All posts by lisa-legalinfo

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

Leave a comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

Leave a comment

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

IF YOU SEE SOMETHING, SAY SOMETHING

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

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

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

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

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

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

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

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

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

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

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

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

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

Some consolation.

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

– Thomas L. Root

Supreme Court Long Conference is Today – Update for September 30, 2024

Leave a comment

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

LONG CONFERENCE KICKS OFF SCOTUS OCTOBER 2024 TERM

longconf210706“The summer list is where petitions go to die,” Gregory G. Garre, a solicitor general in the George W. Bush administration, told the New York Times back in 2015. While the odds of getting the Supreme Court to grant review of a case are about one in a hundred, At the long conference, the rate is roughly half of that, about 0.6%.

The Court returns to the bench on October 7th to start a new term that includes cases on transgender rights, ghost guns, flavored vapes, and securities fraud. One case generating interest is Hewitt v. United States, which seeks to reverse a 5th Circuit holding that First Step Act mandatory minimum changes cannot be applied to people sentenced before the Act was passed but whose cases were remanded for resentencing after the Act became law. Federal circuit courts are split on this question.

Last week, a bipartisan group of senators led by Majority Whip Richard Durbin (D-IL), Chairman of the Senate Judiciary Committee, filed a brief in the Hewitt case. The Senators told the Court that in “designing the First Step Act, Congress sought to ensure that individuals who committed an offense before the Act was enacted, but who were not yet subject to a sentence for that offense, would benefit from Section 403. That group, as Congress conceived of it, includes both individuals facing an initial sentencing proceeding as well as individuals facing resentencing following vacatur of a prior sentence.”

The group, including Sen Charles Grassley (R-IA), Cory Booker (D-NJ), and Mike Lee (R-UT), argued that the 5th Circuit’s “reading of Section 403 is inconsistent with Congress’ intent as reflected in its chosen text.”

vacationSCOTUS180924The Dept of Justice has refused to argue in support of the 5th Circuit’s decision. The Supreme Court therefore has appointed Michael McGinley, a partner in the Dechert law firm, as a “friend of the court” to brief and argue in support of the judgment below, a practice that happens about once every term.

New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (August 31, 2015)

Time, The Biggest Supreme Court Cases to Watch (September 25, 2024)

Senate Judiciary Committee, Durbin, Bipartisan Group Of Senators Urge Supreme Court To Maintain Strength Of Landmark Criminal Justice Reform Provision In Hewitt v. US (September 24, 2024)

Hewitt v. United States, Case No 23-1002 (Supreme Court, oral argument pending)

SCOTUSBlog, Justices appoint former clerk to argue First Step Act cases (July 26, 2024)

– Thomas L. Root

Biden’s Clemency Clock Is Running Out – Update for September 27, 2024

Leave a comment

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

CALL FOR BIDEN TO STEP UP ON CLEMENCY

clemencypitch180716In an opinion piece in last week’s New York Times, law professors Rachel Barkow (a former Sentencing Commission member) and Mark Osler – both recognized federal clemency experts – called on President Joe Biden to reverse his “paltry record on clemency” by creating a record in his final four months in office “he can point to with pride.”

Biden has granted 25 pardons and commuted 131 sentences, “a mere 1.4% of the petitions he has received,” they wrote. “Clemency is more important than ever in an era of grossly excessive punishments and mass incarceration. Timidity is not a path to legacy, and the accumulated harms of presidents’ ignoring for years the power to issue clemency can be seen in the over 8,000 petitions that are pending, many of them more than five years old.”

So Biden’s shakeup of the Office of Pardon Attorney last December, which included throwing out overripe clemency petitions, resulted in about 9,800 petitions being rejected. Another 2,000 have been added since then. As of today, DOJ reports, 8,678 petitions are pending.

obtaining-clemencyBarkow and Osler suggest that Biden should commute the death sentences of the 40 federal prisoners on death row to life in prison. Another group deserving of commutation, they suggest, are the inmates at home on CARES Act home confinement. Finally, they argue that “Biden should release those still in prison for trafficking marijuana, which means manufacturing or distributing it, or both. Those are now legal activities in a number of states. His blanket pardon for only possession and use was needlessly limited, and he should expand it to its logical and just conclusion.”

