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Trump and the Future of Everything: Today, the Bureau of Prisons – Update for November 15, 2024

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

THE FUTURE OF EVERYTHING

Donald Trump, a guy readers have a lot of common with – felony convictions – has been elected as the 47th President of the United States. Last week, I had more than a few emails from prisoners excited about his election.

future241112I am not sure why, but at the same time, I am not sure that his re-election is bad for prisoners. Trump loved using private prisons (their stock jumped an average of 37% last week) and putting federal prisoners to death. In July 2020, he resumed federal executions for the first time in 17 years, killing 13 federal prisoners in six months. However, Trump also signed the First Step Act, the biggest piece of federal criminal justice reform in over 50 years, if not ever.

Trump is a wild card. A lot of what happens on anything “will depend on his priorities or even whims,” as The Reload put it last weekend. Trump officials from his last administration told the Washington Post that Trump initially refused to support the initiative but changed his mind only after senior aides predicted it would better his standing in 2020 among Black voters. “Months later,” the Post reported, “when that failed to materialize, Trump ‘went shithouse crazy,’ one former official said, yelling at aides, ‘Why the hell did I do that?’”

So what do the next four years hold for criminal justice reform and the Federal Bureau of Prisons?

So far this week, we have considered Trump and firearms (Tuesday), Trump and marijuana (Wednesday), and yesterday, we looked at   sentence reform and clemency. Today, we consider Trump and the BOP.

THE FUTURE OF THE BOP

With cost-cutting a part of the Trump agenda, the BOP is primed to take it on the chin. There should be more pressure to reduce prison populations, Walter Pavlo said last week in Forbes, which could be good news for those who are eligible for First Step Act credits. At the same time, Trump could restart use of private prisons, particularly for deportable immigrants.

Trump instituted a hiring freeze when he took office in 2017, and sought a cut of over 6,000 BOP jobs in a 2018 DOJ plan. In 2018 – when Trump made the BOP cuts – the agency had a $7.1 billion budget. The BOP has asked for $8.6 billion money240822in FY2025 and another $3 billion to repair crumbling infrastructure. Pavlo said, “Spending at these levels is simply not going to happen.”

In the waning days of Trump’s last administration, the DOJ Office of Legal Counsel issued a memorandum calling for the return of those prisoners on CARES Act. home confinement to prison when the pandemic ended. Eleven months later, the OLC (now run by a Biden DOJ) rescinded the directive. As of last January, there were still 2,656 prisoners on CARES Act, 117 of whom had 5 years or more remaining on their sentences.

No one other than Pavlo has speculated publicly that Trump might have his DOJ reinstitute the January 2021 OLC memo.

Finally, how about BOP Director Colette Peters?  One can easily see Trump’s anti-woke people bridling at calling inmates “AICs,” or “adults in custody.” If that’s enough for Trump to want the headache of replacing her – after all, he struggled with replacing a string of BOP heads during Trump I – then she will be gone. She may be too far down the food chain for him to worry about.

How she does with her new boss, for now the suspected sex criminal Matt Gaetz, remains to be seen.

Forbes, The Bureau of Prisons Under A Trump Administration (November 7, 2024)

Vice, Trump’s cuts to federal prison system “decimate” jobs (February 13, 2018)

– Thomas L. Root

Trump and the Future of Everything: Today, Sentence Reform – Update for Thursday, November 14, 2024

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

THE FUTURE OF EVERYTHING

Donald Trump, a guy readers have a lot of common with – felony convictions – has been elected as the 47th President of the United States. Last week, I had more than a few emails from prisoners excited about his election.

future241112I am not sure why, but at the same time, I am not sure that his re-election is bad for prisoners. Trump loved using private prisons (their stock jumped an average of 37% last week) and putting federal prisoners to death. In July 2020, he resumed federal executions for the first time in 17 years, killing 13 federal prisoners in six months. However, Trump also signed the First Step Act, the biggest piece of federal criminal justice reform in over 50 years, if not ever.

Trump is a wild card. A lot of what happens on anything “will depend on his priorities or even whims,” as The Reload put it last weekend. Trump officials from his last administration told the Washington Post that Trump initially refused to support the initiative but changed his mind only after senior aides predicted it would better his standing in 2020 among Black voters. “Months later,” the Post reported, “when that failed to materialize, Trump ‘went shithouse crazy,’ one former official said, yelling at aides, ‘Why the hell did I do that?’”

So what do the next four years hold for criminal justice reform and the Federal Bureau of Prisons?

So far this week, we have considered Trump and firearms (Tuesday), and Trump and marijuana (yesterday). Today, it’s Trump and sentence reform and clemency. We consider Trump and the BOP on Friday.

THE FUTURE OF SENTENCE REFORM AND CLEMENCY

justicereform161128Throughout his campaign, Trump signaled he would resume federal executions if he won and make more people eligible for capital punishment, including child rapists, migrants who kill U.S. citizens and law enforcement officers, and those convicted of drug and human trafficking.

