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Former BOP Official Says “Wait Until The Halfway House Has Space” Is A Fable – Update for October 21, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE ANT AND THE GRASSHOPPER

antgrasshopper241021Most kids recall Aesop’s fable about the grasshopper who played away the summer while his neighbor, the industrious ant, worked dawn to dusk storing food for the winter. You can imagine the ending: the grasshopper. When the cold winds blow, the hungry grasshopper begs for food from the ant but is refused.

The situation sums up the virtues of hard work and planning for the future, a lesson lost on the Federal Bureau of Prisons when it came to wisely using the years following the First Step Act’s passage to expand access to halfway house space.

Admittedly, 18 USC § 3624(g) is a long, convoluted subsection. But that’s no excuse for the BOP skipping the very last paragraph, which says “[t]he Director of the Bureau of Prisons shall ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners.” After all, “shall” means “shall” and “all” means “all.”

The grasshopper was reduced to begging. The BOP, on the other hand, has addressed its lack of preparation by vigorously arguing that nothing was its fault and that inmates with FSA credits earned by successfully completing programming that reduces recidivism can use them for halfway house or home confinement only at the whim of the halfway houses. The BOP has told courts that a prisoner has no constitutional right to be placed in a particular facility and that the BOP has exclusive authority and discretion to designate the place of confinement.

The shortage of halfway house or home confinement capacity for all of the FTCs people have to redeem is no secret. BOP Director Collette Peters testified about it before Congress last summer. Her lament that the BOP has a “capacity” problem – like the government’s use of the shortage as a reason FTCs cannot be redeemed – has a flavor of John Belushi as Jake Blue, kneeling in the muck in front of Carrie Fisher, blubbering that his tux had been at the cleaners and that “it’s not my fault.”

fault200814What has been a secret, however, is that the BOP apparently has been fully aware that “shall” means “shall,” and that it is obligated to place prisoners in halfway house or home confinement when their FTCs dictate, not when the halfway house says so. In a remarkable article published this week in ExpertClick, former BOP official and consultant Bruce Cameron and recently retired BOP Unit Management Section Chief Susan M. Giddings – candidly acknowledge that “[t]he BOP has no discretion to deny or delay transfer to prerelease custody for any reason, including the lack of physical space.”

It is not surprising that Bruce would state this obvious fact. He retired from the BOP 11 years ago and has run Federal Prison Authority, a consultancy that (among other things) assists people with RDAP and placement in community programs ever since. But Dr. Giddings – whose declarations have supported any number of government oppositions to prisoner habeas petitions since First Step – only retired from the BOP five months ago. As the “go-to” BOP official on all matters related to FTCs, she would have been privy to the BOP’s thinking when she retired in the same month as the remarkable Woodley v. Warden decision was handed down by a district court in Kansas.

In the ExpertClick article, Susan and Bruce argue that the Woodley decision has limits that are easily overlooked. The Woodley court ruled that while the BOP must place an inmate so that she may use all of her FTCs, the agency “retains its discretion regarding the type and location of placement.” They focus on the Woodley court’s caveat that “the BOP retains the discretion to decide whether to transfer the petitioner to a [halfway house] or home confinement, or even whether to transfer to petitioner to early supervised release[…] Nor does the Court require that petitioner be placed in any particular [halfway house]; thus, the BOP retains the discretion to choose the particular prerelease facility.”

Petitioner Woodley could not be placed in a Tampa halfway house in time to use his FTCs, so pursuant to the court’s order that it do something to place him, the BOP sent him to one in Orlando, 70 miles away. Susan and Bruce complain that by requiring placement so as to use all of a prisoner’s FTCs,

Congress gutted the real and vital purpose of reentry services. Yet, that is the real issue and impact of Woodley. For all their talk, Congress failed to include participation in a meaningful prerelease community program as a part of the FSA, literally contradicting the purpose of the Second Chance Act. So, whether an incarcerated person is placed 5, 50, or 500 miles from their home and community, all that matters is that they were transferred.

outtahere230914It is unlikely that an inmate seeking to cash in his FTCs cares much about the meaningfulness of the “prerelease community program” to which he is sent. What is noteworthy to prisoners is that experts – especially Dr. Giddings, only months from having been at the center of BOP decision-making on all matters related to FTCs – accept as a given Woodley’s holding that “[t]he BOP has no discretion to deny or delay transfer to prerelease custody for any reason, including the lack of physical space.”