Stephen Post from the Last Prisoner Project noted in USA Today last week that about 3,000 individuals are still incarcerated in federal prison for nonviolent marijuana offenses.

New York Times, Biden Needs to Work on His Clemency Legacy (September 18, 2024)

USA Today, Biden promised no jail time for weed. He’s running out of time to pardon cannabis convicts (September 15, 2024)

– Thomas L. Root

“You’ve Got (Scanned) Mail” – Update for September 26,2024

Leave a comment

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

IN WASHINGTON, PLEAS TO TOUGHEN UP ON INMATE MAIL

youvegotmail231207

Senators Robert Casey (D-PA) and Martin Heinrich (D-NM) last week introduced legislation to require the Federal Bureau of Prisons to screen all prison facility mail for contraband.

S. 5128, the Interdiction of Fentanyl at Federal Prisons Act, is intended to “reduce the risk of intentional poisoning or lethal exposure from illicit substances in federal prisons and support the 38,000 BOP corrections officers and staff that are dedicated to keeping prisons safe,” according to a press release.

The bill would require the BOP to deploy equipment and technology to achieve 100 pct scanning capacity of postal and legal mail arriving at Federal correctional facilities, ensure that inmates “receive a digital copy of all mail addressed to them, including legal mail, while remaining consistent with the law and BOP procedures governing attorney-client privilege” and “guarantee the delivery of all contraband-free original mail after it has been screened as soon as is practicable.”

The bill promises to “provide the BOP with an estimated $377 million in savings over a 10-year period.” Although as of this morning, the text has not yet been published, Filetr magazine reported this week that the newly proposed bill appears nearly identical to H.R. 5266, the Interdiction of Fentanyl in Postal Mail at Federal Prisons Act, introduced in August of last year. H.R. 5266 has languished in the House ever since but has collected 127 cosponsors since being introduced by Rep Don Bacon (R-NE), with Republican sponsors outnumbering Democrats 87 to 40.

Exactly how the BOP would pay for all of this scanning and where the “estimated $377 million in savings” would come from remain unexplained.

Filter blasted the bills as being lagnappes for private contractors:

Passive fentanyl exposure is a myth. Mail scanning has always been motivated not by safety, but by money. As the nationwide understaffing crisis deepens in state prison systems as well as the BOP, private contractors like Securus Technologies are promoting their automated mail-scanning services as the solution corrections departments are looking for. Some BOP facilities already use the MailGuard scanning service from SmartCommunications, a private correctional technology firm that claims to have pioneered off-site mail processing.

prisonmailbox200123I suspect that nothing will happen with these bills prior to the expiration of the 118th Congress at the end of the year.  If I am wrong, yet another connection to home will be stripped away from inmates for a spurious gain in staff safety.

S. 5128, A bill to require the Director of the Bureau of Prisons to develop and implement a strategy to interdict illicit substances and other contraband in the mail at Federal correctional facilities (September 19, 2024)

Press Release: The Interdiction of Fentanyl at Federal Prisons Act of 2024 (September 19, 2024)

Filter, The Prison Mail Bans Aren’t About Fentanyl. They’re About Understaffing. (September 23, 2024)

– Thomas L. Root

Making MDC Nice for Diddy – Update for September 24, 2024

Leave a comment

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

“URGENT ACTION” FOR MDC BROOKLYN

Last month, U.S. District Judge Gary Brown of the Eastern District of New York sentenced 74-year-old Daniel Colucci to nine months in prison for a tax crime, conditioned on the Federal Bureau of Prisons not designating him to serve it at MDC Brooklyn, a BOP facility used largely for presentence detainees.

It’s a facility Judge Brown described as being “dangerous [and] barbaric.” It’s also the new home for Sean “Diddy” Combs, 

dungeon180627The Judge apparently struck a nerve. Last week, BOP spokeswoman Randilee Giamusso told the New York Daily News, “Effective since August, the Federal Bureau of Prisons has temporarily paused all initial designations to the minimum security cadre component of MDC Brooklyn.” As of now, only 42 of the 1,200 MDC inmates are serving sentences at the facility.