During the press conference announcing his candidacy for president two years ago, Trump said drug traffickers “are terrible, terrible, horrible people who are responsible for death, carnage and crime all over the country… We’re going to be asking everyone who sells drugs, gets caught, to receive the death penalty for their heinous acts.”

Trump’s position has raised concerns among criminal justice reform advocates, who fear a revival of his first-term policies, which saw 13 federal executions during the height of COVID, including the first woman executed in nearly 70 years, the youngest person based on age when the crime occurred (18 years old), and the only Native American on federal death row.

His pre-election rhetoric suggests that Trump will not be championing reduction in mandatory minimums during his term as president.

It’s hard to take seriously the notion that the Dept of Justice will take a lead on any substantive issue after Trump announced that Matt Gaetz – who came a hair’s breadth from being indicted by the DOJ – will be the next Attorney General.  The New York Times reported last night that “Senate Republicans reacted with alarm and dismay to President-elect Donald J. Trump’s decision… and several said they were skeptical that he would be able to secure enough votes for confirmation.”

“He’s got his work really cut out for him,” Senator Joni Ernst, Republican of Iowa, said, chuckling as she spoke.

Senator John Cornyn (R-TX), a member of the Judiciary Committee, said, “I’m still trying to absorb all this,” he said. Mr. Cornyn later told reporters: “I don’t really know him, other than his public persona.”

The New Republic reported last night that when he was asked if he thought Gaetz has the character and experience needed to be attorney general, Representative Mike Simpson (R-ID) replied, “Are you shittin’ me, that you just asked that question? No! But hell, you’ll print that and now I’m going to be investigated.”

obtaining-clemencyBiden promised to set up a commission that would bring order to the clemency process, but – other than having the DOJ Pardon Attorney throw out thousands of petitions that had been on file for a long time – he failed to perform.

Biden has about two months to act on the nearly 7,700 petitions on file. Frankly, if the Administration has any sense of self-preservation, expect a large number of preemptive pardons for Biden administration employees and others that Trump has threatened with prosecution when he takes office.

There will definitely be two pardons in the next three weeks, but those will be a pair of turkeys. As for whether Biden will take a whack at any of the 7,700 pending applications before he leaves town on January 20th is anyone’s guess.

As for Trump, he has said repeatedly that he would pardon people convicted in connection with the January 6th Capitol riots. He has qualified his promise, saying in July that “if they’re innocent, I would pardon them.” Trump campaign spokesperson Karoline Leavitt told the Washington Post in June that Trump will decide J6 pardons “on a case-by-case basis.”

Trump has said repeatedly he would pardon people convicted in connection with the Jan. 6 Capitol riots, though it’s unclear who among the more than 1,500 charged would be subject to pardons—he told reporters in July “if they’re innocent, I would pardon them,” while his campaign spokesperson Karoline Leavitt told the Washington Post in June Trump would decide “on a case-by-case basis” who to pardon

pardonsale210118Slate observed that in his first term, Trump’s “guiding principle” was that “Trump pardoned those who could benefit Trump.” One commutation that has been promised – at least in the minds of his supporters – is of Ross Ulbricht, the founder of the dark web drug-and-weird stuff marketplace Silk Road. A social media account dedicated to securing Ulbricht’s release said last Friday, “With Trump’s upcoming inauguration, Ulbricht is finally set to be released, bringing an end to his long years behind bars… For Ulbricht’s supporters, Trump’s commitment to commutation signals a landmark moment for criminal justice reform.”

C-Span, Former President Trump Calls for Death Penalty for Drug Dealers (November 15, 2022)

NBC, Trump wants to expand the federal death penalty, setting up legal challenges in second term (November 9, 2024)

NY Times, Senate Republicans Alarmed by Gaetz Pick as Attorney General Nominee (November 13, 2024)

Slate, Trump’s Pardons Were Way Weirder Than You Remember (October 28, 2024)

Binance Square, ‘Ross Is Coming Home’: Ulbricht’s Family Rejoices as Trump Plans to Fulfill Commutation Pledge (November 9, 2024)

Washington Post, Jan. 6 riot defendants celebrate Trump’s election, angle for pardons (November 10, 2024)

Politico, Trump pledges to commute sentence of Silk Road founder Ross Ulbricht if elected (May 25, 2024)

– Thomas L. Root

Trump and the Future of Everything: Today, Marijuana – Update for November 13, 2024

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

THE FUTURE OF EVERYTHING

Donald Trump, a guy readers have a lot of common with – felony convictions – has been elected as the 47th President of the United States. Last week, I had more than a few emails from prisoners excited about his election.

future241112I am not sure why, but at the same time, I am not sure that his re-election is bad for prisoners. Trump loved using private prisons (their stock jumped an average of 37% last week) and putting federal prisoners to death. In July 2020, he resumed federal executions for the first time in 17 years, killing 13 federal prisoners in six months. However, Trump also signed the First Step Act, the biggest piece of federal criminal justice reform in over 50 years, if not ever.

