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DOJ Works to Undermine Fair Sentencing Act in Name of ‘Fairness’ – Update for November 12, 2019

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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.

THIS COMES AS NO SURPRISE

strict191112The Department of Justice is interpreting the First Step Act in a way that keeps more inmates serving crack sentences behind bars longer, even as President Trump touts his administration’s role in passage of First Step, the law that made crack-cocaine sentence relief available to pre-Fair Sentencing Act defendants.

The Washington Post report last week confirmed what most people already know (and what Reuters reported several months ago), that DOJ is arguing that a defendant’s sentence length, when resentenced under the Fair Sentencing Act, should be based on the amount of crack cocaine that his or her Presentence Report found the defendant actually possessed or trafficked, rather than the amount stated in the indictment and which the jury found or the defendant pled. The Post reported that federal prosecutors have made the argument in hundreds of cases.

The distinction is crucial. The amount of crack specified in the indictment must be proven by the government to a jury. The presentence report, on the other hand, is a loosey-goosey collection of the prosecution’s version of the offense and all of the collected but unsubstantiated law enforcement gossip about the defendant that makes him or her look even worse than reality does. The standard of proof is low, the procedures amorphous, and the judge all too willing to not decide evidentiary disputes because they simply do not matter to the court in the sentencing process.

looseygoosey191112As a result, while a defendant may have been found guilty of the offense in the indictment, for instance, distribution of more than 50 grams of crack, the presentence report may cite “reliable sources” who say the defendant possessed maybe a gram a week for two years. The presentence report does some simple addition, and a total of 730 grams results.

The Post said DOJ was even seeking to reincarcerate some people already released under the retroactive FSA. One targeted former inmate was Gregory Allen, who appeared at a White House event in April to celebrate passage of the law. President Trump even called Greg to the microphone.

Before the White House event, prosecutors had lost their bid to keep Allen behind bars. Even as the President asked Greg to speak, the government was appealing its loss. DOJ dropped its appeal about two weeks after Greg’s appearance.

A DOJ spokesman defended the department’s First Step interpretation in an interview with the Post. He said DOJ’s position was justified because prosecutors in years past didn’t need to prove large amounts of drugs to obtain long prison sentences. Under today’s sentencing regime, prosecutors would likely charge the offenders with having larger drug quantities, DOJ hypothesizes. “The government’s position is that the text of the statute requires courts to look at the quantity of crack that was part of the actual crime,” the spokesman argued. “This is a fairness issue.”

Judges have rejected the DOJ interpretation in a majority of cases reviewed by the Post. But at least five federal judges have agreed with the DOJ interpretation, and others have withheld judgment until appeals courts decide the issue.

In the weeks after the bill became law, many AUSAs allowed inmate petitions for early release to go unchallenged. Then, at the direction of the DOJ, prosecutors began to reverse course, court records show. In March, AUSA Jennifer Bockhorst of ND WVa asked federal judges to place a hold on more than two dozen applications for relief, some of which she had not previously opposed. She wrote that she expected to oppose at least some of those applications based on new guidance from the Justice Department.

Some of the people who helped write the legislation also disagree, including Brett Tolman, a former US attorney in Utah. He notes that the First Step text does not explicitly instruct courts to consider the actual amount of crack an offender allegedly had. “This is not a faithful implementation of this part of the First Step Act,” Tolman told the Post. “At some point, they figured out a way to come back and argue that it wouldn’t apply to as many people.”

Rep. Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, accused DOJ at a congressional hearing last month of “trying to sabotage” the law by interpreting it in this way.

Attorney General Barr has reportedly worried that early releases of inmates under the law will increase crime. Anonymous officials told the Post that Barr is concerned the administration will be blamed if crime increases.

A great example of the kind of blame the AG hoped to duck is illustrated by the person of Rhode Island defendant Joel Francisco, released earlier under First Step this year after 14 years into a life sentence for selling crack. We previously reported he was on the run after being charged with a murder. He has since been arrested, and last week, CNN made his crime a national story.

Also last week, a routine resentencing in Connecticut made national headlines, when Joel Soto’s 17-year sentence was cut to time served, under the lurid headine, “‘Joe Crack’ asks for reduced sentence in drug case.”