Judge Brown’s opinion, which detailed conditions at MDC Brooklyn – including lengthy lockdowns, vicious assaults and significant delays in providing medical care – came several weeks after an MDC inmate was killed in a fight there. As a result of the opinion, Colucci was sent to FMC Devens.

The new policy was revealed during a September 12th sentencing of Stephen Mead in the Eastern District of New York. During the hearing, Assistant US Attorney Doug Pravda told the Court that the BOP designation policy “had recently changed, and MDC was broadly off the table,” Corrections1 reported.

Defense attorney Noam Biale, representing a pretrial inmate who did not receive his medication after an emergency appendix procedure, was quoted by the Daily News as having said “if both judges and the BOP recognize it’s not an appropriate place for people to serve their sentences, how can it be appropriate to jail people who are presumed innocent there?”

The BOP has not indicated when or if MDC Brooklyn might resume accepting sentenced inmates. Meanwhile, MDC Brooklyn is getting special attention even as a high-profile music celebrity was detained there instead of being bonded out.

BOP last week said it has cut inmate population at the MDC by 25% and increased staffing by about 20% to 469 employees, with 157 vacancies left. Before the hiring surge, the facility was at about 55% staffing, according to court filings.

An unidentified senior BOP official told The Associated Press that members of its Urgent Action Team, a group of senior officials focused on increasing facility staffing levels and ensuring adequate repairs, “have made repeated visits to MDC Brooklyn and… are giving the jail ‘sustained attention’ and ‘sustained leadership focus to mitigate issues at the lockup,” AP quoted the official as saying. The AP said the team is working to remedy “more than 700 backlogged maintenance requests and answering judges’ concerns.”

Urgent action required grunge rubber stamp on white background, vector illustration

Two weeks ago, I reported that nine FCI Waseca inmates had been hospitalized for adverse reactions to drug use. Last week, the Minneapolis Star-Tribune reported that Waseca has been under lockdown for the past two weeks because of the incident, which also resulted in two BOP employees being sent to a hospital for potential drug exposure.

In an email sent to the newspaper by a BOP official, the hospitalized employees are back at work and the inmates have returned to the prison.

Finally, former FMC Lexington correctional officer Jacob Salcido pled guilty in US District Court for the Eastern District of Kentucky  a week ago to three counts of sexual abuse of a ward, admitting that over the last four months of 2020, he “knowingly engaged in sexual acts with three inmates.” He is due to be sentenced in December.

Corrections1, N.Y. facility halts intake of sentenced inmates (September 17, 2024)

Associated Press, Bureau of Prisons says it’s adding staff and making fixes at jail where Sean ‘Diddy’ Combs is held (September 20, 2024)

Minneapolis Star-Tribune, Waseca women’s prison has been on lockdown for two weeks (September 18, 2024)

DOJ, Former FMC Prison Guard Pleads Guilty to Three Counts of Sexual Abuse of a Ward (September 13, 2024)

– Thomas L. Root

5th Circuit Suggests Felon-In-Possession May Sometimes Violate 2nd Amendment – Update for September 23, 2024

Leave a comment

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

NO GUNS FOR HORSE THIEVES… BUT MAYBE FOR OTHERS

While upholding a felon-in-possession conviction against Ronnie Diaz, the 5th Circuit ruled last week that 18 USC § 922(g)(1) nevertheless may violate the 2nd Amendment in some cases.

grandtheftauth240923

Ron’s conviction was not his first felon-in-possession rodeo. In 2014, he did three years in state prison in 2014 for stealing a car and evading arrest. Four years later, he was caught breaking into a car while carrying a gun and a baggie of meth. He did two years in state for a Texas charge of possessing a firearm as a felon. (Yeah, it’s illegal there, too).

After a November 2020 traffic stop that got kicked up to the Feds, Ron was convicted of 21 USC § 841(a)(1) drug trafficking, an 18 USC 18 USC § 924(c) count for possessing a gun during a drug crime, and a § 922(g)(1) felon-in-possession. Ron moved to dismiss the § 922(g)(1) as unconstitutional under New York State Rifle & Pistol Association v. Bruen. The district court denied him.

The district court denied Ron’s Bruen motion. Ron appealed, and last week, the 5th Circuit agreed.