Trump is a wild card. A lot of what happens on anything “will depend on his priorities or even whims,” as The Reload put it last weekend. Trump officials from his last administration told the Washington Post that Trump initially refused to support the initiative but changed his mind only after senior aides predicted it would better his standing in 2020 among Black voters. “Months later,” the Post reported, “when that failed to materialize, Trump ‘went shithouse crazy,’ one former official said, yelling at aides, ‘Why the hell did I do that?’”

So what do the next four years hold for criminal justice reform and the Federal Bureau of Prisons?

Yesterday, we considered Trump and firearms. Today, it’s marijuana and drugs, followed by sentence reform and clemency tomorrow, and the BOP on Friday.

THE FUTURE OF MARIJUANA

marijuanahell190918For fifty years, the federal government had classified marijuana as more dangerous than opium and fentanyl.

Not anymore: President Biden’s directive two years ago that pot be rescheduled led to a recommendation last spring from Dept of Health and Human Services that marijuana be reclassified as a Schedule 3 drug, down from Schedule 1. The Drug Enforcement Administration has a hearing set for Dec 2 on the proposal and will probably agree. The New Republic said that “Biden’s actions represent what most constitutional scholars agree is the most a president can do.”

On the campaign trail, Trump at several points called for the death penalty for drug dealers, but then endorsed a Florida marijuana legalization ballot initiative (that failed to pass). “As we legalize it (marijuana) throughout the country, whether that’s a good thing or a bad thing, it’s awfully hard to have people all over the jails that are in jail right now for something that’s legal,” Trump said last August. In an online post, Trump said, “I believe it is time to end needless arrests and incarcerations of adults for small amounts of marijuana for personal use.”

Marijuana Moment said last week, “Whether that stated support will translate into action on reform legislation after Trump takes office in January is uncertain.” Republicans will control both houses of Congress, meaning that within reason, Trump can have what he wants. How his epiphany on marijuana will square with his harsh rhetoric on punishing drug dealers has yet to be seen.

mario170628Generally, last week was unkind to marijuana reform efforts in the states, with four states refusing to pass liberalization laws and another – California – and California voters overwhelmingly approving an initiative that restores felony penalties for some drug possession offenses.

“These disappointing developments suggest that the collapse of pot prohibition is slowing,” Reason reported late last week, “that the road to broader pharmacological freedom will be bumpier than reformers hoped, and that the punitive mentality of the war on drugs still appeals to many Americans, even in blue states.”

The New Republic, How the Democrats Blew Their Political Advantage on Legal Weed (November 4, 2024)

USA Today, Does Donald Trump want to legalize weed? Here’s where he stands on marijuana legislation (November 5, 2024)

Marijuana Moment, What Donald Trump’s Presidential Election Means For Marijuana Reform (November 6, 2024)

Reason, This Week’s Election Results Are a Discouraging Sign for Drug Policy Reformers (November 6, 2024)

– Thomas L. Root

Trump and The Future of Everything: Today, Guns – Update for November 12, 2024

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

THE FUTURE OF EVERYTHING

Donald Trump, a guy readers have a lot of common with – felony convictions – has been elected as the 47th President of the United States. Last week, I had more than a few emails from prisoners excited about his election.

future241112I am not sure why, but at the same time, I am not sure that his re-election is bad for prisoners. Trump loved using private prisons (their stock jumped an average of 37% last week) and putting federal prisoners to death. In July 2020, he resumed federal executions for the first time in 17 years, killing 13 federal prisoners in six months. However, Trump also signed the First Step Act, the biggest piece of federal criminal justice reform in over 50 years, if not ever.

Trump is a wild card. A lot of what happens on anything “will depend on his priorities or even whims,” as The Reload put it last weekend. Trump officials from his last administration told the Washington Post that Trump initially refused to support the initiative but changed his mind only after senior aides predicted it would better his standing in 2020 among Black voters. “Months later,” the Post reported, “when that failed to materialize, Trump ‘went shithouse crazy,’ one former official said, yelling at aides, ‘Why the hell did I do that?’”

So what do the next four years hold for criminal justice reform and the Federal Bureau of Prisons?

Today, we’ll consider Trump and firearms. Tomorrow will be marijuana and drugs, followed by sentence reform and clemency on Thursday, and the BOP on Friday.

THE FUTURE OF GUNS

Of most interest to readers is the future of 18 USC § 922(g), the statute that prohibits everyone from people with a prior felony to people who dabble in recreational marijuana from possessing a gun or ammo.

iloveguns221018The action has been in the courts over the past three years, ever since the Supreme Court’s New York State Rifle & Pistol Association v. Bruen decision in 2022. Last June, the Supreme Court sent its piled-up 922(g) cases – which landed on its docket because of Bruen and in anticipation of United States v. Rahimi – back to lower courts to redo in light of Rahimi and whatever it meant.

