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Goodbye to 2024 (and Good Riddance, the BOP says) – Update for December 31, 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.

BOP’S BUMPY END TO 2024

No doubt Colette Peters will be glad to see the last of 2024, even if 2025 and the advent of a Trump presidency makes her continued role as Bureau of Prisons director uncertain. Just in the last few weeks:

deathholiday241231• Death Does Not Take A Holiday: 28-year-old Keenan Byrd died on December 18th at FCI Bennettsville of yet-unannounced causes, 50-year-old Michael Miske died of an overdose of synthetic fentanyl at FDC Honolulu on December 1st, Juan Parrado died last Thursday at FCI Thomson of undisclosed causes, and on December 6th, 41-year-old Jonathan Strader died at FCI Lewisburg died.

NTD Television reported that an “Associated Press investigation uncovered deep-seated problems within the BOP, including rampant sexual abuse, staff criminal conduct, escapes, chronic violence, and severe staffing shortages, which have slowed staff responses to emergencies, including inmate assaults and suicides;”

• The Rap Sheet: Former BOP lieutenant Daniel Mitchell pled guilty last week in federal court to conspiracy to violate an inmate’s civil rights by getting another officer to assault a SHU inmate for exposing himself in front of a female BOP officer. The offense carries a 10-year statutory maximum sentence.

Meanwhile, the 9th Circuit last week upheld an 18 USC § 922(g)(8) conviction of an FDC Seatac CO who carried a gun for his private security gig after a domestic protection order was entered against him (the same offense that brought Zackey Rahimi low);

medical told you I was sick221017Finally, former BOP Lieutenant Shronda Covington was found guilty on December 21 of violating an FCI Petersburg inmate’s civil rights by showing deliberate indifference to his serious medical needs. Covington and nurse Tonya Farley, R.N., were both convicted of lying to federal agents about the inmate’s death. Another BOP Lieutenant, Michael Anderson, previously pled guilty to his role in the same death and has been sentenced to 36 months;

unionpicket241231• Union Unrest: I previously reported that the AFGE Council of Prison Locals filed an unfair labor practice claim against the BOP for violating its labor-management agreement with the union by closing FCI Morgantown. It now appears that the ULP claim covers 401 employees at all seven camps being closed, Some employees will be reassigned to other facilities, while others face being let go. The ULP claims the BOP “is obligated under the law to notify and bargain with the union on these changes to working conditions and employment” and asks the Federal Labor Relations Authority to order BOP to halt the closure and to bargain with the union.

Meanwhile, workers at FPC Duluth are mobilizing to prevent the standalone camp’s shutdown. BOP employee and union rep Tanya Gajeski has been garnering support from local congressional leaders like Sen. Amy Klobuchar (D-MN), who said she has spoken to BOP Director Peters about her opposition to the closure, and Rep. Pete Stauber (R-MN), who questioned the reasoning behind the closure in correspondence to Peters.

WBTW, 28-year-old inmate dies at Bennettsville prison (December 20, 2024)

NTD Television Network, Hawaii Crime Boss Dies of Opioid Overdose in Federal Custody (December 26, 2024)

WQAD, Male inmate dies at FCI Thomson; FBI notified (December 27, 2024)

Sunbury Daily Item, Lewisburg federal inmate dies (December 7, 2024)

United States v. Shuemake, Case No 22-30210, 2024 U.S. App. LEXIS 32685 (9th Cir. December 26, 2024)

WBTW, Federal prison lieutenant could get 10 years for role in North Carolina inmate’s assault (December 28, 2024)

U.S. Attorney, E.D. Virginia, Former Federal Bureau of Prisons employees convicted of charges arising from their failure to obtain medical care for an inmate who later died from his injuries (December 24, 2024)

AFGE Press Release, AFGE Files Unfair Labor Practice Against BOP for Displacing 400 Workers Without Bargaining with Union (December 23, 2024)

St. Paul Pioneer Press, Duluth Federal Prison Camp workers seek allies in push to save jobs, facility (December 24, 2024)

– Thomas L. Root

BOP Proposes Kinder, Gentler Money Grab – Update for December 30, 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.

BIG MONEY

Remember money160818two years ago, when the Federal Bureau of Prisons issued a Notice of Proposed Rulemaking in response to the 20 inmates out of 150,000 plus who had big money in their commissary accounts? Of course you do, because you’ve read all 1,701 of the LISA Foundation’s posts.

But for those who came in late, in January 2023, the BOP responded to a Washington Post series that revealed that a few high-profile BOP inmates – serial gymnast molester Larry Nasser and sex predator R. Kelly – had very large inmate trust account sums while not paying restitution to victims. The Post reported that “20 inmate accounts [held] more than $100,000 each for a total exceeding $3 million,” but not necessarily that most or all of those people were shirking court-ordered payment obligations.

