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First Step Rollout Already Behind Schedule? – Update for January 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.

COULD SHUTDOWN MESS WITH FIRST STEP ACT IMPLEMENTATION?

endshutdown190122The First Step Act sets July 19 as the hard deadline for adoption of a risk assessment system. That system is a precondition to the Bureau of Prisons beginning to grant earned time credit to inmates for programs that reduce recidivism.

But an even earlier deadline falls today, by which time the Dept. of Justice was to establish the committee tasked with creating the risk assessment system. The New York Times reported last week, however, that the Jan. 21 deadline would not be met, and no one still working at DOJ despite the shutdown will say when the committee will be formed.

No one is sure what happens if the risk assessment system is not in place by July 19. On the one hand, the deadline is written into the statute, so DOJ cannot ask for an extension. On the other hand, it is not clear who could sue or whether a court could effectively compel DOJ to meet the deadline.

Meanwhile, confusion continues to reign over the delay of the extra seven days of good time until July 19. “It absolutely makes no sense,” said Jack Donson, a former BOP case manager told the Times. Donson said the recalculation of good time should not have been linked to the new risk assessment system.

A staff member for Sen. Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee, said that the good-time effective date was inherited from a version of First Step passed by the House, and that Grassley was aware that questions had been raised about it.

While the staff member “wouldn’t necessarily characterize it as a drafting error,” he said Grassley “definitely has his eye on it and intends to keep working with the administration on a way forward.”

closed190122Meanwhile, the federal courts, which previously said their funds would run out on Jan. 18, announced last week that cost-cutting had extended the drop-dead date to at least Friday, Jan. 25. However, the Administrative Office of U.S. Courts warned that “at some point in the near future, existing funds will run out if new appropriated funds do not become available.”

If that happens, the courts will operate under the Anti-Deficiency Act, 31 USC 1341, which limits them to mission-critical work. In response to DOJ requests, some federal courts have issued orders suspending or postponing civil cases in which the government is a party, and others have declined to do so.

Criminal cases are expected to proceed uninterrupted.

New York Times, Shutdown Threatens to Delay Criminal Justice Reforms Signed Into Law by Trump (Jan. 16)

Administrative Office of U.S. Courts, Judiciary to Continue Funded Operations Until Jan. 25 (Jan. 16)

– Thomas L. Root

Shutdown Grinds on Federal Prisons – Update for January 18, 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.

FEDERAL PRISON CONDITIONS NOT GOOD FOR STAFF OR INMATES AS SHUTDOWN CONTINUES

shutdown190118The partial government shutdown, about to enter its fifth week, has led to the furloughing of up to half of the BOP’s 36,000-person staff, including many who provide therapeutic programs and other services considered not to be “essential.” The agency is asking its remaining employees to keep working unpaid, focusing on maintaining security even if that’s not usually their primary job.

“It’s an absolute disaster,” said the president of the union chapter in Victorville, California, home to one of the nation’s largest concentrations of federal prison guards. “I have staff that are resorting to getting second employment – like Uber driving.”

Union officials reached by The Washington Post reported last week that the number of employees who are not showing up for work has at least doubled since the shutdown began. As a result, those showing up are routinely working double shifts, correctional officers and other prison staff members say. “There has been a rise in people calling in sick and taking leave during the shutdown,” said Richard Heldreth, president of the corrections officer union at Hazelton prison in West Virginia. “The staff who are showing up are dealing with this violence, long hours and extra overtime with the uncertainly of when we will be compensated.”

The BOP said only that the lack of funds from Congress means that only those employees whose duties involve “the safety of human life or the protection of property” are permitted to work.

The shutdown is having other consequences as well, including canceled visiting hours and empty commissary shelves. Also, applications of terminally-ill inmates awaiting “compassionate release” are going unread.

A more urgent problem, said Robert Hood, former warden of the ADMAX Florence, is the possibility of mental-health staff being furloughed. “Most BOP facilities will run without the myriad of programs normally offered” to address the needs of dangerous or mentally ill prisoners, Hood said.

emptyprison190118The U.S. courts are equally affected. Federal courts are funded only through next week. Beyond that, there is a likelihood of serious delays for many cases, but even experts and government officials are uncertain exactly how a prolonged shutdown might play out. The Administrative Office of the U.S. Courts (AOUSC) now says that federal courts can continue paid operations using “court fee balances and other ‘no-year’ funds” until Jan. 25.

