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Do You Believe In The Time Reduction Fairy? – Update for October 3, 2023

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

A WORD FROM OUR SPONSOR: “NO”

I had a reader ask me last week to yet again address the inmate rumor that Congress or the Sentencing Commission or the BOP or Time Reduction Fairy was putting together some kind of deal to give federal prisoners time off because of how miserable doing time was during COVID.

Our sponsor this week is Dr. No. He wants to remind people that no, no, no, there is NO plan in Congress, NO bill in Congress, NO idea being knocked around in Congress, and NO drug-addled delusion among legislators that federal inmates will get any time cut because they were serving a sentence during COVID.

timereductionfairy231003I’ve been here before. The 65% law, a year off for COVID, letting nonviolent people all do their time at home… I have taken swings at federal sentencing myths for a long time, it seems, and all for naught.

An across-the-board reduction in sentences could only come from Congress or the Time Reduction Fairy. Congress has no plans to do it. The Sentencing Commission has no proposal to do such a thing. The BOP is incapable of doing it. President Biden has the power to commute sentences, but then he has the power to pardon every federal prisoner with a stroke of his pen. His commutation record makes President Trump look profligate.

That leaves the Time Reduction Fairy. She would have such plans, if she were real.  But sadly, there’s no such thing as the Time Reduction Fairy.

– Thomas L. Root

SCOTUS Hears Argument Over Meaning of “And” in First Step Act – Update for October 2, 2023

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

SUPREMES OPEN NEW COURT YEAR TODAY WITH ENGLISH LESSON

The Supreme Court opens its new 9-month term today with arguments in a case that considers what the meaning of the word “and” is in a provision of the First Step Act, an esoteric English lesson with real-world impact for thousands of federal prisoners.

meaningofisis231003Not since Bill Clinton told questioners that “it depends on what the meaning of ‘is’ is” has a simple word prompted such a dispute. What the justices decide could affect thousands of federal drug sentences each year. What’s more, it could affect thousands more seeking a retroactive zero-point reduction under the Guidelines.

First Step amended the 18 USC § 3553(f) “safety valve” that allows certain nonviolent drug offenders who plead guilty to avoid mandatory minimum sentences based in large part on their lack of significant criminal history. The statute says may qualify if he or she doesn’t have more than 4 criminal history points, a prior 3-point offense and a prior two-point violent offense.

The issue is whether having (1) more than four criminal history points, OR (2) a prior three-point offense OR (3) a prior two-point violent offense, will disqualify you, or whether you have to have (1) more than four criminal history points, AND (2) a prior three-point offense AND (3) a prior two-point violent offense – that is, all three to be disqualified. The courts of appeal are split, and thus, the Supreme Court has stepped in to settle the dispute.

confused230113The case, Pulsifer v. United States, is more than an exercise in sentence diagramming, a dubious talent I mastered and then forgot more than a half-century ago. Nearly 6,000 people convicted of drug trafficking in 2021 alone might be eligible for reduced sentences, according to the Sentencing Commission, if the Supremes agree that a defendant has to have all three to be disqualified. Ohio State University law professor Doug Berman told AP that more than 10,000 people sentenced since First Step took effect could be affected. He said Congress wrote the § 3553(f)(1) subsection in the negative so that a judge can exercise discretion in sentencing if a defendant “does not have” three sorts of criminal history.

In today’s Supreme Court case, Petitioner Mark Pulsifer argues that he has to have four criminal history points which include both a prior 3-point offense and a 2-point violent offense in order to lose the benefit of the safety valve. The government says just one of the three conditions – 4 points or a 3-point prior or a 2-point violent crime – is enough.

Berman told AP the language of the statute favors a broad reading favoring defendants. “But the concern about the broad reading is that it basically covers everybody. I think it’s right that that wasn’t Congress’ intent,” Berman said, echoing arguments made by judges who sided with prosecutors.

