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Pot Ascendent? Federal Marijuana Legalization Effort Resumes – Update for November 9, 2023

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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.

MARIJUANA LEGISLATION RESURRECTED

A bipartisan but Republican-led effort to legalize marijuana federally was reintroduced in Congress last week, just before red-as-a-beet Ohio voters approved recreational marijuana.

marijuana221111Rep Nancy Mace (R-SC), was expected to reintroduce the States Reform Act (H.R. 6028) before Oct 24, when her office refiled a bill “to amend the Controlled Substances Act regarding marihuana.” The bill, which currently has no text, is being sponsored by Representatives Dean Phillips (D-MN), David Trone (D-MD), Tom McClintock (R-CA), and Matt Gaetz (R-FL).

A previous version of Mace’s pot legalization bill introduced in late 2021 would have removed marijuana from the Controlled Substances Act and set a 3.75% federal excise tax on sales.

In the Senate, Majority Leader Charles Schumer (D-NY) says he intends to amend marijuana legislation there to include “criminal justice provisions,” mentioning expungements as he’s done in the past but also citing in the letter additional measures such as resentencing for current federal cannabis prisoners.

New York Times, Ohio Issue 2 Election Results: Legalize Marijuana (November 8, 2023) 

MJBiz Daily, Republican-led federal marijuana legalization effort reappears in Congress (November 2, 2023)

H.R. 6028, States Reform Act

Marijuana Moment, Schumer Emphasizes ‘Moral Responsibility’ Of Adding Criminal Justice Provisions To Marijuana Banking Bill As Republicans Push For Floor Vote (November 2, 2023)

– Thomas L. Root

Acquitted Conduct Rides Again on Capitol Hill – Update for November 7, 2023

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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.

HOUSE COMMITTEE SENDS ACQUITTED CONDUCT BILL TO FULL HOUSE

The House of Representative Committee on the Judiciary last Wednesday unanimously approved the Prohibiting Punishment of Acquitted Conduct Act of 2023 (H.R. 5430). Spearheaded by Rep. Steve Cohen (D-TN), the bipartisan measure was approved 23-0.

acquitted230106

In September, Cohen introduced the bipartisan measure with Rep Kelly Armstrong (R-ND), with Sens Richard Durbin (D-IL) and Charles Grassley (R-IA) introducing a companion bill, S.2788, in the Senate. This legislation would end the practice of judges increasing sentences based on conduct for which a defendant has been acquitted. It will now advance to the full House of Representatives for a floor vote. The Senate has yet to act on the measure.

During markup of the bill, Cohen said, “Just about every Supreme Court Justice who’s been around lately – John Paul Stevens, Anthony Kennedy, and Antonin Scalia… Ruth Bader Ginsberg, Clarence Thomas, going down to Neil Gorsuch and Brett Kavanaugh have all said this needs to be changed. So with that I would ask that we… arrive at justice. People should be convicted of proven crimes and sentenced for those crimes.”

The Sentencing Commission considered prohibited acquitted conduct from being used in sentencing last winter but decided the issue needed more review. On June 30, the Supreme Court denied review on 13 different cases raising the issue.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog last week that “this notable vote committee certainly does not ensure Congress will get this bill to the desk of the President, but it should serve as a strong message to the U.S. Sentencing Commission that it should have bipartisan support for any acquitted conduct reforms it might be considering during its current amendment cycle.”

H.R. 5430, Prohibiting Punishment of Acquitted Conduct Act of 2023

S. 2788, Prohibiting Punishment of Acquitted Conduct Act of 2023

Sentencing Law and Policy, Prohibiting Punishment of Acquitted Conduct Act receives unanimous bipartisan support in US House Judiciary Committee (November 3, 2023)

– Thomas L. Root

Sometimes Interests Are Confluent, Not Conflicting – Update for November 6, 2023

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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 RISKY WITNESS IS RISKY BUSINESS

risky-business-4fea6b87b70a6Monica Wright was standing trial for a meth conspiracy. She hired Hal Garfinkel, a skilled defense attorney, to represent her.

The government had the usual list of underlings who had flipped on Monica ready to testify, the best witness being Joey Deherrera. In his opening statement, Hal made a big deal to the jury running down what he thought the government would have Joey say.

But when it came time for Joey to testify, the government announced he wouldn’t take the stand. While being prepped to testify, Joey told the government that during a meeting a few and warned of a potential conflict: The government wouldn’t say how Joey had changed his position, but it did say that if Hal called Joey to the stand and he testified to being pressured to change say if Joey had changed his story, Hal would have to take the stand to impeach him. Consequently, it was possible that Hal’s decision not to call Joey could be motivated by self-interest and in conflict with Monica’s best interest.