Woodley v. Warden, Case No. 24-3053, 2024 USDist LEXIS 87521 (D.Kan. May 15, 2024)

ExpertClick, Woodley v. Warden Revisited: Time Credits, Prerelease Placement, and Agency Discretion (October 17, 2024)

House Subcommittee on Crime And Government Surveillance, Testimony of Colette Peters (July 23, 2024)

– Thomas L. Root

6th Circuit Applies Williams to § 922 Cases – Update for October 18, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

A CINCINNATI GUN SHOW

The 6th Circuit last week wasted no time finding practical applications for its August holding in United States v. Williams that while 922(g) may not categorically disqualify everyone within its prohibitions on firearms ownership, it does when dangerousness is involved.

gunshow241018Williams established that felons are among “the people” protected by the 2nd Amendment. Williams held that consistent with the 2nd Amendment, “our nation’s history and tradition demonstrate that Congress may disarm individuals they believe are dangerous,” and so “most applications of § 922(g)(1) are constitutional.” Applying that standard to defendant Williams, the panel concluded that the defendant’s § 922(g)(1) felon-in-possession conviction was constitutional in light of his extensive criminal record, which included aggravated robbery and attempted murder.

After Williams, defendants may still argue that their facts make them an individualized exception to the application of § 922(g)(1). That’s what Christopher Goins argued. He was on probation for a state felony when he had a friend buy him two AR-15 frame pistols at a gun store. Chris took possession of the firearms in the gun store parking lot in full view of surveillance cameras.

At the time Chris took delivery of the gun, he had multiple convictions for crimes punishable by imprisonment for more than one year, including a DUI, driving under the influence on a suspended license, and possession of drugs. A state court had initially sentenced Chris to one year of jail time for each of the three offenses, but it then withheld the sentence and instead gave Chris to 120 days of imprisonment and four years of probation. One condition of probation was that Chris could not possess a weapon of any kind.

The 6th upheld Chris’s § 922(g)(1) conviction, finding that the nation’s “historical tradition demonstrates that Congress may lawfully disarm probationers like Goins, who (1) are under a firearm possession limitation as a condition of probation, (2) are under a relatively short probation sentence for a dangerous crime, and (3) whose repeated and recent actions show a likelihood of future dangerous conduct.”

nickdanger220426The same day, another 6th Circuit panel ruled that Jaylin Gore’s conviction for possessing a stolen gun (18 USC 922(j)) and receipt or transfer of a gun while under indictment (922(n)) was consistent with the 2nd Amendment.

The Circuit ruled that “there is ample historical support for prohibitions on the purchase or receipt of stolen goods and “there is no indication that firearms were exempt from such laws.”

As for prohibiting receipt or transfer of a gun while under indictment, the 6th ruled, “§ 922(n)’s prohibition is comparable to the founding-era history of pretrial detention ‘in both why and how it burdens the 2nd Amendment right… Like pretrial detention, § 922(n) restricts indicted persons’ rights during the fraught period between indictment and trial, for the purpose of furthering public safety and protecting the integrity of the criminal process. And just as bail was denied outright only for defendants facing serious charges, so § 922(n) is triggered only by indictment for a felony charge… So for those who already possess one or more firearms, § 922(n) represents only a slight burden on the 2nd Amendment right; and even for those who do not, § 922(n)’s prohibition is a lesser burden than detention or permanent disarmament.”

Finally, the 6th held last Thursday that Sylvester Gailes, a guy described as a “serial perpetrator of domestic violence,” could not use the 2nd Amendment to avoid his § 922(a) conviction. Sly had repeatedly beaten the mother of his children (occasionally doing so in the presence of the kids). He had been convicted of multiple domestic violence misdemeanors.