Trump promises to bring a pro-gun, conservative criminal justice policy back to Washington. As for § 922(g)(1), however, there is a collision of two issues: one he likes – 2nd Amendment gun rights – and one he doesn’t – which is appearing to be soft on crime.

What may bother Trump is knowing that even as President, he cannot legally possess a gun or ammo as long as his 34 New York felony convictions stand. While he may not publicly endorse an effort to rewrite § 922(g)(1), he could instruct his Attorney General to soft pedal opposition to cases holding that the statute is unconstitutional as applied to nonviolent felons.

That way, felon-in-possession would no longer apply to Trump… or to a lot of people convicted of § 922(g)(1).

Donald Trump ran as a defender of gun rights but didn’t make any new public policy promises. Instead, as The Reload noted, “Trump primarily hectored gun owners for their, in his view, unreliability in turning out to vote.”

As president, Trump was not necessarily dependable in defending the 2nd Amendment. After the Parkland, Florida, school shooting, he “forcefully argued for a litany of gun safety measures that the National Rifle Association had long opposed,” The New York Times reported. He reportedly thought about an assault rifle ban after an El Paso mass shooting, but his aides talked him out of it. After the Las Vegas mass shooting, Trump pushed for and got a bump-stock ban from the ATF, which was later thrown out by the courts.

gun160711Biden’s gun-control measures. The likeliest benefit he could confer on prisoners with § 922(g)(1) convictions is to undo the Dept of Justice’s knee-jerk opposition to decisions such as the 3rd Circuit’s Range v. Atty General (which held application of § 922(g)(1) to a defendant with a 25-year-old food-stamp fraud conviction violated the 2nd Amendment) and is headed back to the Supreme Court.

Do not expect Trump or the new Republican-controlled Congress to do anything to change 18 USC § 924(c) to ease punishments for people possessing or using guns in crimes of violence or drug offenses.

Crime and Justice News, Trump Victory Signals Pro-Gun, Tough On Crime Agenda (November 6, 2024)

The Reload, Analysis: What Trump Could Do on Gun Policy (November 8, 2024)

The Reload, Analysis: Why Were Guns an Afterthought in 2024? (November 10, 2024)

The Trace, The Four Federal Gun Violence Prevention Efforts Trump Could Dismantle (November 1, 2024)

TOMORROW – THE FUTURE OF MARIJUANA AND CONTROLLED SUBSTANCES

– Thomas L. Root

Home Confinement Authority Gathers Dust – Update for November 8, 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.

HOME CONFINEMENT AUTHORITY AS ‘SHELFWARE’

shelfware241108ABack in the days of the dinosaurs, when computer programs came on CD-ROMs or (even more antediluvian), on stacks of mini-floppies, many of us were familiar with the concept of “shelfware.”

Writing in Forbes last week, Walter Pavlo reminded us that the Federal Bureau of Prisons has its own version of “shelfware,” a provision in 18 USC § 3624(g)(3) that lets prisoners spend their First Step Act credits – days earned for successful completion of programming under 18 USC § 3632 – on sentence reduction, halfway house or home confinement.

When a prisoner has earned enough FSA credits to where his or her remaining sentence equals the number of FSA credits earned, § 3624(g) requires that the BOP use those credits for one or more of the three options provided. The BOP’s practice is to first apply credits to sentence reduction: up to 365 credits can be used to reduce a sentence by a like number of days. The BOP has been diligent about this, and prisoners have been able to watch their sentences shorten on a monthly basis as FSA credits are earned.

Once the sentence reduction has been maxed out at 365 days, the balance of the credits is to be applied to additional halfway house or home confinement. Pavlo points out that “[t]he First Step Act gives the BOP a lot of discretion to place prisoners in the least restrictive, and least costly, confinement.” While the BOP has sole discretion to decide what that confinement will be, but it must be one of the two.

nobrainer241108A BOP decision to use its home confinement authority should be a no-brainer: The halfway houses are filled, causing prisoners to be denied the use of their credits despite their absolute statutory right to them. Home confinement, however, lacks the space limitations (at least not to the same degree).

Unsurprisingly, the BOP has left it home confinement authority on the shelf. As Pavlo observes, the BOP’s “interpretation of the First Step Act at every turn has been to minimize the use of the law to return prisoners to society sooner. The BOP has the law behind it to move thousands more prisoners into the community and to home confinement, if it only had the will to do so.”

Trust the BOP to mismanage things. Pavlo notes that

[p]risoners with 18 months of First Step Act toward prerelease custody should be sent directly to home confinement but they are languishing in halfway houses using resources they do not need. Other prisoners who are not First Step Act eligible and who have longer prison terms, are being passed over for placement in halfway houses in favor of those on First Step Act. The costs are now higher because a prisoner is staying in a higher security prison because there is no halfway house and a minimum security prisoner is stuck in a halfway house when they could be at home.

What he does not mention is that other prisoners entitled by law to the benefit of FSA credits they have earned are being denied halfway house placement because the places are full, in part with prisoners the BOP could move to home confinement.