If the court system runs out of reserves, according to AOUSC, the Anti-Deficiency Act kicks in. Involved parties can expect delays in discovery, briefing and other communications from the DOJ and other federal agencies.

Civil litigation, generally, will be the first casualty of the shutdown. Criminal cases will be prioritized, as they are matters of public safety, according to the Administrative Office. Every court will be affected, though it remains uncertain to what extent. Judges remain responsible for managing their cases, even during the shutdown, and will generally address stays, delays and important date changes on a case-by-case or district-by-district basis.

The Marshall Project, What the Government Shutdown Looks Like Inside Federal Prisons (Jan. 7)

Washington Post, Tensions rise in federal prisons during shutdown as weary guards go without pay and work double shifts (Jan. 10)

Law360, What Attorneys Need to Know About the Shutdown (Jan. 10)

Administrative Office of U.S. Courts, Judiciary to continue funded operations until Jan. 25 (Jan. 16)

– Thomas L. Root

BOP Guards Union Scams Media – Update for January 17, 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.

THAT REALLY SUMPTUOUS CHRISTMAS STEAK BOP PRISONERS ENJOYED WAS FAKE NEWS…

Last week, we reported how NBC had run a story that inmates were eating shrimp and steak while making fun of the Federal Bureau of Prisons staff who were forced to serve the inmates without pay.

prisonfood190118It turns out that the story was not only fake (which our readers already knew), but it was successfully planted in the gullible national media by the correctional officers’ union.

Reason.com reported last week that in order to express their unhappiness with the federal shutdown, representatives of federal prison employee unions decided to act as though any tiny morsel of mercy granted to inmates is an insult to BOP employees:

While the holiday meals sound nice, the food prisoners receive every other day of the year is generally awful and frequently doesn’t contain enough nutrients to meet inmates’ dietary needs. But in order to make themselves look like the victims in this government shutdown, union officials shopped around a story to multiple media outlets about criminals being treated like kings while prison guards have to freelance as Uber drivers.

Lawandcrime.com reported that the “story appears to be largely based on information straight from the American Federation of Government Employees – the largest national correctional officers union. The story does not contain a firsthand quote from one single prisoner… [but] does provide ample opportunities for the president of the national prison workers union and the union chief at a federal prison in Florida to kvetch and moan about their employees being forced to feed inmates holiday meals.”

Reason.com reported that “many outlets ran with this tale in exactly the form union reps likely preferred. Over at USA Today, Kevin Johnson described these meals as a “display of culinary largesse.” Cleve Wootson, Jr., at The Washington Post called it an example of the “hypocritical” or “ironic” moments of the federal shutdown.

prisonfoodA190118NBC’s reporting included guards and union representatives describing it as “despicable” that inmates received a holiday meal. NBC described the letters and complaints it cited as having been mysteriously “obtained,” despite the fact that a Florida BOP union leader was quoted in all of these stories, suggesting that the union “shopped” the story to reporters like a normal PR pitch.

The union leader provided the media outlets with the contents of two inmate emails talking about the meal, which Reason said had been obtained from BOP staff who had screened the emails. the emails were “obtained” by prison staff who screened the emails.

Prison staff are on record complaining that inmates are still getting paid for their prison work. Reason notes that “inmates typically make pennies per hour. And unlike [COs], these inmates cannot find better working conditions elsewhere.”

Reason.com., Prison Guards Orchestrate Media Campaign to Complain About Inmates Getting Edible Food for Christmas (Jan. 7)

Lawandcrime.com, Viral Story About Prisoners’ Holiday Meals During Shutdown Reeks of Propaganda (Jan. 7)

– Thomas L. Root

Err in Haste… Congress Goofs, Inmates Keep Doing Time – Update for January 16, 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.

54 DAYS GOOD TIME DELAY IS A “MISTAKE”

screwup190116The BOP let inmates know last week that it does not have to recalculate good time to give inmates the extra seven days approved by the First Step Act until the Attorney General adopts a new risk assessment system, relying on Sec. 102(b)(2) of the Act.

First Step gives the AG 210 days from the date the bill was signed to complete the risk assessment. That deadline, and the latest date for BOP crediting the good time, is July 19, 2019.