AP observes that Congressional intent may not matter: “On a court in which several justices across the ideological spectrum say they are guided by the words Congress chooses, with less regard for congressional intent, that might be enough to favor defendants.”

ambiguity221128How to read an ambiguous “and” may be important to a lot of zero-point people pretty soon. The Sentencing Commission’s retroactive zero-point amendment (USSG 4C1.1) goes into effect in a month. Sec 4C1.1(a)(1) directs that an eligible defendant is one who “did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC § 848.” Does this mean that no one with a § 3B1.1 enhancement or who was convicted of an 848 continuing criminal enterprise is eligible? Or does it mean that you must have both an 848 conviction and a 3B1.1 enhancement to be disqualified?

That all depends on the meaning of “and.”

Pulsifer v United States, Case No. 21-1609 (Supreme Court, Oral Argument October 2, 2023)

Forbes, Why Thousands Of Prisoners Could Be Spared Because Of A Supreme Court Case Over The Word ‘And’ (September 25, 2023)

AP News, The Supreme Court will hear a case with a lot of ‘buts’ & ‘ifs’ over the meaning of ‘and’ (September 24, 2023)

– Thomas L. Root

Ending the Summer With the Rocket’s Red Glare – Update for September 29, 2023

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

rocket190620This weekend marks the end of summer, maybe not astronomically or meteorologically, but Monday the Supreme Court begins its next term, called “October Term 2023.”  Fall is here, but first, we’re going to end the summer with a short rocket:

DOES NOT COMPUTE

The BOP announced in late 2022 that it was developing a calculator to project the maximum number of earned-time credits – now being called FSA credits – a prisoner could earn at the outset of a sentence. That way, a prisoner would know upfront his or her projected release date and the date that halfway house or home confinement could begin.

notcompute230929You may have been skeptical, recalling that in 2022, the BOP promised monthly auto-calculation of FSA credits (with more launch dates than North Korea’s missile program) that never happened, either. August became September became October, then November, and finally January. Writing in Forbes magazine last week, Walter Pavlo reported that the BOP has likewise been unable to determine likely dates for prerelease custody, depriving inmates of benefits of FSA credits to which they are entitled by law because the BOP is unable to scramble to arrange halfway house or get residence approval for home confinement.

What’s worse, Pavlo reported, “there is no date for when this calculation issue will be addressed. Until then, prisoners continue to line up outside of their case manager’s office to plead their case that their release date is closer than what the BOP is calculating. As one prisoner told me, ‘My case manager said, ‘the computer tells your release date and it could be tomorrow, or next week, or next year, it does not matter to me. But I don’t have the ability to make that decision myself’.”

The BOP Office of Public Affairs told Pavlo that “credits cannot be applied to an individual’s projected release date until they are actually ‘earned.’ Further, as an individual can earn 15 days of time credits, and as there is no partial or prorated credit, it is feasible that earned credits could be greater than the number of days remaining to serve. However, the earned time credits are ‘in an amount that is equal to the remainder of the prisoner’s imposed term of imprisonment.’ Simply stated,” Pavlo said, “the credits are earned, and they cannot exceed the remaining time to serve at the point they are earned.”

bureaucracybopspeed230501The BOP’s position, according to Pavlo, is that “ordinarily, the applicability of time credits towards pre-release custody will be limited to time credits earned as of the date of the request for community placement. However, in an effort to ensure eligible adults in custody receive the maximum benefit, the agency is developing additional auto-calculation applications that will calculate a “Conditional FSA Release Date” and an “Earliest Conditional Pre-Release Date” which would include the maximum FTC benefit.”

Basically, the BOP is still trying to figure out how to implement a First Step program it knew about 5 years ago.

Forbes, Bureau of Prisons’ Challenges With First Step Act Release Dates (September 17, 2023)

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SCHUMER MAY ADD CRIMINAL JUSTICE PROVISIONS TO NEWLY-REFERRED MARIJUANA BILL

Fresh from getting the Senate Senate Majority Leader Charles Schumer (D-NY) indicated yesterday that he may attach criminal justice reform language to the cannabis banking bill that just passed the Senate Banking Committee on Wednesday.

Speaking on the Senate floor, he said he was “really proud of the bipartisan deal we produced,” a reference to the Secure and Fair Enforcement Regulation Banking (SAFER) Act, S.1323. And while the legislation will be brought to a full Senate vote “soon,” Schumer promised to include “very significant criminal justice provisions” in it, Marijuana Moment reported.

