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Election Leads to Legislative Uncertainty for Pot Reform – Update for November 11, 2022

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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.

HOPE FOR MARIJUANA REFORM IN CONGRESS DIMS, BUT POT PROGNOSTICATORS SEE A TWO-YEAR HORIZON FOR RESCHEDULING

marijuana-dc211104The Republicans own the House, the Democrats own the Senate. That seems to be the likeliest scenario right now. In the House, the Republicans need seven more seats of the still-contested seats, the Democrats need 26. In the Senate, the Republicans and Democrats each need two of the three yet-undecided races.

A divided 118th Congress is the likeliest outcome. Even so, Marijuana Moment reports, “there would still a range of legislative possibilities for cannabis reform, including (most optimistically) descheduling.”

Because key players like Senate Majority Leader Chuck Schumer (D-NY) and Senate Finance Committee Chairman Ron Wyden (D-OR) are likely to retain their positions and are dedicated to marijuana reform, “they have pretty good leverage over the House if they want to bring them to the table on the issue,” Marijuana Moment reported.

But the Senate is even more unlikely to force a Republican-controlled House to take up a comprehensive legalization bill such as the Cannabis Administration and Opportunity Act (CAOA), S.4591, that the Democrat-controlled House has been to convince the Senate to take up the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, H.R. 3617.

marijuana220412There still could be some Congressional action in the upcoming lame-duck session – which begins on Monday for 17 legislative days before the end of the year – but it’s likely President Biden will want to ramrod as many as his initiatives as he can while he still owns both houses of Congress.

Nevertheless, marijuana advocates among the House membership has scheduled a hearing for Tuesday to discuss bipartisan marijuana reform issues at the federal and state level.

The House Oversight Civil Rights and Civil Liberties Subcommittee posted a notice of the meeting on Tuesday, as voters in states across the country head to the polls to decide on cannabis legalization ballot measures.

The congressional meeting, titled, “Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level,” will take place on November 15. Witness have not yet been announced.

It’s not clear if the hearing will focus on any specific pieces of federal marijuana reform legislation, but Rep. Nancy Mace (R-SC), who serves as the GOP ranking member on the panel, previously told Marijuana Moment that she had received a “promise” from leadership that her States Reform Act (SRA), H.R. 5977, would be taken under consideration in the panel.

marijuana221111That legislation would end federal marijuana prohibition while taking specific steps to ensure that businesses in existing state markets can continue to operate unencumbered by changing federal rules. National Law Journal reported last week that a panel of legal experts it consulted marijuana will be re-scheduled as a Schedule II or III drug by January 20, 2025.

Early last month, President Biden ordered government agencies to study removal of marijuana from the Controlled Substances Act drug schedule.

One expert said it is unlikely cannabis will be descheduled altogether. “I don’t think the federal government will be ready by then to relinquish control over a drug it has categorized by the CSA as one of the most dangerous drugs on the streets for over 50 years.”

Marijuana Moment, Here’s What The Midterm Congressional Election Results Could Mean For Federal Marijuana Reform (November 10, 2022)

Marijuana Moment, Congress Will Hold A Marijuana Hearing One Week After Five States Vote On Legalization Ballot Measures (November 8, 2022)

National Law Journal, Editor’s Roundtable: A New Biden Doctrine? (October 31, 2022)

– Thomas L. Root

‘You Can’t Just Make Stuff Up,’ Two Courts Tell BOP – Update for November 10, 2022

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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.

TWO EARLY HABEAS DECISIONS ON FSA CREDITS AND DETAINERS ARE POSITIVE

maketherules221110The Federal Bureau of Prisons has been refusing to award earned-time credits (ETCs) for prisoners who complete evidence-based programs to reduce recidivism (EBRRs) where the inmates have detainers, whether for immigration, pending charges or other sentences to be served. Challenges to the practice are in their early stages, but right now decisions on the merits stand at prisoners 2, BOP 0.

Explainer: When another agency or court wants a prisoner – either for service of a sentence, a pending charge, or so it can start deportation proceedings – a “detainer” is filed with the prison authority informing it that the prisoner is to be turned over to the detaining entity when his or her sentence is complete.

The BOP honors detainers, and refuses to place prisoners with detainers in minimum-security camps or send them home to halfway houses or home confinement at the end of their sentences.

When Congress passed the First Step Act, there was an 11th-hour flurry of amendments that severely narrowed the number of prisoners eligible to get credit for completing EBRRs. Prisoners whose crimes included carrying guns, fentanyl, certain leadership roles, sex offenses… by the time Republican fire-breathers like Ted Cruz and Tom Cotton were done, at least 64 different categories of prisoner were excluded from the ETC program, constituting about half of all federal prisoners.

But their programming penuriousness has a flip side: by detailing so many exclusions, Congress strongly implied that the BOP had not been delegated any authority to concoct its own list of additional exclusions.

Notably, the ETC exclusions mention nothing about detainers.  But that hasn’t stopped the BOP from asserting that it has the discretion to declare the inmate ineligible for early release “because the BOP is entitled to interpret the FSA to allow it to deny application of earned ETCs to those federal inmates who have pending criminal charges or a detainer.”