Monica told the court that Hal had explained all of this, but she agreed Joey should not be called and she wanted to keep Hal as her lawyer. But after she was convicted, Monica changed her tune, arguing on appeal that Hal had labored under a conflict of interest.

Last week, the 7th Circuit rejected Monica’s claim. “An actual conflict exists if an attorney is torn between two different interests,” the Circuit held, “or is required to make a choice advancing his own interests to the detriment of his client’s interests.” The first step in proving such a conflict is “establishing the existence of a conflict of interest” and the second is showing an adverse effect from the conflict.

conflictmix180907The 7th ruled there was no actual conflict of interest in Monica’s case. Neither the government nor Hal thought so, just that there might be. Hal told the court that if Joey “is going to testify consistent with the interview last night, I can’t imagine why Miss Wright would want him on the stand. I don’t want him on the stand. I think… that vitiates any conflict.” While not calling Joey might be to Hal’s benefit, the Circuit held, Hal believed it was also in Monica’s best interest. It is evident that the district court agreed. When questioning Monica about how she wished to proceed, the court admitted, “We’re not really sure what [Joey] might testify to.”

What the government, Hal, and the trial court all seemed to understand, the 7th said, “are the risks inherent in calling a witness who changed his story the night before testifying.” This is true even if Joey could provide potentially helpful testimony to Monica’s defense. Joey’s testimony had suddenly changed in at least one respect — he belatedly accused Hal of pressuring him to change his testimony. That made him an extremely risky witness.”

lovelawyer220527The risks associated with calling Joey aligned Monica’s interest with her lawyer’s alleged personal interests. There was no actual conflict of interest because he was not caught between “advancing his own interests to the detriment of” Monica’s.

The risks associated with calling Joey also prevented Monica from proving that failing to call him had an adverse effect on her defense. Because Hal had good reason not to call Joey, the Circuit held, “Monica cannot show a reasonable likelihood that his counsel’s performance would have been different had there been no conflict of interest.” As a consequence, Monica’s 6th Amendment claim failed.

United States v. Wright, Case No 22-2922, 2023 U.S.App. LEXIS 28998, (7th Cir. Nov. 1, 2023)

– Thomas L. Root

Gunning for Bruen – Update for November 3, 2023

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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.

RAHIMI ORAL ARGUMENT NEXT WEEK IS HIGH STAKES FOR SECOND AMENDMENT

scotus161130On Tuesday, the Supreme Court will hear oral arguments in United States v. Rahimi, a case that will determine the constitutionality of 18 USC § 922(g)(8), the subsection of the federal firearms possession statute that bars people subject to domestic protection orders from having guns or ammo. Rahimi may well do more than that, addressing the constitutionality of all of 922(g) – including possession of guns by felons.

The Supreme Court’s 2022 New York State Rifle & Pistol Association v. Bruen adopted a new originalist 2nd Amendment standard:

We hold that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s “unqualified command.

Bruen superseded the Court’s long-standing practice of allowing the government to weigh its interest in public safety against the possibility of imposing a limitation on 2nd Amendment rights.

Since Bruen, several 922(g)-based restrictions have been declared unconstitutional. Possession of guns by people who are subject to domestic protection orders, who use controlled substances – illegal under 922(g)(3), and who have been convicted of nonviolent criminal offenses, illegal under 922(g)(1), have been held to be unconstitutional under Bruen. The government has sought certiorari on all of these decisions, suggesting to the Supreme Court that a Rahimi decision can clean them all up (and in the government’s favor).

sexualassault211014Social and public health advocates argue in essence that “validating the federal law prohibiting persons subject to domestic violence protective orders from gun possession will literally mean the difference between life or death for many victims of abuse, their family, friends, law enforcement, and the broader community,” as the Bloomberg School of Public Health puts it.

Rahimi provides the Supreme Court with an opportunity to clarify how lower courts should apply the new framework laid out in Bruen. This will significantly impact the continued viability of current gun laws and the ability of legislators to address what the Bloomberg School calls “the ongoing gun violence epidemic.”