Schumer didn’t say what those reforms might be noting he would “talk more about that at a later time.”

marijuana-dc211104“Attaching any additional provisions – let alone ones on criminal justice — could imperil SAFER‘s chances of winning Senate approval, according to the finance website Seeking Alpha. “Prior attempts to add criminal justice language into marijuana-related legislation has led to controversy.”

In May, Schumer said a marijuana banking bill would have social justice reforms and criminal expungement language attached. And in 2022, Sen. Cory Booker (D-NJ) said he would favor a “SAFE Banking Plus” bill that includes criminal justice reforms.

Marijuana Moment, Schumer Touts Bipartisan ‘Momentum’ Behind Marijuana Banking Bill That He Plans To Bring To The Floor ‘Soon’ With More ‘Criminal Justice Provisions’ (September 28, 2023)

Seeking Alpha, Schumer indicates he may tie in criminal justice to marijuana banking bill (September 28, 2023)
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$117 A DAY WON’T BUY YOU PERFORMANCE

Maybe that’s all the performance you can expect for $117 a day. That’s what the BOP said last week is the current average cost of incarceration based on fiscal year 2022 data. The average annual COIF for a Federal inmate housed in a halfway house for FY 2022 was $39,197 ($107.39 per day).

BOP, Annual Determination of Average Cost of Incarceration Fee (COIF), 88 FR 65405 (September 22, 2023)
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HAZELTON BOP UNION SAYS EMPLOYMENT STANDARDS HOBBLE STAFFING AS SHUTDOWN LOOMS

Picket signs waved all day long last Friday as members of the FCC Hazelton local 420 union representing the prison say the staffing shortage has gotten so bad officers have to work 16-hour shifts 4 to 5 days a week, with stringent employment standards partly to blame.

Union President Justin Tarovisky says the prison is currently short-staffed by more than 80 corrections officers. He complained that the union held a recruiting event where they took in 60 applicants, but the BOP office in Grand Prairie, Texas, that oversees these applications has been disqualifying applicants for superficial reasons.

hazeltonpicket230929“A lot of that common sense hiring has left this agency,” Tarovisky told WDTV, a Weston, WV, television station. “They’re handcuffing these applicants that are applying and disqualifying them for simple errors and it’s not our staff that’s disqualifying them, we can’t even get them in the door to interview them because they’re being disqualified by people halfway across the country.”

There have been only 10 new staff hired at Hazelton this year despite the desperate need with some other prison staff members having to take on the duties of corrections officers. Tarovisky says the prison needs to be able to hire applicants directly to keep officers and community members safe.

The grueling hours are taking a toll on prison staff wellbeing and many are feeling the impact at home. A Dept of Justice Office of Justice Programs report in 2020 found that the suicide rate of corrections officers is seven times higher than the national average.

From the “You Think Things Are Bad Now” department: ABC News reports that all 34,537 BOP employees would still have to go to work if the government closes for lack of funding on Sunday, leaving them without a paycheck during the period of the shutdown.

“A shutdown is absolutely devastating for our members,” Brandy Moore-White, the president of CPL-33, told ABC News. “Not only do our members put their lives on the line every single day to protect America from the individuals incarcerated, but now they’re having to go out… and figure out how they’re going to pay their bills and how they’re going to feed their families.”

All government employees are guaranteed pay during the time of the shutdown, but that money is not paid until after the shutdown ends. If you’re living paycheck to paycheck, the promise of money next week does not buy you groceries today.

WDTV, Hazelton Prison corrections officers protesting hiring practices (September 22, 2023)

ABC News, Government shutdown would be ‘devastating’ for Bureau of Prisons employees (September 27, 2023)

– Thomas L. Root

Hair-Splitting on § 924(c) Sentence Stacking – Update for September 28, 2023

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6TH CIRCUIT REFUSES EN BANC ON STACKED § 924(C) SENTENCES

Sentencestack170404Tim Carpenter used a gun in a string of Hobbs Act robberies. He ended up with 105 years when he was sentenced before the First Step Act, which reduced mandatory minimum sentences for stacked 18 USC § 924(c) offenses. But Tim’s sentence was vacated because of errors, and he was not resentenced until after First Step became law.