So 0.013% – that’s thirteen one-thousandths of a percent – of federal inmates had whopping inmate account balances, but not all of them necessarily owed any obligations for which the BOP could take their money. No matter. The BOP responded to this shocking situation by proposing an amendment to its rules that would require the Inmate Financial Responsibility Program to take 75% of anything inmates received from outside sources (such as family and friends) and to apply that seized money toward restitution, fines, child support, tax and other obligations.

Last week, the BOP showed a little Christmas spirit (or maybe common sense), issuing a Supplemental NPRM asking for comment on a softer standard. The agency now proposes a rule that would take none of your outside money if your commissary account is under $250.00; 25% if your account balance is $250.00 but under $1,000.00; 35% for accounts from $1,000.00 but under $2,500.00; 55% from $2,500.00 but under $5,000.00; and 100% of outside money when your balance is over $5,000.00.

IFRP-SNPRM241230Of course, an inmate may refuse to participate in the IFRP program, but doing so today denies an inmate anything more than about $5.00 a month pay for work, a severely limited commissary list from which to buy food and consumer goods, no RDAP “year off” credit, and no halfway house or home confinement (among other restrictions).

The Supplemental NPRM proposes adding to that list no FSA credit, meaning that an inmate would be stripped of the ability to take up to a year off his or her sentence and to get substantial amounts of halfway house or home confinement time.

The current limitations are listed in 28 CFR § 545.11.

paytheman240822The public may comment on the proposed rule by letter or electronic comments by February 18, 2025, through the regulations.gov website or by mail to:

Legislative & Correctional Issues Branch, Office of General Counsel, BOP, 320 1st Street NW, Washington, DC 20534.

Federal Register, Inmate Financial Responsibility Program: Procedures (December 17, 2024)

Forbes, New Rules on Federal Inmate Financial Responsibility Program (December 21, 2024)

– Thomas L. Root

A Good Day At The ‘Range’ – Update for December 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.

Today marks our 1700th post since our beginning in 2015.1700th-241227

RANGE REDUX

A little more than two years ago, a 3d Circuit panel of three appellate judges held that arch-criminal Bryan Range – a man whose rap sheet included traffic tickets, fishing without a license and a misdemeanor false statement 25 years ago to get food stamps for his hungry family – had no 2nd Amendment right to own a hunting rifle or buy a shotgun.

gun-sw629-241227Cooler heads prevailed. Granting en banc review, the Circuit issued a seminal decision, holding that a prior nonviolent offense qualifyingi under 18 USC § 922(g)(1) to prohibit someone from having a gun violated the 2nd Amendment.

The government sought Supreme Court review, but while the petition was pending, the Supremes handed down United States v Rahimi, a case that held that the temporary disarming of someone under a court-issued domestic protection order could be disarmed without offending the 2nd Amendment. SCOTUS remanded all of the 2nd Amendment challenges on its docket – including the Range decision – for reconsideration in light of Rahimi.

Since then, the 8th Circuit decided that Edell Jackson, a convicted drug dealer, could be disarmed under 18 USC § 922(g)(1) consistent with the 2nd Amendment. The 6th Circuit held in United States v. Williams that a felon with violent offenses in his past was properly subject to 922(g)(1) consistent with the 2nd Amendment (leaving open the question of § 922(g)(1)’s effect on people with nonviolent felonies), and – just last week – the 4th Circuit said that anyone with a felony conviction was outside the protection of the 2nd Amendment.

Now, the en banc 3rd Circuit has delivered for Bryan like Santa on Christmas Eve, holding last Monday that Bryan Range’s right to own a gun remains protected by the 2nd Amendment despite his quarter-century-old fraud offense.

Applying New York State Rifle & Pistol Association v. Bruen and Rahimi, the en banc Circuit “reject[ed] the Government’s contention that ‘felons are not among “the people” protected by the 2nd Amendment’ [and] that Bryan Range remains among ‘the people’ despite his 1995 false statement conviction. The 3d then rules that

[h]aving determined that Range is one of “the people,” we turn to the easy question: whether § 922(g)(1) regulates 2nd Amendment conduct. It does.

Against this backdrop, it’s important to remember that Range’s crime—making a false statement on an application for food stamps—did not involve a firearm, so there was no criminal instrument to forfeit. And even if there were, government confiscation of the instruments of crime (or a convicted criminal’s entire estate) differs from a status-based lifetime ban on firearm possession. The Government has not cited a single statute or case that precludes a convict who has served his sentence from purchasing the same type of object that he used to commit a crime. Nor has the Government cited forfeiture cases in which the convict was prevented from regaining his possessions, including firearms (unless forfeiture preceded execution). That’s true whether the object forfeited to the government was a firearm used to hunt out of season, a car used to transport cocaine, or a mobile home used as a methamphetamine lab. And of those three, only firearms are mentioned in the Bill of Rights.