“More than 4,700 inmates have been released from prison under the law since its signing late last year,” CNN reported, “and federal officials believe Francisco is the first among them to be accused of murder. While an outlier, his case is raising questions and resurfacing concerns from detractors of the legislation.”

“cotton190502This case is upsetting but it’s not a surprise,” said Sen. Tom Cotton (R-Arkansas), one of First Step’s biggest critics on Capitol Hill. “Letting violent felons out of prison early as the First Step Act did leads to more crime and more victims.”

Other lawmakers who supported the bill called the incident a tragedy, but hoped that it wouldn’t stand in the way of more progress. “If you’re looking at reforming the criminal justice system you cannot pick an individual criminal act to then raise the question as to whether or not you do reforms to the system,” said Rep. Karen Bass (D-California), a member of the House Judiciary Committee and the chair of the Congressional Black Caucus.

None of this should surprise anyone. Despite the First Step Act rhetoric, The New York Times reported last week that despite bipartisan calls to treat drug addiction as a public health issue rather than as a crime — and despite the legalization of marijuana in more states — arrests for drugs increased again last year. Such arrests have increased 15% since Trump took office.

Washington Post, Crack cocaine quantities at issue as DOJ opposes some early releases under First Step Act (Nov. 7)

ABA Journal, Crack cocaine quantities at issue as DOJ opposes some early releases under First Step Act (Nov. 8)

CNN, He was one of the first prisoners released under Trump’s criminal justice reform law. Now he’s accused of murder (Nov. 9)

Newport News, Virginia, Daily Press, ‘Joe Crack’ asks for reduced sentence in drug case (Nov. 2)

The New York Times, Is the ‘War on Drugs’ Over? Arrest Statistics Say No (Nov. 5)

– Thomas L. Root

Inmate FTCA Medical Complaints Don’t Need Expert Affidavits, Two Circuits Say – Update for November 11, 2019

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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 LAW, IN ITS MAJESTIC EQUALITY…

anatole191111… forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread,” so goes a famous 19th-century quotation. Seldom was that better illustrated than in Federal Tort Claims Act cases brought by prisoners for medical malpractice.

There was a time I thought that complaints about poor health care in the Federal Bureau of Prisons system could be written off to inmate kvetching. After all, inmates do not want to be where they are, and beyond complaining about the alleged lousy criminal justice system that put them where they are, prisoners naturally complain about every aspect of prison – food, correctional officers, recreational opportunities – that they can conjure. But without a doubt, the principal complaint is that the BOP healthcare system is a disaster.

But I have seen too many cases where this is true. In my estimation, the problem is not that the healthcare itself. When the BOP decides that treatment is needed, that treatment is pretty good (chiefly because the specialists brought in are not government doctors, but local practitioners). As I have written about before, the difficulty is in convincing the people who populate the BOP healthcare establishment that care is needed to begin with.

drquack191111Those healthcare people usually conclude, as a first line of defense, that an inmate is malingering. I have worked on cases of a guy with a hump that erupted on his shoulder the size of a grapefruit, who asked about it for months only to have BOP physician assistants tell him (without a biopsy) that it was merely a benign lipoma. When the healthcare people grudgingly consented to have it looked at by an outside surgeon, the inmate quickly began chemotherapy, surgery and radiation – in that order – for the liposarcoma it was. I have worked on cases where inmates went blind because the BOP refused to send him for an outside vision test, which would have showed ocular hypertension, and where an inmate lost a leg to diabetes because healthcare staff argued he was lying about what was diabetic neuropathy.

When a prisoner suffers from poor healthcare, he or she may sue for medical malpractice under the Federal Tort Claims Act. An FTCA med-mal suit must be brought after making an administrative claim on a prescribed Department of Justice form, and is governed by the substantive malpractice law of the state in which the care was given or withheld.

As every first-year law student learns, in federal civil procedure – at least where the action is in federal court because of a diversity of citizenship of the parties – federal procedural law (the Federal Rules of Civil Procedure) is followed by the substantive law of the state is followed. While an FTCA action is not a diversity case, courts have ruled that the Federal Rules of Civil Procedure apply nonetheless.

