All posts by lisa-legalinfo

‘Stare Decisis” Be Damned, 10th Says, on Structural Error – Update for January 10, 2025

Leave a comment

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

MOVING THE ‘STRUCTURAL ERROR’ CHEESE

Black letter law holds that for a 28 USC § 2255 petitioner to be entitled to relief, he or she must show (1) that a constitutional error occurred and (2) that the error was prejudicial. Absent the error, would the trial result likely to have been different? In other words, there may be a constitutional error but if the error was harmless, the petitioner gets nothing for it.

Jail151220Some errors, however, are deemed to be “structural.” In today’s case, the 10th Circuit described a structural error as an error so egregious that it “def[ies] analysis” under the typical harmless-error standard. Structural errors “affect the framework within which a trial proceeds,” meaning that the trial’s “reliability in serving its function as a vehicle for determination of guilt or innocence” has been irreparably compromised.

For that reason, defendants subjected to structural error are entitled to a remedy even without having shown prejudice.

Obviously, any time an error can be deemed structural, it amounts to a “get-out-of-jail” card for the defendant. The prisoner doesn’t have to prove the error made any difference in the outcome, just that there was an error.

birdplumage250110But structure errors are birds of rare plumage. It’s easier listing what errors have been deemed structural than those that are not. The Supreme Court has determined that structural errors include the admission of a defendant’s guilt over his objection, the deprivation of a defendant’s right to counsel of his choice, giving a jury an incorrect reasonable-doubt instruction, excluding jurors of a defendant’s same race, the denial of the right to a public trial, denying a defendant the right to proceed pro se, the denial of an impartial judge, the complete or constructive denial of counsel, and the utter inability of any attorney to be effective under the circumstances.

In 1995, the 10th Circuit held in Shillinger v. Haworth that intentional and unjustified government intrusions into attorney-client communications constitute structural error that requires a conclusive presumption that the defendant had been prejudiced, regardless of the evidence of harm.

Shillinger fit Steven Hohn like a glove. A recording of one of his attorney calls had been hoovered up by the Kansas U.S. Attorney’s Office with many others in a scandal that resulted in a federal prosecutor losing her job. Steve filed a 28 USC § 2255 motion, like many others had done, relying on Shillinger’s holding that prejudice had to be presumed.

cheese20042wThen the 10th Circuit moved the cheese. In an en banc decision, the appellate court ruled that Shillinger was wrongly decided, and – stare decisis or not – it needed to be abrogated.

Mere government intrusion into the attorney-client relationship doesn’t violate the 6th Amendment unless the intrusion substantially prejudices the defendant, the Circuit ruled, and therefore, a violation can’t be established without a showing that there is a realistic possibility of injury to defendants or benefit to the State as a result. While prejudice should be assessed under a rebuttable presumption in the defendant’s favor, putting the burden on the government to disprove any prejudicial effect from its actions, still there must be prejudice.

Because Steven had not suffered any prejudice, his § 2255 motion failed.

United States v. Hohn, Case No. 22-3009, __ F.4th __. 2024 U.S. App. LEXIS 31865 (10th Cir., December 16, 2024)

Shillinger v Haworth, 70 F.3d 1132 (10th Cir. 1995)

Kansas City Star, Did Kansas feds improperly listen to calls? 85 times, prosecutor wouldn’t tell judge (May 16, 2018)

– Thomas L. Root

District Courts Can Do As They Like On Zero-Point Sentence Reductions – Update for January 9, 2025

Leave a comment

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

IN ZERO-POINT REDUCTION, THE GUIDELINE PROPOSES BUT THE JUDGE DISPOSES

In any sentence reduction motion under 18 USC § 3582(c)(2) arising from a retroactive Guideline amendment, the district court has a lot of latitude to do whatever it wants to do. A case last week involving a zero-point reduction made that point very clearly.

Fraud170406Shefiu Hanson ran a scheme that tricked businesses to wire him money using bogus invoices. The total loss to 30 victims amounted to over $1.1 million. She was sentenced to 46 months. After the Sentencing Commission adopted Amendment 821, which let people like Shef get a 2-level reduction if they had zero criminal history points and met set of ten criteria, Shef applied for a sentence reduction that reflected the Amendment.

One of the criteria to qualify for an Amendment 821 sentence reduction is that the defendant did not personally cause “substantial financial hardship” to any victim in committing the offense. Causing “substantial financial hardship” is a specific enhancement under USSG § 2B1.1(b)(2) (§ 2B1.1 being the well-used Guideline for theft and fraud offenses), which increases the offense score by at least 2 levels. Amendment 821 leans heavily on the § 2B1.1(b)(2) enhancement language, specifically directing that the criteria to be considered in determining “substantial financial hardship” should be those listed in § 2B1.1, Note 4(F).