First Step, if applied to Tim’s sentencing, would reduce his § 924(c) mm sentence from 105 to 25 years. But despite the First Step’s retroactivity provision extending its benefits to defendants awaiting sentencing, and despite Tim’s pre-FSA sentence being thrown out, a three-judge panel held that Tom had to be resentenced under the old version of the statute.

First Step § 403(b) provides that the new § 924(c) sentencing statute would apply to offenses committed before the Act “if a sentence for the offense has not been imposed as of such date of enactment.” The Circuit believes that if a defendant was sentenced for a § 924(c) offense before December 2018 – even if the sentence was vacated later – any new § 924(c) sentence would have to be imposed under the old law.

Last week, the 6th denied en banc review, although six judges wanted to revisit the issue. Judge Bloomekatz spoke for all dissenters in an opinion that some commentators think was an effort to get at least one Supreme Justice’s attention:

The real human costs that this esoteric legal issue presents also should not be overlooked. Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states. Timothy Carpenter proves this point. His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the 3rd, 4th, and 9th Circuits. The resulting sentencing disparity… should give us pause enough to consider the decision as a full court. Indeed, the circuit split, the federal government’s position, the dissent from then-Judge Barrett in United States v. Uriate, and the dueling opinions on this en banc petition underscore that the scope of the retroactivity provision is far from clear.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said, “I am pretty sure this Timothy Carpenter has already served 10+ year in prisons, and so may soon be eligible for a reduction in sentence under the ‘unusually long sentences’ criteria in the U.S. Sentencing Commission’s proposed new [1B1.13] ‘Compassionate Release’ policy statement.”

circuitsplit220919In his legal blog, UCLA law prof Eugene Volokh said of the opinion, “The en banc denial—which garners two dissentals—solidifies a circuit split, so keep an eye on this one.”

United States v. Carpenter, Case No 22-1198 (6th Cir., September 18, 2023)

United States v. Uriate, 975 F.3d 596 (7th Cir. 2020)

Sentencing Law and Policy, Notable debate among Sixth Circuit judges as court turns down en banc review of “resentencing retroactivity” after FIRST STEP Act (September 20, 2023)

The Volokh Conspiracy, Short Circuit: A Roundup of Recent Federal Court Decisions (September 22, 2023)

– Thomas L. Root

Supremes Are Back From the Beach, Guideline Amendments Lurch Toward Effective Date – Update for September 26, 2023

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

PREVIEW OF COMING EVENTS

events230926With Congress careening toward a federal government shutdown (always bad news for BOP inmates), a freshly indicted Sen Bob Menendez (D-NJ) being pressured to quit, and about 300 military appointments being held up by Sen Tommy Tuberville (R-AL), it’s looking increasingly doubtful that Congress will do anything in the next 25 work days to block the Sentencing Guideline amendments from becoming effective on Nov 1.

Former Sentencing Commission attorney Mark Allenbaugh, founder of the website Sentencing Stats, has rolled out a web tool for people to use in order to determine whether they qualify for the retroactive zero-point Criminal History guidelines reduction (new USSG § 4C1.1). It can be found at https://www.zeropointoffender.com.

vacationSCOTUS180924Meanwhile, the Supreme Court returns to work after a 3-month vacation for its annual “long conference.” At today’s long conference, the Justices will decide which of some 950 petitions for writ of certiorari – about 15% of all petitions filed during the year – should be granted review.

“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%.

Zero Point Offender

The Hill, All eyes on ethics as Supreme Court justices return to Washington (September 26, 2023)

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

– Thomas L. Root

NPR Newsflash! BOP Healthcare Driven by ‘Delay and Ignore’ – Update for September 25, 2023

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

NPR BLASTS SUBSTANDARD BOP HEALTHCARE

shocked191024In a revelation that will not shock a single prisoner in Bureau of Prisons custody, NPR reported last Saturday that the BOP has been misrepresenting the accreditation of its healthcare facilities while compiling a record of ignoring or delaying medical treatment – especially in cancer care – leading to needless inmate disability and death.

NPR said it had obtained hundreds of BOP records that showed, among other things, that over 25% of the almost 5,000 inmates who died in federal custody from 2009 to 2020 died in a single place: FCC Butner. According to NPR’s analysis, more BOP prisoners died of cancer than any other cause from 2009 to 2020.