And there’s the rub. In an effort to cut down on worthless med-mal claims, most state rules require that when the complaint is filed, it must be accompanied by an affidavit of an expert that the plaintiff’s cause of action has some merit. This requirement means that inmates have to pony up $2,500 to $5,000 right from jump to hire an expert in order to avoid having their FTCA claims dismissed as soon as they are filed.

witness191111That seems fair, right? After all, the requirement applies to all med-mal plaintiffs. The rich and poor alike are required to come up with thousands of dollars in order to even get a foot in the door. Anatole France would be proud – what “majestic equality!”

Last week, two circuits said otherwise. In the 6th Circuit, Dennis Gallivan had surgery while at FCI Elkton. He says the procedure was botched, and left him permanently disabled. Dennis sued under the FTCA.

The district court held that Ohio Civil Rule 10(D)(2) governed. That rule requires a person alleging medical negligence to include a medical professional’s affidavit stating that the claim has merit. Dennis didn’t have such an affidavit (or the spare $2,500-plus needed to get one), so his FTCA suit was thrown out.

Last week, the 6th Circuit reinstated Dennis’ complaint. The Federal Rules do not require such an affidavit, and thus are inconsistent with Ohio’s rule. This inconsistency is important, the Court said, because the Supremacy Clause of the Constitution means that federal rules displace inconsistent state rules, and federal rules govern the FTCA’s application.

Ironically, one of the government’s arguments against Denny’s position was that a 7th Circuit decision, Hahn v. Walsh, had previously held that a state rule requiring an affidavit could coexist with the federal rules that did not require such an affidavit. The 6th rejected that argument, only about 48 hours after a 7th Circuit decision held that Hahn did not apply to the FTCA.

The 7th addressed 735 ILCS § 5/2-622, a state statute that requires the plaintiff in a medical-malpractice suit to file an affidavit stating that “there is a reasonable and meritorious cause” for litigation. . The plaintiff needs a physician’s report to support the affidavit’s assertions. Like the 6th Circuit, the 7th held that because Federal Rules of Civil Procedure 8 did not require such an affidavit, the Illinois statute was inconsistent, and thus did not apply to an FTCA complaint.

accessdenied191111The 7th observed that “a prisoner may have insuperable difficulty obtaining a favorable physician’s report before filing a complaint, so if a complaint not accompanied by an… affidavit is defective, many a prisoner will be unable to litigate a malpractice claim. But if a prisoner or other pro se plaintiff has until the summary judgment stage to comply with the state law, information obtained in discovery may allow a physician to evaluate the medical records and decide whether there is reasonable cause for liability.”

These cases are significant. They do not suggest that a prisoner will not need an expert: every med-mal case sooner or later requires one or more. But it does mean that a prisoner can get to the discovery stage of the proceeding, and have a greater likelihood of getting a tort lawyer to pick up the case and expenses, than he or she did before.

Gallivan v. United States, 2019 U.S.App.LEXIS 33304 (6th Cir. Nov. 7, 2019
Young v. United States, 2019 U.S.App.LEXIS 32944 (7th Cir. Nov. 4, 2019)

– Thomas L. Root

Seamy Case, Fascinating Holding – Update for November 6, 2019

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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.

CHILD SEX CASE YIELDS FASCINATING CONSPIRACY HOLDING

pornA160829Maurice and Tonya, a couple of mutts in Oklahoma City, forced two 15-year old girls into prostitution for three weeks before law enforcement shut them down. A local businessman named Charles Anthony called the escort service the pair were using to sell the girls’ services, and he lined up a single meeting with the girls (not knowing their ages when he phoned).

When the government freed the girls and arrested Maurice and Tonya, it found records of several customers’ sordid night. Three customers, including Chuck, were indicted along with Maurice and Tonya for conspiracy to engage in sex trafficking. Chuck was convicted, and sentenced to the statutory mandatory-minimum 10 years’ imprisonment and ordered to pay restitution to the two teen-aged victims in the amount of $327,000 and $308,000.

