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Money for Nuthin’ – Update for August 29, 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.

YO MOMMA

Ruel Hamilton, a Dallas real estate developer, liked politicians. He liked them so much that he gave money to members of the Dallas City Council just because he could.

money160118In 2017, Ruel wanted to get a paid-sick-leave ordinance on the ballot in the upcoming election. He thought the policy made good sense: in fact, he already had a more generous policy in place for his own employees. Plus, he thought having the ordinance on the ballot would increase voter turnout, another good thing (and one which would help secure the reelection of City Council members Ruel liked).

Ruel called City Councilman Dwaine Caraway to discuss getting the measure on the ballot. His call came at a bad time: Dwaine was in the middle of negotiating a plea deal with the US Attorney over some other bribery allegations when the call came in. The government – always happy to ensnare another defendant when possible – encouraged Dwaine to meet with Ruel (and to let the FBI secretly record the confab).

At the meeting, Dwaine and Ruel talked about how Dwaine’s mother needed a $6,200 healthcare bill paid that very day and how busy, tired and broke Dwaine was. They then discussed the paid-sick-leave initiative, how that vote might come out if it was put on the agenda by the Mayor, and how Ruel hoped Dwaine would run for reelection.

money170419Ruel kept reminding Dwaine that he was there to help in any way he could. Dwaine finally said, “You can answer that bill that I just threw out there… for about [$6,200] today and that will help me… do what I need to do.” Ruel happily obliged: “Can I just write a check to Dwaine Caraway?” he asked. Dwaine clarified that the money was not a loan and was not related to his campaign. He said he had to “go pay for my mama.”

Ruel gave him a check for $7,000 but neither asked for nor was promised that Dwaine would do anything in return. It was indeed “money for nuthin’.” Nevertheless, Ruel soon found himself on the wrong end of an indictment for bribery in violation of 18 USC § 666.

In giving the jury instructions for the federal-programs-bribery counts, the district court told the jury that neither a quid-pro-quo exchange nor any “official act” by the council members was required to convict Ruel for bribery. Essentially, the district court said, whether Ruel bribed Dwaine or just paid an illegal gratuity to him didn’t matter.  Both violated 18 USC § 666, the district judge said.

piublicdefender220829But Ruel wasn’t just some down-on-his-luck dopehead represented by an underpaid court-appointed attorney. Rather, he hired Paul Clement (a former US Solicitor General), high-powered defense attorney Abbe David Lowell, and the combined power of three top-tier Washington law firms. Not only was Ruel’s legal team successful in keeping him out of prison pending appeal (no mean feat), but it buried the US Attorney in an avalanche of appellate issues.

Ruel’s legal fees probably would have choked a horse, but like my dad always said, ‘no one ever regrets buying the best there is.’ Ruel’s  team clobbered the two AUSAs prosecuting the case.
quid220829Last week, the 5th Circuit vacated Ruel’s conviction. Holding that “bribery requires a quid pro quo – a specific intent to give or receive something of value in exchange for an official act – [while an] illegal gratuity does not,” the 5th rejected precedent from five other circuits, ruling that 18 USC § 666 does not cover illegal gratuities, only bribery. Because of this, the government must show that the defendant had a specific intent to give something of value in exchange for an official act. The jury was never instructed that a quid pro quo was an essential element of the offense, making Ruel’s conviction defective.

“Section 666 criminalizes only a quid pro quo, not mere gratuities,” the Circuit held. “The district court’s instruction allowed the jury to convict based on mere gratuities. For these reasons, we vacate Hamilton’s convictions….’

United States v. Hamilton, Case No 21-11157, 2022 US App. LEXIS 23648 (5th Cir. Aug 23, 2022)

– Thomas L. Root

Transgender Rights Come to Prison – Update for August 25, 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.

We have been out for the past 10 days for some needed medical work.  Glad to be back.

TRANSGENDER INMATES PROTECTED BY ADA, 4TH RULES

In a case with significant implications for the Bureau of Prisons, the 4th Circuit last week held that gender dysphoria is covered by the Americans With Disabilities Act.

trans220106Kesha Williams, a man who identifies as a woman, sued the Fairfax County, Virginia, sheriff for being housed with men during a 6-month jail sentence. The sheriff argued that the ADA – which excludes “gender identity disorders” from conditions covered by the Act – does not extend to gender dysphoria (a condition that had not been identified when the Act was passed in 1990).

