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Peters May Be The One – Update for March 5, 2024

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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.

PETERS BLUNT WITH SENATORS ABOUT BOP TROUBLES

No one who’s ever had a beef with what I publish in this blog – and there surely are a lot of people who have complaints – has ever accused me of being an apologist for the Federal Bureau of Prisons. But here goes…

cucumber240305Watching BOP Director Colette Peters testify before the Senate Judiciary Committee last week was a refreshing departure from her previous appearances and a downright treat after enduring years of painful appearances by her clueless predecessor Michael Carvajal.

“The Feds survey says the Federal Bureau of Prisons is the worst place to work in federal government, so we have a lot of work to do,”  Peters candidly told the Committee last Wednesday during the hearing Committee Chairman Richard Durbin (D-IL) called in response to a DOJ Inspector General report on inmate deaths in federal prison.

That report, issued two weeks before, found that systemic and operational failures contributed to scores of prisoner deaths over the years. Durbin convened the hearing to underscore the report findings that – among others – suicide accounted for over half of the deaths reviewed by the IG.

Sharing the witness stand with DOJ IG Michael Horowitz, Peters was the target of most of the senators’ questions. But unlike her stumbling performances in prior Congressional hearings, Peters was confident, direct and armed with facts and numbers during the 2-hour session. And when Sen John Kennedy (R-LA) hectored her in one of the most bizarre barrage of questions in recent memory, she cooly stared him down while undoubtedly controlling the urge to ask him who tied his shoes for him every morning.

But back to the hearing.

Paters laid most of the blame for the issues raised in the report on BOP’s chronic staffing shortages. She told the senators that the data on BOP correctional officers are “startling,” rattling off the stats:

One in three have symptoms of PTSD. That means more anxiety, more depression, [and] that means more reliance on substance abuse and higher levels of divorce. Over 90% are obese or in the overweight category, over 90% have hypertension or pre-hypertension… What we’re finding across the country, in some places they can leave the [BOP] and work for state corrections and make two to three times more, let alone the bonuses that we’re battling against at fast food organizations. So it is incredibly difficult… I also want to remind the committee that the average onboarding for law enforcement in this country is 21 weeks [of training] and our officers receive about six. It’s truly unfortunate.

psy170427The IG report found that a shortage of psychiatric services employees “strained the ability of staff” in facilities where prisoners died “to provide adequate care to mentally ill inmates.” This has been a chronic BOP problem, where a dearth of mental health resources has led to many people being underdiagnosed, a 2018 Marshall Project investigation found. In the Senate hearing, Horowitz noted that over 60% of people who died by suicide in federal prisons had been on the Mental Health Care Level 1, meaning the BOP had determined that they did not need regular care mental health care.

Peters and Horowitz both pointed to staffing shortages as a key driver of the problems. A lack of clinical staff like psychologists and corrections officers has been an endemic challenge in many BOP facilities, the Marshall Project reported last weekend.

Horowitz also suggested that the BOP’s problems may be more than just staffing. Talking about contraband, he that “we’ve had a staff search policy recommendation open for years that has not been implemented, the basic search policy for staff coming into the facility, that hasn’t happened, either…” Several senators cited a GAO report last month that the BOP has failed to implement 58 of 87 recommendations on improving restrictive housing (also known as Special Housing Units, or SHUs) practices.

Kennedy tried to beat up Peters with a theatrical performance accusing her of using the First Step Act to release 30,000 criminals, 12% of whom have been recidivists (as though the decision when to release prisoners is her responsibility). Punctuating his questions with dramatic eye rolls and sighs of “Wow,” Kennedy sought to blame Peters for releasing thousands of violent criminals to prey on helpless civilians.

Kennedy: “How many criminals have you released under the First Step Act?”

Peters: “We have about 30,000 individuals that have been released since the passage of the First Step Act.”

Kennedy: “All right, so you’ve released 30,000 criminals under the First Step Act, okay? . . . Before you released them, did you contact any of their victims to say, ‘We’re about to let this guy out’?”

Peters: “Senator, it’s my understanding that that notification happens through the U.S. Attorney’s Office, but I will check into that and get back to you.”

Kennedy: “You don’t know?”

Peters: “Senator, I don’t.”

Kennedy: “Wow. Okay, of the 30,000 criminals you let free, how many of them have come back, have committed a crime again, hurt somebody else?”

Peters: “So, that number is one that we’re still looking at as it relates to the recidivism rate for those that were released on the First Step Act.”

Kennedy: “You don’t have any idea?”

Peters: “No, Senator.”

The implication that Peters and the BOP should be responsible for victim notification – a duty of the US Attorneys offices – or maintaining recidivism records is risable. It’s like asking the Veterans Administration how much ammo the Defense Dept has.

tieshoes240305Beyond that, suggesting that somehow Peters was releasing BOP prisoners on her whim, rather than in response to the court-ordered sentences ending or statutory mandates requires a special kind of ignorance of the law unbecoming of a man who was Phi Beta Kappa and with years of experience as a lawyer. That makes his embarrassing performance all the more puzzling.

He did not embarrass Peters, who was calmly unfazed by his attack. Committee Chairman Richard Durbin (D-IL) finally braced Kennedy: “Don’t put your head in a bag… The First Step Act was a constructive reform of the penal system and I think it was a good idea and I stand by it.”

Sen Cory Booker (D-NJ) said the BOP has simply not been provided enough resources. “I have a lot of frustrations obviously with what’s going on. But I’ve watched you now as a professional struggle mightily to meet the demands that are put on you in a moment where Congress is not giving you the resources necessary to do your job,” Booker said.