The BOP could save money, too. When halfway houses monitor people on home confinement, it charges the BOP about half the cost of keeping them in halfway houses. According to the BOP, an inmate in home confinement cost an average of $55.26 per day as of 2020 —less than half the cost of an inmate in secure custody.

Moneyburn170208President-elect Donald Trump, as one of his plethora of promises made during the campaign, said he would slash federal spending. His disdain for anything related to the DOJ is well known. In a November 7 Forbes article, Pavlo said, “[L]ook for an unhappy Trump look for more ways to cut costs at the BOP. In 2018 when Trump made the cuts the BOP’s budget was $7.1 billion. The BOP has asked for $8.6 billion in FY2025 and another $3 billion to bring its facilities up to date. Spending at these levels is simply not going to happen.”

The BOP is required to let prisoners spend their FSA credits. It may be compelled by circumstances and budget to push FSA credit users, especially those who are minimum security and recidivism risk, to home confinement. Even now, doing so would make good sense, which leads commentators like Pavlo to wonder why the agency hasn’t done so.

Forbes, Bureau of Prisons Could Do More To Send People Home, Why Aren’t They? (October 30, 2024)

Dept of Justice, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 88 FR 19830 (April 4, 2023)

Forbes, The Bureau Of Prisons Under A Trump Administration (November 7, 2024)

– Thomas L. Root

Fly The Friendly Skies of § 2255 Prejudice – Update for November 7, 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.

PREJUDICE FLIES FIRST CLASS

Kay Ellison and a friend started their own airline, Direct Air. Owning an airline worked for Sir Richard Branson (Virgin Atlantic) but not for Donald Trump (Trump Shuttle). It didn’t work for Kay, either.

trumpshuttle241107Under federal regulations, a charter airline like Direct Air has to keep money passengers pay for tickets in an escrow account until they take the flight. But when Direct Air’s money got tight, Kay tapped the escrow account by faking some records in order to keep the planes flying. Those things seldom work, and they didn’t work for Kay: she and her co-owner were charged with wire fraud and bank fraud conspiracy.

At trial, Kay did not present a defense, and the jury obligingly convicted her on all counts.

In a 28 USC § 2255 post-conviction motion, Kay claimed her lawyer had rendered ineffective assistance, a 6th Amendment violation and a first-class ticket to a new trial. Kay said her lawyer wrongly told her that if she declined to testify, she could not present other witnesses or evidence. Ellison believed him, and did not put witnesses and records before the jury. She argued this advice prejudiced her defense by depriving her of the opportunity to contest key portions of the Government’s case – she had lobster thermidor to serve the jury, but they got a little packet of peanuts instead.

The District Court concluded that even assuming Kay could prove her attorney told her something as wrong-headed as what she claimed he said, she could not show prejudice.

airposter1241107An argument of ineffective assistance made on a § 2255 motion has two components. First, the attorney must have performed deficiently. Second, the § 2255 movant must show that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.

Here, the District Court focused on prejudice first. Assuming the lawyer told her such a bone-headed thing, the court asked “whether there is a reasonable probability… that if Kay had testified herself and presented the testimony of her proposed witnesses, the jury would have acquitted” her. The judge concluded that “with or without the proposed witness testimony… evidence of Kay’s involvement in running Direct Air makes it unlikely the jury would conclude she was not involved” in the withdrawal scheme.

Kay argued that her right to testify was so fundamental that the correct prejudice test was not whether the jury would have acquitted her. Instead, the test should be a “process-based” inquiry. She likened her case to § 2255 motions alleging lawyer ineffectiveness in counseling a defendant of accepting a plea offer: In such cases, the courts have judged prejudice by asking whether or not the defendant would have taken or rejected a plea deal, not whether the defendant could have prevailed at trial. Kay argued the proper test here should be a similar one, whether – if her lawyer had given her good advice – she would have exercised her right to testify.

airposter2241107Last week, the 3rd Circuit grounded Kay’s process-based prejudice flight of fancy. In a decision that is a must-read primer on prejudice, the Circuit explained that “actual prejudice” – proof that the outcome is reasonably likely to have been different – “is required where the alleged error occurs within a judicial proceeding that is otherwise presumptively reliable. That must include right-to-testify claims like [Kay’s], because the error in those cases (i.e., failing to present testimony from the defendant or other defense witnesses) occurs during the presentation of the case to the jury and may therefore be quantitatively assessed in the context of other evidence presented in order to determine what effect, if any, it had on the jury’s verdict.”

Kay, the 3rd ruled, “needed to show a reasonable probability that, but for counsel’s errors, she would have exercised her trial rights, and that doing so would have changed the result.” She could not, leaving her § 2255 stranded at the gate.