But others suggest that 922(g)(8) looks “more like a political performance than a serious effort to reduce abusive behavior.” Writing in Law & Liberty, George Mason University laws professor Nelson Lund argues that nevertheless, “the government’s brief [in Rahimi] may look like little more than a Hail Mary pass aimed at persuading the Justices to revise or deceptively “clarify” the novel Bruen test. This gambit, however, could very well succeed. The Bruen holding has its roots in a dissenting opinion written by then-Judge Kavanaugh before he was promoted to the Supreme Court. His opinion was exposed to serious objections arising largely from the paucity of historical evidence that could support a viable history-and-tradition test. Bruen suffers from the same weakness, and it was clear from the start that the Court would find itself driven toward reliance on means-end analysis, although not necessarily the very deferential form that Bruen rejected.”

Mr. Rahimi fired off a few rounds at a fast-food joint when his friend's credit card was declined.
Mr. Rahimi fired off a few rounds at a fast-food joint when his friend’s credit card was declined.

Robert Leider, an assistant professor at George Mason University’s Antonin Scalia Law School in Arlington, Virginia, said at a Federalist Society forum in September that “the real legal question that everyone is interested in with Rahimi is to see how the court clarifies and applies the text, history and tradition test that it announced two terms ago in Bruen. Unquestionably, the government sought review in this case to water down the test.”

Solicitor General Elizabeth B. Prelogar took steps to expedite the review of Rahimi, citing the “substantial disruption” that invalidation of the domestic violence gun restriction would create. Meanwhile, as the American Bar Association Journal put it, Prof. Leider said the Solicitor General “slow-walked [the] cert petition in another gun case, in which the full U.S. Court of Appeals for the 3rd Circuit in June struck down the so-called felon-in-possession statute, barring those sentenced to prison for more than one year from possessing a firearm.”

That 3rd Circuit case, Range v. Atty General, involves a man convicted of food stamp fraud 25 years before who was prevented from buying a gun.

“Mr. Rahimi is the poster child for irresponsible gun possession,” Leider said. “I think the government wanted this case and not the Range welfare fraud case because this case is much easier on the judgment line.”

He’s right that Rahimi is a tough case for those hoping that Bruen may ultimately limit the proscription on nonviolent felons owning guns (such as the case in the 3rd Circuit en banc decision in Range v. Attorney General. The evidence suggests that the presence of firearms in abusive relationships increases the risk of injury and death substantially.

After seeking cert on the Range decision, the government suggested the Court sit on the petition until a decision is handed down in Rahimi.

United States v. Rahimi, Case No. 22-915 (oral argument November 7, 2023)

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022)

Johns Hopkins University, Bloomberg School of Public Health, Questions and Answers on U.S. v. Rahimi, the Major Gun Case Before the Supreme Court During its 2023–2024 Term (October 10, 2023)

American Bar Association Journal, Supreme Court takes on first major gun case since landmark ruling last year softened regulations (November 2, 2023)

Law & Liberty, Domestic Violence and the Second Amendment (November 1, 2023)

USA Today, Domestic violence abuse victims need more protections — not less stringent gun regulations (November 2, 2023)

– Thomas L. Root

Court Doubts BOP Medical Care Standards – Update for November 2, 2023

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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.

‘WE ARE STILL HUMAN’: CARSWELL MEDICAL CARE ON TRIAL IN SOUTH FLORIDA HEARING

healthbareminimum220603A woman whose 18-month federal sentence last April came with a promise by a BOP medical official that he’d personally see that she would receive the care she needed to treat her life-threatening seizure condition was back in court after only eight weeks in FMC Carswell, due to her attorney’s concern that “the BOP has proven unable to manage or prevent these life-threatening episodes.”

Suzanne Kaye suffers from severe, stress-induced seizures. She went into cardiac arrest on the floor of the courtroom last year when she was convicted of threatening to shoot FBI agents in the “f****** ass. When she was sentenced, her lawyer warned that sending her to prison could kill her.

At sentencing, the Court found that there was “no doubt” that Suzanne “does suffer from a serious health condition, in fact perhaps a number of health conditions,” that she was “medically frail,” and that “she will require much medical care.” But despite her undisputed seizure disorder and other medical ailments, the Court relied on testimony from the FMC Carswell Medical Director that the BOP could “provide Ms. Kaye with whatever medical care she needs.”

Suzanne self-surrendered in mid-July. Only two months later, her attorney told the court that Suzanne “has required emergency outside hospitalization on at least two separate occasions. Specifically, counsel has been advised that Mrs. Kaye has suffered ongoing, repeated seizures—including two major episodes—with the latest episode involving cardiac arrest. (It has also resulted in blood clots that are now not being monitored)…” The BOP’s “repeated failure is contrary to the picture painted by the government at sentencing. Counsel has also been advised fellow inmates have been forced to attempt to [provide] life-saving care during these seizures because prison officials failed to do so.”