Sen Chris Coons (D-DE) told Peters that she has “inherited a deeply troubled institution and I suspect you some days feel like your job is more akin to trying to change the direction of an aircraft carrier than lead an agile and well-resourced organization because the BOP is frankly neither and I appreciate the determination, openness and vigor with which you’ve approached this task.”

Almost half of the suicides took place in a “restrictive housing setting,” the IG Report said. Durbin told Peters that “despite the decrease in Bureau of Prisons total population since you were sworn in as director in August of 2022 the percentage and total of number of individuals and restricted housing is actually higher than it was at that time…”

shucell240212Peters said that almost 40%t of those who lived in restrictive housing did so by their own choice. Nevertheless, she admitted that “everyone who is in restrictive housing has or will suffer from some form of mental or physical damage. I think even those that are agreeing or wanting to be in restrictive housing need to be educated on the fact that that isn’t where they belong and that we need to be able to safely house them in [general population]. Just because they’re volunteering to be there doesn’t mean that the physical and mental wear and tear isn’t happening for them as well.”

“It’s time for solutions and change,” Durbin agreed. “The lives of hundreds of Americans in Bureau of Prisons custody are at risk.”

Roll Call, Federal prison director tells senators about staffing ‘crisis’ (February 28, 2024)

Capital News Service, Deaths in federal prisons draw fire from Senate panel (February 29, 2024)

DOJ, Office of Inspector General, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

The Marshall Project, How Federal Prisons Are Getting Worse (March 2, 2024)

WHBF-TV, Senate Judiciary Committee grills Bureau of Prisons chief on staffing, inmate deaths (February 28, 2024)

Sen John Kennedy, Kennedy questions Bureau of Prisons on early release of criminals: “You don’t have the slightest idea how many of them committed another crime and came back?” (February 28, 2024)

– Thomas L. Root

Private FSA Tool To Provide Prisoners Data the BOP Won’t – Update for March 4, 2024

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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.

LOOKING FOR THE MAGIC DATE

Maybe the sweetest acronym a federal prisoner has ever heard – LDI – is at the heart of a new tool intended to provide all of the information (and more) that the Federal Bureau of Prisons promised with the PRD (projected release date) calculation it has now apparently abandoned.

wise240304LDI – shorthand for “Last Date Inside” – is “the date on which a federal prisoner should be released to pre-release custody (halfway house or home confinement),” according to Wise First Step. Based on an inmate’s most recent sentence computation and First Step Act time credit assessments, Wise says it “will develop a detailed report that outlines key dates you need to be aware of for you to advocate for your referral to pre-release custody.”

Complaints about BOP management of FSA credits – awarded for completion of programs that reduce recidivism – are legion. One prisoner said in an email that an Excel spreadsheet tool was released to case managers last week, but

it is problematic because the calculation tool must be updated every 30 days due to 10-15 FTC earned over that time cycle. This does nothing to ease the burden on Case Managers or help inmates plan accordingly. Even more problematic is the fact that the calculator does not take into account any of the days that will be earned while in pre-release custody… [What’s more,] RRM offices are not accepting “projected days” earned while waiting for the RRM submission to come back.

Another inmate said, “We were also told that sometime in January 2024, we would have access to the PRD on Trulincs [inmate computer system]. Of course, none of that has happened. Now the case managers are telling us that the FSA projected release would NOT help you once you received your 1 year off AND we are not going to have access to the PRD. It has been ‘shelved indefinitely’.”

The BOP announced last December that it was releasing a “Conditional Release Calculator” that provided “needed information regarding the potential positive impact of earning Federal Time Credits (FTC) towards advancing an individual’s release date,” but that calculator reflected only time “applied toward advancing the individual’s transfer to supervised release and an earlier release from FBOP custody,” not transfer to halfway house or home confinement. When in halfway house and home confinement, a prisoner remains in BOP custody.

data240304The major issue in FSA credit application right now is halfway house availability. Writing in Forbes last January, Walter Pavlo observed that inmates are being denied the right to spend their credits because “the BOP does not have room in halfway houses to monitor those who have rightfully earned First Step Act credits. The result, thousands of prisoners languish in expensive institutions rather than being placed in community halfway houses.” The First Step Act uses mandatory language, requiring the BOP to place the qualifying inmates in halfway house or home confinement, but agency officials are shrugging their shoulders in feigned helplessness because halfway houses are refusing transfers.

Inmates have been hitting a wall when trying to remedy the denials in court. Just last week, a court threw out a complaint because the petitioner had provided no facts showing that he “has been denied all opportunity to earn time credits, that he has credits to apply, or that he has been denied the ability to apply earned credits to supervised release or another form of prerelease custody.” Another district court ruled against a prisoner, holding that he “fails to include any factual allegations supporting his claim that he was otherwise qualified under Section 3624 of the FSA… for prerelease custody or supervised release.” A decision earlier last month held that “Assuming that petitioner is entitled to a total of 740 days of credits between his prerelease custody and release, his accrued credits are not equal to the remainder of his prison term. He is therefore not eligible to apply FSA time credits at this time…”

itsadate240304Using a proprietary system it has tested over the past six months, Wise will provide a series of dates that tell inmates when to begin advocating for halfway house/home confinement, when to pursue administrative remedies, and when the prisoner’s LDI falls. Wise says in its program description, “The individualized details in this report have enabled hundreds of inmates to accelerate the process for transfer out of prison.”

Wise First Step can be contacted at (202) 921-0200 and email (accepting Corrlinks) at sarah@wisefirststep.org.