The very early returns are in, and the BOP is losing. In a California district court case, the BOP declared an inmate with low recidivism ineligible to have his earned ETCs applied to his sentence due to two pending Missouri criminal cases. The BOP told the court that the agency has the discretion to declare the inmate ineligible for early release “because the BOP is entitled to interpret [First Step] to allow it to deny application of earned ETCs to those federal inmates who have pending criminal charges or a detainer.”

words221110The magistrate’s recommended decision in Jones v. Engleman rejected the BOP’s position, holding that it is fundamental that a statute’s “words generally should be interpreted as taking their ordinary, contemporary, common meaning at the time Congress enacted the statute. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always give effect to the unambiguously expressed intent of Congress.”

“Here,” the Magistrate Judge ruled, “there are no such interstices, because the relevant portions of the [First Step Act] are not ambiguous or incomplete and Congress’s intent is clearly expressed through mandatory statutory language. The language of the [First Step Act] shows that Congress made a conscious choice to do three things. One, by its use of ‘shall be applied’ and ‘shall transfer”‘language in Section 3632(d)(4)(C), Congress made the application of earned ETCs to effect early release mandatory for prisoners “eligible” under Section 3624(g). Two, by Section 3624(g), Congress spelled out the prerequisites for a prisoner to be ‘eligible,’ which have been described earlier and do not contemplate any additional criteria or precondition to release akin to the Pending Charges Exclusion. Third, by Section 3632(d)(4)(C), Congress explicitly determined which prisoners are “ineligible” to have the [First Step Act]’s ETC and early release provisions applied to them, and none of these expressly delineated categories include prisoners who have pending charges or detainers.”

(After the Jones v. Engleman recommended decision, the BOP decided that inmate Jones didn’t have a detainer after all, so the District Court did not adopt that part of the recommended decision  due to mootness).

myrules221110In a New Jersey case, an inmate with a pending Pennsylvania parole detainer was denied his ETCs because under BOP rules, he was ineligible for halfway house or home confinement due to the detainer. The District Court ruled that the First Step Act’s list of prisoners ineligible for ETCs left no room for the BOP to add other categories. The Court held:

If… the warden determines that Petitioner’s earned TCs should be applied to early supervised release, rather than prerelease custody to a residential reentry center or home confinement, there is no statutory provision or BOP regulation that precludes application of TCs toward early supervised release of prisoners who have state detainers lodged against them. As Petitioner suggested, the provisions regarding detainers in BOP Program Statement 7310.04 apply only to prerelease custody to residential reentry centers and home confinement. As Respondent points out, however, supervised release is different because it does not involve BOP custody…

There is bound to be much more litigation over whether the BOP may deny prisoners with detainers from using ETC credits for shortened sentences. These early decisions suggest that courts will be skeptical of BOP efforts to expand the list of people being denied ETCs.

Jones v. Engleman, Case No 2:22-cv-05292, 2022 U.S.Dist. LEXIS 185635 (C.D. Cal., Sept. 7, 2022)

Jones v. Engleman, Case No. 2:22-cv-05292, 2022 U.S.Dist. LEXIS 185029 (C.D. Cal., Oct. 7, 2022)

Moody v. Gubbiotti, Case No 21-12004, 2022 U.S.Dist. LEXIS 181399 (D.N.J., Oct. 3, 2022)

– Thomas L. Root

Some BOP Tidbits From Last Week – Update for November 8, 2022

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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.

LAST WEEK IN THE BOP

sexualassault211014Deputy Attorney General Lisa Monaco told Department of Justice  officials last Wednesday that prosecutors must use “all available tools” to hold BOP employees who sexually abuse women in their custody accountable, including employing a new law that has a maximum sentence of 15 years.

“The Department’s obligation to ensure the safety and wellbeing of those in our custody is enduring,” Monaco wrote. Her memo, obtained by NPR, “follows a high-level review this year that uncovered hundreds of complaints about sexual misconduct by Bureau of Prisons employees over the past five years, but only 45 federal prosecutions during that same period.”

The working group identified weak administrative discipline against some prison workers — and flaws in how prosecutors assessed reports of abuse.

Meanwhile, Sen. Richard Durbin (D-IL), chairman of the Judiciary Committee, issued a statement that last week’s “DOJ report on pervasive sexual abuse in our nation’s federal prisons is evidence of the desperate need for reform. The new Director, Colette Peters, needs to show resolve and Congress needs to back her efforts to clean up this sorry mess.”

peters220929BOP Director Colette Peters continued her charm offensive last week, sitting for a lengthy interview with Government Executive magazine. Despite the DOJ Inspector General’s report the week before criticizing the BOP for reflexively disbelieving inmates and whitewashing staff misconduct, Peters said, “We are partnering with the inspector general. I’ve met with him multiple times now to ensure that we’re holding individuals accountable. I’ve met with the U.S. attorneys and asked the same thing: that they take these employee cases very seriously, both because those individuals need to be held accountable, but the person working next to that individual needs to know that their work is valued and that when people are making bad choices, that they’ll be held accountable, so that the employee remaining is safe and secure.”