For the reasons stated, we hold that the Government has not shown that the principles underlying the Nation’s historical tradition of firearms regulation support depriving Range of his 2nd Amendment right to possess a firearm.

iloveguns221018The Circuit noted that its decision “is a narrow one. Bryan Range challenged the constitutionality of 18 USC § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).” This suggests that those with prior convictions might have to apply piecemeal for confirmation that their 2nd Amendment rights remain intact.

The 6th Circuit has implied the same, complaining that the defendant – who was arguing in appeal of a § 922(g)(1) conviction that application of the felon-in-possession statute violated the 2nd Amendment – never sought to have his 2nd Amendment rights confirmed until he was caught with a gun.

For now, Range II is a breath of fresh air. The Circuit held resoundingly that Bryan “remains one of ‘the people’ protected by the 2nd Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms. More than two decades after he was convicted of food-stamp fraud and completed his sentence, he sought protection from prosecution under § 922(g)(1) for any future possession of a firearm. The record contains no evidence that Range poses a physical danger to others. Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his 2nd Amendment rights.”

Range creates a clear and well-defined circuit split on the constitutionality of 18 USC § 922(g)(1). This is probably not the end of the inquiry, although perhaps the Trump Dept of Justice may not share the current administration’s ardor for seeking certiorari on every 922(g)(1) case to come down the pike.

gun160711Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, noted that Bryan’s “case seems particularly sympathetic, as he was convicted nearly three decades ago of only a relatively minor crime. Because this Range ruling creates a clear circuit split on the constitutionality of 18 USC § 922(g)(1) in some settings, I would expect to see an appeal to the Supreme Court by the US Department of Justice. But maybe the new incoming Justice Department officials might not want to test the application and reach of the 2nd Amendment in this particular ‘narrow’ case.”

Range v. AG United States, Case No. 21-2835 (3d Cir. Dec. 23, 2024) 2024 U.S. App. LEXIS 32560, at *1

Sentencing Law and Policy, En banc Third Circuit again finds federal felon-in-possesion ban unconstitutional as applied to Byran Range (December 23, 2024)

– Thomas L. Root

‘Naughty Can Never Be Nice’ for 922(g)(1) Purposes, 4th Circuit Says – Update for December 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.

4TH CIRCUIT SAYS NO FELON IS ON SANTA’S GOOD LIST FOR 2ND AMENDMENT PROTECTION

Ever since the Supreme Court decision in New York State Rifle & Pistol Assn. v. Bruen, courts of appeal have been struggling with whether the 2nd Amendment permits some people with prior felonies to possess a gun despite 18 USC § 922(g)(1)’s blanket prohibition against anyone with a felony conviction from having a gun or ammo. The 3rd and 9th Circuits have said some may (although both holdings are being further reviewed in light of United States v. Rahimi), and the 6th has suggested that some felonies are not so dangerous that § 922(g) can apply consistent with the 2nd Amendment.

santagun241226

In Rahimi, the Supreme Court warned against courts holding that some groups categorically are excluded from 2nd Amendment protection. That caution did not deter the 4th Circuit, however. Last week, the 4th ruled that unless “a felony conviction is pardoned or the law defining the crime of conviction is found unconstitutional or otherwise unlawful,” anyone with a felony conviction is excluded from the sweeping definition of “law-abiding” citizen protected by the 2nd Amendment.

respect210812“[T]here is no need for felony-by-felony litigation regarding the constitutionality of Section 922(g)(1),” the Circuit ruled last week. “[B]ecause felons, by definition, have ‘demonstrated disrespect for legal norms of society,’ the legislature has determined that ‘the category as a whole present[s] an unacceptable risk of danger if armed.’ That legislative judgment accords with historical tradition regulating non-law-abiding persons and is consistent with the Supreme Court’s repeated instruction that longstanding prohibitions ‘on the possession of firearms by felons and the mentally ill, are presumptively lawful.”

The question this decision and the others raise is not whether – but rather when – the constitutionality of § 922(g)(1) will be settled by the Supreme Court.

United States v. Hunt, Case No. 22-4525, 2024 U.S. App. LEXIS 32089 (4th Cir., December 18, 2024)

– Thomas L. Root

ACLU Drops Lump of Coal in BOP’s Stocking – Update for December 24, 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.