A Chicago halfway house resident lost his bid for immediate release in District Court last week. The Northern District of Illinois court said the defendant, whose current out date is next month but who would already have been out with the additional time, “cannot obtain relief. Section 102(b) of the First Step Act states that the amendment to section 3624(b) does not take effect until after the Attorney General completes and releases the needs assessment system established under section 101(a) of the Act. The Attorney General is given up to 210 days to implement the risk and needs assessment system.”

“This court is not unsympathetic to the apparent inequity of petitioner’s situation,” wrote U.S. District Judge Sharon Johnson Coleman. “This court, however, is obligated to apply the law as it is written.”

Reuters reported last week that the delay in increased good time resulted from as drafting mistake. First Step activists said the law, as drafted, confused good-time credits, which reduce a sentence for compliance with BOP rules, with earned-time credits, which was to be awarded for completing approved programming. Sec. 102(b)(2) mistakenly said that new rules on good-time credits could not kick in until the AG finishes a risk-assessment process which relates to the earned-time credits, but has nothing to do with good-time credits.

Several First Step supporter told Reuters their groups are working with the White House to find a work-around, although a legislative fix may be needed. The groups are considering trying to tuck a fix into a broader spending bill for action by Congress.

annette190116Meanwhile, Annette Bongiorno, a former Bernie Madoff associate, did not fare much better. We reported on December 31 that her lawyers had petitioned her sentencing court to send her to home confinement under the Elderly Offender Home Detention program as soon as she hit her two-thirds date. Last week, her sentencing judge denied the motion, noting that which Bongiorno appears to be eligible for home confinement in February, “the statute does not provide for direct application to the Court for the relief she seeks. Instead, the initial determination as to Mrs. Bongiorno’s eligibility for release to home confinement, which is discretionary, rests with the… BOP.”

Order, Shah v. Hartman, Case No. 18 C 7990 (N.D. Ill. Jan. 3, 2019)

Reuters, Error in U.S. prisons law means well-behaved inmates wait longer for release (Jan. 9)

– Thomas L. Root

Curtis Johnson Suffers Violence at Hands of Supreme Court – Update for January 15, 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.

SUPREME COURT RULING ON ROBBERY AS ACCA PRIOR IS BAD NEWS FOR PEOPLE ATTACKING ACCA PRIORS

violence180508Back in 2010, the Supreme Court brought some sense to the classification of crimes as “violent” in Curtis Johnson v. United States, holding that “physical force” means “violent force – that is, force capable of causing physical pain or injury to another person.  Applying that standard to a Florida battery law criminalizing “any intentional physical contact,” the Curtis Johnson Court concluded that the law did not require the use of “physical force” within the meaning of Armed Career Criminal Act.  

Since that time, Curtis Johnson has led to a number of state crimes that can be accomplished with something less than force capable of causing physical pain or injury to another person have been found not to require the use of force as contemplated by the ACCA.

Then came Denard Stokeling, who once tried to snatch a necklace from the nape of a female victim. The State of Florida convicted him of robbery for that. Some years later, Denard was caught with a handgun. He pled guilty to being a felon-in-possession under 18 USC 922(g). Based on his priors, including the Florida robbery conviction, he was sentenced to a 15-year mandatory minimum under the ACCA.

Denard appealed, arguing that Florida robbery was not a crime of violence under the ACCA, because it did not require force that could cause physical harm. His district court agreed, but the 11th Circuit reversed.

Today, the Supreme Court sided with the 11th Circuit in an opinion that pretty much sounds a death knell for any arguments that any robbery – state or federal – is not a crime of violence. That includes a number of people who are now arguing that Hobbs Act robbery is not a crime of violence for 18 USC 924(c) purposes.

At one time, the ACCA included robbery among the enumerated crimes that were automatically crimes of violence. Congress changed the law to delete “robbery,” but expanded the elements clause of the ACCA to cover any offense that has as an element “the use, attempted use, or threatened use of physical force.”

In a decision written by Justice Thomas, the Supreme Court held earlier today that by replacing robbery with a clause that has “force” as its touchstone, Congress retained the same common-law definition that undergirded the definition of robbery in the original ACCA. The widely-accepted definition of robbery at the state level required nothing more than “a degree of force sufficient only to overcome a victim’s resistance.”

candybaby190117The Court said that the understanding of “physical force” in robbery comports with the definition of force in Curtis Johnson. There, the force necessary for misdemeanor battery required only the “slightest offensive touching” to qualify. Robbery, the Court said, requires force necessary to overcome resistance by a victim, and that is inherently “violent” in the sense contemplated by Johnson and “suggest[s] a degree of power that would not be satisfied by the merest touching.” The Supreme Court held that Curtis Johnson did not purport to establish a force threshold so high as to exclude even robbery from the ACCA’s scope.