A normal reaction to this kind of prosecution is that the defendants get whatever is coming to them. Still, that’s a pretty high price for one night, especially where Chuck did not know the girls’ ages when he lined them up.  Last week, the 10th Circuit expressed grave doubts that Chuck’s conduct, however disgusting, made him a co-conspirator in the entire venture.

Chuck’s appeal, strangely enough, focused on restitution. Last week, 10th Circuit agreed that the district court should have separated the harm Chuck’s one-night assignation with the two girls had caused from the broader harm caused by weeks and weeks of sexual slavery by the two who ran the sex trafficking ring. But the more interesting discussion, because it applies generally to criminal conspiracies, was the Court’s discussion of whether Chuck’s single night made him a co-conspirator.

childpros191107Chuck claimed a variance between the indictment, which charged him with conspiring with the two who rang the ring and two other customers to operate a child-prostitution enterprise for three weeks. Chuck argued that the evidence showed that all he did was to hire the girls for one night, and that was a subset of the larger conspiracy.

The 10th Circuit agreed. The evidence, it said, proved that for three weeks Maurice and Tonya conspired to operate a prostitution enterprise, which included two minor females. Maurice and Tonya played interdependent roles to ensure the success of the enterprise: Maurice recruited and controlled the girls, while Tonya advertised the girls’ services and connected them with customers. “The government offered no evidence,” the Circuit said, that Chuck ever joined the broad conspiracy. Instead, it proved only that Chuck and Tonya agreed to arrange a single commercial sex transaction on one night.

“The main deficiency in proof,” the Court said, “concerns the second and third conspiracy elements, i.e., knowledge of the conspiracy’s objective and knowing participation in it. To demonstrate knowing participation, the evidence must show that the defendant shared a common purpose or design with his alleged coconspirators. Though the defendant need not know the existence or identity of all conspirators or the full extent of the conspiracy, he must have a general awareness of both the scope and the objective of the enterprise to be regarded as a coconspirator.”

Here, the 10th said, nothing suggests that Chuck shared his alleged coconspirators’ purpose to operate a child-prostitution enterprise throughout October 2014. From his perspective, Chuck sought to obtain the girls from Tonya to have sex with on a single night. In fact, in its closing argument, the government described the purpose of the agreement from Chuck’s perspective as ‘having sex,’ not as running a prostitution enterprise.”

Plain error - alas, Chuck's was not.
Plain error – alas, Chuck’s was not.

The sad thing is that, had his lawyers properly preserved this issue with a timely objection at trial, Chuck could have won his conspiracy count on appeal, let alone the limited argument he made that restitution liability was not appropriate. But because they did not, Chuck could only raise the matter as plain error, and on plain-error review, he could cite no other cases that had limited restitution to a smaller conspiracy.

Nonetheless, the discussion of variances and conspiracies as subsets of larger conspiracies has great applicability to drug and white-collar conspiracies, and worth the reading.

United States v. Anthony, 2019 U.S. App. LEXIS 32605 (10th Cir. 2019)

– Thomas L. Root

Losing Defendant’s Dream-Come-True – Update for November 5, 2019

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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 CALLED JURY NULLIFICATION

Jury nullification is that doctrine which shall never been spoken of in court. Juries can acquit anyone they want to, even when the evidence is overwhelming. The law, however, prohibits the judge or the lawyers from ever telling the jury of this power.

punchinface180423Last February, Dave Chislton sucker-punched his public defender in an Ohio courtroom after the judge sentenced Dave to 47 years in state prison for assault and arson. The punch, which broke public defender Aaron Brocker’s nose and gave him a concussion, was recorded on a deputy’s bodycam and was witnessed by a courtroom full of lawyers.

The State indicted Dave for felonious assault, but – despite all of the evidence – Dave took it to trial.

Last week, the jury nullified. There is no other description for it. Despite the video and the witnesses, Dave was acquitted. Apparently, the jury just didn’t blame him for the sucker punch.

Dave reportedly applauded the jurors and hooted at his former lawyer as he was led out of the courtroom by deputies.