The Circuit disagreed. Relying on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (DSM-5), the 4th said that

the definition of gender dysphoria differs dramatically from that of the now-rejected diagnosis of “gender identity disorder.” Rather than focusing exclusively on a person’s gender identity, the DSM-5 defines “gender dysphoria” as the “clinically significant distress” felt by some of those who experience “an incongruence between their gender identity and their assigned sex.” And the DSM-5 explains that the discomfort or distress caused by gender dysphoria may result in intense anxiety, depression, suicidal ideation, and even suicide. In short, “being trans alone cannot sustain a diagnosis of gender dysphoria under the DSM-5 as it could for a diagnosis of gender identity disorder under earlier versions of the DSM.” For if a transgender person does not experience “clinically significant distress,” she could not be diagnosed as having gender dysphoria under the DSM-5.

A 2013 update of the DSM that became the 5th edition removed the diagnosis of gender identity disorder, replacing it with gender dysphoria. “Reflecting this shift in medical understanding, we and other courts have thus explained that a diagnosis of gender dysphoria, unlike that of ‘gender identity disorder,’ concerns itself primarily with distress and other disabling symptoms, rather than simply being transgender,” the 4th said.

The Circuit ruled that even if gender dysphoria and gender identity were not categorically distinct, the prisoner would still be protected under the ADA because her gender dysphoria has a “known physical basis.” When prison officials failed to provide hormone therapy to the prisoner, she experienced emotional, psychological, and physical distress. “Williams does not merely allege that gender dysphoria may require physical treatment such as hormone therapy,” the 4th wrote. “She maintains that her gender dysphoria requires it.”

The Circuit said that excluding gender dysphoria from the ADA “would discriminate against transgender people as a class, implicating the Equal Protection Clause of the 14th Amendment.”

The 4th further noted that in 2008, Congress’s amendment to the ADA instructed courts to apply the statute broadly, intending to make it easier for people with disabilities to access protection under the ADA and stating that the definition of disability should be construed in favor of people calling for coverage “to the maximum extent permitted by the ADA’s terms.

The sheriff’s policy classified prisoners’ gender according to their genitalia. That policy, the Court found, violated the Prison Rape Elimination Act (PREA). “A policy that houses transgender inmates based solely on their genitalia puts transgender inmates at further risk of harm,” the 4th ruled.

The BOP estimates that about 1,200 inmates identify as transgender.

Even before this decision, some of the BOP’s 10,800 female inmates have been vociferous in their opposition to having transgender females – most of whom retain male genitalia – from being housed with them. The news last month that a transgender woman inmate housed by New Jersey in a female prison had impregnated two female inmates has raised concerns about transgender inmate housing. None of those concerns will be allayed by the 4th Circuit’s holding.

Williams v. Kincaid, Case No 21-2030, 2022 US App LEXIS 22728 (4th Cir, Aug 16, 2022)

Washington Post, 4th Circuit first to rule gender dysphoria a protected disability (August 17, 2022)

Tucson Sentinel, Appeals Court Ruling on Transgender Rights: What It Means (August 22, 2022)

NBC News, N.J. trans prisoner who impregnated 2 inmates transferred to men’s facility (July 19, 2022)
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– Thomas L. Root

Biden’s “Safer America Plan” Backs EQUAL Act – Update for August 12, 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.

SAFER AMERICA PLAN  BACKS EQUAL ACT, BUT IS IT ENOUGH?

President Biden rolled out a “Safer America Plan” last week, a proposal to address public concern about crime rates that is probably intended to blunt the issue before November’s midterm elections.

The Plan represents the President’s hopes and not a firm legislative proposal. But amid the $35 billion proposal to support law enforcement, gun control, and crime prevention, the Plan “calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive.”

This, of course, is the EQUAL Act (S.79).

EQUAL would provide immediate sentencing relief to an estimated 10,000 inmates – more than 90% of whom are black – currently serving time in federal prison pursuant to the crack/powder disparity, according to the White House.

President Biden’s backing of the EQUAL Act is not surprising, but in the wake of a big Democrat win in Congress last week on the Inflation Reduction Act, the Senate may have the energy to tackle EQUAL. It will have to be after the August recess, and that brings it within 60 days of the November election. It still looks likely nothing will happen on EQUAL until after the November 8th midterm election.