BOPMedical221208BOP medical official Mark Holbrook told the judge in April that some inmates have medical needs beyond what the Bureau of Prisons can treat. Suzanne, he said, was not one of them. But five months later, her heart and lungs briefly stopped working on the floor of a friend’s cell. Inmates screamed at the guards to call for help. “Granny’s eyes were wide open, but you could see that the light was no longer there,” wrote Katherine Moore, one of two incarcerated women who performed CPR on Kaye until medics arrived. “She was gone.”

“That was my mistake,” Dr. Holbrook admitted to the judge last month.

The Palm Beach Post reported, “Letters from half a dozen inmates and the testimony of Carswell’s own medical director depict a standard of care unlike the one Holbrook promised. One where Kaye must depend on her fellow inmates to keep her heart beating, and doubts over the legitimacy of her seizures dampen what care she does receive.”

When vouching for Carswell, the doctor said Suzanne would have access to a neurologist to treat her seizures and a psychologist to treat the anxiety that triggers them. He also promised a combination of anti-seizure medications that would take the place of her medical marijuana. “He made several promises and several assurances. It appears none of which occurred,” Suzanne’s attorney told the judge last month. “I’m not saying he lied — maybe he meant to and he forgot — but it is inexcusable in my opinion.”

Dr. Holbrook told the judge he left a voicemail with someone he believed was Carswell’s clinical director and never heard back. Maitee Serrano-Mercado, Carswell’s clinical director, testified that she was never contacted by Holbrook, and prison staff only belatedly learned that Kaye had a history of seizures.

Still, Dr. Holbrook said he was thankful Suzanne was at Carswell because it is “the best location” for her to be provided care. “Second best” undoubtedly would be an abattoir.

DrNoBOPHealth230925The Post noted that Carswell, once dubbed by the Fort Worth Weekly as a “hospital of horrors,” is “the only federal medical facility for incarcerated women in the country. It lost its accreditation during the pandemic and has not gotten it back. Indeed, the BOP seems to have no interest in doing so.

Carswell clinical director Serrano-Mercado argued at the hearing that Suzanne’s seizures might not be real. Serrano-Mercado admitted that the staff treating Suzanne are the same who treated a woman named Gwen Rider, a Carswell inmate who committed suicide in August. Like Suzanne, Rider was sent to Carswell because she needed medical treatment for epileptic seizures. Staff accused her of faking her seizures, too.

Suzanne was hospitalized again two weeks ago. Her mother, Brenda Kaye, told The Palm Beach Post that BOP medical personnel accidentally fractured her sternum while checking to see if she exhibited a pain response.

In an email to The Post, Suzanne called the treatment of herself and other women at the prison “nothing short of torture.” “People come in here walking and leave in wheelchairs. People die here,” she wrote. “I don’t want to be one of them.”

medical told you I was sick221017After publishing this report in my newsletter last weekend, I received an email from a prisoner at Carswell. She had been present when Suzanne and two other prisoners suffered seizures:

I had run to get an officer for the first one (which was Suzanne) and she wouldn’t call it on the radio, a medical emergency so I had to run to inside [the Recreation area] and get the officers there. They came running, Once they made it over there another girl went down in a bad grand mal seizure, then another one went down, also a really bad one that seemed like it was never-ending. The rec officers did their best, then other officers showed up but medical never showed up. The officers on the scene had to put the ladies on the back of their easy-go car and drive them up to the hospital area one at a time.

The time they had broken Suzanne’s collar bone I believe [they were] trying to get her heart to beat again. Just thought I would share an experience I had firsthand to put more information out there! Medical here does not care about us. They are desensitized and should all for the most part be replaced. We are still human and do not deserve to be treated like this. 

Palm Beach Post, ‘Inexcusable’: Attorney blasts federal prison officials over Boca woman’s medical care (October 27, 2023)

Motion for Hearing (ECF 200), United States v. Kaye, Case No 9:21-cr-80039 (SD Fla., September 12, 2023)

– Thomas L. Root

What To Know In Applying For Criminal History Sentence Reduction – Update for October 31, 2023

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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.

RETROACTIVE GUIDELINES BECOME EFFECTIVE – WHAT NOW?

mrexplainer230828Tomorrow, the first Guidelines amendments in five years will become effective, including the two retroactive criminal history Guidelines, the first retroactive guidelines in almost a decade. Although the Sentencing Commission adopted the new compassionate release Guideline – USSG § 1B1.13 – by a 4-3 vote, a Congress preoccupied with Ukraine, government funding, and a House of Representatives paralyzed by lack of a Speaker, was not motivated to use its veto.