Ellison v. United States, Case No. 22-2169, 2024 U.S. App. LEXIS 27494 (3d Cir., October 30, 2024)

– Thomas L. Root

A Little More on Brooklyn’s Own Devil’s Hole – Update for November 5, 2024

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

MDC BROOKLYN RAID ENDS

kickdoor241105I noted last week that BOP had just experienced the second law enforcement raid on a prison this year, as the DOJ Inspector General, DEA, FBI and other agencies descended on MDC Brooklyn apparently searching for contraband, drugs, guns and cellphones in the mother of all shakedowns. 

Now a little more on that…

BOP spokesman Donald Murphy said in a statement released last Monday that “the operation was preplanned and there is no active threat” at the facility where 1,176 people are held.

Reports of sexual assaults and inhumane conditions at the MDC, as well as two inmate murders this year, have prompted vehement criticism from judges, activists and inmate families. In 2017, mistreatment of pregnant inmates caused a federal judge to say the MDC sounded more like “a prison in Turkey or some third-world country” than a US federal prison in the United States. A year later, a former lieutenant was convicted of raping detainees. In 2019, power failures left those inside without heat in the middle of a January cold snap.

carchase241105In August, a U.S. district judge said that MDC conditions were so appalling that he would sentence a 75-year-old to home confinement rather than send him there. In September, a BOP correctional officer was charged with violating civil rights after he was said to have chased a car he saw in the MDC parking lot at high speed for five miles, during which he fired his BOP-issued weapon at the vehicle, wounding one occupant.

Last month, an inmate was charged in an 18 USC § 1958 murder-for-hire plot that led to a 28-year-old woman being killed last year. The inmate allegedly used a contraband cellphone to set the plot in motion while awaiting sentencing for directing a different shooting years earlier.

On Friday, the BOP issued a statement that the “multi-agency operation” had concluded, having “confiscated a number of electronic devices, drugs and associated paraphernalia, and homemade weapons.”

The agency press release “thank[ed] the participating agencies for their support and partnership in this effort to create a safe and secure environment at our facilities.”

cockroaches241105C’mon. That’s like the owner of a cockroach-infested restaurant thanking health inspectors for shutting the place down for a thorough cleaning.  Is there no institutional shame that MDC Brooklyn is the shining bag of animal droppings atop BOP’s pile of institutional garbage?

Unlike much of what BOP Director Colette S. Peters has been cleaning up, the MDC Brooklyn mess – inmate murders and BOP officers racing through the streets of Brooklyn shooting at people – has happened and is happening on her watch.

You own this one, ma’am.

The New York Times, US Officials Sweep Troubled Brooklyn Prison Where 2 Were Killed (October 28, 2024)

Associated Press, Authorities launch ‘interagency operation’ at federal jail in New York housing Sean ‘Diddy’ Combs (October 28, 2024)

BOP, Multi-Agency Operation Concludes at MDC Brooklyn (November 1, 2024)

– Thomas L. Root

3rd Circuit ‘Lopers’ the Sentencing Commission – Update for November 4, 2024

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

WHERE THERE’S A ‘WILL’ THERE’S A ‘WON’T’

chevron230508One of our favorite Supreme Court decisions last June was Loper Bright Enterprises v. Raimondo, a case that punched Chevron deference’s ticket by holding that courts don’t have to defer to agencies’ interpretations of federal law as long as those interpretations are reasonable. Instead, Loper Bright held, courts are in the business of figuring out what statutes say, and they should not defer to a bunch of unelected bureaucrats who often have a vested interest in the interpretations they put on the laws the agencies are supposed to administer.

We saw the dark side of Loper Bright last Friday. The day after the 6th Circuit heard oral argument in a case over whether the Sentencing Commission’s guideline, USSG § 1B1.13(b)(6) – that says an extraordinary and compelling reason for a compassionate release may include an overly-long sentence that could not be imposed today because of a change in the law – exceeds the Commission’s authority.

In the First Step Act, Congress reduced the mandatory minimums for some drug offenses and refined 18 USC § 924(c) to provide that the 25-year minimum for a second § 924(c) offense could only be imposed after a prior § 924(c) conviction. Before First Step, if you carried a gun when you sold pot on Monday and then carried it again when you sold pot on Wednesday, you would get maybe 60 months for selling drugs AND a mandatory consecutive 60 months for carrying a gun on Monday AND a mandatory consecutive 300 months for Wednesday’s gun. Your two-day drug selling binge would have netted you 420 months (35 years) in prison.

retro240506For reasons more political than legal, Congress did not make the changes in drug and § 924(c) mandatory minimum sentences retroactive. But in the years since, some judges found that the fact that some people were serving impossibly long sentences that they could not have had imposed on them after First Step passed could constitute an extraordinary and compelling reason for grant of a compassionate release motion. Other Circuits, notably the 3rd, 7th and 11th, ruled that overly long sentences could not serve as extraordinary and compelling reasons for compassionate release because Congress had not made the changes to the laws that dictated those sentences retroactive.