Bruen addressed whether a state law severely limiting the right to carry a gun in public violated the 2nd Amendment right to bear arms. When a law limits 2nd Amendment rights, Bruen held, the burden falls on the government to show that the law is “consistent with this Nation’s historical tradition of firearm regulation.” This involves addressing “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” In Bruen, the Court held that the plain text of the 2nd Amendment protects the right to bear arms in public for self-defense and that the government had failed to “identify an American tradition” justifying limiting such behavior.

Then in United States v. Rahimi, the Supreme Court last June ruled that 18 USC § 922(g)(8) – that prohibits people under domestic protection orders from having guns – passed the Bruen test. Comparing § 922(g)(8) to colonial “surety and going armed” laws that prohibited people from “riding or going armed, with dangerous or unusual weapons to terrify the good people of the land,” the Supreme Court held that § 922(g)(8) was analogous to such laws,  only applied once a court has found that the defendant “represents a credible threat to the physical safety” and only applied only while a restraining order is in place.

Violating the “surety and going armed” laws could result in imprisonment. The 5th said that “if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that § 922(g)(8) imposes is also permissible.”

horsethief240923The 5th noted that “felony” is much too malleable a term to serve as a basis for deciding § 922(g)(1)’s constitutionality. Instead, it compared each of Ron’s prior convictions to colonial laws. Stealing a car, the Circuit decided, was analogous to colonial laws against horse thievery, and horse thieves in colonial America “were often subject to the death penalty.” Such laws “establish that our country has a historical tradition of severely punishing people like Diaz who have been convicted of theft,” meaning that a permanent prohibition on possessing guns passes 2nd Amendment muster.

“Taken together,” the Circuit said, “laws authorizing severe punishments for thievery and permanent disarmament in other cases establish that our tradition of firearm regulation supports the application of § 922(g)(1) to Diaz.”

Considering the obverse, the Diaz opinion suggests that other offenses unknown in colonial times – like selling drugs, downloading child porn, securities fraud, or conspiracy to do anything illegal – could not trigger the felon-in-possession statute consistent with the 2nd Amendment. Requiring a court to parse a defendant’s priors in order to convict him of a § 922(g)(1) would make a confusing hash of any felon-in-possession case.

Writing in his Sentencing Policy and Law blog, Ohio State University law professor Doug Berman observed that “the 8th Circuit has categorically rejected 2nd Amendment challenges to § 922(g)(1)… whereas the 6th Circuit has upheld this law “as applied to dangerous people.” The 5th Circuit has now upheld the law… based on the fact that there were Founding era laws ‘authorizing severe punishments for thievery and permanent disarmament in other cases’… [T]he fact that three circuits have taken three different approaches to this (frequently litigated) issue is yet another signal that this matter will likely have to be taken up by SCOTUS sooner rather than later.”

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

New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022)

United States v. Rahimi, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024)

Sentencing Policy and the Law, Fifth Circuit panel rejects Second Amendment challenge to federal felon in possession for defendant with prior car theft offense (September 20, 2024)

– Thomas L. Root

Felon-In-Possession 2nd Amendment Challenges Are Trending – Update for September 20, 2024

Leave a comment

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

922(g) FELON IN POSSESSION CHALLENGES EXPLODE AFTER BRUEN

The Trace reported last week that 55% of over 2,000 federal court decisions citing New York State Rifle & Pistol Association v. Bruen over the past two years have challenged the constitutionality of 18 USC § 922(g)’s ban on felons possessing guns and ammo, “making it the single most frequently contested statute by far.”

guns200304The latest example was handed down two days ago in United States v. Diaz. In that case, the 5th Circuit ruled that just being a felon was insufficient to make the application of 18 USC § 922(g)(1) consistent with the Second Amendment. But where the defendant had been convicted of a felony of theft, that “would have led to capital punishment or estate forfeiture” at the time the Second Amendment was ratified, “disarming [the defendant] fits within this tradition of serious and permanent punishment” and is thus constitutionally applied.

I will write more about Diaz on Monday. For now, back to the trendline:

The Trace reported that “at least 30 of the challenges to the felon gun ban have succeeded. While that ratio may seem small, it marks a stark departure from the past, when effectively none succeeded, and it shows that Bruen has cracked the longstanding consensus that people convicted of serious crimes may constitutionally be barred from gun ownership.”