Wise First Step Program

BOP, Conditional FSA Release Date Calculator (December 5, 2023)

Forbes, The Bureau of Prisons’ Halfway House Problem (January 16, 2024)

Cuong Mach Tieu v. United States, Case No. 2:23-cv-2858, 2024 U.S. Dist. LEXIS 34442 (E.D. Cal., February 27, 2024)

Cook v. Peters, Case No. 3:23CV2211, 2024 U.S. Dist. LEXIS 32754 (N.D. Ohio, February 26, 2024)

Urenda v Warden, Case No 2:23-cv-1410, 2024 U.S. Dist. LEXIS 22513 (E.D. Cal., February 7, 202e)

Drug Pushers: Advocates Press Biden On Marijuana Reform – Update for March 1, 2024

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

THE POT PLOT THICKENS

marijuana160818Marijuana advocates last week argued that President Biden is missing an opportunity to sway young voters with his reluctance to take bigger steps to legalize marijuana at the federal level.

The Biden administration has pardoned people convicted of federal simple possession and started a process that may lead to rescheduling marijuana from Schedule I to Schedule III under the Controlled Substances Act. Biden has promised to deliver the rescheduling decision by the end of the year.

However, Biden’s efforts so far have left advocates unimpressed, The Hill reported last week, with the buzz being that he is “falling short of his 2020 campaign promises and failing to address the disparate overcriminalization of the drug that has unduly impacted minority communities.”

Progressives in the Senate are urging Biden to completely deschedule pot, which would effectively decriminalize it federally. “Marijuana’s placement in the [CSA] has had a devastating impact on our communities and is increasingly out of step with state law and public opinion,” twelve Democratic lawmakers wrote to the DEA last month.

And they’re not the only ones. Last week, former heavyweight boxer Mike Tyson, now a marijuana advocate and entrepreneur, sent Biden a letter calling on the Administration to reconcile with communities, including the poor and minorities, who have paid the heavy cost of the War on Drugs.

marijuanahell190918“I write in support of granting clemency to marijuana offenders still incarcerated in federal prison and restoring civil rights to those haunted by a federal marijuana conviction,” the Tyson letter began. “Through a categorical clemency grant you can declare an end to federal warfare on our own people and mark a new era based on peace and prosperity.”

Public opinion is strongly in favor of marijuana legalization. A Gallup poll from November found a record 70 percent of Americans believed marijuana should be legal.

Presidential candidate Trump’s exact stance on pot seems to flip-flop and remain ambiguous. He appointed marijuana-hating Jefferson Beauregard Sessions III as his first Attorney General, but then signed the First Step Act (which he now loves or hates on alternate days).

Biden has not pivoted as dramatically as he claims to have done on marijuana reform. One commentator says, “The people who argue that Biden is “responsible for the most significant marijuana reform in American history”… are right. The people who argue that Biden hasn’t done nearly enough on marijuana reform are also right.”

The Hill, Biden missing opportunity on legalizing marijuana, advocates warn (February 23, 2024)

The Guardian, Mike Tyson urges Biden to free thousands locked up over cannabis: ‘Right these wrongs’ (February 19, 2024)

Harris Sliwoski, Grading the Presidential Candidates on Cannabis (February 20, 2024)

– Thomas L. Root

BOP Director On Senate Judiciary Hot Seat Tomorrow – Update for February 27, 2024

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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.

JUDICIARY COMMITTEE WANTS ANSWERS ON BOP INMATE DEATHS

critic160816The impact of a trio of government reports berating the Federal Bureau of Prisons continued to reverberate last week. A scheduled appearance of BOP Director Colette Peters and her new nemesis, Dept of Justice Inspector General Michael Horowitz, before the Senate Judiciary Committee tomorrow promises that the cascade of criticism will continue pouring down on the agency..

A February 6 Government Accountability Office report chastised the BOP for implementing fewer than half of prior GAO recommendations on the use of restrictive housing (such as the SHU and Communications Management Units). The report blamed the BOP for failing to “assign[] responsibility for implementing these recommendations to the appropriate officials.”

A February 15 DOJ Office of Inspector General report found that “a combination of recurring policy violations and operational failures” – including deficiencies in inmate assessments and Mental Health Care Level assignments, holding inmates at risk for suicides in single cells, lack of urgency in responding to medical emergencies, and poor after-the-fact recordkeeping – contributed to inmate deaths.

A companion management advisory also issued on February 15 advised the BOP of the OIG’s “concerns” about the “inadequacy” of BOP policies on retaining records of rounds made by SHU COs “to ensure the preservation of those original documents as evidence when allegations of misconduct are raised.”

documentretention240227A Washington Post opinion column by Joe Davidson, who covers federal government issues in the Federal Insider, flayed the BOP as “an agency in crisis.” “The Federal Bureau of Prisons has been a profoundly broken agency for a very long time now,” he quoted David C. Fathi, American Civil Liberties Union National Prison Project director, as saying.

Laura Rovner, director of the University of Denver’s Civil Rights Clinic, who has represented isolated prisoners, is quoted as saying the BOP “is lacking the ability or the will to change, possibly both of those things.”

Last week, Government Executive – a publication aimed at federal managers – reported that the IG found “wildly different document retention standards, ranging from as little as one month to the recommended six months, to as long as 10 years.” The report itself noted that “OIG has conducted numerous investigations of allegations that BOP employees falsified round documentation; thus, such documentation is often important evidence in criminal investigations and prosecutions,” Horowitz wrote. “If documentation related to potential staff misconduct, such as mandatory round logs, are only retained for six months, such evidence may be destroyed before the discovery that a crime occurred.”

bureaucraticgobbledygook24019In her response, Peters called the inspector general’s findings “troubling” and agreed with all of the report’s recommendations, though she stressed that the misconduct cited was one by a “very small percentage of the approximately 35,000 employees . . . who continue to strive for correctional excellence every day.”

