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Davis Lives! 924(c)(3)(B) Residual Clause Held to be Unconstitutionally Vague – Update for June 25, 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 LAST JOHNSON DOMINO FALLS

By a 5-4 vote, the Supreme Court yesterday upheld the categorical approach to judging whether offenses were crimes of violence, ruling that 18 USC § 924(c)(3)(B) is unconstitutionally vague.

Justice Neil Gorsuch wrote in the majority opinion that “[i]n our constitutional order, a vague law is no law at all.”

vagueness160110The vagueness doctrine rests on the twin constitutional pillars of due process and separation of powers. Having applied the doctrine in two cases involving statutes that “bear more than a passing resemblance to § 924(c)(3)(B)’s residual clause” – those being Johnson v. United States (Armed Career Criminal Act residual clause unconstitutional) and Sessions v. Dimaya (18 USC § 16(b) residual clause unconstitutional) – the Court completed its frolic through the residual clauses in the criminal code.

Courts use the “categorical approach” to determine whether an offense qualified as a violent felony or crime of violence. Judges had to disregard how the defendant actually committed the offense and instead imagine the degree of risk that would attend the idealized “‘ordinary case’ ” of the offense.

The lower courts have long held § 924(c)(3)(B) to require the same categorical approach. After the 11th Circuit’s decision in Ovalles, the government advanced the argument everywhere that for § 924(c)(3)(B), courts should abandon the traditional categorical approach and use instead a case-specific approach that would look at the defendant’s actual conduct in the predicate crime.

The Supreme Court rejected that, holding that while the case-specific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya and would not yield to the same practical and Sixth Amendment complications that a case-specific approach under the ACCA and § 16(b) would, “this approach finds no support in § 924(c)’s text, context, and history.”

hathanded190625The government campaign came to a head in Davis, a 5th Circuit case in which the appellate court said that conspiracy to commit a violent crime was not a crime of violence, because it depended on the § 924(c)(3)(B) residual clause. The Dept. of Justice felt confident enough to roll the dice on certiorari. Yesterday, the DOJ had its hat handed to it.

Who does this benefit? Principally, it benefits anyone who received a § 924(c) enhanced sentence for an underlying conspiracy charge. Beyond that, it helps anyone else whose “crime of violence” depended on the discredited § 924(c)(3)(B) residual clause.

The Court did not rule that Davis is retroactive for 28 USC § 2255  post-conviction collateral attack purposes, because that question was not before it. SCOTUS never rules on retroactivity in the same opinion that holds a statute unconstitutional. There is little doubt that, if Johnson was retroactive because of Welch, Davis will be held to be retro as well.

United States v. Davis, Case No. 18-431 (Supreme Court, June 24, 2019)

ARE 59(e) MOTIONS ‘SECOND OR SUCCESSIVE’ 2255s?

A number of lower courts have ruled that an unsuccessful § 2255 movant who files a motion to alter the judgment under Fed.R.Civ.P. 59(e) may be filing a second-or-successive § 2255 motion requiring prior approval.

HobsonsChoiceThis leaves § 2255 movants with a Hobson’s choice. Filing a 59(e) stays the time for filing a notice of appeal. But if the court sits on the 59(e) past the notice of appeal deadline, and then dismisses it as second-or-successive, the § 2255 movant has missed the notice of appeal deadline with the Court of Appeals. If the movant files a notice of appeal to preserve his or her rights, that nullifies the 59(e).

Right now, the only logical election is to ignore Rule 59(e) motions altogether.

Yesterday, the Court granted review in yet another “Davis” case, asking whether the 59(e) motion should be considered second or successive such that it requires the grant of permission under 28 USC § 2244. We’ll have an answer next year.

Banister v. Davis, Case No. 18-6943 (certiorari granted, June 24, 2019)

– Thomas L. Root

SCOTUS Rules 922(g) Requires “Knowledge” – Update for June 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.