CLASS ACTION SUIT CLAIMS BOP VIOLATING FIRST STEP ACT ON FSA CREDIT RELEASES

The ACLU last Friday sued the Bureau of Prisons on behalf of eligible prisoners who are being denied the full use of credits awarded under the First Step Act because of insufficient capacity to place them in halfway house or home confinement.

roomatinn241224The lead plaintiff is Vanessa Crowe, a prisoner whose FSA credits entitle her to transfer to halfway house or home confinement today, according to the complaint. Although she should be spending the night before Christmas somewhere where no BOP creatures are stirring, she has been told by the BOP that she will not be transferred until May 2025 because there simply is no room at the halfway house inn.

The New York Times reported last Friday, “Tens of thousands of federal prisoners deemed to be at low risk of committing crimes again have found themselves in a similar predicament, languishing in lockup for as long as a year after they reached their official release date under the First Step Act, which intended to create a fast-track pathway to release.”

Credits – usable to reduce sentence length by up to a year and to provide additional halfway house or home confinement time – are awarded to prisoners for successful completion of programming designed to reduce recidivism. Evidence after five years shows a significant reduction in recidivism among people who have completed the programs.

The BOP has previously acknowledged that the halfway house/home confinement system has been overwhelmed by the sheer number of people with FSA credits to spend. Last summer, BOP Director Colette Peters told a Congressional committee, “There’s a lot of frustration with the adults in custody… We simply don’t have the capacity in the community.”

The lawsuit recognizes the halfway house/home confinement problem but claims the BOP has responded by deeming inmates’ use of FSA credits “as optional, rather than compulsory,” the Times said. The complaint itself states

Although the FSA provides that any earned time credits ‘shall be applied’ toward time in prerelease custody or supervised release where certain conditions are met… the BOP’s regulation provides that the BOP ‘may apply FSA Time Credits toward prerelease custody or supervised release’ where certain conditions are met… The BOP’s practice is consistent with its regulations. The BOP has taken the position in litigation, and the BOP’s employees have stated in fact declarations, that the BOP has discretion over whether and when to apply earned time credits.

(The emphasis is mine, not the complaint’s).

VanessacoalBOP241224The complaint seeks to represent as a class “all incarcerated people who have earned or will earn time credits under the First Step Act, who meet or will meet the prerequisites for prerelease custody in 18 USC 3624(g)(1), and who have not been or will not be transferred to prerelease custody on or before the date when their time credits equal their remaining sentences.”

The Times said BOP “officials did not immediately respond to a request for comment.”

New York Times, U.S. Prisons Flout Law by Keeping Inmates Past Release Date, A.C.L.U. Says (December 20, 2024)

Complaint, Crowe v. BOP, Case No 1:24-cv-03582 (D.D.C., filed December 20, 2024)

– Thomas L. Root

Death Takes a Christmas Holiday – Update for December 23, 2024

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BIDEN CLEANS OUT DEATH ROW SO TRUMP CAN’T

death170602President Biden this morning commuted the death sentences of 92.5% of those on federal death row, converting the sentences of 37 men to life without parole less than a month before Donald J. Trump will return to the Oval Office with a promise to restart legally sanctioned killing.

Only three men, each a mass killer in crimes with special circumstances, will remain on federal death row. Robert D. Bowers, 52, murdered 12 Jewish worshippers at the Tree of Life Synagogue in Pittsburgh. White supremacist Dylann Roof, 30, murdered nine black worshippers at a Charleston, SC, church Charleston, S.C., in 2015; and Dzhokhar Tsarnaev, 31, is the survivor (for now) of the two brothers behind the Boston Marathon in 2013 that killed three and injured more than a dozen others. Tsarnaev’s attack was ultimately held to be terrorism-related.

Biden said in a statement, “Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole. These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder.

Biden promised during his 2020 presidential campaign to end the federal death penalty. Although legislation he backed failed to advance in Congress during his administration, Biden directed the Dept of Justice Department to issue a moratorium on federal executions, a stark contrast to Trump’s frenzy of 13 executions in a 6-month period in 2020-2021.

death200623The Bureau of Prisons had to transfer extra personnel from around the system to USP Terre Haute for the executions, a step that became a COVID superspreader event for the federal prison system as the personnel carried the virus back to their home institutions, where it galloped through staff and inmate ranks.

Biden was a longtime advocate for the death penalty, having claimed to have personally written in death as a maximum sentence for a variety of federal crimes in the Violent Crime Control and Law Enforcement Act of 1994. Even during the moratorium of his current term, DOJ has sought the death penalty in a case where a 34-year-old Uzbekistan native ran down cyclists and joggers with a truck in New York and in the 2022 Buffalo Tops Family Market mass shooting in which an 18-year-old white supremacist murdered 10 black shoppers.

death200330A broad collection of groups and people opposing the death penalty — including civil rights groups, religious organizations, current and former law enforcement officials, ex-prison workers and murder victims’ relatives — had called on Biden to commute the federal death sentences. Nevertheless, the predictable outrage against the commutation began within hours of the announcement, with the New York Post already trumpeting that “Biden commutes death sentences of child killers and mass murderers 2 days before Christmas.”