Sen Dick Durbin (D-IL), who chairs the Judiciary Committee, has been a supporter of Director Peters but said this month that he was “extremely disappointed” and “disheartened” that BOP officials “have not implemented multiple recommendations to curb restrictive housing. This issue has been studied extensively, and now is the time for action.”

bureaucracybopspeed230501Committee members expressed some frustration with Ms. Peters at the BOP oversight hearing last October for the agency’s habit of being nonresponsive to their written questions, many of which have gone unanswered for over a year. It is unlikely that her effort to palm problems off onto “a very small percentage” of employees or to mouth platitudes about “35,000 employees… who continue to strive for correctional excellence every day” will let her leave the hearing unscathed.

Senate Judiciary Committee, Hearing on Examining and Preventing Deaths of Incarcerated Individuals in Federal Prisons (set for February 28, 2024)

GAO, Bureau of Prisons: Additional Actions Needed to Improve Restrictive Housing Practices (February 6, 2024)

DOJ OIG, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

DOJ OIC, Notification of Concerns Regarding Federal Bureau of Prisons’ Policies Pertaining to Special Housing Unit Logs Used to Record Mandatory Rounds and the Retention Period for the Original Logs (February 15, 2024)

Washington Post, Watchdog reports cite long-standing crises in federal prisons (February 23, 2024)

Govt Executive, Federal prison employees falsified logs in case where inmate committed suicide, IG says (February 21, 2024)

– Thomas L. Root

Supremes Uphold Double Jeopardy 9-0 – Update for February 26, 2024

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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.

THIS IS JEOPARDY!

Damian McElrath killed the woman who had adopted him based on his delusional belief that she was poisoning him. Georgia charged him with premeditated murder, felony murder, and aggravated assault. At his trial, the jury found him not guilty by reason of insanity of premeditated murder but guilty of felony murder and aggravated assault.

jeopardy240226The 5th Amendment ban on double jeopardy – being tried twice for the same offense – should have meant that Damian’s acquittal on murder was the end of things for that charge. But the Georgia Supreme Court held that the verdicts of innocent on premeditated murder but guilty on the two lesser charges were directly contradictory.

There was no way that Damian could have the necessary state of mind to be guilty of the two lesser offenses but not have the state of mind for the greater offense, the Georgia Supreme Court held.. Thus, it concluded that the contradiction meant that the jury’s conclusion did not count as a “verdict” and Georgia could retry him, even on the premeditated murder on which he had been acquitted.

Last Wednesday, the US Supreme Court made short work of the case. Justice Jackson wrote for a unanimous Court that the fact that Damian’s

‘not guilty by reason of insanity’ verdict was accompanied by other verdicts that appeared to rest on inconsistent findings is of no moment… The Double Jeopardy Clause prohibits second-guessing an acquittal for any reason… Once there has been an acquittal, our cases prohibit any speculation about the reasons for a jury’s verdict—even when there are specific jury findings that provide a factual basis for such speculation—because it is impossible for a court to be certain about the ground for the verdict without improperly delving into the jurors’ deliberations. We simply cannot know why the jury in McElrath’s case acted as it did, and the Double Jeopardy Clause forbids us to guess.”

McElrath v Georgia, Case No 22-721, 2024 U.S. LEXIS 997 (Supreme Ct., February 21, 2024)

– Thomas L. Root

Supreme Court Denies a Habeas Corpus, But With An Interesting Twist – Update for February 23, 2024

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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.

WHERE THERE’S A WILL, THERE’S A PROCEDURAL WAY

hobbsact200218Mike Bowe was convicted of an attempted Hobbs Act robbery, during which a gun was fired. So he was convicted as well of an 18 USC § 924(c) violation for the gun and received a sentence for an additional 10 years. After the Supreme Court decided United States v. Davis back in 2019, Mike filed a motion for 11th Circuit permission to file a second § 2255 motion arguing that his predicate Hobbs Act attempt was not a crime of violence to which a § 924(c) could attach.

The Circuit turned him down, holding that Mike’s § 924(c) conviction was predicated in part on attempted Hobbs Act robbery, which remained a qualifying “crime of violence” (COV) under circuit precedent. But after that, the Supreme Court decided United States v. Taylor in 2022, holding that an attempted Hobbs Act robbery was not COV, meaning that Mike had been right all along.

Being right doesn’t count for much in the world of habeas corpus. When Mike again asked for permission to file a successive § 2255 motion, the 11th Circuit again turned him down, this time because 28 USC 2244(b)(1) – part of the statute governing the procedure for getting permission for a successive § 2255 motion – barred him from raising an issue already denied in a prior § 2255 motion. No matter that the Circuit had denied that claim under erroneous, pre-Taylor precedent. Mike did everything right; his § 924(c) conviction was plainly invalid; and, but for the misapplication of § 2244(b)(1), he would now be a free man.

Under 28 USC § 2244, a prisoner who is denied the right to bring a second or successive § 2255 motion is not allowed to appeal the denial any further. It’s over. But Mike had some canny lawyers, and they filed a petition for habeas corpus with the Supreme Court, a permissible but seldom used gambit. They pointed out that under 28 USC § 2244(b)(1), a federal court must dismiss a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application.” 28 USC § 2244(b)(1). But state prisoners seek federal post-conviction relief under § 2254. Federal prisoners seek post-conviction relief under § 2255. Mike argued that three Circuits agreed that § 2244(b)(1) only affected state prisoners: Mike was free to bring his attempted Hobbs Act COV claim again, and that their position – not the view of the six circuits going the other way – should prevail.