Therefore, the Court said, robbery under Florida law qualifies as an ACCA-predicate offense under the elements clause. The term “physical force” in the ACCA encompasses the degree of force necessary to commit common-law robbery.

Curiously, the decision was 5-4, with the dissenters, Chief Justice Roberts and Justices Sotomayor, Ginsburg and Kagan, arguing that the decision eviscerated Curtis Johnson. And they have a point. It is difficult to see what would limit Justice Thomas’ holding that any force sufficient to overcome the will of the victim – such as the yanking a purse away from a woman’s shoulder or even taking candy from the fist of a baby – is not sufficient force to fall within Curtis Johnson.

thThere are those who suspect that today’s decision may limit Curtis Johnson to its facts, which in the law is a nice way to say the court has kneecapped a case.

Not content to vastly expand the reach of the ACCA’s “crime of violence” definition, the decision included the ominous dictum that federal criminal statutes should not be construed in ways that would render them inapplicable in many states. This warning could cause significant problems for people seeking to have state statutory crimes declared to be too broad for ACCA or career offender.

Stokeling v. United States, Case No. 17-5554 (Supreme Court, January 15, 2019)

– Thomas L. Root

Know Your Guns: Supreme Court to Review Mens Rea of Felon-In-Possession – Update for January 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.

SUPREME COURT TO REVIEW FELON-IN-POSSESSION STATUTE

gun160718The felon-in-possession statute, 18 USC 922(g)(1), makes it illegal for a convicted felon to possess a gun or ammo. But the statute does not specify a punishment. Instead, 18 USC 924(a)(2) provides the 10-year maximum for anyone who knowingly violates the F-I-P statute.

But what do you have to know? Do you have to know you’re breaking the law? Know that you are a convicted felon, or that what you possess is really a gun? Or just know that whatever it is, you possess it?

The Supreme Court granted review to a case that explores the mens rea requirement for the F-I-P statute a case which has implications for thousands of people convicted of being felons-in-possession, as well for the general issue of mens rea requirements for federal criminal statutes. The implications for people serving time for such convictions could be significant.

burglthree160124Certiorari was also granted in a case asking whether generic burglary requires proof that a defendant intended to commit a crime at the time of unlawful entry or whether it is enough that the defendant formed the intent to commit a crime while “remaining in” the building or structure. Two circuits hold the defendant has to intend to commit a crime as he or she enters. Four hold that it’s burglary even if a defendant can enter the structure with a pure heart, and only later decides to commit a crime.

Because burglary is a crime of violence offense for both the Armed Career Criminal Act conviction and the Guidelines career offender label, the holding could be important for a lot of people now doing time.

It is unclear whether the cases will be decided by June or will go into the the next term starting in October 2019.

Quarles v. United States, Case No. 17-778 (certiorari granted Jan. 11, 2019) 

Rehaif v. United States, Case No. 17-9560 (certiorari granted Jan. 11, 20190

– Thomas L. Root

Pounding Pervs: Sentencing Commission Looks at Mandatory Sentences for Sex Offenses – Update for January 11, 2019

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

SENTENCING COMMISSION RELEASES STUDY ON MANDATORY MINIMUMS IN SEX CRIMES

The US Sentencing Commission issued a report last week examining the application of mandatory minimum penalties specific to federal sex offenses.

perv160201Relying on 2016 data, the 81-page report analyzes the two types of federal sex offenses with mandatory minimum penalties, sexual abuse and child pornography (CP) as well their impact on the Federal Bureau of Prisons population. Among its findings:

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• Two out of three sex offenders receive a mandatory minimum sentence, and half of those sentences are for at least 15 years incarceration.

• Sex offenders convicted comprised only 4.2% of federal defendants sentenced in 2016, but sex offenses accounted for 19.4% of offenses carrying a mandatory minimum penalties.

• Between 2011 and 2016, sex offenses, however, increased in number and as a percentage of the federal docket, and sex offenders were more frequently convicted of an offense carrying a mandatory minimum penalty.