I’ve gotten a lot of questions about the two retroactive Guidelines. Here’s a little guidance.

A Guidelines amendment doesn’t help anyone who’s already been sentenced unless it is designated as being retroactive. There haven’t been many over 34 years. If the amendment is retroactive, it will be listed in USSG § 1B1.10(c).

The two retroactive Guidelines are found in Amendment 821. Part A of the amendment cuts “Status Points” – the two points added to criminal history scores when the offense was committed while on probation, parole or supervised release from another crime – by one point for people with seven or more criminal history points and eliminates them altogether for people with six or fewer criminal history points.

There are no eligibility limitations under this part of the amendment based on crime type, violence, or weapons but these are factors a court may consider in determining whether to grant a sentence reduction.

Part B of the Amendment creates a new USSG § 4C1.1 that provides a decrease of two offense levels for “Zero-Point Offenders” (no criminal history points) whose offense did not involve specific aggravating factors:

• No adjustment under USSG § 3A1.4 (terrorism);

• Defendant did not use violence or threats of violence in the offense;

• The offense did not result in death or serious bodily injury;

• The offense of conviction is not a sex offense;

conditions231031• Defendant did not personally cause substantial financial hardship;

• Defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in the offense;

• The offense is not covered by USSG § 2H1.1 (involving individual rights);

•  Defendant did not receive an adjustment under § 3A1.1 (Hate Crime Motivation or Vulnerable Victim) or § 3A1.5 (Serious Human Rights Offense); and

• Defendant did not receive an adjustment under § 3B1.1 (aggravating role) and was not engaged in a continuing criminal enterprise under 21 USC § 848.

People with release dates before February 1, 2024, will not be able to receive a reduction in their sentences.

To get the retroactive Guideline reduction, you file a motion under 18 USC § 3582(c)(2). There’s no exhaustion of administrative remedies – no need to send a copout to the warden – before filing. You simply write a motion and file it.

A motion should first show the court that you are eligible for the reduction. That’s not always a slam dunk. For the status point reduction, if taking off the one or two points you will save does not drop you to a lower Criminal History Category, “status point” retroactivity won’t help you. For the “zero point” reduction, you have to show that you meet the conditions.

Eligibility is a legal question. You are or you aren’t. But once the eligibility is established, it becomes a matter of the judge’s discretion. The court can give you a sentence reduction that cannot be more than the bottom of your new sentencing range. But the judge may decide to give you less than the bottom of the new range or even give you nothing at all. And what the judge decides as far as the amount of reduction you can get is unreviewable.

goodboy200903For that reason, a well-written motion for sentence reduction will not only explain to the court about your history and the offense but also cite post-sentencing reasons – such as a good disciplinary record or a history of programming – that convince the court that the reduction is deserved and consistent with the sentencing factors of 18 USC § 3553(a).

A note on below-Guidelines sentences: Section 1B1.10 suggests to the court that it may grant you a reduction, but “a reduction comparably less than the amended guideline range… may be appropriate.” The Guideline gives the example of someone who was sentenced 20% below his original sentencing range. In that case, 1B1.10 suggests, “a reduction of approximately 20 percent below the minimum term of imprisonment provided by the amended guideline range… would amount to a comparable reduction and may be appropriate.”

Sentencing Law and Policy, Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity (October 25, 2023)

Alan Ellis, How Zero-Point Offender Change Should Work Retroactively (October 6, 2023)

USSC, Materials Relating To The 2023 Criminal History Amendment

– Thomas L. Root

No Deference to Flawed BOP Time Credits Rule – Update for October 30, 2023

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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 SMACKED BY CHEVRON BUT STANDS TOUGH ON DENYING FSA BENEFIT

chevron230508Writing in Forbes last week, Walter Pavlo flagged a First Step Act credit benefit that the Bureau of Prisons has been denying to prisoners except where courts order otherwise. With the Supreme Court primed this term to rein in the Chevron deference doctrine – the judicial rule that courts defer to federal agencies’ interpretation of the statutes they administer – the BOP’s denial of FSA credits until an inmate reaches his or her assigned institution is an excellent case of how even Chevron can ban some BOP overreaching.