KNOWNOTHING-ISM

In a decision that could be seismic for people convicted of being a felon in possession of a firearm, the Supreme Court last Friday ruled that it’s not enough to know that thing stuck in your pants is a gun. You have to know that you are part of a group the law says should not possess a gun. And, for that matter, you have to know you possess a firearm or ammo.

carriefgun170807Hamid Rehaif was in the country on a student visa that required him to be enrolled in college. He dropped out of school, but stuck around Florida to soak up the sun and fun. When ICE finally caught up to him, agents found him in possession of a half box of ammunition. Hamid had not really picked up on the “right to remain silent” thing, so he readily admitted going to a gun range. He was prosecuted for being illegally in possession of a firearm and ammo.

Under 18 U.S.C. 922(g), it is unlawful for a convicted felon to possess a firearm or ammunition. But that’s only subsection (g)(1). There are eight other subsections as well, categories that include fugitives, people under indictment, people convicted of a misdemeanor crime of domestic violence, people who have been found by courts to be mentally incompetent, illegal aliens, stalkers… there’s a long list.

The government has always gotten away with proving that a defendant had a gun or ammo, and that he or she was a felon or something else on the list. The defendant had to know that that thing he had stuffed in his waistband was a gun. Beyond that, there was no knowledge requirement. A defendant who claimed not to know that he or she was in a prohibited class was just plain out of luck. What the defendant knew or did not know simply was irrelevant. That’s what happened to Hamid. He was fine busting a few caps at the gun range as long as he was in school (and thus compliant with the terms of his student visa). But as soon as he dropped out, his visa automatically expired, and his antics at the gun range became illegal. The district court, and the 11th Circuit, agreed (as did every circuit court in America) that Hamid’s awareness that he should limit his firearms training to Nerf weapons.

rangeThat has now changed. The Supreme Court ruled that in a prosecution under 18 USC 922(g) and 924(a)(2) (they go together), the Government must prove both that the defendant knew he or she possessed a firearm and that the defendant knew he or she knew he belonged to the relevant category of persons barred from possessing a firearm.

Whether a criminal statute requires the government to prove that the defendant acted knowingly, the Court said, is a question of congressional intent. There is a longstanding presumption that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” This is normally characterized as a “presumption in favor of scienter.”

In 922(g) and 924(a)(2), Justice Breyer wrote for the 7-2 decision, the statutory text supports the presumption. It specifies that a defendant commits a crime if he or she “knowingly” violates § 922(g), which makes possession of a firearm unlawful when the following elements are satisfied: (1) a status element; (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “firearm or ammunition”). Aside from the jurisdictional element, the Court said, § 922(g)’s text “simply lists the elements that make a defendant’s behavior criminal. The term ‘knowingly’ is normally read ‘as applying to all the subsequently listed elements of the crime.’ And the ‘knowingly’ requirement clearly applies to 922(g)’s possession element, which follows the status element in the statutory text. There is no basis for interpreting ‘knowingly’ as applying to the second 922(g) element but not the first.

innocent161024What does this mean for the many felons-in-possession now in the system? It could be Bailey v. United States all over again, as people head back to court on 28 U.S.C. § 2241 petitions (where those are allowed) arguing that under the new statutory interpretation, they are actually innocent.

Justice Alito wrote a detailed and blistering dissent. He warned that the decision’s

practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g). It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating § 922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies… This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of ‘fixing’.

Watch that space. This could be very interesting.

Rehaif v. United States, Case No. 17-9560 (Supreme Court, June 21, 2019)

– Thomas L. Root

Gundy Brings Forth a Mouse – Update for June 21, 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.

GUNDY – NO BANG BUT A WHIMPER

As soon as the Supreme Court announced yesterday that it had affirmed the 2nd Circuit by an 8-1 vote, I knew that the Justices had massaged the case – which was argued the first week of October 2018 – until they reduced the holding to something narrow enough that they could almost all agree.

mouse170706Petitioner Herman Gundy, a convicted sex offender, was convicted of failing to register under the Sex Offenders Registration and Notification Act. He had been convicted of the sex offense before SORNA passed, but Congress included in the bill a directive to the Attorney General to “specify the applicability” of SORNA’s registration requirements and “to prescribe rules for [their] registration.”