When the Sentencing Commission finally adopted a new Guideline – § 1B1.13 – a year ago, it included as one of the defined extraordinary and compelling reasons for a compassionate release grant a case where a defendant had a disparately long sentence because of a nonretroactive change in the law. The Dept of Justice began a full-throated attack on subsection (b)(6), arguing that because First Step does not make the changes in § 924(c) retroactive, the Commission was exceeding its authority by letting people do an end run around Congress.

A 6th Circuit panel heard oral argument last week in United States v. Bricker, three consolidated cases in which the government is arguing that subsection (b)(6) exceeds the Sentencing Commission’s congressionally delegated authority. The next day, in United States v. Rutherford, a 3rd Circuit panel held that subsection (b)(6) is invalid.

The Rutherford defendant won a compassionate release after 20 years of being locked up on a 42-year sentence for two armed robberies of a doctor’s office. Citing its right under Loper Bright to ignore the Sentencing Commission’s interpretation of the extent of its authority, the Rutherford panel ruled against Mr. Rutherford based on its belief as to “the will of Congress”:

Subsection (b)(6)… as applied to the First Step Act’s modification of § 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner’s eligibility for compassionate release. Congress explicitly made the First Step Act’s change to § 924(c) nonretroactive… [I]t would be inconsistent with [the] pertinent provisions of the First Step Act… to allow the amended version of § 924(c) to be considered in the compassionate release context because Congress specifically decided that the changes to the § 924(c) mandatory minimum sentences would not apply to people who had already been sentenced.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, criticized the 3rd’s decision. “Besides the non-textual nature of divining the “will” of Congress to rule against a defendant, this holding conflates Congress’s nonretroactivity decisions in the First Step Act with its decision, in the very same Act, to expand access to compassionate release and to keep in place the broad parameters of USSC authority to set terms for compassionate release. There is nothing at all “inconsistent” with Congress saying not everyone should automatically retroactively benefit from a particular change in law and the USSC saying that judges can consider a change in law for a select few pursuing another legal remedy.”

forceofwill241104A cardinal canon of statutory construction holds that where the text of a statute is clear, that’s all that matters. But Rutherford holds in essence that what the court thinks Congress “willed” is more important than what the law Congress passed actually says.

A Fifth Circuit panel has already held that subsection (b)(6) is a legitimate exercise of Commission authority. Prof Berman believes it is “inevitable” that the issue will have to be settled by the Supreme Court.

United States v. Rutherford, Case No. 23-1904, 2024 U.S. App. LEXIS 27740 (3d Cir., November 1, 2024)

United States v. Bricker, Case No. 24-3286 (6th Cir., argument held October 31, 2024)

Sentencing Law and Policy, Based on “the will of Congress,” Third Circuit panel adheres to prior ruling limiting ground for compassionate release (November 1, 2024)

United States v. Jean, 108 F.4th 275 (5th Cir., 2024)

– Thomas L. Root

A Little Something for Halloween – Update for October 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.

TRICK OR TREAT

Trick – Tomorrow is November 1st, and you know what happens then…

Nothing.

nothinghere190906I get emails all the time asking me about new laws supposedly becoming effective on November 1. One hopeful prisoner wrote last week, asking me to send him all the changes in 18 USC § 924(c) taking effect tomorrow.

I was tempted to send a blank email back to him, but I have written so often about the myth of November 1st. If he hadn’t gotten it by now, a blank email would just have him blaming the Bureau of Prisons’ clunky email system for stripping the message of hope out of my response.

So, one more time: Nothing happens tomorrow, except that last May’s announced Guideline amendments become effective. None of those changes are retroactive, so nothing in the changes will benefit people who have already been sentenced.
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Treat – The Dept of Justice and other law enforcement agencies on Monday morning raided (“conducted a sweep,” The New York Times said) of MDC Brooklyn.

IG230518The DOJ Office of the Inspector General led the operation, which included DEA and FBI agents.  Donald Murphy, a spokesman for the Bureau of Prisons, said in a statement that “the operation was preplanned and there is no active threat” at the prison, where around 1,200 people are held, including Sean Combs, known as Diddy, and Sam Bankman-Fried.

Murphy said the BOP had been involved in the planning. He said the action was “designed to achieve our shared goal of maintaining a safe environment for both our employees and the incarcerated individuals housed at MDC Brooklyn.”

MDC Brooklyn has the dubious distinction of being so bad that judges have conditioned prison terms on defendants not being designated to the facility.

The New York Times, U.S. Officials Sweep Troubled Brooklyn Prison Where 2 Were Killed  (October 28. 2024)

Associated Press, Authorities launch ‘interagency operation’ at federal jail in New York housing Sean ‘Diddy’ Combs (October 28, 2024)

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Trick – In 2022, 18 USC § 2243(c) passed, making it illegal for someone acting as a federal law enforcement officer to knowingly engage in a sexual act with someone in federal custody. A Government Accountability Office report last week told Congress that no one has been charged or convicted since the law passed.

