 10,971. Then last October, the Federal Bureau of Prisons banned us for a day (an accident, they said), and when we were turned back on, our subscriber base had been wiped out.

Still, six weeks later, we are back up to over 3,500 inmates.

What you see on the website (besides the newsletter itself) is an expanded version of what we run in the newsletter. Our goal in the newsletter is to provide federal prisoners with legislative and judicial news that is factual, well-sourced and timely. On the website, we tend to let our opinions show, but we keep the newsletter as neutral as we can.

After five years, the newsletter is still free and is still sent every Sunday night. 

– Thomas L. Root

Turkey Gobbles Up Trump’s Last Pardon? – Update for November 25, 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 ISSUED NEW PARDON YESTERDAY… OF A TURKEY

Thanksgiving week is the traditional time for the President of the United States to “pardon” a turkey or two… and this week was no exception. Yesterday, President Trump – absent any appreciation for irony of having ordered five executions before he leaves office in two months – pardoned turkeys Corn and Cob. “We hope — and we know it’s going to happen — that Corn and Cob have a very long, happy and memorable life,” Trump said.

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Politico noted that “turkeys pardoned at the White House are bred for slaughter and are often too unhealthy to support long lifespans. Most die a few months after getting pardoned.” They will still outlive five federal inmates, including one woman, scheduled to be executed by lethal injection at the US Penitentiary in Terre Haute over the next 60 days. It is irregular for an administration to execute prisoners during its lame-duck period, rather than to let the incoming administration make its own decisions on the matter.

The Presidential pardon-fest every Thanksgiving Week has its owen rituals. “The turkeys will be given silly names (past recipients have included birds named Mac and Cheese), some children and White House staffers will look on, and there will be forced jokes and stiff laughter,” law professor and pardon expert Mark Osler complained last year.

We still get requests from people on where to find clemency applications and questions about how to write them. To be blunt, pardon and commutation petitions make sense only if an inmate has exhausted all other avenues for relief and has plenty of extra postage to waste.

That sentiment is shared by Osler and New York University law professor Rachel Barkow, a former Sentencing Commission member. Last week, they wrote about how, for all of the talk Trump’s 44 commutations issued in the past four years have caused, he “has exercised this presidential power rarely.” All but five of his grants were to people connected to him politically or championed by celebrities. Indeed, Trump’s early grant of a pardon to Arizona sheriff Joe Arpaio energized Trump’s political opponents in Arizona and may have cost him enough voters to lose the state.

presidential_pardon_thanksgiving_tile_coasterTrump used a Super Bowl ad to highlight his grant of clemency to Alice Marie Johnson, whose case was pushed on him by Kim Kardashian. Earlier this year, he fully pardoned her — and she was a featured speaker at the Republican National Convention. Barkow and Osler wrote, “Treating clemency as made-for-TV fodder, and plucking out a few cases that the campaign hoped had compelling narratives, is disappointing. More than 13,000 petitions are moldering in the bureaucratic maze of the clemency process, even as covid-19 ravages U.S. prison populations.”

The authors worry that “people will focus on Trump’s inappropriate grants and conclude that the clemency power needs to be limited — instead of focusing on the many people still waiting for a decision. This raises two issues: Any legislation to limit the clemency power is likely to be found unconstitutional. This approach also gets the problem backward: Clemency must be expanded, not limited, because there are so many people serving disproportionately long federal sentences who have no hope for relief other than presidential clemency.”

clemency170206Biden’s major competitors in the primaries all endorsed the idea of taking clemency out of the hopelessly conflicted Justice Department and establishing a bipartisan board. That proposal was included in the Democratic Party platform. It must be implemented — and soon. The overstuffed clemency pipeline is about to burst.”

Last week, the Prison Policy Initiative urged President-elect Biden to “use the president’s clemency power to release people convicted of nonviolent drug crimes. A President Biden,” the Initiative wrote, “willing to use clemency in a broad, sweeping manner could significantly reduce the federal prison population — without needing to consult Congress. But if President-elect Biden spends too much time reviewing clemency applications to avoid all possible risk, it’s unlikely that he will make a big impact.”

Politico, Trump pardons Corn the turkey as a finishing White House act (November 25)

Washington Post, Trump abused the clemency power. Will Biden reform it? (November 16)

Prison Policy Initiative, The promise — and peril — of Biden’s criminal justice reform platform (November 13)

– Thomas L. Root