Under that delegated authority, the Attorney General issued a rule specifying that SORNA’s registration requirements apply in full to pre-Act offenders. This made Herman’s failure to register a crime. Both the District Court and the Second Circuit rejected Herman’s claim that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to essentially determine what act or non-act constituted a crime.

Gundy was considered to be a big case, because the laxity with which Congress has delegated authority to the Executive Branch to make crimes cuts a broad swath across the law. The DEA has the power to declare an analogue drug to be a controlled substance. The ATF has the power to declare a little bent piece of metal a “machinegun” because it can be inserted into an AR-15 to make it fire on full auto. In fact, there are over 1,500 regulations enacted by Executive Branch agencies that carry criminal consequences.

Many observers thought Gundy could be a watershed, a moment when the Court would finally say “enough” to the willy-nilly delegation of power without limits. The fact that SCOTUS has taken so long to decide an early-term case suggested that there was a lot of dissention among the Justices, and that the decision, when it finally came, would be a whopper.

No such luck. Instead the Justices parsed the history of SORNA, and found that Congress had always meant for SORNA’s registration requirements to apply to pre-Act offenders, based on the Act’s statutory purpose, its definition of sex offender, and its history. But Congress was afraid that registering so many people right away would not be feasible. SORNA, the Court said, created a “practical problem[ ]” because it would require “newly registering or reregistering a large number of pre-Act offenders.”

Congress therefore asked the Attorney General, who was already charged with responsibility for SORNA implementation, to examine the issues and to apply the new registration requirements accordingly.” On that understanding, the Court said, the “Attorney General’s role… was important but limited: It was to apply SORNA to pre-Act offenders as soon as he thought it feasible to do so.”

There, the Court said. The AG only did what Congress clearly wanted done. Problem solved.

can190620What really happened is the Court was able to find justification in this instance for the AG doing what he did, rather than addressing the broader question. (Of course, lurking beneath the surface was the unspoken fear that declaring anything that pummels sex offenders to be unconstitutional would unleash a maelstrom of media and social criticism of the Court). Whatever the reason, the Court’s punt leaves the broader delegation doctrine question, which is as important as it is dry, for another day.

Gundy v. United States, Case No. 17-6086 (Supreme Court, June 20, 2019)

CLOCKWATCHERS

Another SCOTUS decision yesterday was a sleeper, one I had paid scant attention to. But it is a useful holding nonetheless.

A lot of people who were unlawfully treated before and during their criminal cases, and may have good legal issues against the people responsible, end up getting shut out by the statute of limitations. That happened to Ed McDonough.

Ed was an election commissioner in Troy, New York. After questions arose, Youel Smith was specially appointed to prosecute a case of forged absentee ballots in that election. Ed became his primary target.

clockwatcher190620Ed alleged that Youel fabricated evidence against him and used it to secure a grand jury indictment. Youel tried the case, using the allegedly false evidence, Ed got a mistrial the first time, but an outright acquittal the second.

Ed sued Youel under 42 U.S.C. § 1983, asserting a claim for fabrication of evidence. The district court dismissed the claim as untimely, and the 2nd Circuit affirmed. The courts both held that the 3-year limitations period began to run when Ed learned that the evidence was false, which undisputedly occurred by the time Ed was arrested and stood trial.

The Supremes reversed, ruling for Ed. The fabrication claim was a lot like a malicious prosecution claim, and such a claim does not arise until the defendant is acquitted. To follow the lower courts’ holding would create practical problems in places where prosecutions regularly last nearly as long as — or even longer than—the limitations period. Criminal defendants, SCOTUS said, “could face the untenable choice of letting their claims expire or filing a civil suit against the very person who is in the midst of prosecuting them. The parallel civil litigation that would result if plaintiffs chose the second option would run counter to core principles of federalism, comity, consistency, and judicial economy.”