Biden continues to promise that “[i]n the coming weeks, the President will take additional steps to provide meaningful second chances and continue to review additional pardons and commutations.”

New York Times, Biden Commutes 37 Death Sentences Ahead of Trump’s Plan to Resume Federal Executions (December 23, 2024)

Washington Post, Biden commutes most federal death sentences before Trump takes office (December 23, 2024)

White House, Statement of President Joe Biden (December 23, 2024)

– Thomas L. Root

No Christmas Treats for Prisoners from Sentencing Commission – Update for December 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.

SENTENCING COMMISSION ROLLS OUT MINIMALIST 2025 AMENDMENT PROPOSAL

The United States Sentencing Commission yesterday adopted a slate of proposed amendments to the Federal Sentencing Guidelines for the amendment cycle that will end on or before May 1, 2025, with the adoption of amendments to become effective next November.

Anyone who thought the Commission might roll out a proposal to no longer enhance methamphetamine sentences because of purity – something that US District Judge Carlton Reeves (who is currently chairman of the USSC) ruled from the bench two years ago makes no sense – was disappointed (but see below).

lumpofcoal221215Likewise, any federal prisoners hoping for a resolution to last August’s surprise decision to table retroactivity for four amendments that became effective last fall just found coal in their stockings. The Commission had proposed retroactivity for changes in Guidelines covering acquitted conduct, gun enhancements, Guidelines calculation where a defendant is convicted of an 18 USC § 922(g) felon-in-possession count, a 21 USC § 841 drug trafficking count and a separate 18 USC § 924 gun conviction; and a change in the drug Guidelines to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that inflate sentencing ranges.

Generally, changes in the Guidelines do not apply to people who have already been sentenced, but Guideline 1B1.10 addresses the rare occasions where a Guideline change is retroactive, providing prisoners already sentenced with a chance for a time reduction.

I wrote at the time that the Commission was perhaps responding to criticism heaped on it for adopting amended Guideline 1B1.13(b)(6), which permits judges to grant compassionate release where a prisoner’s sentence could not be imposed today because of changes in the law that occurred after the sentence was imposed. After the Commission adopted the amended 1B1.13 in April 2023, Sens John Kennedy (R-LA), Ted Cruz (R-TX), John Cornyn (R-TX), Tom Cotton (R-AR) and Marco Rubio (R-FL) introduced the Consensus in Sentencing Act (S.4135) to require the Commission to achieve “bipartisan agreement to make major policy changes” by ”requiring that amendments to the Guidelines receive five votes from the Commission’s seven voting members.”

whine160814At the time, Kennedy complained that “[i]n recent years, the Commission has lost its way and begun forcing through amendments on party-line votes.” The Commission has seven voting members. No more than four members can belong to the same political party.

S.4135 never went anywhere, and it will die with the end of the 118th Congress in 10 days or so. Nevertheless, last June, retired US District Judge John Gleeson, a member of the Commission, met with Kennedy and – according to the Senator – “acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.”

“I look forward to seeing the fruits of this commitment,” Kennedy said at the time.

The Commission is now seeking to harvest those fruits by issuing a request that the public comment on whether “it should provide further guidance on how the existing criteria for determining whether an amendment should apply retroactively are applied” and “[i]f so, what should that guidance be? Should it revise or expand the criteria? Are there additional criteria that the Commission should consider beyond those listed in the existing Background Commentary to § 1B1.10?”

The answer to whether there should be additional criteria is self-evident, especially because the same players (except for Rubio, leaving Congress for a position in President-elect Trump’s Cabinet) will be back in the Senate.

usscretro230406What the Commission decides will only partially address the Senators’ principal beef against any USSC proposal that passes on a 4-3 vote (at least until the Republicans again hold a majority on the Commission).

Third Circuit Judge L. Felipe Restrepo’s USSC term expires next October, the earliest chance Trump will have to tip the balance of the Commission to conservative. Given that Trump’s previous nominees to the Commission (never approved by the Senate) included US District Judges Danny Reeves and Henry “Hang ‘em High” Hudson, the likelihood that 4-3 Commission decisions will start looking good to Kennedy, Cruz and the others is fairly high.

Other USSC proposals for the amendment cycle include

• creating an alternative to the “categorical approach” used in the career offender guideline to determine whether a conviction qualifies a defendant for enhanced penalties;

• addressing the guidelines’ treatment of devices designed to convert firearms into fully automatic weapons (Glock switches and drop-in auto sears);

• adding a provision to the use of a stolen gun enhancement that requires that the defendant knew the gun was stolen; and

• resolving a circuit split on whether a traffic ticket in an “intervening arrest” that can serve to bump up criminal history.