Under 18 USC § 922(g)(9), someone convicted of a misdemeanor crime of domestic violence is prohibited from possessing a gun.

The Circuit ruled that “domestic violence convictions generally involve some sort of physical force… When the presence of a gun accompanies the use of physical force, the likelihood that abuse turns to homicide greatly increases… It is no surprise then that Congress sought to deprive people with domestic violence convictions from possessing firearms.”

guns170111The 6th held that “[t]aken together, Rahimi [which held that someone subject to a domestic protection order] and Williams evince that our history and tradition of firearm regulation support § 922(g)(9). Although § 922(g)(9) is by no means identical to the historical sources above or a founding-era regime, it does not need to be. The historical sources cited in Rahimi and Williams establish the constitutionality of modern firearms regulations targeting those who pose a clear threat of physical violence to another.

United States v. Williams, 113 F.4th 637 (6th Cir., 2024)

United States v. Goins, Case No 23-5848, 2024 U.S.App. LEXIS 25355 (6th Cir., October 8, 2024)

United States v. Gore, Case No 23-3640, 2024 U.S.App. LEXIS 25361 (6th Cir., October 8, 2024)

United States v. Gailes, Case No 23-5928, 2024 U.S.App. LEXIS 25571 (6th Cir., October 10, 2024)

– Thomas L. Root

Mass Punishment: Always a Bureau of Prisons “Go-To” – Upsate for October 17, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SWATTING FLIES WITH AN ELEPHANT GUN

BOPemail241017As everyone knows, the Bureau of Prisons’ Trulincs email system was modified on September 30 to limit outsiders (like the LISA Foundation) from sending emails to groups larger than 10 inmates. Previously, the system let an outside user set up groups of up to 1,000 inmates.

Every Sunday night, LISA Foundation would send its newsletter to about 14,000 prisoners. Setting up the email and sending it to 14 separate 1,000-prisoner groups took about a half hour. The system was clunky, but sending the email 14 times was not an enormous inconvenience.

Now, to do the same, LISA would have to send the email about 1,300 times. To do that would take about 68 hours.

Writing in Forbes, Walter Pavlo reported last week that BOP Public Affairs staffer Ben O’Cone told him, “In response to an Office of Inspector General (OIG) audit of the Federal Bureau of Prisons’ (FBOP) Monitoring of Inmate Communications to Prevent Radicalization (March 2020), the OIG recommended that the FBOP establish controls that mitigate the risk of individuals communicating with unknown and un-vetted parties and take steps, including the utilization of available technological features as found in TRULINCS, to reduce the risk of mass emails being receiving by high-risk individuals, including terrorists. As a result, the FBOP’s Executive Team decided to reduce the number of emails that an outside party could send to a group of incarcerated individuals to ten. This measure was taken to comply with the OIG audit.”

O’Cone was referring to OIG findings that “thousands of communications made by terrorists and other high-risk inmates that were only partially monitored… Overall, we identified more than 7,000 emails that had not been monitored at all, and determined through further testing that some of these emails contained content that needed to be evaluated by the BOP and counterterrorism experts.”

The closest the Report came to recommending the type of group email limit the BOP has imposed was to note that “[w]e agree with BOP staff that reasonable limitations are needed in order to effectively monitor general population emails while also satisfying the monitoring requirements for high-risk inmate communications. The limited time staff has to review emails along with other forms of communication, and the inability to obtain official translations for general population emails without prior approval is concerning because some general population inmates may exhibit radical or other high-risk behavior after incarceration.”

bopproblem241016The Inspector General’s study focused on under 600 inmates identified as terrorist-affiliated and examined a 3-year period ending in December 2017. Now, 7-1/2 years after the study period, the BOP has decided that problems with communications involving one out of 250 inmates ought to result in drastically limiting inmate access to mass emails, many of which are from advocacy groups or news reporting services.

The fly has been swatted.