McDonough v. Smith, Case No. 18–485 (Supreme Court, June 20, 2019)

– Thomas L. Root

We’ve Got the Shorts – Update for June 20, 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 SHORT ROCKET –

rocket190620… in which we report some news in brief while we wait for the Supreme Court’s first Thursday opinion day since… well, since it got jammed up with opinions at the end of last June.


Are You Feeling Lucky?

A Pew Research Center study release last week reported what we already know: trials are rare in the federal criminal justice system, and acquittals are even rarer.

Nearly 80,000 people were defendants in federal criminal cases in fiscal 2018, but just 2% of them went to trial. Over 90% pled guilty instead, while the remaining 8% had their cases dismissed, according to an analysis of data collected by the federal judiciary.

Most defendants who did go to trial were convicted. Only 320 of 79,704 federal defendants – four-tenths of one percent – went to trial and won an acquittal.

Pew Research Center, Only 2% of federal criminal defendants go to trial, and most who do are found guilty (June 11)

Read My Lips

nobeer180605Steve Gustus was knock-down drunk when he beat up a Postal Service employee. Convicted of assaulting a government employee, he got sentenced to some time and supervised release that included substance abuse treatment. At sentencing, the trial judge told Steve he couldn’t use any alcohol as long as he was getting treatment.

But when the supervised release conditions appeared in his Judgment, Steve discovered the judge ordered him to stay away from alcohol as long as he was on supervised release.

Last week, the 8th Circuit vacated the condition and sent Steve back for resentencing. The only supervised release conditions that count are the ones the Court announces at sentence. They can be broadened in the Judgment. Here, it was not clear how long substance abuse treatment was intended to last, so the Judgment got sent back to the trial court for clarification.

United States v. Gustus, 2019 U.S. App. LEXIS 17898 (8th Cir. June 14, 2019)

You Should Have Worked For DOJ

Memo to Federal Prisoners: You probably wouldn’t be where you are right now if you had worked for the Dept. of Justice. Really.

The Hill reported that one DOJ employee was caught red-handed engaged in contract fraud. Another, an FBI lawyer no less, admitted to multiple episodes of shoplifting. A third leaked sealed court information to the news media. And an FBI agent in charge fourth engaged in fraud by turning a government garage into a personal repair shop.

badboys190620Four cases, all solved in the past month, with suspects who cost taxpayers hundreds of thousands of dollars and significant breaches of public trust. But every one of them escaped prosecution, despite their transgressions, and in some cases, kept their jobs.

The Hill complained that “today, there is a troubling pattern of officers being held to a lower standard inside a department where critics fear there is a dual system of justice.”

The Hill, Feds gone wild: DOJ’s stunning inability to prosecute its own bad actors (June 13)

Civil Rights Commission Issues Collateral Consequences Study

Felony convictions have too much of an impact on access to voting rights, employment and social services, the U.S. Commission on Civil Rights said last week.

In a 150-page report providing a comprehensive modern accounting of collateral consequences, the Commission criticized federal and state policies that raise obstacles for felons without protecting public safety or corresponding to a person’s specific crime. “Collateral consequences exacerbate punishment beyond the criminal conviction after an individual completes the court-imposed sentence,” the majority of the commission found.

excon170601The Commission found “scant evidence” to support the belief that collateral consequences act as a deterrent” to crime. In fact, the report said, those consequences encourage people to relapse into crime. “This increase in recidivism is caused by limiting or by completely barring formerly incarcerated persons’ access to personal and family support.”

An “absence of public and judicial awareness of collateral consequences of conviction,” the Report held, “undermines any deterrent effect that might flow from attaching such consequences, separate and apart from the punishment itself, to criminal convictions. The processes people must undertake to restore rights, for example through applications for pardon or for judicial record sealing, are often complicated, opaque, and difficult to access.”