• Sex offenders are demographically different than offenders convicted of other offenses carrying mandatory minimum penalties. Native Americans are a larger percentage of sex abuse offenders than of any other offense carrying a mandatory minimum penalty. White offenders constituted over 80% of offenders convicted of a CP offense (80.9%). The average age for all CP offenders was 42, five years older than the average age for federal offenders convicted of any other mandatory minimum penalty.

• While there is little distinction between CP receipt possession offenses, the average sentence for receipt offense defendants, which carries a five-year mandatory minimum, is 30 months longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory

US Sentencing Commission, Mandatory Minimum Penalties for Federal Sex Offenses (Jan. 2, 2019)

– Thomas L. Root

BOP Officers Union Fakes Out NBC, Washington Post, With Inmate Luxury Story – Update for January 10, 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.

UNPAID BOP WORKERS CLAIM THAT INMATES HAVE IT SWEET TURNS OUT TO BE “FAKE NEWS”

NBC News reported last Sunday that the partial government shutdown that continues without an end in sight has “created a delicious irony at federal prisons — inmates dining on lavish holiday meals in front of disgruntled staffers forced to work without pay.”

prisonfood190110Several BOP food service employees complained to NBC News that the Christmas and New Year’s Day meals inmates traditionally receive “aggravate[ed] staffers who were already fretting about bills to pay and children to feed.: The report cited steak and shrimp served Jan. 1 at FCI Pekin, Cornish hen and Boston creme pie at MDC Brooklyn, and “heaping plates of chicken wings” served at an unidentified federal prison in Minnesota.

“You’re giving a gift to somebody who committed a crime, but yet you won’t pay the people who are supervising them?” NBC quoted a food service foreman at FMC Rochester complaining. “It’s frustrating and maddening.” In addition to working without pay, many of the prison staffers, including correctional officers, were ordered to cut vacations short or face a loss in wages and possible administrative punishment, including suspensions.

fakenews190110Well, it turns out that the “several BOP food service employees” who complained were part of a well-orchestrated union campaign, one the news outlets swallowed hook, line and sinker. Reason.com reported on Monday that in order “to make themselves look like the victims in this government shutdown, union officials shopped around a story to multiple media outlets about criminals being treated like kings while prison guards have to freelance as Uber drivers.” Reason said

It’s a bit amazing (and disappointing) how many outlets ran with this tale in exactly the form union reps likely preferred. Over at USA Today, Kevin Johnson described these meals as a “display of culinary largesse.” Cleve Wootson, Jr., at The Washington Post called it an example of the “hypocritical” or “ironic” moments of the federal shutdown. NBC called it a “delicious irony” that unpaid staffers had to feed “fancy” food to the inmates. Characterizing this series of parallel-but-unrelated events as a role reversal suggests that we should be treating prisoners poorly. The reporters can take solace in knowing that, generally, we do.

Adding to the staffers’ bitter feelings, NBC News said, “the working inmates were still drawing government paychecks for their prison jobs, which include painting buildings, cooking meals and mowing lawns.”

NBC News, Hard to digest: Inmates eat holiday steak during shutdown while prison workers go unpaid (Jan. 6)

Reason.com, Prison Guards Orchestrate Media Campaign To Complain About Inmates Getting Edible Food for Christmas (Jan. 7)

– Thomas L. Root

Nuts and Bolts of Elderly Home Detention – Update for January 9, 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.

ROGER, DODGER, INMATE CODGER – THE ABCS OF THE EOHD

There seems to be a lot of confusion about the Elderly Offender Home Detention program approved by the First Step Act, judging from the questions still piling up in our email.

elderly190109• Where did EOHD come from? Back in 2009, the Second Chance Act of 2007 authorized the BOP to run a two-year pilot program to permit non-violent elderly offenders (65 years and older) to go to home confinement for the remainder of their sentences if they had been down 10 years and done 75% of their sentences. The program was tested at only one facility (FCI Elkton) for a two-year period.

It did not work that well, because the combination 10-year minimum and 75% seemed to eliminate just about everyone who otherwise would otherwise had been eligible.

• What is it now? The First Step Act has now re-established the program, calling it the Elderly Offender Home Detention program. The new EOHD would apply ay every BOP facility – not just one – and be extended to all nonviolent elderly offenders who had completed 66.67% (no longer 75%) of their sentences. The 10-year minimum service of sentence was eliminated.