In an August 1st letter to Congress, the United States Conference of Catholic Bishops pressed for passage of EQUAL. “We cannot ignore the racial impact of current federal cocaine sentences when Blacks are more than three times as likely to be convicted for crack cocaine trafficking as for powder cocaine trafficking,”  Bishops Paul S. Coakley and Shelton J. Fabre wrote.

equal220812

An amendment to add the EQUAL Act to the National Defense Authorization Act (H.R. 4350) passed the House of Representatives on July 19 with bipartisan support.  But the likelihood that the provision will survive Senate passage of the NDAA is low:  Unrelated amendments are routinely attached to NDAAs but are often negotiated out in the process of reconciling House and Senate versions of the bill.

The Catholic News Agency report on the bishops’ letter suggests that despite broad support, EQUAL’s future may be bleak:

The EQUAL Act has an uncertain future in the Senate. Since it has 11 Republican co-sponsors, it could pass as a stand-alone bill. However, the ranking Republican member of the Judiciary Committee, Sen. Charles Grassley, has his own bill to address disparities in drug sentencing. His legislation would reduce but not eliminate the disparity. 

White House, Safer America Plan (August 1, 2022)

Catholic News Agency, Bishops urge passage of bill that would give same sentences to crack and powder cocaine offenders (August 11, 2022)

– Thomas L. Root

Peters Off to a Rocky Start at BOP – Update for August 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.

IT ONLY TOOK TWO DAYS FOR THE NEW DIRECTOR TO STEP IN IT…

stepinit220811Reason reported last week, “We last saw outgoing BOP Director Michael Carvajal running down a stairwell on July 26. He was trying to get away from some Associated Press reporters who revealed systemic dysfunction and corruption within the federal prison system—an apt ending for his tenure.”

But it seems that rather than being gone but not forgotten, Mr. Carvajal may be forgotten but not gone.

The AP reported last week that the BOP “is keeping its former director on the payroll as an adviser to his successor, rewarding him with an influential new role after concerns about his leadership — including from staff, inmates, Congress and the Biden administration — hastened his exit from the top job.”

Carvajal will stay on through the end of the month as a senior adviser to new director Peters, BOP spokeswoman Kristie Breshears told AP. “Critics say that retaining Carvajal, even for a few weeks, could slow that progress,” Corrections1 said. “Some people involved in the federal prison system say Carvajal lacks credibility and that the decision to let him stay on sends mixed signals about the direction of the agency at a pivotal time.”

Unbelievable220811“That is unbelievable. Why would we keep an individual that has left this agency in ruins, and who refuses to take ownership of failures of his administration, from staffing to COVID?” said Jose Rojas, a leader in the federal correctional officers’ union. “What a sad state of affairs.”

The announcement did not please Sen. Richard Durbin (D-IL). The chairman of the Senate Judiciary Committee said last Friday he plans to hold yet another oversight hearing on the BOP after The Associated Press reported that the agency is keeping Carvajal on the payroll as an adviser to Peters.

Durbin, who demanded Carvajal be fired last November amid myriad failings, told the AP in a statement he was dismayed by continuing misconduct within the agency and by its unwillingness to completely cut ties with the former director.

Reason, Biden’s New Bureau of Prisons Director Won’t be Able To Run Away From the Agency’s Corruption (August 1, 2022)

Corrections1, US keeping ex-prison chief as top adviser after rocky tenure (August 5, 2022)

Associated Press, Senate to hold hearing on crisis-plagued federal prisons (August 5, 2022)

– Thomas L. Root

It’s (Not) A Fact! – Update for August 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.

JUST THE FACTS

justthefacts220810In 2017, Clifton Odie pled guilty to a drug conspiracy. In the plea agreement, Cliff acknowledged that the government would file a 21 U.S.C. § 851 enhancement (which increases the statutory minimum sentence) based on Cliff’s 2000 Illinois state conviction for possession of a controlled substance in violation of 720 Ill. Comp. Stat. 570/402(c). The § 851 notice increased Cliff’s mandatory minimum term of imprisonment from 5 to 10 years. Cliff agreed in the plea agreement not to challenge the enhanced sentence.