U.S. Commission on Civil Rights, Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities (June 13)

Tampa Bay Times, Felony convictions block too many from voting and jobs access, federal civil rights report finds (June 13)

– Thomas L. Root

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The Incredible Shrinking Bivens – Update for June 19, 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.

BAD NEWS FOR BIVENS

Everyone knows that the 1971 Supreme Court case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics established a private person’s right to sue federal officials for violation of one’s constitutional rights. What everyone does not know is that Bivens continues to be under assault.

Oops, wrong house... If they're locals, sue 'em under 42 USC 1983

Congress in its wisdom enacted a statute, 42 USC 1983, that permits a private person to sue an agent of a state or local government (like the crazy cops who wanted to shoot a shoplifter) for violating the victim’s constitutional rights. But Congress did not authorize a private person to sue a federal agent or official for doing the same thing. This created a weird dichotomy: if the local fuzz kicked down your door and terrorized you in a drug raid (when the warrant was really for a house one block away) could be sued, but if the same act was committed by a SWAT-truckload of DEA agents, you were out of luck. Some 48 years ago, this struck the Supreme Court as just plain wrong, so the Court decided that the Constitution implied the right to bring the same suit against the Feds that Sec. 1983 allowed one to bring against the local cops.

My take, for what it’s worth: the Constitution says things. It does not imply things. Bivens is just plain wrong. But the Court was right that there ought to be such a right. I’m a big fan of allowing citizens (and non-citizens, too, thinking about Mexican kids playing in the Rio Grande who get shot by DEA agents just for fun) the right to enforce their constitutional rights when government actors violate them. But pretending that the Constitution implicitly authorizes whatever right is flavor of the day is a slippery slope. Implication eventually makes the Constitution little more than a reflection of the will of the majority.

A few years ago, Yaz Farah and a bunch of his friends were indicted for forcing minor females to engage in prostitution. No question, such conduct is horrific, or would be horrific if it really happened. In Yaz’s case, a federal prosecutor convinced a jury that it did happen, and Yaz and most of his buddies were convicted.

The 6th Circuit was calling Officer Heather one... and in a big way.
The 6th Circuit was calling Officer Heather one… and in a big way.

But the district court threw out the verdict due to manifold Brady violations (that is, the prosecution possessed evidence that Yaz and his friends did not do it, but hid that evidence from the defense), as well as the trial judge’s strong suspicion that the lead investigator made up a lot of the story to which she had testified. The 6th Circuit upheld the dismissals, blasting the investigator, St. Paul cop Heather Weyker (who had been deputized as part of an FBI Task Force), as an out-and-out liar.

Yaz and his friends sued Heather under Bivens for her false testimony, fabricated evidence and conniving, all of which had left some of them jailed for three years awaiting trial on bogus charges. However, last week, the 8th Circuit reluctantly threw out Yaz’s Bivens claim in an opinion that began as follows:

If a federal law-enforcement officer lies, manipulates witnesses, and falsifies evidence, should the officer be liable for damages? We hold that the Constitution does not imply a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), so the answer must come from Congress, not from us. And Congress has, so far, answered no.

The problem is that the Supreme Court has recognized an implied a private right to sue the government in only three cases (and has recently tried to crank back the reach of Bivens). The first was in Bivens itself: a 4th Amendment remedy for a warrantless search. The second was in Carlson v. Green (cruel and unusual punishment resulting in a prisoner death), and the third in a gender discrimination claim against a Congressman by a former aide. “Since then,” the 8th Circuit said, “the Court has become far more cautious and has, in fact, consistently refused to extend Bivens to any new context or new category of defendants’” for almost forty years. Recognizing that the Bivens inquiry is about “who should decide” whether to create a new cause of action, the 8th said, the Supreme Court has answered “most often . . . Congress.”

shocked190619Here, the Court ruled that the police officer’s misconduct, while shocking, was not similar to any of the three forms of Bivens claims that had been permitted. Letting the action go forward “would require courts to interfere in an intrusive way with sensitive functions of the Executive Branch,” whether Congress has taken other action in the area without authorizing a damages remedy, and whether a “remedial structure” is already in place to address constitutional violations, even if it does not go as far as a Bivens remedy would. When factors like these are present, the 8th Circuit said, the Supreme Court has explained that it is “less probable that Congress would want the Judiciary to entertain a damages suit.”