When weighing the felon gun ban, judges have distinguished between violent and nonviolent offenses. But a former prosecutor told The Trace (an unapologetically anti-gun publication), that drawing the line is tough. “Who’s dangerous? What is your definition of dangerous? It’s easier to have a bright line. But that bright line is gone.”

Andrew Willinger, the executive director of the Duke Center for Firearms Law – which disseminates and supports reliable, balanced, and insightful scholarship and programming on firearms law – said it remains unclear whether banning gun possession among entire categories of people, like felons, is constitutional, particularly when their convictions were for nonviolent offenses that posed no obvious danger to the public.

“You’re really talking about categorical group determinations, rather than any kind of individualized finding of a threat of danger,” Willinger said. “And [United States v.] Rahimi doesn’t endorse [categorical prohibitions], but it also doesn’t rule them out, right?”

gun160711No one can know how the Supreme Court will rule when the felon gun ban finally gets to the high court, although no one can doubt that it will. When Justice Amy Coney Barrett was a 7th Circuit judge, she wrote a dissent favoring restoration of gun rights to nonviolent felons. “That is probably the direction that the Supreme Court is headed if and when it takes up these cases,” Willinger said, “which I think it probably has to do at some point in the near future.”

The Trace, More Than a Thousand Felons Have Challenged Their Gun Bans Since the Supreme Court’s Bruen Decision (September 12, 2024)

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

– Thomas L. Root

Food Fight – Update for September 19, 2024

Leave a comment

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

INMATES RESTIVE OVER FSA CREDIT MISFEASANCE

numbers180327Walter Pavlo reported in Forbes last Friday that despite BOP Director Colette Peters’ statement to a House Judiciary Subcommittee two months ago that the agency is now using a forward-looking calculator for First Step Act credits – credits earned for successful participation in programs intended to reduce recidivism – the calculator remains only partly implemented, leaving federal inmates confused and frustrated.

The BOP is now calculating both a Projected Release Date – which shows a release date calculated only on how many credits have been awarded to date – and a Conditional Release Date that predicts how many credits the prisoner is likely to earn over his or her remaining sentence. Pavlo wrote that “case managers are confused over which one should be used for planning purposes. It may seem obvious that the Conditional Release Date would make more sense, but that is not how it is working.”

Pavlo reported that at the Federal Prison Camp at Maxwell Air Force Base in Montgomery, Alabama, prisoners engaged in a food strike last week, planning to continue until staff ensures that “their concerns are addressed.”

In keeping with its policy of maximum opacity, the BOP issued a public statement saying only that “numerous inmates” skipped lunch and that BOP employees “are looking into why.”

hungerstrike240918

Pavlo knows why, as does anyone who has followed the BOP’s messy and incompetent implementation of the First Step Act. He explained:

Many prisoners there are eligible for FSA credits and they lined up outside of case managers’ offices last week to get answers to a simple question, “When am I leaving?” Tensions rose as prisoners were told to leave their units from 7:00am until 3:30pm as those meeting with case managers were not getting straight answers. According to prisoners I spoke with on condition of anonymity, tensions are high as case managers could not provide answers as to what the BOP’s position was on the new calculations.

While local news in Montgomery provided some information about the unrest at the federal prison, personal accounts from family members poured in telling of concern of escalation from staff who are taking away television time, visitation, computers and microwaves. “This is all about the BOP not giving us answers to things we know about from reading the First Step Act law,” said Donavan Davis a prisoner at FPC Montgomery, “I should be home now and nobody is listening.”

Pavlo reported that “[p]risoners told me that the BOP is not being clear about its position on First Step Act credits being awarded and many believe they are now being held against the law. Some provided information that confirms they could have been placed on home confinement months ago…”

I have heard from a number of inmates whose Conditional Release Dates have already passed without any indication from BOP officials that they are being placed in halfway house or home confinement as required by law. BOP Director Peters told the House Subcommittee on Crime and Federal Government Surveillance in July that “the shortage of halfway house space, the primary means of monitoring those on home confinement, is at a crisis level.”

We already knew that, but Pavlo underscored the BOP failure: The “limitation of halfway house space is keeping people in prison longer, and apparently, many have had enough.”