At sentencing, Shef’s Guideline range was not increased by the § 2B1.1(b)(2) “substantial financial hardship” enhancement, so he figured he was a shoo-in for the Amendment 821 reduction.

retro240506His district court thought otherwise, holding that Shefiu had caused substantial financial harm to multiple victims, making him ineligible under USSG § 4C1.1(a)(6) – the new Guideline made retroactive by Amendment 821 – for the reduction. Even if that were not so, the court said, applying the 18 USC § 3553(a) sentencing factors led it to conclude that giving Shef the reduction would “render his sentence inadequate to reflect the seriousness of the offense… provide just punishment for this offense… afford adequate deterrence to criminal conduct… [and] protect the public from further crimes of the defendant.”

On appeal, Shef argued the financial hardship to victims the district court relied on didn’t rise to the level of “substantial hardship” as contemplated by the Sentencing Commission, because none of the examples of financial hardship the district court cited fit within any of the § 2B1.1 Note 4(F) factors. What’s more, Shefiu argued, the district court failed to make specific financial hardship findings with respect to each victim, instead relying “generalized comments” about financial hardship.

Last week, the 6th Circuit turned him down. Nothing keeps courts from considering factors other than those in Note 4(F). In fact, USSG § 4C1.1(b)(3) directs that Application Note 4(F) merely provides a “non-exhaustive list of factors.” The appeals court held that the financial hardship that Shefiu caused victims “need not fall perfectly” within the factors of Note 4(F) to be considered substantial.

The Circuit ruled that Application Note 4(F) “merely provides a list of exemplars from which we may extrapolate analogous conduct.” Thus, “the district court did not err in holding that Hanson was ineligible for a sentencing reduction under § 4C1.1 based on factors outside of the non-exhaustive list in Application Note 4(F) of 2B1.1… Given the number of victims and amount defrauded, the district court reasonably concluded that the financial hardship was substantial.”

money180124The 6th agreed that the record evidence showed that Shef’s conduct caused several of his victims to individually suffer substantial financial hardship. One victim said “[t]he loss of revenue for our small company was crippling.” Another said the wire transfer to Shefiu “made it difficult for the company to pay invoices” and yet another said that due to the fraud, many of his bank accounts were “abruptly closed.” The Circuit held, “The district court reasonably determined that the financial hardship to at least one victim was substantial.”

United States v. Hanson, Case No. 24-3442, 2025 U.S.App. LEXIS 85 (6th Cir. January 3, 2025)

– Thomas L. Root

‘Take Your Commutation and Shove It,’ Death Row Inmates Tell Biden – Update for January 7, 2025

Leave a comment

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

THANKS BUT NO THANKS

thanksnothanks250107Two federal death row prisoners, who are among the 37 inmates whose death sentences were commuted on December 23 by President Joe Biden, have filed hand-written petitions in the United States District Court for the Southern District of Indiana seeking an injunction against losing their death penalty sentences.

NBC News reported Shannon Agofsky and Len Davis, both housed on death row at USP Terre Haute, filed on December 30, 2024, for injunctive relief to block Biden’s commutation of their death sentences to life in prison without parole.

Shannon said in his petition,

On December 22, 2024, the defendant became aware of the publicity stunt enacted by president Joe Biden, in which he commuted the death sentences of 37 federal prisoners the defendant was part of that group. That defendant never requested commutation the defendant never filed for commutation. The defendant does not want commutation, and refused to sign the paper offered with the commutation.

Len wrote that “there are a host of constitutional violations associated with the executive branch’s attempt to sentence petitioner Davis life sentence without his agreeing to commutation.” Len asked the court to appoint an attorney to represent him and promised to expand on his argument in future filings.

Shannon argued that “[t]o commute his sentence now, while the defendant has active litigation in court, is to strip him of the protection of heightened scrutiny. This constitutes an undue burden, and leaves the defendant in a position of fundamental unfairness, which would decimate his pending appellate procedures.”

The Supreme Court held in Caldwell v. Mississippi that the 8th Amendment imposes a heightened “need for reliability in the determination that death is the appropriate punishment in a specific case.”

Shannon, who maintains his innocence, argued in his petition that he doesn’t want to lose the benefit of that additional scrutiny. Davis, on the other hand, argued that the death sentence draws “attention to the overwhelming misconduct” of the Dept of Justice in his case.

douglassdeathbondage250107Shannon’s and Len’s likelihood of prevailing seems to be a long shot. In Biddle v. Perovich, the Supreme Court 98 years ago pretty clearly held that the president has the authority to commute a death sentence to life and “that the convict’s consent is not required.”