Until Congress creates a federal remedy similar to the 42 USC 1983 remedy against state agents and officers, Yaz’s damages will go without a remedy.

Farah v. Weyker, 2019 U.S. App. LEXIS 17566 (8th Cir. June 12, 2019)

– Thomas L. Root

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Supreme Court Upholds Right of States and Feds to Separately Try Defendant for Same Crime – Update for June 18, 2019

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“SEPARATE SOVEREIGNS” MAY BOTH TRY DEFENDANT AS FELON-IN-POSSESSION FOR SAME INCIDENT

The Supreme Court yesterday refused to abandon the dual-sovereignty doctrine, which permits a state to try a defendant for an offense, and then allow the federal government to try him or her for the same conduct.

nice190618Police caught Terence Gamble with a loaded handgun. He pled guilty to an Alabama felon-in-possession-of-a-firearm statute. He was then indicted in federal court for the same incident. Terence moved to dismiss, arguing that the federal indictment was for the same offense as the one at issue in his state conviction, thus exposing him to double jeopardy under the Fifth Amendment. The District Court denied this motion, invoking the dual-sovereignty doctrine, according to which two offenses “are not the ‘same offence’ ” for double jeopardy purposes if “prosecuted by different sovereigns,” The 11th Circuit affirmed.

Yesterday, the Supreme Court upheld the “dual sovereignty” doctrine in a 7-2 opinion. In a verbal pretzel of a justification, the Court held that the Double Jeopardy Clause protects defendants from being “twice put in jeopardy” “for the same offence.” But as it was originally understood, the Court said, an “offence” is defined by a law, and each law is defined by a sovereign. Thus, where there are two sovereigns, there are two laws and, therefore, two “offences.”

The Court said Terence was trying to show from the Double Jeopardy Clause’s drafting history that Congress must have intended to bar successive prosecutions regardless of what government brought the charge. “But even if conjectures about subjective goals” of the framers of the Constitution “were allowed to inform this Court’s reading of the text, the Government’s contrary arguments on that score would prevail.”

Justice Gorsuch (a Trump appointee) and Justice Ginsberg (a Clinton appointee) dissented. Justice Ginsberg called the difference in sovereigns a “metaphysical sublety” on which a defendant’s freedom should not be frittered away. Justice Gorsuch, who for his conservative philosophy seems to be a champion of criminal justice, started his long dissent like this:

A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy. My colleagues say that the federal government and each State are “separate sovereigns” entitled to try the same person for the same crime. So if all the might of one “sovereign” cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other. But this “separate sovereigns exception” to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee.

Gamble v United States, Case No. 17-646 (June 17, 2019)

– Thomas L. Root

Trump Backs Expanding Pell Grants for Inmate College Courses – Update for June 17, 2019

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KARDASHIAN AND WHITE HOUSE BACKING RENEWED PELL GRANTS, EMPLOYMENT INITIATIVES FOR PRISONERS

Reality-TV queen Kim Kardashian returned to the White House last Thursday for the Second Chance Hiring event, promoting efforts to help prisoners return to the workforce.

kardash180604Since President Trump signed the First Step Act last winter, he says the administration has been working to ensure released prisoners have the tools and jobs they need to adjust to life outside prison. “We’re bringing Americans who have been on the sidelines back into the workforce, including former inmates,” Trump said during the Second Chance Hiring program (not to be confused with the Second Chance Act of 2007). “America wins when citizens with a criminal record can contribute to their communities as law-abiding members of our society.”