NPR admits that more deaths at Butner are to be expected, given the complex includes FMC Butner, the system’s largest cancer treatment facility. However, NPR reported, it found

numerous accounts of inmates nationwide going without needed medical care. More than a dozen waited months or even years for treatment, including inmates with obviously concerning symptoms: unexplained bleeding, a suspicious lump, intense pain. Many suffered serious consequences. Some… did not survive. Too often, sources told NPR, federal prisons fail to treat serious illnesses fast enough. When an ailment like cancer is caught, the BOP often funnels these sick inmates to a place like Butner, where it is assumed they’ll receive more specialized treatment. But by the time prisoners access more advanced care, it’s sometimes too late to do much more than palliative care. What’s more, current and former inmates and staff at Butner told NPR the prison has issues of its own, including delays in care and staffing shortages.”

The NPR report caught the BOP in a falsehood. The agency says on its website that “Federal Medical Centers (FMCs) are accredited by the Joint Commission,” the nation’s leading healthcare accreditation agency. But NPR said that was untrue, that in fact, the BOP’s certification lapsed two years ago. When confronted, a BOP spokesperson said that regardless of the lapsed accreditation, the agency adheres to Joint Commission standards.

dirtykitchen230925You know: “Our kitchen may not have been inspected by the health department, but we assure you it’s clean…”

Sources NPR interviewed say federal inmates — “a group with a constitutional right to health care yet without the autonomy to access it on their own,” NPR said — are dying more often than they should. “Deaths in custody should be rare events, given that this is such a controlled environment,” says Michele Deitch, director of the University of Texas at Austin’s Prison and Jail Innovation Lab. “Are there preventable deaths happening in the BOP? The answer to that is clearly yes.”

NPR quoted an anonymous BOP medical staff member at Butner who said she has heard stories like theirs “so many times… So many inmates have told me, ‘I complained about this lump, or I complained about this pain for so long, and they only gave me cream, they only gave me Motrin, they never sent me out for tests or anything. Now they send me here and I have Stage 3 or Stage 4 cancer. Our question is always: What took them so long to get to us, and why did they send them to us when there’s nothing that we can do?”

DrNoBOPHealth230925Art Beeler, a former Butner warden, told NPR it was hard to see inmates arrive at the FMC with late-stage cancer. “It did not happen every day or even every week, but there were cases we received late, and every one of them was frustrating,” Beeler said. “If we received someone who had Stage 4 prostate cancer, who showed indicators early on in the process, we were very frustrated… We knew more than likely the patient would live if they had received treatment early on.”

In March 2022, the Dept of Justice Inspector General audited the BOP’s contract with one of the contractors providing some of the medical services at Butner. The report found the BOP “did not have a reliable, consistent process in place to evaluate timeliness or quality of inmate healthcare.”

The IG report also noted “challenges in transporting inmates to off-site appointments which resulted in a frequent need to reschedule appointments that could delay an inmate’s healthcare.” The contractor told the Inspector General that their staff spent a “significant amount of time” canceling and rescheduling inmate appointments.”

“We believe it is difficult for the BOP to determine whether inmates are receiving care within the required community standard,” the report noted.

Delshon Harding, president of the local union representing Butner officers, told NPR he believes staff shortages are the primary reason inmates go without essential care.

healthbareminimum220603A report issued last week by three federal agencies – including DOJ – concurs. The report found that as of March 2022, 89% of all BOP facilities had one or more clinical position vacancies. Thirteen prisons lacked any staff medical officer. The report noted that “although direct patient care responsibilities can be covered by mid-level practitioners, these types of critical vacancies may require the BOP to bring in staff from other locations on temporary duty assignments, or to use short-term emergency contracts to fill the gaps.”

The report found that only 69% of BOP medical officer positions were filled.