Forbes, Bureau of Prisons To Restrict Mass Emails To Prisoners (October 8, 2024)

OIG, Audit of the Federal Bureau of Prisons’ Monitoring of Inmate Communications to Prevent Radicalization (March 25, 2020)

– Thomas L. Root

You Can Slice a Cucumber, But Not a Federal Sentence – Update for October 16, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

2ND CIRCUIT DASHES § 924(c) HOPES FOR FTC CREDITS

Everyone knows that the First Step Act excluded people with 18 USC § 924(c) convictions (using, carrying or possessing a gun during and in relation to a drug offense or crime of violence) from getting FTCs (also called FSA credits). And, no, there is no move afoot in Congress to change as much as a jot or a tittle of First Step, especially § 924(c) eligibility.

slicing241016But § 924(c) sentences have to be served consecutively, leading a number of inmates to make the reasonable argument that they should be denied FTCs only during the part of their sentence that represents the § 924(c) sentence. So if you got 84 months for selling marijuana and a consecutive 60 months for carrying a gun while you did it, the argument is that you should be allowed to earn FTCs for 84 months, the non-924(c) part of the sentence.

That’s what Charles Giovinco argued in a district court. He got shot down, and last week, the 2nd Circuit agreed. The 2nd ruled that under 18 USC § 3584(c), “multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment. Pursuant to this aggregation provision, a prisoner is serving a sentence for any offense that is part of his aggregated term of imprisonment. Accordingly, the Bureau of Prisons must aggregate a prisoner’s sentence pursuant to § 3584(c) for the administrative purpose of determining his eligibility for FSA time credits under § 3632(d)(4).

Giovinco v. Pullen, Case No. 23-251, 2024 U.S.App. LEXIS 25348 (2d Cir. Oct 8, 2024)

– Thomas L. Root

Senate Passes Bill to Crack Down on Prison Cellphones – Update for October 15, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WHO SAYS CONGRESS CAN’T ACT QUICKLY?

quickbunny241015People who have watched Congress let criminal justice reform measures like the EQUAL Act and marijuana reform  – even the two-year trek for the First Step Act – languish for years may be surprised to see that the U.S. Senate can be quick like a bunny when it wants to.

Senator Jon Ossoff (D-GA) spent two years getting his colleagues to pass last summer’s Federal Prison Oversight Act (S.1401), a bill that tightens Dept of Justice review of prisoner mistreatment. However, when he introduced S.5284 – a bill that makes it a felony for people to smuggle cellphones into prison or for inmates to possess cellphones inside a facility – the Senate only took two days to pass the measure.

cellphonefelony241015The bill passed unanimously. After members return to Washington after the election, the House of Representatives will take up the measure in November. When the House passes the bill (and I expect the House will do so), the bill should dramatically increase prosecutions of inmates and their outside smuggling associates and make the use of cellphones inside much riskier.

Just in the past week, authorities intercept two attempted drone deliveries of contraband at federal facilities, one at FCI Pollock and the other at FCC Beaumont.

S.5284 – Lieutenant Osvaldo Albarati Stopping Prison Contraband Act

Press Release, Sen. Ossoff’s Bipartisan Bill to Crack Down on Contraband & Organized Crime in Federal Prisons Passes U.S. Senate (October 10, 2024)

DOJ Inspector General, Statement by DOJ IG Michael E. Horowitz on the Senate Passing the “Lieutenant Osvaldo Albarati Stopping Prison Contraband Act” (October 10, 2024)

KBMT-TV, Jefferson County deputies confiscate drone used to bring contraband into United States Penitentiary (October 7, 2024)

KALB-TV, 2 arrested for flying drone full of contraband into federal prison in Grant Parish (October 10, 2024)

– Thomas L. Root

Federal Marijuana Possession Expungement Proposed

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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.