The Government agreed with Mike.

habeas191211On Wednesday, the Supreme Court denied Mike’s § 2241 petition for habeas corpus. No surprise there: the Court hasn’t granted habeas to a federal prisoner in a long time. But what is noteworthy is that Justice Sonia Sotomayor joined Justice Kavanaugh in calling for a grant of review to decide the split.

But how to do that? Because the Government agrees § 2244(b)(1) doesn’t apply to federal prisoners, if one of the three circuits agreeing with that position grant permission for a second-or-successive § 2255, there will never be a petition for certiorari filed by the Government. But if the petitioner is in one of the six circuits that say that § 2244(b)(1) applies to federal prisoners as well as state prisoners, permission to file a second-or-successive § 2255 in a case like Mike’s will never be granted, and the unfortunate prisoner will not be allowed to seek certiorari.

Justice Sotomayor admitted that “[t]here are considerable structural barriers to this Court’s ordinary review via certiorari petition.”

A petition cannot reach the Supreme Court from the three Circuits that read § 2244(b)(1) to apply only to state prisoners. Before a federal prisoner can file a second or successive habeas corpus § 2255 motion, a court of appeals must certify it. When a federal prisoner files a second or successive § 2255 motion that raises an issue he has raised previously, neither the court of appeals nor the district court will apply § 2244(b)(1)’s bar. If the court of appeals certifies the motion, the district court will decide it on the merits.

A petition cannot reach the Supreme Court from the six Circuits that apply § 2244(b)(1) to both state and federal prisoners either. In those Circuits, the court of appeals will apply § 2244(b)(1)’s bar and deny certification to any second or successive § 2255 motion that raises an issue the prisoner has previously raised. Neither the Government nor the prisoner can seek review of that interpretation of § 2244(b)(1) from this Court, however, because the law bars petitions for certiorari stemming from “[t]he grant or denial of an authorization by a court of appeals to file a second or successive application.”

sotomayor240223Mike tried to invoke the Supreme Court’s jurisdiction to entertain original habeas petitions under § 2241(a). However, as Justice Sotomayor said, “The standard for this Court’s consideration of an original habeas petition is a demanding one. A petitioner must show both that ‘adequate relief cannot be obtained in any other form or from any other court” and “exceptional circumstances warrant the exercise of the Court’s discretionary powers. Whether Mike has met that demanding standard here is questionable,” the Justice wrote, “because it is not clear that, absent § 2244(b)(1)’s bar, the 11th Circuit would have certified his § 2255 motion.”

But the Circuit split needs to be settled, the Justice said, and thus, she “would welcome the invocation of this Court’s original habeas jurisdiction in a future case where the petitioner may have meritorious § 2255 claims. The Government also suggests that a court of appeals seeking clarity could certify the question to this Court.  In the meantime, in light of the demanding standard for this Court’s jurisdiction over original habeas petitions, I encourage the courts of appeals to reconsider this question en banc, where appropriate.”

Writing in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman observed, “I still recall fondly when the Second Circuit in United States v. Penaranda, a full 20 years ago, certified three questions to SCOTUS concerning the application of Blakely to the federal sentencing system. I am not sure if there have been any other circuit certifications in the last two decades, but I am sure it is interesting to have two Justices flag this notable means of getting an issue on the SCOTUS docket”

Where there’s a will on the Supreme Court to hear an issue, there’s a way to get it there. Just not for Mike and not for today.

In re Bowe, Case No. 22-7871, 2024 U.S. LEXIS 988 (February 20, 2024)

Sentencing Law and Policy, SCOTUS order list includes a notable statement in a habeas denial (February 20, 2024)

– Thomas L. Root

BOP’s Ambitious “Framework for the Future’s” Overshadowed Launch – Update for February 22, 2024

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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.

IG REPORT RAINS ON DIRECTOR’S PARADE

rainparade240222The tsunami of the Inspector General’s bad news (which I reported on Monday) threatened to wash away BOP Director Colette Peters’ rollout earlier last week of the agency’s “Framework for the Future,” an ambitious and obese plan “encompassing seven goals and over 180 unique initiatives… set to redefine the Bureau’s operations,” according to the BOP press release, which gushed:

The Executive Team, consisting of Regional Directors, Assistant Directors, and key figures from within the Director’s office, is personally overseeing these initiatives. Their unwavering commitment is geared towards propelling the agency forward, fostering a humane and secure environment, and preparing individuals for successful reentry into communities.

The BOP told employees in a video message last week that Peters had introduced the “Framework for the Future” and “engage[d] and empower[ed] the agency’s dedicated workforce with details about the seven goals.”

somebull240222C’mon, Ms. Peters, please empower your dedicated PR flacks to spare us the bureaucratic happy talk BS, And while we’re at it, seven goals?  One hundred eighty unique initiatives? Let’s keep it simple.

Writing in Forbes, Walter Pavlo said, “Peters was given a mandate by Congress to improve the BOP but many of those needed improvements have been problems for years. Office of Inspector General and Government Accountability Office have both authored scathing reports on the BOP. Peters, who appeared on 60 Minutes earlier this month, understands that the BOP cannot continue to operate inefficiently, and in some cases inhumanely, as it has for decades.”

Pavlo says many believe that Peters is “the agent of change needed to overhaul the BOP… which has been plagued by employee misconduct… increases in healthcare costs, understaffing, and infrastructure decay. The BOP has also had difficulty implementing the First Step Act… Delays in implementation have been caused by early misinterpretation of the law, computer glitches and a shortage of halfway house capacity.”