Cleveland, Ohio, Plain Dealer, Man who sucker-punched attorney in the face during Cleveland court hearing found not guilty, Oct. 25, 2019

– Thomas L. Root

Judge Is Too Close to US Attorney; Defendant Wins Resentencing – Update for November 4, 2019

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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 JUDGE IN THE TOWN’S GOT BLOODSTAINS ON HIS HANDS…

If you remember “The Night The Lights Went Out in Georgia,” you’re too old. But old or not, you have probably run into a federal judge who once was a government attorney. They account for something like 71% of all federal judges.


roybean191105Most all judges can check their prejudices at the door, but there are always exceptions. One is Judge Colin S. Bruce of the Central District of Illinois, who last year was unmasked by a local newspaper’s revelation that he was holding “extensive” private (called “ex parte”) communications with the U.S. Attorney’s Office about pending cases. An example: the newspaper published emails between Judge Bruce and a paralegal in the USAO about a criminal trial over which Judge Bruce presided, in which he complained that a novice prosecutor’s weak cross-examination had turned the case “from a slam-dunk for the prosecution to about a 60-40 for the defendant…”

After the story broke last year, the Chief District Judge removed Bruce from federal criminal cases. The 7th Circuit Judicial Council heard several complaints about the Judge, and admonished him for his misconduct. Only in the last two months ago has the Bruce resumed hearing criminal cases.

Jim Atwood, to whom Judge Bruce had already handed a 210-month sentence in a drug case, was on appeal when the story came out. Although the Judge had not communicated with the US Attorney about Jim’s case, he had communicated during the time about many others. Jim argued that in light of Judge Bruce’s conduct, the federal recusal statute entitles him to resentencing by a different judge. Last week the 7th Circuit agreed.

Title 28 USC, Sec 455(a), requires a judge to recuse himself from “any proceeding in which his impartiality might reasonably be questioned.” The Circuit considered three factors: (1) the risk of injustice to the parties in this case, (2) the risk of injustice to parties in future cases, and (3) the risk of undermining public confidence in the judicial process.

Under the first factor, the Circuit considered “the potential unfairness to Atwood of upholding his sentence. Judge Bruce calculated the sentence based on the factors outlined in 18 USC 3553(a). As we have said before, the open-endedness of the 3553(a) factors leaves ample room for the court’s discretion. That discretion invites the risk that a judge’s personal biases will influence or appear to influence the sentence he imposes… Upholding Atwood’s sentence, then, creates a real risk of unfairness to him.” Conversely, a resentencing would impose very little cost on the government.

As for the second factor, the Circuit said, enforcing § 455(a) in this case “may prevent a substantive injustice in some future case” by encouraging judges to exercise caution in their communications.

badjudge160502Finally, the appellate court said, “we consider the risk of harm to the public’s confidence in the impartiality of the judiciary. In sentencing, the most significant restriction on a judge’s ample discretion is the judge’s own sense of equity and good judgment. When those qualities appear to be compromised, the public has little reason to trust the integrity of the resulting sentence.”

As a consequence of his email experience, Judge Bruce no longer entertains unofficial inquiries from either prosecution or defense lawyers. He requires all communication to be through written motions. He also has terminated his in-court contacts with a number of parties to the email dispute, including federal prosecutors and federal public defenders. His response may seem petulant, but it would seem he’s already shown his stripes. Woe betide any federal criminal defendant in his courtroom: there would appear to be two prosecutors, one defense attorney, and no judge.

Champaign, Illinois, News-Gazette, Urbana federal judge’s email transgression still making waves (Oct. 29)

United States v. Atwood, 2019 U.S. App. LEXIS 31826 (7th Cir. Oct. 24, 2019)

– Thomas L. Root

Futile Arguments of the Week – Update for October 31, 2019

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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.

CAPTAIN OBVIOUS

obvious191031Two cases decided last week serve as reminders that some arguments are so obviously futile as to constitute a waste of everyone’s time.

Anthony Shockey violated supervised release by using methamphetamine. Use of a controlled substance is a Grade C violation, but new criminal conduct is a Grade B or A violation. His probation officer charged him with possession of meth, a violation of state law. Tony argued to the judge that he had not possessed the meth, just used it.