Peters noted that the BOP will fill 40 additional in its Office of Internal Affairs to address sexual assault backlogs.

Peters also told Government Executive, “[T]here’s a huge perception out there that [First Step Act] implementation didn’t happen or didn’t happen when it was supposed to. But as I review the outcomes and the deliverables we’ve delivered, the programming is happening…While there might have been bumps along the way, the agency has been working really hard to ensure that [First Step Act] implementation happens both at headquarters and in the institutions.”

ombudsman221108I reported last month that Sens Jon Ossoff (D-GA) and Mike Braun (R-IN) had introduced legislation, the Federal Prison Oversight Act (S. 4988) that would establish an independent DOJ ombudsman to investigate the health, safety, welfare, and rights of BOP inmates and staff and create a hotline for relatives and representatives of inmates to lodge complaints. A companion bill, H.R.9009, was introduced in the House by Rep. Lucy McBath (D-GA).

A week ago, Sen. Ossoff told Capital Beat News Service that the bill’s prospects for passage during the Congressional lame-duck session after this week’s mid-term elections “are favorable because it has bipartisan support.”

NPR, Guards who sexually abuse inmates haven’t been punished harshly enough, DOJ memo says (November 3, 2022)

Office of Richard Durbin, Durbin Statement On New Report On Sexual Misconduct By Bureau Of Prisons Staff (November 4, 2022)

Government Executive, We’re Not ‘Shawshank Redemption’: New Federal Prisons Director Tackles the Bureau’s Reputation (November 2, 2022)

Capital Beat News Service, U.S. Sen. Jon Ossoff sees ‘signs of improvement’ at Atlanta federal penitentiary (October 26, 2022)

– Thomas L. Root

There are Three Sides to Every Story in Jones v. Hendrix Argument – Update for November 7, 2022

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

A CONSEQUENTIAL SUPREME COURT ARGUMENT

The Supreme Court (SCOTUS) heard oral argument last Tuesday in Jones v. Hendrix, probably the most important federal criminal case of this Court year. No matter what a federal prisoner might have been convicted of, the outcome of Jones may affect his or her ability to get relief if a higher court someday reinterprets the statute of conviction in a way to make the inmate innocent of the offense.

The problem seems simple enough: Say you were convicted in 2010 of marijuana possession, a low-level state felony. You got probation. Six years later, the Feds convict you of being a felon in possession of a gun (violation of 18 USC § 922(g)(1)).

gamesetmatch221107After conviction, you file a post-conviction habeas corpus motion under 28 USC § 2255, arguing that because the state legislature had amended the marijuana statute you had violated a year after you were convicted, you thought you were no longer a felon. But at the time you file your § 2255 motion, the law in your Circuit (just like the law in every other Circuit in the nation) says whether you knew you were a felon doesn’t matter. The district court denies your § 2255 motion, and the Court of Appeals refuses to grant you a certificate of appealability.

Game, set, match.

But then, a year later, SCOTUS holds in Rehaif v. United States that whether you knew you were a felon when you possessed the gun really does matter. Rehaif changed how every court in the country was interpreting § 922(g), but 28 USC § 2244 – the law governing your right to file a second § 2255 motion in order to take advantage of Rehaif – only lets you do so if a constitutional issue is involved.

So there is no way to get the right to file a second § 2255, and so you sit – innocent of breaking the law but in prison anyway – without recourse.

Not so fast. There is a “saving clause” subsection, 28 USC § 2255(e), that lets you bring your Rehaif claim in a 28 USC § 2241 petition for habeas corpus if the § 2255 “remedy… is inadequate or ineffective to test the legality of [your] detention.”

Jones v. Hendrix explores precisely when it is that the § 2255 remedy becomes “inadequate or ineffective to test the legality” of a conviction. Many circuits hold that the saving clause permits you to bring a § 2241 petition when you have already brought a § 2255 and when a subsequent change in statutory interpretation means you are actually innocent of your conviction.

In the past, the § 2255(e) saving clause has gotten prisoners out from under 18 USC § 924(c) convictions after the 1995 Bailey v. United States decision reinterpreted that statute, from money laundering convictions after SCOTUS’s 2008 United States v. Santos decision redefined money laundering, and drug sentence enhancements after the 2011 4th Circuit United States v. Simmons decision, to mention just a few.

But a few Circuits – such as the 8th, 10th and 11th – have held that a § 2255 is not an ineffective remedy as long as the prisoner could have raised the same issue in his or her § 2255 motion, even if all of the law in all the circuits foreclosed the claim.

guns200304That’s what happened to Marcus Jones. He was convicted of felon-in-possession well before Rehaif was decided, but his jury was never told that the government had to prove he knew about his prohibited status. Only after Marcus lost his § 2255 motion (in which he did not raise the jury issue because every circuit in America held that such an instruction was unnecessary) did the Supremes decide Rehaif.