The FSA provides that a prisoner “who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits” according to a set schedule. Under 18 USC 3632(d)(4)(B), otherwise-eligible prisoners cannot earn FSA credits during official detention before the prisoner’s sentence commences under 18 USC 3585(a).” Section 3585(a) says a “term of imprisonment commences on the date the prisoner is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.”

But the BOP puts its own gloss on the statute, directing in 28 CFR 523.42(a) that “an eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served).”

Any prisoner who has spent weeks or months between sentencing and final delivery to his or her designated institution can see that the BOP rule can create months of FSA credit dead time.

Ash Patel filed a petition for habeas corpus seeking FSA credit from his sentencing in September 2020 until he finally reached his designated institution on the other side of the country in April 2023. The BOP argued his FSA credits only started in April 2023, stripping him of 2.5 years of earnings. The agency cited 28 CFR 523.42(a) and urged the Court to apply Chevron deference, accepting its interpretation of when FSA credits start.

ambiguity161130The Court didn’t buy it. “Because Section 523.42(a) sets a timeline that conflicts with an unambiguous statute, it is not entitled to Chevron deference and the Court must give effect to the statutory text,” the judge wrote, citing Huihui v. Derr where the court held that while the prisoner was not eligible “before her sentence commenced, [] under 18 USC 3632(d)(4)(B)(ii), her ineligibility ended the moment she was sentenced… because FDC had already received her in custody.”

Pavlo cites Yufenyuy v. Warden FCI Berlin, perhaps the first decision to refuse to give Chevron deference to the BOP’s incorrect 28 CFR 523.42(a) rule. He rightly complains that perhaps thousands of other prisoners ‘who were sentenced and have months of time in transit getting to their final designated facility… are currently not getting those credits.” Pavlo notes that “prisoners who have a disagreement with the BOP have access to an administrative remedy process to air their grievances. However, those in the chain of command at the BOP who would review those grievances have no authority within the BOP to award these credits as it deviates from the BOP’s own Program Statement, which remains unchanged… Currently, the only solution is for every prisoner who has this situation is to exhaust the administrative remedy process, something that could take 6-9 months, and go to court to find a judge who agrees with [Yufenyuy], which could take months more.”

Exhaustion170327Not necessarily. The Huihui v. Derr Court excused exhaustion because “further pursuit would be a futile gesture because… there is an error in [the BOPs] understanding of when Petitioner can begin earning credits under 18 USC 3632(d)(4)(B) and 3632(a)… The Court thus concludes that any further administrative review would not preclude the need for judicial review. The Court thus excuses Petitioner’s failure to exhaust her administrative remedies.”

Forbes, Bureau of Prisons’ Dilemma On First Step Act Credits (October 27, 2023)

Patel v. Barron, Case No C23-937, 2023 U.S. Dist. LEXIS 174601 (WD Wash., September 28, 2023)

Huihui v. Derr, Case No 22-00541, 2023 U.S. Dist. LEXIS 106532 (D. Hawaii, June 20, 2023)

Yufenyuy v. Warden FCI Berlin, No. 22-CV-443, 2023 U.S. Dist. LEXIS 40186 (D.NH, March7, 2023)

– Thomas L. Root

Five Years Later, BOP Still Doesn’t Have First Step Act Right – Update For October 27, 2023

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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.

FIVE YEARS SHOULD BE LONG ENOUGH TO GET FIRST STEP ACT RIGHT

firststepB180814The First Step Act, including its innovative system for granting credits to inmates who complete programs designed to reduce recidivism, is 5 years old in less than two months. But it took three years of fits and starts before the Bureau of Prisons pretty much had a final set of rules for administering FSA credits (after a proposal that was as miserly as the final rule was generous hanging around for a year of comments).

Now, almost two years later, the BOP is still muddled in trying to launch a computer program of forward-looking calculation for FSA credits that predicts when a prisoner will leave BOP custody for halfway house or home confinement (HH/HC). The agency still lacks a comprehensive list of what types of inmate employment or education constitutes “productive activities,” which are supposed to continue a prisoner’s earning of FSA credits. And the BOP continues to deny HH/HC placement because it lacks resources, despite First Step’s requirement that inmates be placed to the full extent of their FSA credits.

Writing in Forbes last week, Walter Pavlo observed that “prisoners, mostly minimum and low security, who are eligible for these credits have done their best to try to participate in programs but many complain of a lack of classes, mostly due to the challenges the BOP is having in hiring people. However, beyond that, the BOP has been liberal in accepting that the BOP does not have the staff to fulfill the demand for classes and credits are being given anyway, mostly for participating in productive activities, like jobs. This misses the primary mission of programming meant to have a lasting, positive influence on prisoners after they leave the institution.