Guess how that turned out.

burger191031The district court found a Grade B violation, and imposed a prison term. On appeal, Tony Shockey contended that his use of meth did not require a finding that he also possessed it. The 7th Circuit would entertain none of that. “The district court reasonably could infer possession from use,” the Circuit said. “Inferring possession of a drug from the consumption of that drug is just as sensible as inferring, from the statement ‘I ate a hamburger for lunch,’ that the person possessed the hamburger before wolfing it down.”

Meanwhile, in the Western District of New York, George Moses had a proffer deal with the government. The government says that he lied through his teeth, so much so that it obtained a superseding indictment accusing him of making false statements to federal agents.

George moved to dismiss the new counts, arguing that the proffer agreement was ambiguous about whether the government could prosecute him for any lies he told, and the ambiguity should be resolved in his favor. Last week, the district court refused to throw out the counts.

The Court noted that in the proffer agreement, George had “agreed to provide complete and truthful information regarding any and all criminal matters of which the witness may have knowledge.” Under the agreement, the government could demand George take a polygraph. And paragraph 5 provided that while the information he provided could not be used against him, “any statements… provided by the witness may be used against the witness in a prosecution for perjury, making false statements or obstruction of justice.”

liar151213The district court said that plainly, the parties’ intention gleaned from the the proffer agreement was that George would tell the truth during the proffer session. “The agreement repeatedly makes it clear that Defendant must be truthful at the proffer session,” the district judge wrote. “That was the bargain struck by the parties. To interpret the agreement in the manner urged by Defendant would constitute a tortured reading of the proffer agreement that would ultimately permit Defendant to lie with impunity at the proffer session in direct contravention of the purpose of the agreement.”
Yeah, that was pretty obvious.

United States v. Shockey, 2019 U.S. App. LEXIS 31474 (7th Cir. Oct. 22, 2019)

United States v. Moses, 2019 U.S. Dist. LEXIS 181823 (WDNY Oct. 21, 2019)

– Thomas L. Root

2255 Remand Entitled to Full Resentencing – Update for October 30, 2019

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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.

OWN YOUR MISTAKE

It is gratifying to see a court admit that it screwed the pooch.

goofed191029Larry Flack pled guilty to two counts. Later, he filed a §2255 motion, he argued that a conviction for receipt of child porn and for a separate count of possession of child porn violated the 5th Amendment’s prohibition against double jeopardy. The district court denied him, but the 6th Circuit granted Larry’s motion on appeal. The Circuit issued a “general remand” order, with instructions to the district court to vacate one of the convictions. The remand order gave “the district court discretionary authority over which of Flack’s convictions to vacate and whether to conduct a resentencing hearing.”

The district court did just that, vacating Larry’s possession conviction but imposing the same 262-month sentence. In its order, the district court said it “need not conduct a resentencing hearing” because its previous sentence “properly accounted” for the sentencing factors listed in 18 USC § 3553. Larry appealed, arguing the district court abused its discretion by denying him a full resentencing hearing.

sentence170511Last week, the 6th Circuit agreed. “We have previously held,” the Circuit said, “albeit on direct review, that upon a general remand for resentencing, a defendant has a right to a plenary resentencing hearing at which he may be present and allocute.” Larry’s case was one of collateral review, the Court admitted, not direct review, “but the point of that decision is that a sentencing is sentencing, regardless of the docket entries that precede it. And a sentencing must occur in open court with the defendant present.”

The 6th admitted that “in this case the district court’s error was one that this court invited… The reason why the district court did not hold a resentencing hearing, in all likelihood, is that our remand order seemed to suggest that the court did not need to. But on this record that suggestion was mistaken.” The Court vacated Larry’s sentence and remanded for him to be resentenced pursuant to a sentencing hearing.

United States v. Flack, 2019 U.S. App. LEXIS 31573 (6th Cir. Oct. 23, 2019)

– Thomas L. Root

First Step Touted While Good-Time Adjustments Languish – Update for October 29, 2019

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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: TRUMP FIDDLES WHILE BOP BURNS

angrytrump191003President Donald Trump touted the First Step Act in a speech last Friday at the 2019 Second Step Presidential Justice Forum in South Carolina, talking about how the Act helped African Americans by releasing thousands of non-violent offenders to gain early release from federal prison.