NBC quoted Daniel Kobil, a constitutional law professor at Capital University and a death penalty defense counsel, as explaining that “we impose sentences for the public welfare, the president and governors in states commute sentences for the public welfare.”

Robin Maher, executive director of the nonprofit Death Penalty Information Center, told NBC that the vast majority of inmates on federal death row were grateful for Biden’s decision, “which is constitutionally authorized and absolute.”

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said, “[T]hese efforts to refuse a capital commutation seem likely to help ensure these defendants get more attention for their claims of innocence than many others.  And I have often asserted to students in my sentencing classes that convicted murderers claiming to be wrongfully convicted on death row are likely to get more attention for their claims of innocence than convicted murderers given LWOP.“

NBC, Two death row inmates reject Biden’s commutation of their life sentences (January 6, 2025)

Emergency Petition for Injunctive Relief, Agofsky v. United States, Case No. 2:25-cv-1, Doc. 1 (December 30, 2024)

Emergency Petition for Injunctive Relief, Davis v. United States, Case No. 2:25-cv-2, Doc. 1 (December 30, 2024)

Caldwell v. Mississippi, 472 U.S. 320 (1985)

Biddle v. Perovich, 274 U.S. 480 (1927)

– Thomas L. Root

The Doctor Won’t See You Now – Update for January 6, 2025

Leave a comment

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

INSPECTOR GENERAL REVIEW OF FMC DEVENS YIELDS ANOTHER ‘DOG BITES MAN’ MOMENT

IG230518The DOJ Office of Inspector General began making unannounced inspections of BOP facilities over a year ago, even before the Federal Prison Oversight Act – which requires the OIG to conduct periodic inspections of BOP facilities based on its assessment of the risks such prisons pose to inmates and staff – became law last summer. Last month, the OIG released a report on the its fifth such inspection, conducted last April.

For anyone who has experienced BOP healthcare, the report is a real “dog bites man” moment. That may explain how the December 11th report was issued to nearly universal yawns. Writing in Forbes last week, Walter Pavlo noted it in passing, or we would have missed it, too.

The report is harrowing and deserves a full reading.

Devens – located about 33 miles west northwest of Boston – is an administrative-security (houses all security levels of inmates) medical center for prisoners with serious medical or mental health conditions. The facility consists of a federal medical center and an adjacent minimum-security prison camp that provides inmate labor to the medical facility. Both facilities house male prisoners only.

The first prisons the OIG hit in its inspection program were regular prisons, FCI Waseca and FCI Tallahassee (both female facilities), and FCI Sheridan and FCI Lewisburg (male). This time, the OIG said, “We selected FMC Devens as the site of our fifth inspection to better understand and assess the conditions of confinement at [a federal medical facility].”

doctorhouseB250106We’ve all heard of Doctors Without Borders. The OIG found that the BOP’s variation is “Hospitals Without Doctors.” The report found it “particularly concerning” that Devens had only 76% of its Health Services Department positions filled and had only a single physician “to manage the care of the entire inmate population of approximately 941 inmates: 2 of the institution’s 6 physicians were on extended leave without pay, and 3 other physician positions were vacant.”

Having a Clinical Director would have provided a second physician, but the CD, “who leads the provision of preventive health services and provides standing orders for nurses,” retired two months after the inspection. As of October 5, 2024, the report said, “the position remained vacant… leaving FMC Devens without this critical medical role filled and only one physician at the institution to provide daily patient care.”

This is hardly surprising: a doctor at FMC Devens makes about $282,000 a year. A physician at a nearby hospital emergency department earns about $415,300. Physician assistants and nurse practitioners at FMC Devens earn between $72,000 and $124,000; the same practitioners at a nearby hospital earn an average salary of $141,000.

BOP Director Colette Peters told a Congressional subcommittee last summer that a CO quit Devens to go to work at a local grocery store for better pay.

Half of the pharmacy positions, about a quarter of nursing positions, and the Chief Dental Officer position were vacant. Only 61% of the Psychology Dept positions are filled. The OIG said, “We are concerned that the staffing crisis at FMC Devens has cascading effects on its ability to care for its inmates and limits the quality and quantity of medical services it can provide, including for inmates who were transferred there expressly for its specific medical programs.”

The report also identified “concerns related to the quality of healthcare provided to inmates,” lack of preventive healthcare screening, inappropriate placement of inmates in the Memory Disorder Unit (MDU), and inconsistent processes for requesting and accessing care.” The inspectors found that 57 outside medical appointments for inmates were yet to be scheduled and were on average 53 days overdue at the time of our inspection due to outside medical provider cancellations and a lack of COs to escort inmates to scheduled appointments.

medical told you I was sick221017The OIG found “inconsistencies regarding inmates’ access to medical care,” including routine screening for diabetes and cognitive impairment, and “an apparent inconsistency” in how Health Services determined what constituted a need for sick cal. The report drily observed that “[t]his inconsistency may limit an inmate’s ability to be seen and receive medication in a timely manner, which could negatively affect their overall health.