After Rehaif was handed down, Marcus filed a § 2241 petition that claimed he was innocent of the felon-in-possession offense because he thought his eleven prior felonies had been expunged. His district court and later the 8th Circuit held that Marcus could have raised the jury instruction claim in his § 2255 motion despite the futility of doing so, and therefore the § 2255 was not an ineffective remedy. Therefore, the 8th said, the § 2255(e) saving clause would not let Marcus file his § 2241 petition.

By the time SCOTUS got the case, the Dept of Justice refused to support the 8th Circuit’s reasoning. That meant the Supremes heard three arguments last week. Marcus’s lawyer argued that § 2255 is not an effective remedy if the law of the circuit dooms the petitioner’s argument right out of the gate. The Government agreed but said that the saving clause should apply only where all of the evidence – not just what was put into the record – showed the petitioner was actually innocent, (the government’s position being that Marcus might have believed one felony had been expunged, but not that all eleven had been).

The Supreme Court appointed an attorney to argue the third argument, the 8th Circuit’s position. That lawyer contended that Congress meant what it said in § 2244, and if a change in statutory interpretation was intended to justify another stab at post-conviction relief just like a constitutional decision does, Congress would have said so.

gordianknot221107Justices Sotomayor, Kagan, and Jackson appeared to be doing the most at last week’s oral argument “to untangle the Gordian knot,” according to SCOTUSBlog, “[t]he court’s conservative majority [being], by comparison, relatively muted.” Nevertheless, Justices Alito and Barrett joined Justice Jackson in “pepper[ing] the DOJ lawyer “with questions about how the government’s reading would work in practice and how a district court would apply it to a variety of scenarios beyond a Rehaif claim.”

Whose argument the Justices will favor (if any of them) is unclear. As SCOTUSBlog put it, “In the Supreme Court’s habeas corpus jurisprudence, the answer is never simple.”

Oral Argument, Jones v. Hendrix (Case No. 21-857, November 1, 2022).

SCOTUSBlog, In habeas case, the liberal justices try to untangle a complex statute (November 2, 2022)

– Thomas L. Root

BOP Agrees to Do What It Always Should Have Been Doing – Update for November 4, 2022

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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.

LOMPOC COVID CLASS ACTION SUIT SETTLES

release161117The two-year-old class action lawsuit against the Federal prison complex at Lompac, California, over COVID mismanagement ended last week with a stipulation by the parties that the Federal Bureau of Prisons will transfer eligible inmate class members to CARES Act home confinement in accordance with an earlier preliminary injunction, with substantial weight given to COVID-19 risk factors and without denying anyone based solely on the amount of time served or the nature of a prior offense.

The BOP also agreed to perform daily symptoms checks for people placed in quarantine, screen inmate class members working in communal spaces for COVID-19 symptoms, and ensure that those isolated in the SHU are treated differently from those housed there for punitive reasons, including providing access to clocks, radio, reading materials, personal property, and commissary.

The inmate class lawyers, working pro bono from the LA office of the 340-lawyer firm Manatt, Phelps and Phillips, argued that the nature of overcrowded prison settings prevented social distancing or taking other recommended COVID precautions. They argued the BOP had failed to follow the Attorney General’s order to maximize the release of at-risk individuals to home confinement, thus violating their 8th Amendment rights.

As a result, the lawsuit alleged, the virus spread to 60% of those in custody, over 1,200 people at the overcrowded facility, The suit sought declaratory and injunctive relief for improved conditions of confinement, as well as a writ of habeas corpus for release.

deadcovid210914The Court issued a preliminary injunction in July 2020 requiring the BOP to immediately review a provisional class of people over 50 years old or who had underlying COVID morbidity health conditions for home confinement and to promptly transfer eligible people to their homes. Subsequent orders prohibited the BOP from denying people home confinement based solely on the basis of the amount of time served or the nature of a prior offense. About 250 people have been transferred to CARES Act home confinement from Lompoc since the preliminary injunction was issued.

In a related report, the Santa Barbara Independent reported last week that the estate of Mohamed Yusuf, who was serving the final year of a 132-month sentence at USP Lompoc when he died of COVID-19, is pursuing a wrongful death action against the prison for allegedly allowing him to die of COVID without providing proper medical care.

Yusuf was 37 years old, married with three children, and in “sturdy health” when he tested positive for the coronavirus on May 7, 2020, the lawsuit states. At the time, in the early days of the pandemic, the prison complex was experiencing a massive outbreak that ultimately killed five inmates and infected more than 1,200, more than any other BOP facility. The suit alleges that “while correctional staff knew of the Decedent’s dire need for help, they did not provide prompt and appropriate care and assistance, and some joked about the matter, going so far as to call the Decedent a ‘faker’ and a ‘wimp’.”

covidtest200420Why does any of this matter? The nation is bracing for another wave of COVID-19 just as a surge in new Omicron subvariants has raised concern among scientists. The Centers for Disease Control and Prevention released data last week showing that BQ.1 and its brother BQ.1.1 now account for over 10% of US cases, while BF.7 accounts for another 5%.