“In America, you’re innocent until proven guilty and we don’t have investigations in search of that crime,” he said while accepting an award at historically black Benedict College for his role in passage of First Step.  “Justice, fairness and due process are core tenets of our democracy. These are timeless principles I will faithfully uphold as president.”

Much of what was said at the conference was overshadowed by Democratic presidential hopeful Sen. Kamala Harris (D-California), who refused to attend the conference because Trump was included on the list of speakers. Harris, whose record as a take-no-prisoners prosecutor has caused some to be skeptical of her 11th-hour conversion to the cause of criminal justice, flip-flopped on the boycott threat and agreed to show after all, after winning a window-dressing removal of one of the sponsors for its sin of giving an award to Trump.

During the hour-long address, Trump called on several people who had been released from prison under the First Step Act to the stage to offer testimonials.

Many of Trump’s Democratic presidential rivals spoke over the weekend, and took turns slamming Trump. Sen. Cory Booker, D-New Jersey, argued, “The fact of the matter is Donald Trump was given an award for the 10 seconds it took him to sign a bill into law that contradicts every one of his instincts and history of promoting racist criminal justice policies.”

I’m no Trump fan, but Sen. Booker needs to be fact-checked on this assertion.

All was not bliss for implementation of First Step last week. Filter magazine, launched in September 2018 to advocate for rational and compassionate approaches to drug use, drug policy and human rights, blasted the Bureau of Prisons for its “incompetent” application of the star-crossed additional 7 days-a-year good time.

Citing long-time prisoners who would be camp-eligible if they were granted the additional good time to which they are entitled, Filter said that due to “a potential failure, attributable to administrative inadequacy, to apply a much-anticipated reform to… federal prisoners until over a year after it was supposed to be implemented in July 2019.

screwup191028

Filter reported that as of September 16th, the Designation and Sentence Computation Center “had made First Step Act updates only for incarcerated people with previously projected release dates that fell before October 2020.” The magazine quoted a response to an August 22 administrative remedy request for recalculation filed by an anonymous inmate, in which the BOP gave no clear date for when the inmate could expect an updated GCT calculation, only explaining their prioritization of projected release dates and stating that “there may be some variance in the speed with each DSCC team completes the recalculations for the inmates assigned to them.” The BOP said “this process may take up to a year.”

A BOP official told Filter that implementing the change in good time is “complex” due to the “various federal statutes and BOP policy” with which recalculations must be “carried out in accordance.”

The BOP’s information technology systems are “dinosaurs,” Kara Gotsch, the director of strategic initiatives for The Sentencing Project, told Filter, citing explanations she’s heard from BOP staffers. Gotsch said that even this description “is generous,” adding that “it’s like they don’t have the right kind of computer” to perform the recalculations in time.

The BOP denied this claim, calling Gotsch’s explanation “speculation based on hearsay,” and added that “the computers and technology utilized by our staff are not outdated and incompetent. They use commercially-available and fully-supported technology.

Speculation it may be, but the BOP has known since last Christmas it would have to recalculate inmate good time. It’s failure to get the process in place, which would require  the use of a simple formula that any high school math geek could write with a Texas Instruments nine-buck calculator, is equally explainable as institutional arrogance or institutional incompetence.

The Columbia, South Carolina, State, Trump’s Columbia visit wraps with praise of HBCUs and reform, peaceful demonstrations (Oct. 26)

Filter, The Consequences of an Incompetent First Step Act Rollout (Oct. 15)

– Thomas L. Root

Lack of Subject-Matter Jurisdiction is Largely a Myth – Update for October 28, 2019

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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.

SUBJECT MATTER JURISDICTION AIN’T WHAT YOU THINK

drytoast191028Over 25 plus years of post-conviction work, I can’t count the number of inmate-written post-conviction motions I have seen claiming that a district court lacked subject-matter jurisdiction over their cases. What I can count is the number of times the claim has worked. That would be zero.