In 2021, FMC Devens got $150,000 in First Step money to build a LifeSkills Laboratory, a space designed for inmates with serious mental illnesses to practice routine skills. More than three years later, the lab had yet to be used for programming.  

Taking government money for a project and then not carrying through can get you convicted if you aren’t the government…

DOJ Inspector General, Inspection of the Federal Bureau of Prisons’ Federal Medical Center Devens (December 11, 2024)

Federal Prison Oversight Act, Pub. L. No. 118-71, 138 Stat. 1492 (2024) (primarily codified at 5 U.S.C. §  413[e] )

– Thomas L. Root

Keeping Score – Update for January 2, 2025

Leave a comment

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

SOME NUMBERS TO START THE NEW YEAR

funwithnumbers170511The Price of an Overnight Stay in an Econolodge: The Department of Justice is required to regularly publish figures showing how much it costs to keep a federal prisoner, the so-called Cost of Incarceration Fee.

The DOJ has announced that the average annual COIF for a Federal inmate housed in the Bureau of Prisons or a non-BOP facility in FY 2023 was $44,090 ($120.80 per day). The average annual COIF for a Federal inmate housed in a Residential Reentry Center (halfway house) for FY 2023 was $41,437 ($113.53 per day).

Federal Register, Annual Determination of Average Cost of Incarceration Fee (COIF) (December 6, 2024), 89 FR 97072

prisoners221021Federal Prisoners by the Numbers: The DOJ’s Bureau of Justice Statistics released some interesting numbers on the state of the federal prison population after the fifth year of the First Step Act (for Calendar Year 2023).

As of December 31, 2023,

• the federal prison population had decreased about 2% the year before, from 158,637 to 155,972;

• 8,388 military veterans were incarcerated in the BOP, more than 5% of BOP’s total;

• The number of non-U.S. citizens in federal prison stood at 22,817 (14.6% of the prison population), down from both prior years;

• The average daily special housing unit (SHU) population was 11,974, an 18% increase from 2022 and a total of 7.7% of the BOP population;

• In 2023, BOP staff were physically assaulted by federal prisoners 872 times, resulting in only six serious injuries and only three prisoner prosecutions;

• About 54% of the 143,291 persons in federal prison who had been assessed with the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) tool were classified as minimum or low risk for recidivism, about 26% as high risk and about 19% as medium risk;

• About 52% of male federal prisoners were classified as minimum or low risk for recidivism, compared to about 82% of female federal prisoners;

• About 60% of black and 58% of American Indian or Alaskan Native federal prisoners were classified by PATTERN as having a medium or high risk of recidivism, compared to about only 36% of white and 25% of Asian, Native Hawaiian, or Pacific Islander federal prisoners;

• 83% of federal prisoners between 55 to 64 and 94% of those age 65 or older were classified by PATTERN as having a minimum or low risk of recidivism.

Bureau of Justice Statistics, Federal Prisoner Statistics Collected Under the First Step Act, 2024 (December 11, 2024)

Don’t Like Them Odds: Business Insider has published a remarkable series on prisons, which I will write about in the coming weeks. For now, it’s worth noting the sobering odds against any prisoner success in litigation over serious claims of sexual assault, retaliatory beatings, prolonged solitary confinement, and untreated cancers.

Prisoners lose (either in court or by failing to win any reasonable settlement) 85% of the time.

longodds191008While nationally, about 75% of all civil suits (and half of non-prisoner suits settle), only 14% of prisoner 8th Amendment cases do. Business Insider said, “Many of the settlements were sealed. Of the rest, none involved an admission of wrongdoing by prison officials. BI was able to identify just six cases that settled for $50,000 or more; half of those… involved prisoner deaths.”

The non-sealed settlements were for “modest amounts,” BI said. “An Oregon prisoner received $251 over a claim that she was sexually assaulted by another prisoner and then pepper-sprayed by a guard. A Nevada prisoner got $400 on a claim that guards beat and pepper-sprayed him while he was in restraints. A New York prisoner won $2,000 for claims that he suffered debilitating pain while prison officials delayed treating his degenerative osteoarthritis.”

In only 11 cases — less than 1% of the 1,488 cases from 2018-2022 that BI studied – did the plaintiffs win relief in court.

Business Insider, The 1% (December 26, 2024)

– Thomas L. Root

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

Leave a comment

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

Leave a comment

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

Leave a comment

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

Leave a comment

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

Leave a comment

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