BILL TO CLEAN SLATES FOR POT OFFENSES INTRODUCED

Senators Robert Casey (D-PA) and Rand Paul (R-KY) have introduced bipartisan legislation intended to give millions of Americans a “clean slate” by sealing the criminal records of low-level and non-violent offenders who have successfully completed their sentences.

mario170628The Clean Slate Act, S.5266, would automatically seal the federal records of individuals convicted of simple drug possession and other low-level, nonviolent crimes involving marijuana, intended “to remove major barriers many Americans face in finding employment, securing housing, and accessing education,” Casey said in a press release. “This legislation would help more than 70 million Americans fully participate in society and provide them with a second chance to contribute to their communities and support their families.”

The measure is a companion bill to a House version filed 18 months aho by Reps Lisa Blunt Rochester (D-DE) and Nancy Mace (R-SC). That bill, H.R. 2930, has not yet made it to the House floor. The legislation has been introduced over the last several sessions, and a previous version advanced through the House Judiciary Committee in 2022 but was never voted on by the full House.

With only 20 more work days for the House and 24 days for the Senate scheduled before the end of the year, passage is unlikely.

Press Release, Casey, Paul Introduce Bipartisan Legislation to Seal Records of Low-Level, Nonviolent Offenses (September 26, 2024)

S 5266, A bill to require automatic sealing of certain criminal records, and for other purposes  (September 25, 2024)

H.R. 2930, Clean Slate Act

Marijuana Moment, Federal Marijuana And Drug Convictions Would Be Automatically Sealed Under New Bipartisan Senate Bill (September 27, 2024)

– Thomas L. Root

Michigan Sex Registration Act Gored by Federal Court – Update for October 10, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

MICHIGAN SEX OFFENDER REGISTRATION LAW THROWN OUT IN PART

Last week, a judge in the U.S. District Court for the Eastern District of Michigan threw out portions of Michigan’s Sex Offender Registration Act of 2021 as unconstitutional in several respects.

sexoffender241010This is important to federal prisoners convicted of sex-related offenses by far, the largest cohort of repeat offenders among those convicted of sex offenses is created by failing in some technical respect to adhere to the often Byzantine state sex offender registration statutes. Unsurprisingly, the failure to comply with state registration statutes becomes a federal crime.

In last week’s Does v. Whitmer decision, the district judge ruled that Michigan’s Sex Offender Registration Act (SORA) unconstitutionally extended registration terms retroactively from 25 years to life, subjected people not convicted of a sex offense to registration without a judicial hearing, imposed harsher registration requirements on people with out-of-state convictions than on people with state convictions, required registrants to report internet identifiers like email and social media accounts in violation of their 1st Amendment rights, and forced people to attest that they understood SORA even if they do not.

The judge did rule against the plaintiffs, several “John Does,” on three claims involving individualized review, opportunities to petition for removal, and reporting requirements.

The ACLU says that more than 45,000 people are on Michigan’s sex offender list, the fourth largest in the country. State officials said that the decision would remove about 17,000 people after they complete 25 years on the registry without another sex offense.

Opinion and Order (ECF 158), Does v. Whitmer, Case No. 2:22-cv-10209, 2024 U.S. Dist. LEXIS 176146 (E.D. Mich. September 27, 2024)

Detroit News, Federal judge rules on ACLU lawsuit over Michigan’s sex offender registry (October 1, 2024)

– Thomas L. Root

SCOTUS Starts October 2024 Term With A Docket That Leaves Plenty of Space for New Cases – Update for October 8, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NEW SUPREME COURT TERM LEAVES PLENTY OF ROOM ON DOCKET FOR GUNS, ELECTIONS AND TRUMP

Yesterday was the first Monday in October, and everyone knows what that means. The Supreme Court’s new season, known as October Term 2024, began its nine-month run with a couple of dry-as-toast non-criminal oral arguments.

vacationSCOTUS180924At this point, there are not many cases of interest on this year’s Supreme Court docket for federal criminal law followers. But the ABA Journal last week reminded readers that “a year ago, the 2023-24 term looked like it might be relatively sleepy. But that was before the court added cases on guns, abortion medication and two matters involving former President Donald Trump and the Jan 6, 2021, riot…”

The SCOTUS news for readers of this blog was released last Friday, when the Justices announced 15 new cases they would hear this term, all coming out of last week’s annual “long conference,” the annual culling of certiorari petitions that marks the end of SCOTUS’s summer recess.