“Within a few weeks, things could look upside down,” according to John Swartzberg, an infectious disease and vaccinology expert at the University of California, Berkeley. If the subvariants keep spreading at the same rate, they could overtake BA.5 as the nation’s most prevalent SARS-CoV-2 strain. Globally, mutations also include contenders such as the Omicron subvariant XBB, which is suspected of being able to evade vaccines.

Just this morning, The New York Times reported that the recent decline in Covid-19 cases across the United States has started to level off. “Coronavirus-related hospitalizations are ticking up in a number of states, including Arizona, Indiana, Illinois, Nevada, Nebraska, Oklahoma, South Dakota and Wisconsin. And there have been a variety of unnerving headlines about the immune evasion and increased transmissibility of the next round of coronavirus subvariants.”

BOP, Lompoc, COVIYesterday, White House chief medical advisor Dr. Anthony Fauci said the COVID deaths, which average more than 2,600 per week, remain too high. At the same time, he said, the new omicron variants are knocking out key tools used to protect the most vulnerable.

As of yesterday, the BOP reported that COVID was present in 70% of its institutions, with 238 inmates and 318 staff ill with the virus.

Order re Joint Motion for Approval of Settlement, ECF 863, Torres v Milusnic, Case No. 2:20cv4450 (C.D.Cal., October 11, 2022)

Manatt, Manatt Secures Settlement in Pro Bono Class Action Lawsuit For Prison Health and Safety (October 25, 2022)

Santa Barbara Independent, Estate of Terrorist Killed by COVID in Lompoc Prison Sues Warden, Staff (October 26, 2022)

National Geographic, Why Omicron subvariants BQ.1 and BQ.1.1 are poised to take over in the U.S. (October 18, 2022)

The New York Times, New Covid Variants Are Circulating. Here’s What to Know. (November 4, 2022)

CNBC, U.S. faces pandemic crossroads with Covid deaths still too high and new omicron variants emerging, Fauci says (November 3, 2022)

– Thomas L. Root

Sentencing Commission Rolls Up Its Sleeves – Update for November 3, 2022

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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.

USSC SETS GUIDELINE AMENDMENT PRIORITIES

The U.S. Sentencing Commission held its first meeting in 46 months last Friday, voting in a 20-minute session to adopt priorities for the Guidelines amendment cycle that ends Nov 1, 2023.

USSC170511The USSC lost its quorum due to term expirations of multiple members in December 2018, just as the First Step Act was signed into law. That meant the commission was unable to revise the Guidelines just as First Step changes required modifications that would have prevented conflicting judicial interpretations, especially in the application of 18 USC § 3582(c)(1)(A) sentence reduction motions, commonly called “compassionate release” motions.

The compassionate release statute requires judges to consult USSG § 1B1.13, Guidelines policy on granting compassionate releases, but § 1B1.13 was written for a time when only the Bureau of Prisons could bring compassionate release motions. Most but not all Circuits have ruled that § 1B1.13 is not binding on district courts until it is amended, but the 11th has ruled that it is binding, the 8th has studiously avoided deciding the question, and others – such as the  3rd, 6th and 7th – have held that district judges cannot consider First Step Act changes in sentencing law that would result in much lower sentences when deciding compassionate release motions.

U.S. District Judge Carlton Reeves (S.D. Mississippi), chairman of the Commission, said implementing the First Step Act through revisions to the federal sentencing guidelines would be the USSC’s “top focus.”

Other changes in the Guidelines, such as to the drug tables, could result from First Step’s lowering of drug mandatory minimums.

responsibility221103Additional priorities for the coming year include resolving circuit conflicts over whether the government may withhold a motion for a third acceptance-of-responsibility point just because a defendant moved to suppress evidence before pleading guilty and whether an offense must involve a substance actually controlled by the Controlled Substances Act to qualify as a “controlled substance offense,”

The USSC will also consider amendments to the Guidelines career offender chapter that would provide an alternative to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense.

First Step also made changes to the “safety valve,” which relieves certain drug trafficking offenders from statutory mandatory minimum penalties, by expanding eligibility to some defendants with more than one criminal history point. A USSC press release says the Commission “intends to issue amendments to § 5C1.2 to recognize the revised statutory criteria and consider changes to the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.”

marijuana220412The only addition to the Commission’s previously-published list of proposed priorities that came out of the meeting was consideration of possible amendments on whether, and to what extent, people’s criminal history for marijuana possession can be used against them in sentencing.

The cannabis item was added and adopted after President Joe Biden issued a mass marijuana pardon proclamation.

The Commission’s priorities only guide what it will be working on for the Nov 2023 amendment cycle. Expect amendment proposals by late January, followed by a public comment period, and final amendments by May 1. After that, the Senate has 6 months to reject any of the amendments (a very rare occurrence). Amendments not rejected will become effective Nov 1, 2023.