NPR, 1 in 4 inmate deaths happens in the same federal prison. Why? (September 23, 2023)

BOP, Medical Care (last visited September 23, 2023)

Dept of Justice, Audit of the Federal Bureau of Prisons Comprehensive Medical Services Contracts Awarded to the University of Massachusetts Medical School (March 2022)

Veterans Administration, Review of Personnel Shortages in Federal Health Care Programs During the COVID-19 Pandemic (September 21, 2023)

– Thomas L. Root

Instant Karma’s Gonna Get You – Update for September 22, 2023

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

SCHADENFREUDE

Permit us to end the week enjoying for a moment the misfortunes of someone else who has spent a career doing to others what’s about to be done to him. 

ruddyA230922

One of the country’s hardest-charging AUSA narcotics prosecutors was captured on law enforcement bodycams last July offering his business card to police to avoid being charged in a hit-and-run accident while his blood-alcohol level was over twice the legal limit. The story just broke a week ago thanks to the Associated Press.

Joseph Ruddy, 59, fled the crash scene but was followed to his home. There, he drunkenly handed his business card to police in what Associated Press said was “a clear attempt to influence this arrest based on his position as a federal prosecutor.” Indeed, after the cop read the card, he told Ruddy, “What are you trying to hand me? You realize when they pull my body-worn camera footage and they see this, this is going to go really bad.”

The officer was correct.

ruddyB230922Ruddy, who has been prosecuting cases as an AUSA since 1985, appeared pretty drunk in footage obtained by the Associated Press. He admitted to having left the scene of the accident. He told the police, “I didn’t realize it was that serious.”

Let’s see some of the small-fry “mostly poor fishermen from Central and South America” Joe likes to prosecute for transporting drugs try that line as a defense trope.

Despite being charged, Ruddy remained on the job for two months, representing the United States in court as recently as early September. A day after the AP asked the US Attorney about his subordinate’s status, Ruddy was pulled off three pending criminal cases. A DOJ spokesman said only that Ruddy was still employed but had been removed from his supervisory AUSA role on July 11th.

Sure he was.

The case also has been referred to the Office of the Inspector General. That probe will likely focus on whether Ruddy was trying to use his public office for private gain, according to Kathleen Clark, a legal ethics professor at Washington University in St. Louis who reviewed the footage.

“It’s hard to see what this could be other than an attempt to improperly influence the police officer to go easy on him,” Clark said. “What could possibly be his purpose in handing over his U.S. Attorney’s Office business card?”

Ruddy has a state court appearance next Wednesday.

Youtube, Prosecutor offers business card in DUI Crash (September 8, 2023)

AP, Body cam catches elite federal prosecutor offering his Justice Department card in DUI crash arrest (September 8, 2023)

The Independent, Prosecutor allegedly caught on video sliding business card to police investigating a DUI hit-and-run (September 8, 2023)

– Thomas L. Root

Sex Offender Reporting Requirement Held Unconstitutional – Update for September 21, 2023

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

DISTRICT COURT HOLDS SEX OFFENDER INTERNET REPORTING LAW UNCONSTITUTIONAL

pornC160829In the pantheon of criminal offenses, none feels seamier or more disgusting than sex offenses. The label covers crimes from groping to rape to possessing child porn, with the offenders routinely not just given long prison sentences but subjected to limitations during and after prison that drug offenders, fraudsters and robbers never experience.

A rudderless young man who robbed a couple of banks and served over a decade in federal prison turned a talent as a “jailhouse lawyer” into a law school degree and admission to the bar. He’s now a celebrated law school professor and was even the subject of a laudatory 60 Minutes story. And he deserves it.

But what if, instead of armed bank robbery, the inmate had downloaded images of naked children engaged in simulated sex.  Just my opinion here, but I suspect the 60 MInutes crew would have stayed home, the State of Washington bar would never have found him to be rehabilitated, and his name would be found on the Internet – along with his address and a warning that he was a sex offender – as a warning to neighbors instead of hagiography. He’d be serving up Slurpees at 7-Eleven instead of training future lawyers at Georgetown.

kporn160124Sex crimes are forever, and the “forever” is untethered to the degree of harm caused to society. Rape and sex abuse are one thing, but as disgusting as I find the idea of looking at (let alone collecting) suggestive images of naked kids, I have trouble with the idea that we can forgive a history of violence but not someone who looked at flickering images on a computer screen.