Four of the certiorari grants involved criminal law issues. The only substantive federal criminal statute case is Thompson v. United States, which asks whether 18 USC § 1014 — making a “false statement” to influence certain financial institutions and federal agencies — also prohibits making a statement that is misleading but not false.

In Barnes v. Felix, the court will consider (in the context of a civil rights suit) whether the 4th Amendment, which prohibits police from using “unreasonable” force, depends on “the totality of the circumstances” or just under the “moment of the threat.” The reasonableness of an officer’s actions for 4th Amendment purposes is a fact-intensive inquiry. The question is whether the entire encounter with the person who is later contesting the seizure is examined in gauging whether the officer’s force is appropriate or whether only what happened in the narrow window when the officer’s safety was threatened is at issue.

In Perttu v. Richards, the issue is the technical but consequential question of whether under the Prison Litigation Reform Act, prisoners have a right to a jury trial concerning their exhaustion of administrative remedies where disputed facts regarding exhaustion are intertwined with the underlying merits of their claim.

Finally, Gutierrez v. Sanz, a capital case, deals with standing issues in conjunction with efforts by a state defendant to secure post-conviction DNA testing.

gunknot181009One issue sure to make it onto the Supreme Court docket is the constitutionality of 18 USC § 922(g). The leading case on the question of the constitutionality of the felon-in-possession statute, § 922(g)(1) – the 3rd Circuit Range v. Garland en banc decision – was remanded by SCOTUS in light of United States v. Rahimi last spring. The 3rd Circuit will hold oral argument on Range tomorrow.

So far this past summer, three circuits have grappled with Rahimi, resulting in three different approaches. Last August, the 8th Circuit held in United States v. Jackson that § 922(g)(1) was constitutional. A few weeks later, the 6th Circuit ruled in United States v. Williams that § 922(g)(1) is constitutional on its face and as applied to “dangerous people,” but not necessarily to all felons. On Sept 18, the 5th Circuit held in United States v. Diaz that § 922(g)(1) was constitutional as applied to a defendant once convicted of stealing a car based on the fact that 18th-century laws “authoriz[ed] severe punishments for thievery and permanent disarmament in other cases.”

mario170628Meanwhile, in Greene v. Garland, a case brought against the Dept of Justice by a Pennsylvania district attorney who is a registered medical marijuana user but wants to possess a gun, DOJ attorneys argue that the nationwide ban on marijuana users owning guns is constitutional, saying it aligns with other restrictions on gun ownership by dangerous, mentally ill or intoxicated people.

The DOJ’s position makes some sense here. Everyone knows how dangerous a district attorney can be…

SCOTUSBlog.com, Justices take up “false statement” dispute and rare capital case (October 4, 2024)

Thompson v. United States, Case No. 23-1095 (certiorari granted October 4, 2024)

Barnes v. Felix, Case No. 23-1239 (certiorari granted October 4, 2024)

Perttu v. Richards, Case No. 22-1298 (certiorari granted October 4, 2024)

Gutierrez v. Sanz, Case No. 23-7808 (certiorari granted October 4, 2024)

ABA Journal, Supreme Court’s sleepy-looking docket leaves room for potentially bigger cases to come (October 3, 2024)

Marijuana Moment, DOJ Says Allowing A Pennsylvania Prosecutor Who Uses Medical Marijuana To Possess A Gun Would Be ‘Dangerous’ (October 3, 2024)

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024)

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

United States v. Diaz, Case No. 23-50452, 2024 U.S. App. LEXIS 23725 (5th Cir. Sep. 18, 2024)

Greene v. Garland, ECF 32, Case No 1:24-cv-21 (W.D. Pa., filed October 1, 2024)

– Thomas L. Root

Better Late Than Never, BOP Comes To The FTC Party – Update for October 7, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