“The BOP has challenges and now Peters has outlined a plan to overcome them,” Pavlo says, but he warns that “it will not be easy.”

listenup240222Peters has taken a deliberate approach to the problems, which are legion. During her first year as Director, Peters conducted “listening sessions,” including the novel but quite reasonable requirement for wardens of the BOP’s 122-odd facilities to listen to former prisoners, crime victims, subordinates in prison management and line workers, and advocates for change in the system. Writing in a Federal News Network story, Pavlo and attorney Alan Ellis predicted that “[i]t will take another year to judge the new direction Peters wants to take the agency, but expect her to double down on her message of a more humane federal prison system.”

Last summer, Senate Minority Leader Mitch McConnell (R-KY) and Senator Charles Grassley (R-Iowa) proposed making the director of the Bureau of Prisons a Senate-confirmed position in S.2284, the Federal Prisons Accountability Act of 2023. The same measure has been filed in the House of Representatives as H.R.4138 by Rep. Glenn Thompson (R-PA), a member of the House BOP Reform Caucus.

Pavlo and Ellis observed that “Director Peters has enjoyed a long honeymoon with lawmakers, but they will be looking for results in 2024 — and so will many prisoners and BOP staff members.”

Bureau of Prisons, Reforming the Federal Bureau of Prisons (February 12. 2024)

Forbes, Bureau of Prisons Director Lays Out Goals For Improving Agency (February 13, 2024)

Federal News Network, The Bureau of Prisons and the challenges going into 2024 (February 21, 2024)

S.2284 – Federal Prisons Accountability Act of 2023

– Thomas L. Root

The Fine Print Counts In A Deal With the Devil – Update for February 20, 2024

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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.

‘SHUT UP AND SIGN’ LEADS TO A LOT OF BUYER REMORSE

About 95% of all federal indictments end with a plea agreement where the defendant agrees to take a guilty plea in exchange for government promises that often seem evanescent if not illusory. If I had a dime for every prisoner who has told me that he or she only signed because defense counsel said to, I would be writing this on the beach of my private Caribbean island instead of at a desk looking out at February snow in Ohio.

plea161116Two cases decided last week remind all prisoners – including those who have already signed their plea agreements – that in a plea agreement, every promise counts. A defense attorney’s disservice to the client is never greater than when he or she rushes them into signing a “good deal” without first painstakingly walking the defendant through every provision and explaining it in detail.

Eric Rudolph (remember him?) decided to express his political views by blowing up Olympic venues and abortion clinics. The innocents he slaughtered in the process were just icing on his demented cake. After five years on the lam, Eric was caught dining out of a dumpster in Murphy, North Carolina, and was later convicted of one 18 USC § 844(i) arson offense and five companion 18 USC § 924(c) counts for using a firearm (bombs studded with nails qualify under the statute as “firearms”) in the commission of the arson.

Eric’s approach to the plea agreement was unrepentant. He said he had “deprived the government of its goal of sentencing me to death,” and that “the fact that I have entered an agreement with the government is purely a tactical choice on my part and in no way legitimates the moral authority of the government to judge this matter or impute my guilt.”

Uh-huh. Eric’s statement brings to mind old Gus McRae (Lonesome Dove) addressing outlaw Dan Suggs, who was about to be executed with his brother but expressed only hatred and contempt:

Gus McCrae: I’ll say this, Suggs; you’re the kind of man it’s a pleasure to hang. If all you can talk is guff, you can talk it to the Devil.

supermaxcell240220I’m no fan of mandatory life sentences and even less of the death penalty, but it’s amazing how malleable our principles can be when we’re punched in the face with pure-D evil. Eric undeservedly got a life sentence, which he’s spending in the mountains of Colorado (although he never gets to see them from his concrete cell at ADX Florence).

As part of the plea deal he was proud of for depriving the Feds of the death penalty, Eric waived the right to collaterally attack his sentence in any post-conviction proceeding, including under 28 USC § 2255. But because of what the Court disapprovingly calls “the evergreen litigation opportunities introduced by the categorical approach” to § 924(c) litigation,” Eric – who has apparently decided that freedom some day isn’t such a bad goal – has filed two § 2255s so far. Last week, the 11th Circuit turned down his second one as barred by the plea agreement and, in so many words, told Eric to enjoy his place in the mountains for the rest of his life.

In the last few years, courts have applied the Supreme Court’s “categorical” approach to determining whether an offense is a “crime of violence” within the meaning of 18 USC § 924(c)(3)(A), that is, “an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Even Eric’s district court agreed that after the Supreme Court’s decision in United States v. Davis, his arson offenses were no longer crimes of violence under the federal statute (because one can be convicted of arson for burning down his or her own property). But that didn’t matter, the district court said, because Eric had given away his right to bring a § 2255 motion to correct the error.

Last week, the 11th Circuit agreed. It held that “a plea agreement is, in essence, a contract between the Government and a criminal defendant. And because it functions as a contract, a plea agreement should be interpreted in accord with what the parties intended. In discerning that intent, the court should avoid construing a plea agreement in a way that would deprive the government of the benefit that it has bargained for and obtained in the plea agreement.”