The Report somewhat hopefully chalked up the nonuse of the new statute to several anodyne factors:

First, individuals cannot be charged for prohibited conduct that occurred prior to the provision’s effective date of October 1, 2022. Second, it can take several years from the time of an alleged incident to the filing of a criminal case to a disposition of the criminal case. Finally, according to an official from DOJ’s Office on Violence Against Women, many victims do not report sexual abuse immediately due to a variety of factors, including fear of retaliation.

What a relief! I thought for a minute there might be a deliberate failure to root out violations.

GAO 25-107684, Federal Law Enforcement: Criminal Sexual Acts while Serving in Official Capacity (October 21, 2024)
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Treat – In August 2019, Tamir Abdullah, a defendant serving a federal crack cocaine sentence, moved for a sentence reduction under Section 404 of the First Step Act (the retroactive Fair Sentencing Act). The district court denied the motion a swift 4-1/2 years later.

delayed200115Last week, the 6th Circuit upheld the denial but spared no words in its condemnation of U.S. District Court Judge John Adams (N.D. Ohio), a judge who is so bad that the 6th Circuit once ordered him to undergo a mental health examination:

Although we grant district courts broad discretion in managing their own dockets, we look unfavorably upon lengthy, unjustified, and inexplicable delays on the part of district courts in deciding cases… We see no reason in the record to justifiably explain why the district court took 1,625 days to resolve a straightforward sentence-reduction motion… Nor was the order finally issued by the district court adequate. That gravely flawed order failed to analyze Abdullah’s sentence-reduction motion under the multi-step test… and instead ruled on an argument—entitlement to compassionate release due to the COVID-19 pandemic—that Abdullah’s motion plainly did not advance.

The criticism is reminiscent of similar complaints about U.S. District Judge Timothy Black (S.D. Ohio) last winter.  It cannot be said too often that a sentence reduction motion that sits undecided is sometimes worse than no remedy at all.

United States v. Abdullah, Case No 24-3093, 2024 U.S. App. LEXIS 26639 (6th Cir. Oct 22, 2024)
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– Thomas L. Root

Harris and Trump Agree With Each Other… Decriminalize Marijuana – Update for October 29, 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.

STRANGE BEDFELLOWS

You can tell it’s election season, as presidential candidates stake out positions on every issue (including how nice the island of Puerto Rico might be). Marijuana reform is “the rare bipartisan issue” in this year’s presidential election, according to The Wall Street Journal, that everyone seems to embrace.

marijuana221111Both Donald Trump and Kamala Harris have offered support for easing restrictions. More than half the states have legalized adult marijuana use. The pot industry says more reforms are needed, but these are all in banking, decriminalization of personal-use qualities, and research studies.

What no one’s talking about is changing the federal criminal code on marijuana, let alone retroactively. While reclassification of marijuana as a Schedule III drug, anticipated in the next two months, will mean that some penalties for some offenses will probably be reduced – especially in the Guidelines –violations of the Controlled Substances Act which “apply to activities involving marijuana specifically, such as the quantity based mandatory minimum sentences […] would not change as a result of rescheduling,” the Congressional Research Service said.

As part of her pledge, Kamala Harris said she would take steps to ensure that black men, disproportionately incarcerated and disenfranchised by the war on drugs, would stand to profit from the industry. Harris’s pledge to end marijuana prohibition sets her apart from both Biden and Trump, making her the first candidate to say that prohibition is a priority.

During his administration, Biden made a lot of promises about marijuana, including pardons for simple possession convictions to reschedule pot. Biden has only granted pardons to a small fraction of weed-related convictions during his administration. Biden’s sponsorship of the Violent Crime Control Act of 1994 has left him, rightly or wrongly, with the reputation as being opposed to criminal justice reform.

sessions180119Meanwhile, Trump has changed his tune on marijuana during this election season, taking positions at odds with his record of having appointed anti-drug zealot Jefferson Beauregard Sessions III as his attorney general. But Trump later pushed the First Step Act through Congress, although he has publicly groused that he did it primarily to get black support which he never received.

Advocates and opponents now cross party lines. In Florida, Bradford County Sheriff Gordon Smith — a Republican — made an ad backing that state’s referendum, said Florida Politics. Legalization will “let us focus on serious crime, making our streets and neighborhoods safer,” Smith said. But Gov. Ron DeSantis (R) is fighting the proposal, said NBC News. The one-time GOP presidential candidate is campaigning against the referendum, one observer said, “as if it’s his own name on the ballot.”

Martin Luther King, Jr., once said, “The arc of the moral universe is long but it bends toward justice.” Likewise, the arc of marijuana regulation is long but it bends toward reform. Just not tomorrow and maybe not even next year.

Wall Street Journal, The Rare Bipartisan Issue in This Year’s Election: Recreational Weed (October 21, 2024)

The Week, Is legal weed a bipartisan issue now? (October 23, 2024)

The Guardian, Kamala Harris promises full marijuana legalization – is that a gamechanger? (October 19, 2024)

HeraldNet, Comparing Harris and Trump on crime and justice (October 19, 2024)

– Thomas L. Root