IT’S ALL CONDITIONAL: BOP ANNOUNCES CHANGES IN FSA CREDIT DATES

One of the recurring problems with the Federal Bureau of Prisons’ reluctant implementation of the First Step Act’s system for granting inmates credit for completion of programs designed to reduce recidivism is this: Prisoners are to earn credits as long as they are in BOP custody – including while in halfway house or home confinement – much like good conduct time credit under 18 USC § 3624(b) – but the agency has up to now adopted no system that would capture those latter FSA time credits (FTCs) and apply them to the benefits to which 18 USC § 3624(g) entitles inmates.

bureaucracy241007Instead, the BOP has been refusing to grant FTCs to people within 18 months of their release. It has been as though your employer decided not to pay you for your last month working for him because figuring out your final checks is just too much effort.  Your bureaucracy in action.

Two months ago, however, prisoners’ Sentence Computation forms suddenly included a line for “Conditional Placement Date.”  But nearly as soon as the forms were available, the BOP withdrew the date, claiming an error in calculation. For the last two months, prisoners were denied any documentation of their FSA credit calculations pending further work by the BOP on the subject.

Last Friday, the BOP announced that it will now start calculating three “conditional” dates for inmates. When a prisoner first enters the system, the BOP calculates a release date premised on the inmate earning all of the good conduct time under 18 USC § 3624(b) that he or she could possibly get. Now, the same will be done for FTCs.

The BOP will calculate three dates on a prisoner’s sentence comp sheets:

• FTC Conditional Placement Date: The date when an inmate may be eligible for halfway house or home confinement based on the application of his or her maximum potential FTCs.

• Second Chance Act (SCA) Conditional Placement Date: The date when an inmate may be eligible for release under the SCA, which allows for up to 12 months halfway house placement. SCA eligibility is based on an individualized assessment by BOP staff. Nothing is promised, with SCA placement being anywhere from zero months to a full year.

• Conditional Transition to Community Date: This date is the earliest possible date for transfer from prison to halfway house or home confinement, based on a combination of FTCs and SCA eligibility.

The BOP promises that staff will use these new conditional dates to make release decisions starting 17-19 months before the Conditional Transition to Community Date. The BOP said that “[f]or eligible individuals, this could include recommendations for direct home confinement, bypassing [halfway house] placement where appropriate.”

funwithnumbers170511The BOP warns that “FSA Conditional Release Date is a projected date based on various factors, including continued eligibility for FTCs, participation in programs, and eligibility and appropriateness under SCA.”

Writing in Forbes this past weekend, Walter Pavlo recounted the BOP’s sorry record on FTC implementation, having “been plagued with computer problems to calculate the credits, inconsistent interpretation of the First Step Act and poor communication to the line staff at prisons who are tasked with implementing the programs. The result is that the BOP has held prisoners in institutions longer than necessary and in some cases held them beyond their release date.”

So, hypothetically, someone beginning a 120-month sentence on Jan 1, 2024, would have a good time release date of about July 1, 2032. The first 365 days of FTCs she earned would move that date to July 1, 2031. Between the start of her sentence and July 1, 2031, she would earn 1305 FTCs. After using 365 of those FTCs to reduce her time by a year (under 18 USC § 3624(g)(3)), she would have 940 days left. Those 940 days would let her transition to halfway house or home confinement on about Nov 3, 2028. That date should be her FTC Conditional Placement Date.

Under the Second Chance Act, she could get an additional year in halfway house. That would make her Conditional Transition to Community Date about Nov 3, 2027.

It is close to misfeasance that it has taken the BOP nearly six years from the passage of the First Step Act to finally figure out a system that a kid with an Excel spreadsheet could have accomplished in under an hour. What’s worse is that so many prisoners have been denied their full FTC benefit by an agency hidebound by stasis and contempt for the people entrusted to its custody

beating241007Note that while BOP Director Peters’ kinder, gentler BOP calls inmates “adults in custody,” I do not. When the people locked up in BOP institutions are treated like persons in custody instead of inmates, prisoners, or numbers, I will call them AICs.  For now, the BOP treats them with contempt. Calling them AICs doesn’t change that.