Eric’s plea deal, the 11th said, contained the common waiver of the right to bring a collateral attack on his sentence. But Eric argued that the plea deal only prohibited collateral attacks on the sentence, while his collateral attack was on the § 924(c) convictions.

dumpsterfire249220Eric’s argument was a dumpster fire, the Circuit said. “The text of 28 USC § 2255, the history of that same statute, and the habeas corpus right that it codified, all point in the same direction: 2255 is a vehicle for attacking sentences, not convictions.” Starting with the origins of English habeas corpus through the codification of 2255 up to last summer’s Supreme Court Jones v. Hendrix decision (where SCOTUS said “Congress created 2255 as a separate remedial vehicle specifically designed for federal prisoners’ collateral attacks on their sentences”), the 11th concluded that the history, the plain text of the statute “shows the same, as does Rudolph’s requested relief… [His] motions are collateral attacks on his sentences, so his plea agreements do not allow them.”

Winning his § 2255 would have been a huge deal for Eric. The 18 USC § 844(i) conviction carries a maximum 10-year sentence. Each of the § 924(c) convictions carries a maximum of life. Had Eric been allowed to bring the § 2255, he would have gone from his concrete cell straight to walking the streets (something most of his victims would never enjoy again).

*     *     *

Meanwhile, over in Louisiana, Keesha Dinkins – a front-office worker at Positive Change healthcare clinic – was swept up in a Medicaid billing fraud. She didn’t make a dime from the fraud beyond her normal salary, but her lawyer had her sign a plea agreement for 24 months and restitution of $3.5 million.

positivechange240220Despite the deal she made, she argued that she should not be on the hook to share the restitution equally with Positive Change’s owner (who got a lot more time than she did). Last week, the 5th Circuit told her that it was Positive that it would not Change her restitution:

The criminal justice system in this country relies on plea agreements to provide efficient resolutions to criminal cases. Indeed, over 95 percent of federal criminal cases are resolved without trial. It would undermine the principle that plea bargains are contracts to hold that a party can agree to a specific amount of restitution, supported by record evidence, and then in the next breath, challenge an order imposing that exact amount of restitution.

The 5th observed that her plea agreement provided that “Dinkins — not Positive Change — was responsible for the $3.5 million loss.” That is how the judgment will remain.

Rudolph v. United States, Case No 21-12828, 2024 U.S. App.  LEXIS 3278 (11th Cir., February 12, 2024)

United States v. Johnson, Case No 22-30242, 2024 U.S. App. LEXIS 3487 (5th Cir., February 14, 2024)

– Thomas L. Root

BOP Negligence Causes Inmate Deaths, DOJ Says – Update for February 19, 2024

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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.

DEPT OF JUSTICE BLASTS BOP NEGLIGENCE IN PREVENTING INMATE DEATHS

fail200526Chronic failures by the Federal Bureau of Prisons have contributed to the deaths of hundreds of inmates, the Dept of Justice’s Inspector General concluded last Thursday in a report that CNN called “blistering.”

The Report found that

a combination of recurring policy violations and operational failures contributed to inmate suicides, which accounted for more than half of the 344 inmate deaths reviewed. We identified deficiencies in staff completion of inmate assessments, which prevented some institutions from adequately addressing inmate suicide risks. We also found potentially inappropriate Mental Health Care Level assignments for some inmates who later died by suicide. More than half of the inmates who died by suicide were single-celled, or housed in a cell alone, which increases inmate suicide risk.

DOJ Inspector General Michael Horowitz said, “Today’s report identified numerous operational and managerial deficiencies, which created unsafe conditions prior to and at the time of a number of these deaths.

The media were more savage: “A combination of negligence, operational failures and a blundering workforce has contributed to hundreds of inmate deaths in federal custody,” The Washington Post wrote.

CNN said that

For years, the embattled Bureau of Prisons has been the subject of accusations by politicians, prisoner advocacy groups for mistreating or neglecting inmates.

The Justice Department itself has issued scathing rebukes against BOP, outlining serious mistakes that have led to the deaths of high-profile inmates like notorious Boston gangster and convicted murderer James “Whitey” Bulger, who was killed shortly after being transferred to a new prison, and financier Jeffrey Epstein, who died by suicide in his jail cell.

But the circumstances that led to Bulger and Epstein’s deaths are emblematic of wide-ranging and recurring issues within the federal prison system that affect hundreds of inmates across the country, the DOJ’s Office of Inspector General found in its report that outlined a system in crisis failing to protect its charges.

NPR was terser: “The BOP is a mess.”

Many of the Report’s findings have applicability beyond the suicide issue. The IG said that “some institution staff failed to coordinate efforts across departments to provide necessary treatment or follow-up with inmates in distress.” Staff deficiencies in responding to medical emergencies “ranged from a lack of urgency in responding, failure to bring or use appropriate emergency equipment, unclear radio communications, and issues with naloxone administration in opioid overdose cases.”

failuretocommunicate221027The Report found deficiencies extended to after-action documentation. “The BOP was unable to produce documents required by its own policies in the event of an inmate death for many of the inmate deaths we reviewed,” the Report said. “The BOP requires in-depth After-Action Reviews only following inmate suicides but not for inmate homicides or deaths resulting from accidents and unknown factors. The BOP’s ability to fully understand the circumstances that led to inmate deaths and to identify steps that may help prevent future deaths is therefore limited.”

The Report examined four categories of BOP non-medical deaths between 2014 and 2021, suicide, homicide, accident, and unknown factors (where the BOP could not determine the cause of death). Of the 344 non-medical deaths during that time period, 54% were suicides, 26% were homicides, 16% were accidents. Under four percent were from unknown factors. Most of the suicides occurred when inmates were locked up in single cells.

The BOP’s non-medical death count climbed 68% between 2014 and 2021 while the prison population fell 27%. In 2014, there were 38 inmate deaths by unnatural causes. In 2021, that number was 57 inmates.