No crime is as easy to demagogue as is a sex crime. That may be why Congress has found it so easy to rachet up minimum sentences for kiddie porn offenses. The Sentencing Commission has candidly acknowledged that at the direction of Congress, it has amended USSG § 2G2.2 several times, each time recommending harsher penalties. In United States v. Dorvee, the 2nd Circuit noted that the rachet effect persisted despite the Sentencing Commission being

openly opposed [to] these Congressionally directed changes… Speaking broadly, the Commission has also noted that “specific directives to the Commission to amend the guidelines make it difficult to gauge the effectiveness of any particular policy change, or to disentangle the influences of the Commission from those of Congress.”

There’s some evidence that the Congressional view of child porn punishment is at odds with public sentiment. US District Court Judge James Gwin of the Northern District of Ohio, as an experiment, had jurors in his courtroom anonymously note a recommended sentence for people they convicted, He would not look at the recommendations until he had imposed sentence. In one sex offender case, he wrote,

While this case and the jury selected to hear it were unremarkable, the disparity between the punishment that the jury felt [the defendant] should receive and the punishment recommended by the Guidelines was striking. The jurors’ mean recommended sentence was 20 months imprisonment, and the median recommended sentence was 15 months. The Guidelines recommended a sentence between 87 and 108 months. Even the low end of the Guidelines range was almost six times the jurors’ median recommendation.

All of the foregoing gets us to today’s case. Connecticut law requires that after release, convicted sex offenders disclose to police all of their email and social media addresses, as well as other Internet communication identifiers. Jim Cornelio, a released offender, sued in federal court, claiming the disclosure requirement violated his 1st Amendment right to free speech.

sexpornoffender230921Last week, the US District Court for Connecticut agreed. The Court held that by compelling Jim to disclose all of his Internet addresses and identifiers, “the law chills and inhibits his right to speak freely on the Internet and to do so anonymously if he wishes… [Thus], the State must show that the law advances an important government interest that is unrelated to the suppression of free speech. And it must also show that the law does not burden substantially more speech than necessary to further the government’s interest.”

The Judge held that the State “has an important government interest in detecting and deterring sex offenders from using the Internet to engage in crime.” However, although the disclosure law has been in place for over 15 years,

the State cannot point to a single example of when its database of sex offenders’ email addresses and other Internet communication identifiers has helped the police detect or solve any crimes. And the State concedes that it has no evidence that requiring sex offenders to disclose their Internet communication identifiers deters them from using the Internet to commit more crimes. Moreover, even if I assumed that the State was able to show that the disclosure law advances an important government interest, the State nonetheless fails to show that the breadth of the disclosure law does not burden substantially more speech than necessary to further that interest.

Gwin, James, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values? 4 Harvard Law and Policy Review 173 (2010)

United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010)
United States Sentencing Commission, The History of the Child Pornography Guidelines (October 2009)

Cornelio v Connecticut, Case No 3:19-cv-1240, 2023 USDist LEXIS 163106 (D.Conn. Sep 14, 2023)

– Thomas L. Root

‘Acquitted Conduct’ Act is Back – Update for Wednesday, September 20, 2023

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COMING AROUND AGAIN

The Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430) – looking a lot like the doomed 2021 version – landed in the Congressional bill hopper last week.

acquitted230106Reps Steve Cohen (D-TN) and Kelly Armstrong (R-ND) introduced a House version and Senate Majority Whip Richard Durbin (D-IL) and Sen Chuck Grassley (R-IA) introduced the bipartisan, bicameral bill on the Senate side. The legislation would end the practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.

“The right of criminal defendants to be judged by a jury of their peers is a founding principle of our criminal justice system spelled out in the Constitution. Allowing federal judges to enhance sentences for defendants based on conduct for which they were acquitted by a jury is not right and must end,” said Cohen, a senior member of the House Judiciary Committee.

The Supreme Court, despite signals over the past decade that it would address acquitted conduct sentencing as a 6th Amendment violation, denied certiorari to a baker’s dozen cases on the last day of last term, after sitting on petitions seeking review for months. The US Sentencing Commission has named review of such sentencing as a priority for review in the coming year.

The Act would amend 18 USC § 3661 to preclude a court from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing.

“Acquitted conduct” would include acts for which a person was adjudicated not guilty after trial or dismissed on an FRCrimP 29 motion for acquittal.