But later that year, the 7th Circuit ruled in United States v. De La Torre that 720 Ill. Comp. Stat. 570/402(c) could not serve as a prior felony drug offense under 21 U.S.C. § 851. Although Cliff was way past the basic one-year deadline for a 28 U.S.C. § 2255 motion, he filed anyway, arguing that his motion was timely under § 2255(f)(4), which lets a prisoner file a § 2255 motion within one year of “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

The district court held his motion was untimely, despite Cliff’s argument that De La Torre revealed to him the “new fact” that his prior 2000 Illinois state conviction could not qualify as a prior felony drug offense for purposes of the § 851 enhancement.

On appeal, Cliff acknowledged that a judicial decision itself is not a new fact for purposes of § 2255(f)(4) but he argued that the De La Torre decision revealed the “new fact” that his 2000 Illinois state conviction was categorically overbroad under 21 U.S.C. § 851.

factopinion220810The 8th Circuit didn’t buy it, and last week agreed that Cliff’s § 2255 motion was late. The Circuit said that Cliff was relying on the De La Torre decision as the discoverable fact. The Seventh Circuit, in De La Torre, analyzed federal and state law to reach a legal conclusion about a state statute… [But] De La Torre is a judicial decision that, “unlike a predicate conviction, is a ruling exclusively within the domain of the courts and is incapable of being proved or disproved… To borrow Cliff’s language, the De La Torre holding ‘was a total judicial judgment call. We conclude that Cliff fails to show the existence of a new fact and therefore the limitations period enumerated in § 2255(f)(4) was not triggered by the publication of De La Torre.”

Odie v. United States, Case No 21-2652, 2022 U.S.App. LEXIS 21225 (8th Cir., Aug. 2, 2022)

– Thomas L. Root

Peters Sworn In As Director of ‘Beleaguered’ BOP – Update for August 9, 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.

PETERS TAKES BOP HELM

Colette S. Peters was sworn in as the Bureau of Prisons 12th director last week, as the Biden administration looks to reform what the Associated Press called a “beleaguered agency.”
petersgarland220810Peters, the former director of the Oregon state prison system, replaced Michael Carvajal, who submitted his resignation in January but stayed in his post until a new director was named. Carvajal announced his retirement amid mounting pressure from Congress, after AP investigations by exposed widespread corruption, misconduct, and sexual abuse of female inmates.

Citing the Benedictine principles of love of neighbor, service, stewardship, justice and peace, Peters said at her investiture that “our mission is twofold: to ensure safe prisons and humane and sound correctional practices so that people reenter society as productive citizens. Our job is not to make good inmates; it is to make good neighbors… I believe in good government, I believe in transparency, and I know we cannot do this work alone. We must come to this work with our arms wide open.”

Peters replaces Carvajal as BOP director only a week after a Senate Permanent Subcommittee on Investigations hearing on BOP mismanagement of USP Atlanta. After being forced by subpoena to appear, Carvajal “refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years, angering both Democratic and Republican senators,” AP reported.

Dumpster220718Writing in Forbes, Walter Pavlo said, “Often frustrated by Carvajal, the subcommittee insisted that Carvajal stop talking about the organization chart in the BOP that prevented important information from reaching his desk.” Subcommittee chairman Sen Jon Ossoff (D-GA), told Carvajal that issues plaguing the BOP “are deeper than your leadership personally. This is clearly a diseased bureaucracy, and it speaks ill to our national values and our national spirit that we let this persist year after year and decade after decade. And if this country is going to be real about the principles at the core of our founding, and our highest ideals, then it can change at the Bureau of Prisons… And it has to happen right now. And with your departure and the arrival of a new director. I hope that moment has arrived.”

During her 10 years at Oregon DOC director, Peters built a reputation as a reformer, vowing to reduce the use of solitary confinement and even banning the use of the term “inmate” in favor of “adult in custody.” Like her counterparts in California and North Dakota, Peters visited Norway five years ago, hoping tobringing a gentler model of incarceration back to the United States.

But as The Marshall Project observed last week, “American prisons are still a long way from Europe’s, and even the most innovative corrections leaders here have overseen horrific living conditions in their prisons and abuse from their staff. In picking Peters to run the Bureau of Prisons, the Biden administration has brought local and state debates to a national stage: Can this new generation of prison leaders, who use words like “dignity” and “humanity,” actually make lives better for the men and women under their control?”