The Report noted that the BOP has policies in place to prevent inmate suicides. But it found “numerous instances of potentially inappropriate” mental health assessments for inmates who later killed themselves. What’s more, BOP staff “did not sufficiently conduct required inmate rounds or counts in over a third of inmate suicides,” and they sometimes “failed to communicate with each other and coordinate efforts across departments to provide necessary treatment or follow-up with inmates in distress,” the Report found.

Many BOP facilities failed to run suicide drills mandated by policy (required three times a year, once for each shift), the Report said. Thirty-five percent of BOP facilities “were unable to provide evidence that they conducted a single mock suicide drill from 2018 through 2020.”
inmatesuicidedeath240219In one suicide case cited by the Report, BOP staff claimed to have searched a cell three times — including the day before the suicide — but found no contraband. After the prisoner died by a self-inflicted overdose, a search of the cell he had been in turned up 1,000 pills, the IG said.

The BOP continues to grapple with a severe staffing shortage, ‘which has a ripple effect across the agency’s institutions,” NBC said. Correctional Officers work multiple shifts and healthcare workers are “augmented” to serve as COs, being pulled from their regular duties. “That translates into less mental health care for inmates,” NPR reported.

“At one facility,” Government Executive reported, “psychiatric staff were reassigned daily for two months straight. In another case, a facility did not have any psychological services personnel on staff… Half of [one] facility’s nursing positions were unfilled. At another facility, employees worked double shifts for three consecutive days. Personnel on staff are often undertrained, the IG found, with the bureau’s after-action reviews identifying insufficient training as an issue in 42% of deaths. They are also improperly disciplined, with employees themselves telling the IG the process was too lengthy and ineffective.

The BOP continues to struggle to keep facilities free of contraband drugs and weapons, which contributed to nearly a third of inmate deaths in the Report.

Sen Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, has scheduled BOP Director Colette Peters and DOJ Inspector General Horowitz to testify on February 28th in a Committee hearing focused on federal inmate deaths.

“It is deeply disturbing that today’s report found that the majority of BOP’s non-medical deaths in custody could have been prevented or mitigated by greater compliance with BOP policy, better staffing, and increased mental health and substance abuse treatment,” Durbin said in a statement. “Accountability across the Bureau is necessary and long overdue.”

The IG recommended several changes to BOP procedure, including developing strategies to ensure that inmate mental health is properly evaluated, that prison staff is taught to use defibrillators and naloxone, and to develop procedures that require inmate death records to be consistently prepared.

bureaucraticgobbledygook24019

A BOP spokesperson told CNN last week that the agency “acknowledges and concurs with the need for improvements” and is “dedicated to implementing these changes to ensure the safety and well-being of those in our custody.”

Sure it is, provided its staff isn’t being asked to make rounds, conduct drills or fill out reports.

CNN, DOJ watchdog report finds chronic failures by Bureau of Prisons contributed to the deaths of hundreds of inmates (February 15, 2024)

Dept of Justice, DOJ OIG Releases Report on Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

NPR, DOJ watchdog finds 187 inmate suicides in federal prisons over 8-year period (February 15, 2024)

Government Executive, Understaffing and mismanagement contributed to hundreds of deaths in federal prisons (February 16, 2024)

NBC, Bureau of Prisons failed to prevent nearly 200 deaths by suicide, DOJ watchdog finds (February 15, 2024)

Washington Post, IG report finds deadly culture of negligence and staffing issues at federal prisons (February 15, 2024)

– Thomas L. Root

Pay Us More And Everything Will Be Fine – Update for February 16, 2024

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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.

MONEY, THAT’S WHAT I WANT…

moneythatswhat231128Brandy Moore White, president of the union council representing 30,000 BOP employees, wrote in The Hill last week that the crumbling BOP infrastructure, “a rise in inmates deploying more sophisticated methods to smuggle illegal items into prisons,” and a lack of staff together “pose a real and significant threat to the health and safety of the 35,000 federal employees who work at the agency as well as the 158,000 inmates currently in custody.”

“The number of BOP officers and staff has fallen precipitously over the past seven years, from 43,369 staff at the beginning of 2016 to around 35,000 today — a 20% decline,” she wrote. But that only tells half the story, since the Bureau of Prisons can’t even maintain the lower level of staffing that Congress has authorized… One of the agency’s main workforce challenges is that the salaries paid to federal correctional officers pale in comparison to what employees can earn at other federal law enforcement agencies, at state and local agencies, and even some retail chains.”

Ruben Montanez-Mirabal, Patrick Shackelford, Quandelle Joseph, Perry Joyner, Brian Jenkins, Shauna Boatright. These are just a few of Ms. Moore White’s union rank-and-file BOP employees to have been convicted in the past few years of smuggling contraband into federal prisons. She might want to consider her own union members while she’s busy blaming inmates for the rise of contraband.

moneyhum170419Last week, Sens Bill Cassidy (R-LA), Richard Blumenthal (D-CT), and Bob Casey (D-PA) sponsored the Pay Our Correctional Officers Fairly Act, which will redefine BOP employees working in rural areas as being in higher-wage urban areas, thus boosting pay. Cassidy said the bill will “allow[]for competitive pay that better reflects the cost of living, commute times, alternative careers, and the hard work and dedication of BOP employees.”

A companion bill by the same name was filed in the House last May as H.R. 3199.

The Hill, The federal prison system is in crisis. Here are the top 3 reasons why (February 9, 2024 )

H.R. 3199, Pay Our Correctional Officers Fairly Act

S.___ (no number assigned), Pay Our Correctional Officers Fairly Act

– Thomas L. Root