“Now,” Pavlo said, “nearly two years since the Federal Register’s Final Rule in January 2022, the BOP still has no reliable calculator to determine the number of FSA credits a prisoner will earn during a prison term… One of the last remaining issues is for the BOP to have a forward-looking calculation for FSA credits that predicts when a prisoner will leave BOP custody. It sounds easy, but the BOP’s current computer program can only assess credits after they are earned each month, and it usually takes a full month after they are earned for them to post. The result is that each month, prisoners’ families look at BOP.gov to see if there are indeed new credits and if the amount they are expecting matches what is expected. This moving date is important because it can also determine when prisoners can leave prison for home confinement or halfway house. The result, prisoners are staying in institutions, institutions that are understaffed, for days, weeks and months beyond when they could be released to home confinement or halfway houses. This is defeating one of the other initiatives of the First Step Act and that was to get more people out of decaying BOP facilities and into another form of confinement that is far less expensive.”

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

First Step is important to Congress. When BOP Director Colette Peters appeared for a Senate Judiciary Committee oversight hearing chaired by Senator Richard Durbin (D-IL) last month, “her answer failed to address the continued shortcomings of the implementation,” Pavlo said. “There are thousands of prisoners, many minimum security, who are stuck in prison because of a lack of a computer program that simply calculates forward-looking FSA credits…This computer program was actually alluded to in declarations the BOP submitted to federal courts in 2022 stating that it would be implemented ‘soon.’ Over a year since those declarations, there is still no program to accurately calculate when a prisoner will leave an institution.”

The BOP is facing a substantial halfway house bed shortage as well. There is also the issue of insufficient halfway house space. Unlike HH/HC placement for prisoners without FSA credits, 18 USC 3624(g)(2) does not give the BOP discretion. Subsection 3624(g)(2) says that if a prisoner is eligible (has FSA credits not already applied to a year off of the sentence), he or she “shall be placed in prerelease custody as follows,” describing halfway house or home confinement. There’s nothing hortatory about it. The BOP is required to put the prisoner in HH/HC. Excuses not accepted.

halfway161117Pavlo argued that “the only way to address this situation is to implement a task force to move prisoners through the system and catch up from the failures of the past few years. Systemic challenges of shortages of staff and augmentation which takes away staff like case managers from their jobs, cause continued problems. The BOP needs to get caught up, move prisoners along and develop reliable systems that will assure that the FSA is implemented as the law requires. While the BOP has made great strides, these last challenges of full implementation can be achieved by focusing a concerted effort on three issues; fixing the calculator, assessing the prisoners who will soon be going home as a result of that computer fix, and expanding halfway house capacity to handle them.”

Forbes, Time For A Bureau Of Prisons Task Force To Implement The First Step Act (October 16, 2023)

– Thomas L. Root

‘You Agreed to an Unconstitutional Conviction,’ 2nd Circuit Says – Update for October 26, 2023

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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.

‘WAIVING’ JUSTICE GOODBYE

plea161116Resolving criminal cases by a plea deal is more than merely common. In the federal system, 98% of all cases end in a plea agreement where the defendant agrees to plead to one or more counts in exchange for the government usually agreeing to do not much at all. Sure, the defendant usually gets a 2-3 level reduction under § 3E1.1 of the Sentencing Guidelines for “acceptance of responsibility” by pleading guilty.

But often enough, the Government’s concessions are illusory while the defendant’s obligations become onerous.  One of the unexploded mines in the agreement is the waiver.  A defendant will waive the right to appeal the conviction or sentence and to bring a collateral attack on the conviction under 28 USC § 2255.

Such a waiver probably doesn’t seem that unfair, at least where waiving the right to appeal is concerned.  A plea agreement, after all, is supposed to end litigation. But what happens when the conviction to which a defendant agrees proves down the road to be unconstitutional?

hobbsact200218That happened to Derek Cook. Derek (like a number of co-petitioners in his case) pled guilty to conspiracy to commit Hobbs Act robbery – 18 USC § 1951(a) – and using a firearm in furtherance of a crime of violence – 18 USC § 924(c). In exchange for the government’s promise not to bring any more criminal charges, Derek agreed to waive a number of rights, including the right to collaterally attack the convictions and sentences under 28 USC § 2255.