Public comments are due by February 3, 2025, with replies due by February 18, 2025.

alicecuriouser230317Curiously, Judge Reeves said, “Over the next month, the Commission will consider whether to publish additional proposals that reflect the public comment, stakeholder input, and feedback from judges that we have received over the last year – including at the roundtables we have held in recent months on drug sentencing and supervised release.”

Whether this is a teaser that changes in the Commission’s approach to meth will be on the table is unclear.

Sentencing Commission meeting video (December 19, 2024)

Sentencing Commission Public Hearing (Video) (August 8, 2024)

Sentencing Commission, Final Priorities for Amendment Cycle (August 8, 2024)

S.4135, Consensus in Sentencing Act

Sen John Kennedy, Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines (June 3, 2024)

USSC, Issue For Comment: Criteria for Selecting Guideline Amendments Covered by §1B1.10 (December 19, 2024)

USSC News Release, U.S. Sentencing Commission Seeks Comment on Proposals to Promote Public Safety And Simplify Federal Sentencing (December 19, 2024)

USSC, Summary of Proposed 2025 Amendments (December 19, 2024)

– Thomas L. Root

Making Them Pay – Update for December 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.

BOP TO PAY 115 MEGABUCKS TO 103 FCI DUBLIN VICTIMS

Misny241218The Federal Bureau of Prisons continues to try to bring the horrific saga of the FCI Dublin “Rape Club” to an end by agreeing to settle dozens of lawsuits brought by women prisoners who were victimized by sexual abuse – including rape – by BOP staff at the now-permanently closed women’s prison.

The settlement, announced Tuesday, will apportion $115 million among 103 victims, paying an average of $1.1 million to each victim. Along with a proposed consent decree in a separate class action addressing the abuse and retaliation against those who spoke up about it, announced December 6, the settlement will close most (but not all) of the pending FCI Dublin litigation (lawsuits which up to now have been vigorously defended by a government unwilling to shoulder responsibility for the culture at the former women’s facility)

“I hope this settlement will help survivors, like me, as they begin to heal – but money will not repair the harm that BOP did to us, or free survivors who continue to suffer in prison, or bring back survivors who were deported and separated from their families,” former prisoner Aimee Chavira said in a statement released by her attorneys. “And money will not stop prison officials from continuing to abuse incarcerated people. I am speaking out to demand justice for all survivors of prison abuse, and to show other survivors that we can stand up against this culture of abuse together. Our government can and must take real action to make sure that no one else suffers like we did at FCI Dublin.”

The BOP, after years of fighting prisoner claims of sexual abuse and retaliation at the Dublin prison – located 25 miles southeast of San Francisco Bay – said Tuesday that it

strongly condemns all forms of sexually abusive behavior and takes its duty seriously to protect the individuals in our custody as well as maintain the safety of our employees and community… The FBOP is dedicated to appropriately addressing the consequences of sexually abusive behavior at FCI Dublin [and] remains committed to rooting out criminal behavior and holding accountable those who violate their oath of office.

Uh-huh.  Message: The BOP cares about its Adults In Custody. See here and here if you don’t believe me. Or just ask “Dirty Dick.”

femalesexprisoner241219Since 2021, at least eight FCI Dublin employees have been charged with sexually abusing inmates. Five pleaded guilty. Two were convicted at trial. Another case is pending. Virtually all FCI Dublin inmates were transferred to other institutions in an unannounced “fire drill” movement last April that generated multiple reports of retaliation and cruelty by BOP employees. Some former FCI Dublin inmates report that they have been the victims of similar misconduct at other institutions, according to the Associated Press.

The Dublin scandal was among the catalysts for passage of the Federal Prison Oversight Act last July, which establishes an independent ombudsman to field and investigate complaints by prisoners, their families, and staff about misconduct and deficiencies. It also requires that the Dept of Justice inspector general conduct regular inspections of all 122 federal prison facilities, issue recommendations to address deficiencies and assign each facility a risk score. Higher-risk facilities would receive more frequent inspections.

Associated Press, US to pay nearly $116M to settle lawsuits over rampant sexual abuse at California women’s prison (December 17, 2024)

Rosen Bien Galvan & Grunfeld, Over 100 Survivors of Staff Sexual Violence at FCI Dublin Reach Historic $115M Settlement With Bureau of Prisons (December 18, 2024)

Federal Prison Oversight Act, Pub.L. 118-71 (July 25, 2024)

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– Thomas L. Root

Sorry Seems to be the Hardest Word – Update for April 18, 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.