Under the program, an eligible inmate could go to home confinement at 66.67% of the whole sentence, and be released from home confinement to supervised release at 85% of his or her sentence.

home190109• What are the requirements? Most of the requirements have not changed from the pilot program. Anyone seriously thinking about applying for EOHD should read 34 USC 60541(g). Among other requirements, the eligible offender has to be 60 years old or older, cannot ever have been convicted of a crime of violence or sex offense, have served 66.67% of “the term of imprisonment to which the offender was sentenced,” have never tried to escape, whose home detention will save the BOP money, and who the BOP determines “to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.”

• It is 66.67% of what? Our reading of the statute suggests that the two-thirds must be of the whole sentence, not the sentence minus good-time, or minus earned time credits, or even minus RDAP. In fact, RDAP would have to be restructured to let eligible elderly offenders take it early in order to get any meaningful EOHD time.

• Can the BOP adopt other rules on how to run EOHD? We suspect that the BOP will treat it like it treats direct-to-home detention now. The inmate has to have a home that passes US Probation Office inspection, have the landline phone rig needed for monitoring, and have health insurance. The BOP has a lot of leeway in administering the program, and not everyone who is eligible will necessarily be permitted to go home.

When the BOP ran the program at Elkton, there was no program statement, because the program was pretty ad hoc and loosey-goosey. The BOP will probably issue a program statement now, detailing how it intends to administer the program.

One final caveat: the EOHD will not necessarily be available at all institutions. The Attorney General retains the authority to designate only certain institutions at which the EOHD will operate. However, if only somer and not others are designated, it will usher in a land-rush of inmates seeking to get to certain prisons and not others in order to benefit from the Act. If too few institutions are designated, Congress may be irate that the BOP is not using a tool available to it to reduce its costs, especially the horrific cost of elderly medical and nursing care.

denied190109I have already heard of one institution where a case manager confidently told an inmate that the warden would never approve any EOHD participants. The BOP will have a lot of discretion as to how it runs EOHD, but it will not have the discretion to NOT run it.

One benefit inmates have with EOHD may be judicial review. Under 18 USC 3625, virtually all of the BOP’s programs – halfway house, the anti-recidivism programming and placement, for example – are immune from the usual Administrative Procedure Act lawsuits an inmate could otherwise bring under 5 USC 706. However, the EOHD is authorized by a different section – in Title 34 – and appears to be subject to APA challenge if the BOP gets too arbitrary or deviates too far from the statute. That ought to give inmates a bit more leverage than they have with other BOP actions.

Elderly Offender Home Detention, 34 USC 60541(g) (as amended by the First Step Act)

– Thomas L. Root

Ohio Not as Violent, 6th Circuit Says, Overruling Itself – Update for January 8, 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.

6TH CIRCUIT FLIPS, DECIDES OHIO ASSAULT IS NO CRIME OF VIOLENCE AFTER ALL

In 2012, the 6th Circuit held Ohio felonious assault and aggravated assault felonies are crimes of violence under the “elements” clause of the Armed Career Criminal Act and the career offender Guidelines. Last week, the Circuit reversed six years of precedent, holding in an en banc ruling that the two Ohio assault offenses are overbroad but divisible: just beating someone up is not violent, but using or trying to use a deadly weapon or dangerous ordnance to do so is.

violence151213The statutes require that a defendant cause physical harm to the victim, but Ohio law defines “physical harm” to include mental harm. Several Ohio cases have convicted where defendants merely failed to prevent their kids from suffering mental trauma. For that reason, the 6th said, the statutes are overbroad.

However, the statutes (ORC 2903.11 and ORC 2903.12) are divisible. A defendant can violate the statutes by causing physical harm to others or by using a deadly weapon to cause or try to cause physical harm to others. The 6th said the first subsection, (a)(1), is clearly overbroad because it is possible to violate the statute by inflicting mental distress on a person without causing physical harm,  and thus cannot count for ACCA or career offender. Subsection (a)(2), however, can be used as a prior for ACCA or career offender.

The government complained that the Circuit’s flip flop, after six years going the other direction, will “excuse thousands of violent career criminals” from the consequences imposed by the ACCA and the Guidelines.” Maybe so, the Court said, but “we are a lower court, and we must follow the Supreme Court’s categorical-approach jurisprudence here.”

United States v. Burris, Case No. 16-3855 (6th Cir., Jan. 3, 2019), 2019 U.S. App. LEXIS 129

– Thomas L. Root