Reuters, Newly-reconstituted U.S. sentencing panel finalizes reform priorities (October 28, 2022)

US Sentencing Commission, Final Priorities for Amendment Cycle (October 5, 2022)

US Sentencing Commission, Commission Sets Policy Priorities (October 28, 2022)

Marijuana Moment, Federal Commission Considers Changes To How Past Marijuana Convictions Can Affect Sentencing For New Crimes (October 28, 2022)

– Thomas L. Root

Supremes Hear Saving Clause Argument Today – Update for November 1, 2022

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

SUPREME COURT TO HEAR 2255 SAVING CLAUSE ARGUMENT

Today, the Supreme Court will hear oral argument on the reach of 28 USC § 2255(e), the so-called saving clause.

In Jones v. Hendrix, the high court will consider whether a prisoner may use a 28 USC § 2241 habeas corpus petition to make a Rehaif claim – that he did not know he was subject to the proscription on possessing a gun or ammo – where he could have made the claim in a § 2255 motion years ago.

At least two circuits hold that where the issues could have been raised in the § 2255 motion – even though raising it would have been futile because Circuit precedent was totally against the argument – the saving clause will not let the prisoner file a § 2241 petition.

one-tripcar221101SCOTUSBlog said last week, “one suspects that the conservatives who joined the Rehaif majority… may nonetheless be open to concluding that prisoners like Jones cannot reap the benefit of their ruling. With rare exceptions, the court’s conservative majority has exalted finality over the fairness of individual proceedings – and did so long before the current 6-3 supermajority (as Justice Harry Blackmun noted in a dissent more than 30 years ago, “one searches the majority’s opinion in vain… for any mention of petitioner[]’s right to a criminal proceeding free from constitutional defect”). And though it will mean that defendants like Jones continue to serve time in prison for conduct that the court has said is not criminal, AEDPA’s bar on second or successive petitions provides a vehicle for that result. This car is good for just one ride.”

SCOTUSBlog, On the narrow road to challenge a federal conviction, when is a vehicle “inadequate”? (October 28, 2022)

– Thomas L. Root

Trick or Treat: The Sequel – Update for October 31, 2022

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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.

TRICK-OR-TREAT – PART 2 (IN WHICH BOP DIRECTOR IS HOPING FOR ‘CHOCOLATE HEARTS’ INSTEAD OF A THUG HUG)

What we kids used to call “Halloweening” (I know, it’s not really a verb, but a lot of non-verb words are being used as verbs these days) continues today.

hugathug221031BOP Director Colette Peters sat for her first national media interview last week, telling Associated Press reporters Michael Balsamo and Michael Sisak – who have covered BOP crises, scandals and miscues in detail for the past three years – that skeptics who denounce her approach to running a prison system “hug a thug” are simply wrong.

Peters didn’t mind that, but she offers a different term: “chocolate hearts.” Her ideal BOP employee, she said, is as interested in preparing inmates for returning to society after their sentences as they are in keeping order while those inmates are still locked within the prison walls. She said she wants to reorient the agency’s hiring practices to find candidates who want to “change hearts and minds” and end systemic abuse and corruption. She told the AP she would not rule out closing problematic prisons, though there are no current plans to do so.

chocolatehearts221031Chocolate hearts or the ‘Thug Squeeze’, Peters nevertheless is still dealing with problems she inherited when she took the director’s job last August, and those problems are many.

Trick: Ruben Montanez-Mirabal (Montanez), a nurse at FDC Miami, was indicted last week on charges of bribery, smuggling contraband into prison and possession with intent to distribute K2.

According to the indictment, Montanez posted Instagram photos of him in a Lamborghini, a Rolls Royce and a McLaren. When one person wrote back to Montanez about how much he was paying for these cars Montanez responded, “Absolutely nothing. It’s all about having the right contact.” The cars were owned by the inmate at FDC Miami who was cooperating with authorities.

Treat: Peters won praise from Sen. Jon Ossoff (D-GA) for her decision to join him in inspecting USP Atlanta last Wednesday.

“I want to be really clear, I’m not here to tell you the problems are solved,” Ossoff told reporters. “We saw encouraging signs of improved management and I heard a firm commitment from the new leadership to continue improving this facility and safeguarding public safety in the community.”

The BOP emptied USP Atlanta of prisoners a year ago amid reports of rampant staff corruption, decrepit facilities and drug use and contraband possession among inmates. “We saw encouraging signs of improved management and I heard a firm commitment from the new leadership to continue improving this facility and safeguarding public safety in the community,” Ossoff said. However, he warned, “I’m a long way from being prepared to declare that the problem has been solved.”

callback221031Trick: While Peters was getting lauded by Sen Ossoff, she was taking it on the chin in Fort Worth. The Fort Worth Star-Telegram, which has been covering staff abuse and miserable conditions experienced by the female inmates and conditions at FMC Carswell, the BOP women’s medical center in Fort Worth, asked Peters for an interview on September 7. A BOP spokesman declined on her behalf, saying Peters’ “schedule is very full her first few months, but we can re-visit this request in the future.”

To determine when Peters may be available, the Star-Telegram requested her appointment calendar through a Freedom of Information Act request. Last week, the newspaper reported that the BOP told it the FOIA request would take a while because it “must be searched for and collected from a field office.” One month later,” the Star-Telegram said, it “had not received Peters’ calendar.”