BOP, FBOP Updates to Phone Call Policies and Time Credit System (October 4, 2024)

Forbes, Bureau of Prisons Announces Updates To First Step Act Calculations (October 5, 2024)

– Thomas L. Root

Curb Your Enthusiasm, Mr. Prosecutor – Update for October 1, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

IF YOU SEE SOMETHING, SAY SOMETHING

seesomethingB241001It’s hard to keep track of how many people get tripped up because their lawyers – who normally never shut up – fail to speak up when an objection is warranted.

The result of counsel’s reticence is that the appeals court would only review for plain error, and proving F.R.Crim.P. 52(b) plain error is hard to do.

Nathaniel Acevedo-Osorio had sexual contact with a 15-year-old girl at his boxing gym. He had sex with her many times and used coercion to stalk her and force her to send him sexually explicit photos. The abuse went on for four years before Nat was arrested. It was pretty ugly, but if you want details, click on the link to the decision.

Nat’s lawyer cut the deal of the century, getting the government to agree to recommend a 120-month sentence, the mandatory minimum, in a plea agreement that glossed over much of the uglier facts. The presentence report wasn’t so rosy, however, reciting the details of the years-long offense and setting the Guidelines sentencing range at 292-365 months.

At sentencing, Nat’s lawyer emphasized his client’s turbulent upbringing, the recent murder of his brother, and his family’s support, and she put the mothers of his kids and his boxing coach on the stand to testify to his good character. Counsel pointed to Nat’s having to do some state time because of a probation violation and having to register as a sex offender as reasons to accept the jointly recommended 120-month sentence.

The government offered only the following argument: “Good morning, Your Honor. On behalf of the Government, we would be recommending 120 months pursuant to the plea agreement. Thank you.”

milquetoast241001Inexplicably, Nat’s lawyer did not object to the government’s milquetoast recommendation. The district judge hammered Nat with 292 months and 15 years of supervised release (not that I’m complaining that it was uncalled for… Again, read the facts in the decision if you think I’m being draconian).

Last week, the 1st Circuit held that the government violated the plea agreement but upheld the sentence anyway.

The government may breach a plea agreement by doing something that it promised not to do (such as promising to make no sentencing recommendation but making one anyway) or by failing to do something that it promised to do (such as promising to oppose a Guideline adjustment but then not doing). Even when the government is in “technical compliance” with the plea agreement, the government may not merely pay “lip service” to the plea agreement. A plea agreement has an implied obligation of good faith and fair dealing. As the 1st Circuit put it, “The defendant is entitled to both the benefit of the bargain struck in the plea deal and to the good faith of the prosecutor.”

Generally the government has no implied duty to explain a plea deal’s recommended sentence. Nevertheless, the 1st said that “the government may be obliged to offer some minimal explanation in the rare circumstance in which the parties agree to jointly recommend a sentence that amounts to such a dramatic downward variation that, without some justification by the government, the district court [would be] left to speculate about what rationale might reasonably support such a seemingly off-kilter, well-below guidelines recommendation.”

Here, the Circuit said, the 14-year difference between what the government agreed to and what the Court gave Nat “leads us to conclude that… the government’s failure to provide at least some explanation for its decision to lend its prestigious imprimatur to such a dramatic downward variation likely caused the district court to view the government’s ‘stand by’ statement as just hollow words, undermining any notion that the government viewed the plea agreement as fair and appropriate… In short, Nat did not get what he bargained for: a sentencing hearing in which an inevitably skeptical court could at least comprehend why, in the government’s view, the sentence was proper.”

lawyerjoke180807Nevertheless, the 1st said, because Nat’s lawyer did not object to the government’s mumbled recommendation at sentencing, plain error review applied, and “we cannot conclude that the error was indisputable in light of controlling law.”

Nat lost his appeal because his lawyer didn’t say something when the government whiffed on its obligation. Still, he has a great 28 USC § 2255 issue.

Some consolation.

United States v. Acevedo-Osorio, Case No. 21-1708, 2024 U.S. App. LEXIS 24236 (1st Cir. September 24, 2024)

– Thomas L. Root