Kevin Ring, president of FAMM, said last week that worrying about who runs the BOP r may be focusing on the wrong problem. “I’m less concerned about who the BOP director is than whether we have an independent oversight mechanism in place,” Ring told The Marshall Project. Although the BOP has an inspector general to perform audits, FAMM has been pushing for legislation to create an oversight body with the authorization and funding to do regular site visits and unannounced inspections.

transparancy220810“During Carvajal’s tenure, the BOP has been a black box,” Ring said in a news release last month. “When COVID began spreading in federal prisons and families’ fears were at their greatest, Carvajal and the BOP somehow became less transparent. The BOP’s opaqueness felt like cruelty. We hope the incoming secretary is prepared to make significant changes to a system badly in need of them.”

Sen Richard Durbin (D-IL), chairman of the Judiciary Committee and Carvajal’s harshest Senate critic, said after meeting with Peters last week, “I’m more hopeful than ever that with Director Peters, Attorney General Garland and Deputy Attorney General Monaco have chosen the right leader to clear out the rot and reform BOP.”

Fox News, AG Garland swears in new director of the federal Bureau of Prisons, pushes for reform (August 2, 2022)

Forbes, Bureau Of Prisons Director Carvajal Leaves Behind A Tainted Legacy Void Of Accountability (July 31, 2022)

The Marshall Project, She Tried to ‘Humanize’ Prisons in Oregon. Can She Fix the Federal System? (August 4, 2022)

Reason, Biden’s New Bureau of Prisons Director Won’t be Able To Run Away From the Agency’s Corruption (August 1, 2022)

Shaw Local News, Durbin meets with newly sworn-in director of federal prisons (August 3, 2022)

– Thomas L. Root

How Many Angels with Guns Can Fit on the Head of a Pin? – Update for August 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.

‘WAIVING’ DAVIS RETROACTIVE RELIEF GOODBYE

Robber160229Deandre King was convicted of conspiracy to rob a bank and using or carrying a gun while doing so (an 18 USC § 924(c) violation). He signed a plea deal that, among other things, included a waiver giving up “the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding unless the sentence exceeded the statutory maximum.”  The waiver language included waiving post-conviction motions filed pursuant to 28 USC § 2255.

As you may recall the § 924(c) count is the darling of the prosecution set. A § 924(c) count (for using, carrying or possessing a gun during and in relation to a drug offense or a crime of violence) carries a mandatory sentence of at least five years. Plus, the law requires the mandatory sentence be imposed consecutively to any other sentence imposed. So while the conspiracy to rob might carry an 51-month sentence (as Deandre’s did), piling a § 924 count on top ensured another 84 months (the mandatory minimum where the gun is “brandished”), for  a 135-month stay.

deal160516Deandre’s plea deal probably didn’t seem too bad to him, because the government dropped some other counts, including another § 924(c) count that would have added another five years. Besides, the law was clear: bank robbery was a crime of violence, and all the Circuits had long since agreed that a conspiracy to commit a crime of violence was itself a violant crime.

However, four years after Deandre’s conviction, the Supreme Court held that all the Circuits were wrong. In United States v. Davis, the Supreme Court held that conspiracy to commit a violent offense could not be used as an underlying crime of violence supporting a § 924(c) conviction.

The Davis holding has since been held to be retroactive, so Deandre jumped on it, filing a § 2255 asking his district court to throw out the § 924(c) conviction.

His district court refused, however, holding that Deandre’s plea agreement waiver prevented such a filing. Last week, the 11th Circuit agreed, holding that the mere fact that no one foresaw a change in the law that would nullify a conviction did not invalidate a waiver.

angels170726Deandre argued that the Davis change was the equivalent to his being sentenced in excess of his stastutoery maximum. The argument has some appeal. After all, if he was not guilty of the § 924 count, then the statutory maximum sentence would be zero, and any § 924(c) sentence in excess of zero would exceed the statutory maximum (at least in some metaphysical way).