BOP ROLLS OVER IN DUBLIN SUIT

Sir Elton was right: “Sorry” has been such a hard word to get out that the Federal Bureau of Prisons has fought hammer and tong for over 16 months to avoid having to accept responsibility for the horrendous mess that preceded the closing of FCI Dublin.

sorryA241218The BOP has finally agreed to a settlement in the FCI Dublin class action sexual abuse injunctive action lawsuit that will require the agency to open its doors to a court-appointed monitor and publicly acknowledge the systemic and rampant abuse of women at the permanently closed prison.

The BOP and plaintiffs filed a proposed consent decree that mandates increased transparency and key protections for victims, including eased routes for compassionate release and home confinement. BOP Director Colette S. Peters “will issue a formal, public acknowledgment to victims of staff sexual abuse at FCI Dublin” as part of the settlement.

Our apologies, rape victims. It’s just that we didn’t believe you because you were prisoners.

sorryC241218The BOP is getting a major concession in the consent decree, however. Originally, the class included “[a]ll people who are now, or will be in the future, incarcerated at FCI Dublin and subject to FCI Dublin’s uniform policies, customs, and practices concerning sexual assault, including those policies, customs, and practices related to care in the aftermath of an assault and protection from retaliation for reporting an assault.” As part of the consent deal, the Court is being asked to approve the “revised class definition of ‘all people who were incarcerated at FCI Dublin between March 15, 2024 and May 1, 2024, and all named Plaintiffs’.”

This change in definition eliminates from the protected class hundreds of inmates who passed through Dublin and experienced sexual abuse as far back as 2018.

Under the proposed consent decree, set for a February 25, 2025, hearing, the plaintiff class will be protected against retaliation, including a ban on putting class members in the SHU for low-level disciplinary matters. The BOP will also be required to expunge invalid disciplinary reports by FCI Dublin staff that, in some instances, may have been issued to punish or silence inmates.

sorryB241218The plaintiff class will also have confidential access to the court-appointed monitor, lawyers and community-based counselors to report abuse and consent decree violations.

Associated Press, Bureau of Prisons agrees to court monitor, public acknowledgment of staff-on-inmate sexual abuse (December 6, 2024)

California Coalition for Women Prisoners v. BOP, [Proposed] Order Granting Motion for Preliminary Approval of Proposed Consent Decree(ECF 438-4), filed Dec 6, 2024)

California Coalition for Women Prisoners v. BOP, Proposed Consent Decree (ECF 438-2), filed December 6, 2024)

– Thomas L. Root

Does Backlash on CARES Act Clemency Threatens Further Action? – Update for December 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.

IS THE BIDEN COMMUTATION WAVE BREAKING ON POLITICAL SHOALS?

As I reported last Thursday, President Biden granted clemency to nearly 1,500 Americans on CARES Act home confinement, people who the White House says “were placed on home confinement during the COVID-19 pandemic and who have successfully reintegrated into their families and communities.”

Biden has promised additional clemencies, and there is no shortage of candidates. But if he anticipated the congratulations of a grateful nation, hw ia probably disappointed.

clemencypitch180716In Pennsylvania, there’s a firestorm over one of those receiving commutation. Michael Conahan was convicted of funneling juvenile defendants to two private, for-profit detention centers in exchange for $2.1 million in kickbacks, a scandal known as “Kids-for-Cash.” That is, he took bribes to send kids to for-profit juvenile prisons with sentences disproportionate to their crimes He pleaded guilty to racketeering conspiracy and was sentenced in 2011 to 17½ years in prison. He was released to home confinement in Florida under the CARES Act in June 2020.

Sandy Fonzo, a mother who blames her son’s suicide on the emotional toll that being wrongly placed in detention exacted, said, “Conahan’s actions destroyed families, including mine, and my son’s death is a tragic reminder of the consequences of his abuse of power. This pardon feels like an injustice for all of us who still suffer.”

(Conahan was not pardoned. Rather, his sentence was commuted, but his conviction remains intact).

The Pennsylvania governor, Josh Shapiro, also condemned Biden’s decision, telling reporters that his fellow Democrat “got it absolutely wrong”, the Pennsylvania Capital-Star reported.

The Washington Post said:

For Biden, this is another unforced error. More broadly, it raises fresh questions about presidential clemency going too far and whether it should exist at all. There was outrage when former president Donald Trump pardoned allies such as Stephen K. Bannon, Paul Manafort and Charles Kushner, the father of his son-in-law. And there was outrage over Biden pardoning his son Hunter. It could all get even more outrageous if Biden grants preemptive pardons or Trump pardons the January 6 rioters.