Subject-matter jurisdiction is a pretty dry topic, but it is a basic concept that should be understood by your basic high school government class student. Other than the Supreme Court, which was established in the Constitution, all federal courts are creatures of statute. That is to say, those lower courts exist only because Congress passed a law saying they exist. Congress could eradicate everything from the courts of appeal down to federal magistrate judges (who aren’t really judges, but that is a matter for another day) simply by passing a law doing so. Of course, the President would have to sign, but given the fits federal judges have given Mr. Trump in enjoining many of his prized initiatives, it’s a safe bet he’d find his pen real fast.

Because lower federal courts are creatures of statute, Congress is allowed to dictate what issues they may hear and not hear. That’s called subject-matter jurisdiction. This much-abused concept arises often in civil suits, and occasionally in post-conviction matters. But as a matter of a criminal conviction, subject-matter jurisdiction is easy and straightforward. The question boils down to this: Is the defendant accused of violating a federal criminal statute? If, yes, the district court has subject-matter jurisdiction under 18 USC § 3231. If no, the district court may not.

Most defendants raising subject-matter jurisdiction claim some defect is jurisdictional when it isn’t. The First Circuit reminded Daniel Carpenter of that last week. Dan had been sentenced and filed a notice of appeal. While the appeal was pending, the district court issued a forfeiture order. Dan argued that because he had filed his notice of appeal, the district court lacked subject-matter jurisdiction to issue any further orders in his case.

buttercup191028The 1st said Dan’s “use of the term ‘subject matter jurisdiction’ is a misnomer here.” While he may not have known it, Dan was really relying on what is known as the “appellate divestiture” rule. That rule holds that the filing of a notice of appeal “divests the district court of its control over those aspects of the case involved in the appeal,” but it does “not divest the district court of all authority.”

The appellate divestiture rule is not jurisdictional, the Circuit said. Rather, it “is rooted in concerns of judicial economy, crafted by courts to avoid the confusion and inefficiency that would inevitably result if two courts at the same time handled the same issues in the same case. Application of the divestiture rule is not mandatory and efficiency concerns are central to determining whether we should apply it here.”

In this case, the district court said at sentencing that a forfeiture proceeding would be held later. Thus, the Circuit said, “forfeiture was a certainty; the only question was the amount.” Because there would be no point to a remand, inasmuch as the forfeiture order had issued, the divestiture rule did not block the forfeiture order.

United States v. Carpenter, 2019 U.S. App. LEXIS 31113 (1st Cir. Oct 18, 2019)

– Thomas L. Root

Cops’ Crooked Pasts Not Disclosed to Defense Attorneys (Gasp!) – Update for October 24, 2019

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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.

NEWSPAPER SHOCKED TO DISCOVER DISHONEST COPS GET PEOPLE LOCKED UP

Under Brady v. Maryland, prosecutors must tell anyone accused of a crime about all evidence that might help their defense. That includes sharing details about police officers who commit crimes, lie on the job or whose honesty has been called into doubt.

A USA TODAY investigation reported last week that widespread failure by police departments and prosecutors to track problem officers makes it impossible to disclose information to people whose freedom hinges on the integrity of law enforcement. Reporters and the Chicago-based Invisible Institute spent more than a year gathering “Brady lists” from police and prosecutors in thousands of counties to measure compliance with the ruling.

shocked191024The report found that thousands of people have faced criminal charges or gone to prison based in part on testimony from law enforcement officers deemed to have credibility problems by their bosses or by prosecutors. At least 300 prosecutors’ offices are not taking steps necessary to comply with the Supreme Court mandates. These places do not have a list tracking dishonest or otherwise untrustworthy officers. In many places that keep lists, police and prosecutors refuse to make them public, making it impossible to know whether they are following the law.

USA TODAY identified at least 1,200 officers with proven histories of lying and other serious misconduct who had not been flagged by prosecutors. Of those officers, 261 were specifically disciplined for dishonesty on the job.

USA Today, Hundreds of police officers have been labeled liars. Some still help send people to prison (Oct. 17)

– Thomas L. Root