Trump announced several other measures, including stepped-up efforts by the Bureau of Prisons to line up jobs for those being released and additional funds to support companies that hire former inmates. Despite historically low unemployment, people released from prison typically experience jobless rates of at least five times the national average. According to research by the Prison Policy Initiative, jobless rates among former prisoners top 27%. As part of the second chance initiative, the White House announced its intent to lower that rate to single digits within five years.

“When former inmates come home the single most important action we can take is to help them find a really really good job, where they love the job and they’re making a lot of money,” Trump said.

education180509Trump’s initiative builds on First Step, and includes increased bond money for the Dept. of Labor to offer a financial guarantee to companies for hiring people with a criminal record or other at-risk applicants, a BOP partnership with employers to find jobs quickly for people being released, and even a free ride-share program to get recently-released people around for interviews and connecting with family.

Maybe the most important step for currently-incarcerated folks is expansion of the Dept. of Education Pell Grant pilot program to include additional colleges, allowing more prisoners access to college programs. to take classes. Before 2016, inmates were banned from receiving Pell Grants under the 1994 crime bill, but DOE was given permission to run a pilot program in 2016. According to a 2013 DOJ funded-study, people who participated in prison education were 43% less likely to return to prison within three years.

The New York Times, The Subject at the White House Was Criminal Justice. The Subtext Was the Election (June 13)

Washington Post, At White House, Kardashian promotes prisoner reentry effort (June 13)

WSTM-TV, Trump promotes ‘second chance’ initiative to end ex-prisoners’ unemployment crisis (June 14)

– Thomas L. Root

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Good-Time Charlie Has the Blues No More – Update for June 14, 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.

MORE EVIDENCE THAT THE 7-DAY EXTRA GOOD TIME IS UPON US

Since the blunder in last December’s First Step Act that delayed the immediate application of its 7-days-extra “good time” fix, people had been hoping to fix the error so that the extra good time could be immediately applicable (as Congress intended). As long back as January, I predicted Congress was disinclined to return to First Step to repair the mistake.

The good-time “fix” was thisEnough time has passed that the date on which the “good time” fix is very likely to kick in (July 19, assuming the Attorney General complies with a key deadline in the Act) is a little more than five weeks away. Last week, there was more evidence that the Administration plans to meet that deadline.

The Marshall Report reported that the “White House is racing to help an estimated 2,200 federal prisoners line up work and housing before they are released next month, according to several policy experts and prisoner advocates who have been involved in the effort.”

Marshall’s sources said that the prisoners scheduled to be let out in July are the largest group to be freed so far: “Their sentences are being reduced thanks to a clause that goes into effect next month…”

The report said that the bipartisan group of First Step supporters that pushed for the new law are “concerned that the inmates aren’t adequately prepared to land jobs, find housing or obtain transportation from prison to the places they will now live. Much of that help was supposed to come through programs within the First Step Act, but Congress has not yet funded the five-month-old law, and the Department of Justice has so far failed to allocate significant funding from its budget for it.”

The concern is not academic. If the people released after First Step passed fail on the outside, future criminal justice reforms could be imperiled. Sentencing Commission studies show that 45% of people released from federal prison go back within five years. If First Step program do not reduce that number, the hardliners who love harsh mandatory minimums could have their day once again.

I have heard from a number of inmates that the BOP has already recalculated time for people who are likely to be released immediately because of the change.  Because it is so difficult to verify anecdotal evidence, even from sources who are detailed in their reports, I do not rely on the reports. However, what I have heard is not at all inconsistent with published reports that the adjustment wi

The Marshall Project, White House Pushing to Help Prisoners Before Their Release (June 5)

Sentencing Law and Policy, Curious (but still encouraging) discussion of expected release of prisoners after FIRST STEP Act “good time” fix becomes operational (June 5)

– Thomas L. Root

Will President Circumvent DOJ With White House Pardon Attorney? – Update for June 13, 2019