On October 11, the Star-Telegram again requested to speak with Peters regarding abuse at FMC Carswell. A BOP spokesperson once again said “the director’s schedule does not permit an interview at this time.”

Treat: The FCI Dublin sex abuse scandal is working its way toward resolution. Last Thursday, a former BOP corrections officer accused of sexually abusing inmates there pleaded guilty.

Enrique Chavez entered a plea to one count of abusive sexual contact with a prisoner. Chavez was a food service foreman there two years ago when he locked the door to the pantry and fondled an inmate.

Chavez was the fifth Dublin employee to be charged with sexual abuse of inmates since June 2021. Others include the prison’s former warden and a chaplain. He is the third to have pleaded guilty.

computerhaywire221031Trick: Auto-calc, the new BOP computer app created to automatically calculate inmates’ earned-time credits” suffered a technical glitch as it was launched earlier this month (only 60 days late).

Instead of recognizing inmates’ ETC credits, NBC News reported Friday, “some said the opposite occurred, which suddenly shifted their release dates to a later time than they had anticipated. In extreme cases, some prisoners already released to halfway homes were erroneously told that the new calculations indicated they were deficient in the necessary credits and they would have to return to prison.”

Director Peters told NBC News on Thursday that prisoners’ time credit calculations are now accurately reflected and it was “unfortunate we had some IT glitches as it rolled out.”

“When you move from a human calculation to an automation, you always hope that the error rate drops, and so that’s our hope as well going forward,” she said.

AP, US Bureau of Prisons chief pledges hiring reforms amid staffing crisis (October 25, 2022)

Forbes, Federal Prison FDC Miami Nurse Indicted On Contraband Charges (October 24, 2022)

WSB-TV, Atlanta’s federal penitentiary being inspected after inmates could come and go through holes (October 26, 2022)

Ft Worth Star-Telegram, Bureau of Prisons continues to evade questions about sexual abuse at Fort Worth prison (October  27, 2022)

Corrections1, Federal prison worker pleads guilty to inmate sex abuse (October 28, 2022)

NBC News, Tech glitch botches federal prisons’ rollout of update to Trump-era First Step Act (October 28, 2022)

– Thomas L. Root

Trick or Treat – Update for October 28, 2022

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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, a little early Halloween…

TREAT: SENATE BILL AIMED AT HELPING PREGNANT PRISONERS

treat221028Not that introduction of a bill this late in the Congressional season is much more than symbolism, but legislation introduced a few weeks ago by Sens Amy Klobuchar (D-MN) and Susan Collins R-ME) aims to improve care in federal prisons for pregnant and postpartum women and their babies.

The Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act (S.5027) would establish care standards for federal facilities across the country, requiring access to medical and mental health services, as well as education about parental rights and lactation.

The act would restrict when pregnant women can be placed in restrictive housing, ban the Bureau of Prisons and U.S. Marshal Service from placing pregnant women in solitary confinement during the third trimester, and require the BOP to evaluate pregnant women to determine if their pregnancy is high-risk.

Companion legislation in the House was introduced by Reps Karen Bass (D-CA) and Guy Reschenthaler (R-PA).

Sadly, the likelihood that this bill will be considered before the 117th Congress expires on January 2, 2023, is remote.

Gov’t Executive, Senate Bill Aims to Improve Care for Pregnant Women and Babies in Federal Prisons (October 18, 2022)

S. 5027, Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act

TRICK: IF AT FIRST YOU DON’T SUCCEED…

trick221028After Dan Kordash got caught at the airport by Customs and Border Protection officers after declaring he was carrying $12,000 in currency that turned out to be more like $33,000 (money which he forfeited), he was detained and questioned by CBP on at least two subsequent occasions. What’s worse, CBP officers told Dan that because of the money incident, he could count on always getting the third degree when he passed through the airport.

Dan filed Bivens claims against the CBP officers who detained him. The district court found that the officers had qualified immunity and dismissed the complaint. Not to be deterred, Dan then filed a Federal Tort Claims Act complaint for false imprisonment, battery, assault, intentional infliction of emotional distress, and negligence. The district court dismissed the new complaint as well for failure to state a claim, and Kordash appealed.

Last week, the 11th Circuit upheld the FTCA dismissal, holding that the doctrine of collateral estoppel meant that the Bivens suit determination that the officers acted lawfully in furtherance of federal policy should apply to the FTCA suit as well.

The 11th held that the issue in the FTCA case – whether the officers’ acts had a “nexus” with furthering federal policy and complied with federal law – was identical to the issue in the Bivens action. “In the Bivens action,” the Circuit said, “the district court determined for each incident when Kordash or Nilsen were stopped whether the officers acted within their discretionary authority and whether the detentions complied with federal law. Here, the same legal inquiries govern the application of the Supremacy Clause as a bar to liability for claims arising out of these incidents under the Federal Tort Claims Act.”

Because the issue met the test for issue preclusion, “Kordash is barred from relitigating these issues under the doctrine of collateral estoppel.”