But the 11th Circuit was uninterested in counting the angels on the head of the pin:

Forcing constitutional claims into the statutory-maximum exception would render the promise of waiver virtually meaningless, robbing defendants of a powerful bargaining tool,” the Circuit held. “Defendants who agree to waive their appeals receive the immediate benefit of reduced penalties in return—as King’s case shows. But if that waiver becomes contingent, whether the defendant wishes it to be or not, a bargain will be much harder to strike… We are not the only circuit court to recognize the value of enforcing appeal waivers against claims based on new constitutional rules… Two of our sister circuits have recently held that such waivers prohibit § 2255 motions based on Davis. The 7th Circuit explained that a Davis challenge did not “satisfy any of its recognized bases for avoiding a valid collateral-attack waiver…” and the 6th Circuit interpreted an explicit carve-out in an appeal waiver for sentences exceeding “the statutory maximum” to refer to “the maximum sentence at the time of sentencing, not to maximum sentences throughout a defendant’s prison term based on future changes to the law.

What this means is that while Deandre is not guilty of the § 924(c) conviction, he’ll do the time for it.

King v. United States, Case No 20-14100, 2022 US App LEXIS 20910 (11th Cir Jul 28, 2022)

– Thomas L. Root

Peters Due to be Sworn In This Morning, Honeymoon’s Due to End This Afternoon – Update for August 2, 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.

change220802Incoming BOP Director Colette Peters will have her choice of fires to put out after today’s swearing in. What she will not have is much of a honeymoon in which to do so.

At last week’s hearings, Sen. Jon Ossoff (D-GA) said that with Carvajal departing, and a new director coming in, change at the Bureau of Prison needs to happen and it needs to happen now.

With a fall COVID surge anticipated, she might want to look first at the BOP’s COVID management. Others certainly are. At last week’s Subcommittee hearings, Sen Alex Padilla (D-CA) said his office has received reports that FCI Mendota had not been following COVID-19 protocols, leading to frequent outbreaks at the facility.

Padilla and Sen. Dianne Feinstein (D-CA) sent the Dept of Justice a letter in April asking about the lack of COVID-19 safety precautions, but did not receive an adequate response. In response to Carvajal’s assurance that the BOP “takes these allegations seriously,” Padilla said, “We sent you a letter saying that we’re hearing that protocols are not being followed. We communicated to you months ago that we understand they aren’t being followed.”

Fourteen other senators last week demanded that the BOP explain its scant use of Covid-19 therapeutics.

The letter is based on press reports that the BOP used just a fraction of the COVID-19 drugs allotted by the federal government. It urges Bureau leadership to revamp its approach toward Covid-19 testing to catch more infections that could benefit from these drugs (which need to be given early in a person’s illness).

Druck“The experience of the pandemic for the federally incarcerated population remains starkly worse than for non-incarcerated individuals,” the letter said. “This discrepancy can only be addressed through affirmative, comprehensive changes from the Bureau of Prisons … to improve the availability of COVID-19 vaccines, testing, and therapeutics. We write to urge you to make those improvements as soon as possible.”

The Dept of Health and Human Services has reported that BOP consistently declines additional COVID-19 drugs. “We have… reached out multiple times to BOP asking them why they do not want their allocations offered by HHS. They consistently say they have enough to meet demand/their demand is low,” DHHS wrote in a May 4 email to Congress. Last week’s letter demands information from the BOP by Sep 9, including data on the turnaround time for Covid-19 tests and the policies governing when incarcerated people are tested.

numbers180327As of yesterday, BOP COVID numbers – which are stunningly untrustworthy most of the time – reported 479 inmates and 509 staff with COVID, with COVID in 115 facilities (the most since March 1st). The total number of COVID tests performed on inmates fluctuates inexplicably but suggests no testing being done since January 25th. Peters might want to start by requiring BOP COVID stats to be meaningful.

Florida Phoenix, ‘Stunning, long-term failures’ found in probe of Atlanta penitentiary (July 26, 2022)

Stat, Senators demand answers about federal prisons’ scant use of Covid therapeutics (July 26, 2022)

Letter to Michael Carvajal from Sen Benjamin Cardin (July 25, 2022)

– Thomas L. Root

Outgoing Director Carvajal Beaten Up by Gang of Senators – Update for August 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.

FORMER BOP DIRECTOR GETS SENATORIAL KICK IN THE PANTS ON HIS WAY OUT THE DOOR

Widespread drug abuse, substandard health care, violence and horrific sanitary conditions are rampant at USP Atlanta, according to a Senate Permanent Investigations Subcommittee investigation revealed last week.

riot170727The dysfunction at USP Atlanta is so notorious within the BOP that “its culture of indifference and mismanagement is derisively known among bureau employees as ‘the Atlanta way’,” the New York Times reported last week. Witnesses at the Subcommittee hearing last week “describe[ed] dozens of violent episodes — and the systematic effort to downplay and cover up the crisis — over the past few years,” The Times reported.