Diverse reports from prisoners in facilities across the BOP suggest that institutions are responding to prisoner demands for release on their Conditional Release Dates by refusing to provide inmates with copies of their FSA credit sheets. The theory apparently is if ignorance is not bliss, at least it deprives the “adults in custody” of proof that they’re being denied their rights and thus grounds for complaint.

foodstrike240918Food strikes aren’t going to make the BOP honor FSA credits. The BOP takes any organized protest by inmates as a serious matter, akin to a riot. The outcome is never good for the prisoners. The matter has to be solved in court, and the sooner the better.

Forbes, Bureau Of Prisons’ Issues With First Step Act Leads to Food Strike… (September 14, 2024)

House Subcommittee on Crime and Federal Government Surveillance, Oversight Hearing on Federal Bureau of Prisons Oversight (July 23, 2024)

– Thomas L. Root

JSIN Is Solid, 9th Circuit Says – Update for September 18, 2024

Leave a comment

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 PLATFORM GAINS LEGITIMACY

data240917Three years ago this month, the U.S. Sentencing Commission debuted the Judiciary Sentencing INformation platform, known as JSIN, intended for use by sentencing judges to provide access to sentencing data for similarly-situated defendants. Using JSIN – available to anyone on the USSC website – a judge can input the Sentencing Guideline applicable to the statute of conviction (such as USSG § 2B1.1. for an 18 USC § 1343 wire fraud). Then, by clicking on the applicable sentencing range, that corresponds to the defendant’s Total Offense Level and Criminal History Category, the judge will generate a report on the mean and median sentences imposed nationwide for people in that Guideline range over the past five years.

Eighteen months ago, the Federal Judicial Center began a two-year pilot study of the impact of including JSIN data in defendants’ presentence reports in about one-third of all federal districts. In districts assigned to the pilot group, probation officers append a report from the JSIN tool to the end of each PSR (a report that is a compilation of information about a defendant developed by a probation officer prior to the sentencing hearing, including both details on such the defendant’s offense, criminal history, family history, education, employment record, military service, finances, and physical and mental health, and calculations on the recommended Guidelines range).

In the remaining districts, probation officers will refrain from including JSIN data in PSRs during the two-year study period, although judges and litigants may still use and consider the JSIN tool as they wish.

JSIN often reports that the average nationwide sentence for what a defendant was convicted of is considerably under the Guidelines advisory sentencing range and for people sentenced years ago is now much lower now than what was imposed at the time. For a sentencing memo I worked on a few weeks ago, JSIN reported that the national average sentence for a Criminal History III fraud defendant with a Total Offense Level of 14 (Guidelines range of 21-27 months) was 14-16 months, a 33% discount from the bottom of what the Guidelines recommended for a sentencing range.

Thus, JSIN is often great evidence of disparity between an older sentence and current sentencing practice – that is, if JSIN is reliable. A judge can easily conclude that a sentence around JSIN’s mean or median sentence is the sort of “just punishment” called for by 18 USC § 3553(a). But human nature being what it is, the defendants tend to reject JSIN’s results if those don’t support a lower sentence just as prosecutors reject JSIN’s reliability if its numbers don’t support a higher one.

Last week, the 9th Circuit slapped down a defendant who argued that his judge violated his due process rights by finding that JSIN data was sufficiently reliable to consider at sentencing as supporting a higher sentence. The Circuit held that “JSIN data came from a reliable source and was designed specifically for judges to use during sentencing to fulfill their obligations under 18 USC § 3553(a)(6) to consider the need to avoid unwarranted sentence disparities. The JSIN data was also corroborated by other unchallenged evidence.”

JSIN240917Brewster makes JSIN something of a two-edged sword. Today, it swipes at a defendant, but tomorrow it could just as easily eviscerate a government argument for a higher sentence. For those seeking more empirical sentencing data – as courts and thoughtful lawyers on both sides should – the decision is excellent support for an argument that sentencing judges should take JSIN seriously.

United States v. Brewster, Case No. 23-329, 2024 U.S.App. LEXIS 23240 (9th Cir. September 12, 2024)

U.S. Sentencing Commission, Sentencing Resources Guide

Administrative Office of U.S. Courts, Judiciary Studies Use of Online Tool in Presentence Reports (January 25, 2023)

– Thomas L. Root