Kordash v. United States, Case No. 21-12151, 2022 U.S.App. LEXIS 29420 (11th Cir., Oct. 21, 2022)

TREAT: MINNESOTA DRUG SALE STATUTES OVERBROAD

treatB221028The 8th Circuit ruled last week that because Minnesota’s definitions of “narcotic drug” and cocaine“ include drugs that the federal controlled-substance schedules do not, convictions under those statutes are not predicate “serious drug offense” under the Armed Career Criminal Act.

While the defendant was still convicted of a felon-in-possession count under 18 U.S.C. § 922(g)(1), his sentence exposure fell from 15 years to life all the way down to zero to 10 years.

United States v. Owen, Case No. 21-3870, 2022 U.S.App. LEXIS 28979 (8th Cir., Oct. 19, 2022)

– Thomas L. Root

“What We Have Here…” – Update for October 27, 2022

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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 A FAILURE TO COMMUNICATE


failuretocommunicate221027We Should Have Told You It Would Be On the Test: If email is any indication, not only did Federal prisoners receive First Step Act earned-time credits applied well after the credits were promised, but what was delivered was well short of what was reasonably anticipated.

Writing in Forbes last week, Walter Pavlo reported that although BOP Director Colette Peters told the Senate Judiciary Committee during her September 28 testimony that the agency’s new “auto-calc” program was already up and running, “it was not until the week of October 3rd that FSA credits started to be applied. As one prisoner told me, ‘I was expecting a year of credits and I got 4 months. I have no idea what happened’.”

Pavlo said that “what happened is that the calculator still has errors in it. Prisoners who were transferred to a halfway house after receiving an interim calculation of their sentence, were called in and told they would be returning to prison after the new calculation took away their year.”

Pavlo wrote, “One of the main factors that seems to be causing issues is that federal prisoners were told to complete a needs assessment survey when they first entered prison. The survey was part of the FSA in that it was meant to provide an assessment of the types of programs, needs, that the prisoner would address while in prison. The assessment was to be done on-line through an internal computer terminal that prisoners use for email communications with their families… What prisoners were not told was that the survey’s completion was a requirement to initiating the FSA credits. All of the prisoners I spoke to stated that they were never told of the survey’s importance nor could I find information about this in the FSA nor in any directive given to prisoners.”

Pavlo’s report is consistent with email complaints I have gotten from prisoners that no one ever suggested that the needs surveys served any necessary purpose.

Pavlo quoted Emery Nelson of the BOP is quoted as saying, “Completion of the self-assessment survey is only one factor which determines when an inmate begins earning FSA time credits.”

We’re Not Listening to You: The DOJ Office of Inspector General told BOP Director Colette Peters two weeks ago about an aspect of its recent investigation into sexual abuse of inmates by BOP employees that it found troubling.

dontbelieve221027“These concerns arose when the OIG recently inquired of the BOP’s Office of Internal Affairs (OIA)… about a disciplinary action taken by the BOP following an OIG investigation of alleged sexual abuse by a BOP employee. In response to our inquiry, we were told by OIA that, in cases that have not been accepted for criminal prosecution, the BOP will not rely on inmate testimony to make administrative misconduct findings and take disciplinary action against BOP employees, unless there is evidence aside from inmate testimony that independently establishes the misconduct…”

OIG told Director Peters that BOP’s refusal to rely on inmate testimony to make misconduct findings in administrative matters “is inconsistent with the fact that such testimony is fully admissible in criminal and civil cases, and creates significant risks for the BOP in its handling of administrative misconduct matters. Inmate testimony alone has been found sufficient, and with corroborating evidence is often found sufficient, to support criminal convictions of BOP employees, where the evidentiary standard is proof beyond a reasonable doubt. In short, inmates are not disqualified from providing testimony with evidentiary value in federal courts, and there is no valid reason for the BOP to decline to rely on such testimony… where the evidentiary standard is the preponderance of the evidence. In addition, the OIG found that in the context of sexual misconduct cases, BOP policy and federal regulations, specifically those DOJ regulations implementing the Prison Rape Elimination Act (PREA), require the credibility of an alleged victim to be assessed on an individual basis and not be determined by the person’s status as an inmate.”

After the OIG provided the Bureau of Prisons with a draft of its report, BOP quickly denied that it had ever said it didn’t believe inmates as a matter of policy.  The Inspector General was unimpressed:

However, contrary to this assertion, the statements made by the OIA to the OIG as reflected in this memorandum were made by OIA on multiple occasions. Moreover, as described later in this memorandum, we found that in cases where the OIG substantiated BOP employee misconduct relying on inmate testimony the OIA has, on more than one occasion, sent less serious findings to the BOP’s Employment Law Branch (ELB) and the BOP institution where the subject employee works.

So now who doesn’t believe whom?

Forbes, Bureau Of Prisons’ Failure To Communicate First Step Act (October 15, 2022)

DOJ Office of Inspector General, Notification of Concerns Regarding the Federal Bureau of Prisons’ (BOP) Treatment of Inmate Statements in Investigations of Alleged Misconduct by BOP Employees (October 12, 2022)

– Thomas L. Root