But after the Supreme Court held in the 2015 Johnson v. United States case that the residual clause of the Armed Career Criminal Act was unconstitutionally vague, Derek filed a § 2255 motion in which he correctly argued that his conspiracy charge could no longer be a defined as a crime of violence supporting a § 924(c) conviction. The district court sat on the petition until SCOTUS agreed, definitively holding that, constitutionally, conspiracy could not be the basis for a § 924(c) in the 2019 United States v. Davis decision.

After that, the district court conceded that Derek’s conviction for using a firearm in furtherance of a crime of violence was unconstitutional. But that didn’t matter, the Court said, because Derek had waived his entitlement to a conviction that was constitutional by signing a plea agreement containing his commitment not to file a § 2255 motion.

Last week, the 2nd Circuit agreed. The Circuit wrote that “while we have not yet considered the precise question of whether collateral-attack waivers are enforceable in the wake of Johnson and Davis, we have made clear that such waivers are generally enforceable in the face of evolving judicial precedent… [T]he possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements. This principle follows from the fact that plea agreements, like all contracts, allocate risk between the parties – and we are not free to disturb the bargain the parties strike.

pleadeal180104“The enforceability of a collateral-attack waiver,” the 2nd held, “turns on whether the petitioner’s plea was knowing and voluntary, not the nature of any subsequent legal developments… Petitioners counter that they have a due process right not to be convicted of a non-existent offense. But the question is not whether Petitioners have a right not to be convicted of a non-existent offense. It is whether Petitioners have a right to bring a collateral attack when, in exchange for valid consideration, they executed binding plea agreements admitting their criminal conduct and waiving their ability to challenge the resulting convictions. And on that score, our precedent is clear that ignorance of future rights is unavoidable and not a basis for avoiding a plea agreement.”

Cook v. United States, Case Nos. 16-4107 et al, 2023 U.S.App. LEXIS 27383 (2d Cir., October 16, 2023)

– Thomas L. Root

More Rumors – How Many Can You Identify as True? – Update for October 24, 2023

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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.

RUMORS II – TAKE OUR INMATE.COM RUMOR QUIZ

In prison, “inmate.com” is an information site of almost mythical status. It’s omniscient, omnipresent, omnivorous, and almost always, always wrong.

Unsurprisingly, there really is an inmate.com, although it bears no resemblance to the ethereal website of legend.

legend231023On November 1, the Guidelines amendments proposed last April will become effective. Under 28 USC § 994(p), amendments proposed by May 1 must become effective by November 1 unless Congress votes otherwise. Congress has not done so, and with the House in turmoil and no apparent Senate interest in stopping the amendments, the amendments will be effective in eight days.

Somehow, in the 35 years we’ve had the Sentencing Guidelines, the date of “November 1” has taken on a mystical, legendary quality. This year’s no different, as my email inbox continues to be stuffed with questions about what may happen ten days from now.

trueorfalse231024Take our true-or-false test to see how current you are on the latest November 1st rumors now being featured on  Inmate.com (the mythical one, not the penpal site):


(1) True or false: On November 1, the meth guidelines will be lowered by doing away with the “ice” enhancement.

FALSE. A district judge in SD Mississippi refused a few months ago to enhance for meth purity. It happens that this Judge is also Chairman of the Sentencing Commission, but nothing has been proposed on meth, let alone passed.

(2) True or false: On November 1, a new law will go into effect making 18 USC 924(c) prisoners eligible for FSA credits.

FALSE. The only way for 924(c) people to get FSA credits would be for Congress to amend the First Step Act. There is no proposal in front of either the House or the Senate to do that.

(3) True or false: On November 1, Congress is going to do away with the crime of conspiracy.

FALSE. Such a proposal, if anyone were daft enough to propose it, would never even make it to a committee hearing.

(4) True or false: On November 1, Biden is going to give all federal prisoners a year off of their sentences because of how miserable it was to be locked up for COVID.

FALSE. No one has even suggested such a thing, let alone seriously proposed it.

(5) True or false: On November 1, the new 65% law is going into effect.

FALSE. There ain’t no 65% law, never has been a 65% law, and probably never will be a 65% law.

(6) True or False:  On November 1, the Time Reduction Fairy will appear to magically commute your sentence to ‘time served.’

FALSE, but no more false than all the other November 1 rumors.

timereductionfairy231003Do you detect a trend here? This year, more happens on the 1st of November than All Saint’s Day… but not much. A couple of Guideline amendments go into effect and become retroactive. That’s good. Another one – compassionate release – will help a lot of people. But nothing will come out of Congress, nothing from the White House, very little from the BOP, and just the predictable annual amendment list from the Sentencing Commission.

And thus it will ever be.

– Thomas L. Root