HR 5430, Prohibiting Punishment of Acquitted Conduct Act of 2023

Press Release, Cohen, Armstrong, Durbin and Grassley Introduce Bipartisan, Bicameral Prohibiting Punishment of Acquitted Conduct Act (Sep 13)

– Thomas L. Root

Showdown at 922(g) Corral Becomes All But Certain – Update for September 19, 2023

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

10TH CIRCUIT SAYS FELON-IN-POSSESSION BAN IS CONSTITUTIONAL

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen has spawned a tsunami of 2nd Amendment attacks on 18 USC § 922(g), the subsection of the law that prohibits various classes of people (and we’re including you, drug-using Hunter Biden) from possessing guns or ammo.

gunfreezone170330Most notably, the 3rd Circuit ruled in Range v. Attorney General, an en banc decision last June, that the § 922(g)(1) felon-in-possession ban is unconstitutional as it applies to people convicted of nonviolent felonies (again –  if the tax stuff goes badly for you – Hunter Biden, we’d be talking about you again).

Other subsections of § 922(g) are faring no better.  A month ago, the 5th Circuit held in United States v. Daniels that § 922(g)(3)‘s ban on drug abusers possessing guns was unconstitutional.  That Circuit’s United States v. Rahimi decision had already held that someone subject to a civil protection order could not be prohibited from possessing a gun. The Supreme Court has granted certiorari in that case.

gunfight230919Range conflicts with United States v. Jackson, an 8th Circuit ruling from a week before Range was issued that holds that § 922(g)(1)‘s felon-in-possession ban remained a lawful limitation on gun possession even after Bruen. Last week, in Vincent v. Garland, a case with facts a lot those in like Range, the 10th Circuit agreed with Jackson’s reasoning. The odds of a showdown at the Supreme Court – perhaps a sweeping decision that is the firearms equivalent of the evisceration of Roe v. Wade – are increasing.

gun160718Melynda Vincent, addicted to meth at the time, was convicted of bank fraud 15 years ago. Now, with time served and her drug problems behind her, Melinda wants to own a gun again. She argued that the 10th Circuit’s 2009 precedent, United States v. McCane – that held § 922(g)(1) to be constitutional – was no longer good law after Bruen.

The 10th rejected her argument. The appellate court noted that McCane relied “solely” on District of Columbia v. Heller, a 2008 case in which the Supreme Court appeared to recognize that § 922(g)(1) was constitutional.

Though Bruen created a new test for determining the scope of the 2nd Amendment,” the 10th observed, “the Supreme Court didn’t appear to question the constitutionality of longstanding prohibitions on possession of firearms by convicted felons… First, six of the nine Bruen Justices pointed out that they were not casting any doubt on the [felon prohibition] language in Heller. Second, Bruen apparently approved the constitutionality of regulations requiring criminal background checks before applicants could get gun permits. In Bruen, the Court struck down state regulations that had required the showing of a special need before someone could get a license to carry a gun. But the Court added that it wasn’t questioning the constitutionality of “shall-issue” licensing regimes. These regimes don’t require a showing of special need, but they do ‘often require applicants to undergo a background check’ to ensure that the applicant is a ‘law-abiding, responsible citizen.’

The Circuit said that in preserving “shall-issue” background checks, the Supremes “arguably implied that it was constitutional to deny firearm licenses to individuals with felony convictions. Bruen’s language thus could support an inference that the 2nd Amendment doesn’t entitle felons to possess firearms.”

circuitsplit220516The government is planning to take Range to the Supreme Court by an October 5th deadline. This 10th Circuit holding that “Bruen did not indisputably and pellucidly abrogate our precedential opinion in McCane” makes the circuit split more pronounced than before, making a grant of certiorari on Range likelier than ever.

Vincent v. Garland, Case No 21-4121, 2023 USApp LEXIS 24554 (10th Cir. Sep. 15, 2023)

New York State Rifle & Pistol Association v. Bruen, 597 U.S. —, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (June 23, 2022)

United States v. McCane, 573 F.3d 1037 (10th Cir. 2009)

Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023)

United States v. Jackson, 69 F.4th 495 (8th Cir. 2023)

District of Columbia v. Heller, 554 US 570 (2008)

– Thomas L. Root