Such dubious grants of presidential mercy reinforce a belief that America has a two-tiered justice system where the wealthy and connected fare much better than everyone else — and certainly better than the young people who came before Judges Conahan and Ciavarella in Luzerne County.

takethemoney191015Meanwhile, Biden has been blasted for commuting the sentence of an Illinois CARES Act confinee. A former city official in Illinois who orchestrated the largest municipal embezzlement in state history. Rita Crundwell—with four years to go on a 235-month sentence for fraud, is among the people granted clemency. Crundwell, who was taken out of Dixon, Illinois, city hall in handcuffs back in 2012, stole something like $53 million in city funds during her tenure as city comptroller.. She used the funds to pay for a lavish lifestyle that included raising champion quarter horses and buying a $2 million tour bus, jewels, furs, multiple homes and other trappings. All the while, the City of Dixon struggled to pay for infrastructure and other projects.

Meera Sachdeva, a former Mississippi oncologist, received clemency on her 20-year sentence handed down in 2012 for defrauding Medicare by providing diluted chemotherapy drugs and using old needles at her cancer clinic. Her clinic was said to be so unsanitary that multiple patients were admitted to local hospitals with infections after being treated there. One of Sachdeva’s patients claimed to have contracted HIV because of old needles.

The Washington Free Beacon said in a review of those who received clemency that “many of the recipients were serving sentences for serious crimes.”

Advocacy groups have been calling for a broad range of additional clemency grants, including for people on federal death row and with marijuana convictions. Biden has previously issued blanket pardons for those convicted of minor marijuana-related crimes, but those didn’t make any federal inmates eligible for release, because none of the recipients was in prison.

Rachel Barkow, a New York University law professor and expert on federal clemency, said during an Ohio State clemency conference that commuting the sentences of those on CARES Act home confinement is “low-hanging fruit” because they’re already out of prison.

Barkow expressed concern last Wednesday, the day before the clemency was announced, that CARES Act commutation would be the limit of Biden’s clemency actions. “I’m a little worried that he’s only going to do that and he’s going to try to make it out like that’s some big deal when that’s not a big deal at all. That’s not even the bare minimum,” she said. The hue and cry from both sides of the aisle—focusing on individual cases rather than the common-sense commutation of the entire cohort—could make Biden shy away from anything further.

clemency170206At the same time, the CARES Act clemency was unreasonably opaque, leaving out some people with perfect home confinement records and unremarkable crimes while including people whose offenses – like the kids-for-cash judge and the horse-breeding embezzler – whose commutations sparked predictable media anger. I am aware of at least three people – including a woman who was raped at FCI Dublin but is now on CARES Act home confinement – who were omitted from the list without explanation.

Nevertheless, Biden continues to come under intense pressure from a coalition of civil rights, criminal justice, and religious groups urging him to grant relief to several classes of federal offenders, including the 40 people on federal death row and nonviolent drug offenders.

Last week, faith leaders – including black pastors, Catholics, former corrections officials, civil rights advocates, and current and former prosecutors – called on Biden to commute all federal death row sentences before Trump, who supports capital punishment, takes office.

Others are calling for commutation of sentence for women who suffered sexual abuse at FCI Dublin. “We all just feel so passionately that if Biden can pardon his son, he can definitely grant clemency to survivors of this heinous abuse by federal government employees,” former Dublin prisoner Kendra Drysdale told The Guardian.

jan6riot241216Meanwhile, President-elect Trump told Time Magazine last week that he would offer clemency to most of the rioters who stormed the Capitol. “It’s going to start in the first hour,” he said. “Maybe the first nine minutes.” However, in a filing in a DC sentencing last week, the government warned that a “pardon would not unring the bell of conviction. In fact, quite the opposite. The defendant would first have to accept then pardon, which necessitates a confession of guilt.”

Harrisburg, WBRE-TV, ‘Kids for Cash’ victim reacts after Biden commutes sentence for Pennsylvania judge (December 13, 2024)

Sauk Local News Network, Biden commutes prison sentence of Rita Crundwell, former comptroller who embezzled $53M from city of Dixon (December 12, 2024)

Washington Free Beacon, Drug Lords, Ponzi Schemers, and Corrupt Officials: Meet Joe Biden’s Clemency Recipients (December 13, 2024)

Daily Beast, Mom’s Outrage Over Biden’s Presidential Clemency for Corrupt Kids-for-Cash Judge and Cohort (December 13, 2024)

Newsweek, She Stole Millions From Taxpayers to Buy Show Horses. Biden Set Her Free (December 13, 2024)

The Hill, Who are the people convicted in Capitol Riot Trump could pardon? (December 14, 2024)

Reason, Biden Issues More Pardons and Commutations Under Pressure From Criminal Justice Groups (December 12, 2024)

Newsweek, Could Joe Biden Pardon Everyone on Death Row? (December 10, 2024)

Guardian, US shuts down prisons amid scrutiny over sexual abuse and crisis of suicides (December 5, 2024)

– Thomas L. Root