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RUMOR FLOATED THAT TRUMP WILL APPOINT HIS OWN NON-DOJ PARDON ATTORNEY

The Washington Examiner reported last week that “worried clemency advocates are urging President Trump to select his own pardon attorney as the Justice Department reviews a stack of resumes collected on short notice” to fill its own Pardon Attorney slot.

pardonme190123There hasn’t been a politically appointed Pardon Attorney in over 40 years, but advocates say it could enhance the position’s stature and ensuring that Trump’s interest in giving second chances extends beyond isolated cases. “I think it makes a lot of sense to have the pardon attorney job be a political one,” said Margaret Love, U.S. pardon attorney from 1990 to 1997.

The job posting was open for just a month, closing May 10, suggesting that DOJ may already have a candidate in mind, probably another career prosecutor. “I wonder if they are going to make Trump aware of [the search]. Shouldn’t the president have some say over who his pardon attorney is?” said Sam Morison, who worked for 13 years as a staff attorney in the DOJ’s Office of the Pardon Attorney. “If they are just going to the U.S. attorneys’ offices, they are going to get someone who’s a company man, and that’s the idea,” he said.

Rosalind Sargent-Burns, a long-time Office of the Pardon Attorney staffer, was named acting Pardon Attorney on May 28. She has never been a line prosecutor, to her credit, and has held various  positions in the OPA over the past decade, including Designated Agency Ethics Officer, Team Lead, Senior Attorney Advisor over the pardon portfolio, Acting Deputy Pardon Attorney, and Deputy Pardon Attorney.

yesman190613Morison wants Trump to pick his own pardon attorney and move the office into the White House, citing institutional weight against clemency in cases DOJ itself prosecuted. He is hopeful based on President Trump’s public remarks, including that there are “a lot of people” in prison for “no reason.” “Trump gets a lot of criticism, but I think it’s refreshing for him to admit something everyone knows to be truth: The Justice Department is not perfect, and prosecutions are not perfect. Most presidents aren’t actually willing to acknowledge that,” Morison said. “I think Trump does not trust DOJ, and in this particular instance he’s probably correct.”

Heritage Foundation scholar Paul Larkin, who wants Trump to create a White House Office of Executive Clemency, participated in a private group discussion on clemency reform two months ago. CAN-DO founder Amy Povah also wants the pardon attorney separated from DOJ. “We are relying on President Trump to finally be the hero we’ve been waiting for because he is an outsider who doesn’t worry about shaking up the status quo,” she said.

Trump has now fallen behind President Obama on clemency, having granted only 12 people pardons or commutations, nearly all at the urging of politicians or celebrities. At this point in his presidency, Obama had granted clemency to 17 people.

Washington Examiner, Trump urged to pick his own pardon attorney (June 6)

– Thomas L. Root

Retroactive Crack Sentence Reductions Pass One Thousand – Update for June 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.

SENTENCING COMMISSION ISSUES CRACK RETROACTIVITY UPDATE

The Sentencing Commission last Friday issued a report on releases under the Fair Sentencing Act retroactivity granted by the First Step Act. Since First Step became law last December, the courts have granted 1,051 crack sentence reductions.

crackpowder160606The breakdown by district shows Middle and Southern Florida, South Carolina and Virginia are the places to be. Those five districts accounted for about 29% of all grants. One third of the 94 districts contributed only  2.5% of the total, with 20 districts not granting a single motion.

What was missing from the USSC analysis was a figure on the number of motions denied, which would have provided a much clearer picture of any discrepancies among the districts in how the Fair Sentencing Act retroactive reductions were being applied.

The sentence reductions averaged 29 months, with the 5th Circuit courts averaging the best at 35.3 months and the 1st Circuit being the worst at 22.6 months. Over 91% of all defendants getting time cuts are black.

U.S. Sentencing Commission, First Step Act of 2018 Resentencing Provisions Retroactivity Data Report (June 7, 2019)

– Thomas L. Root