The prison’s conditions reflect wider problems in the BOP’s network of 122 facilities housing about 158,000 inmates, The Times said. The system has suffered from chronic overcrowding, staffing shortages, corruption, sexual violence and a culture that often encourages senior officials to minimize the extent of the problems.

The Associated Press reported that outgoing BOP Director Michael Carvajal, who testified under a Subcommittee subpoena, “faced a bipartisan onslaught Tuesday as he refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years.”

schultz220801Carvajal argued that “he had been shielded from problems by his underlings — even though he’d been copied on emails, and some of the troubles were detailed in reports generated by the agency’s headquarters.” He blamed the size and structure of the BOP for his ignorance on issues such as inmate suicides, sexual abuse, and the free flow of drugs, weapons and other contraband that has roiled some of the BOP’s 122 facilities. His attempts to deflect responsibility for his leadership failings sat well with neither Subcommittee chairman Sen Jon Ossoff (D-GA) nor its ranking member, Sen Ron Johnson (R-WI).

Colette S. Peters, the longtime head of Oregon prisons, assumes the BOP director’s post on Tuesday. Carvajal finally will get the retirement he announced seven months ago, but not before the Subcommittee made it clear that it was fed up with his blandishments.

“Inmates hanging themselves in federal prisons, addicted to and high on drugs that flow into the facilities virtually openly,” Ossoff told Carvajal, “and as they hang and suffocate in the custody of the US government, there’s no urgent response from members of the staff, year after year after year… It’s a disgrace. And for the answer to be ‘other people deal with that. I got the report. I don’t remember’. It’s completely unacceptable.”

“It’s almost willful ignorance, and that’s what I find disturbing,” Johnson said. “‘Don’t want to know what’s happening below me. Don’t want to hear about rapes. Don’t want to hear about suicides’.”

rapeclub220801In one of the hearing’s most heated moments, Ossoff pressed Carvajal on rampant sexual abuse at FCI Dublin, a federal women’s prison in California’s Bay Area known to staff and inmates as the “rape club.” Among the Dublin employees charged criminally so far is the prison’s former warden.

“Is the Bureau of Prisons able to keep female detainees safe from sexual abuse by staff?” Ossoff asked. “Yes or no?”

“Yes, we are,” Carvajal replied. “In those cases when things happen, we hold people appropriately accountable.”

“You are the director at a time when one of your prisons is known to staff and inmates as a ’rape club,” Ossoff shot back. Carvajal had no response.

Rebecca Shepard, a staff attorney for the Federal Defender Program Inc., said USP Atlanta subjects inmates to inhumane and substandard conditions:

I have seen clients routinely locked down and allowed out of their cells for extremely limited periods of time, such as only 15 to 30 minutes, three to four times a week, or only an hour each day. And these lockdowns persist for months. Clients are treated as though they are in solitary confinement, not because of their behavior, but because of their misfortune and being placed at USP Atlanta.

The problems were “stunning failures of federal prison administration,” Ossoff said. But despite “unequivocal internal reports of abuse and misconduct, the situation continued to deteriorate.”

sexualassault211014Attorney General Merrick Garland appears to be moving more decisively, especially on the issue of sexual violence against female inmates and staff members. On July 14, Deputy Attorney General Lisa Monaco announced a task force to establish a policy aimed at “rooting out and preventing sexual misconduct” by prison employees over the next 90 days. Ms. Monaco said she was also instructing frontline prosecutors to make all misconduct cases at facilities a top priority, The New York Times said.

Last week, Forbes reported that Peters will take over an agency in disarray:

Relations between management and labor is at an all-time low, the agency is failing at implementing the First Step Act and COVID-19 continues to ravage its institutions. A recent survey by Partnership for Public Service, which ranks best places to work within the US government, ranked the BOP near last among 432 federal agencies. It ranked dead last in Effective Leadership category. This comes at a time when the BOP is trying to recruit new workers to make up for many veteran BOP employees who are leaving the agency.

Dumpster220718Hyperbole?  Well, just last week:

•      An independent arbitrator found the management at the Bureau of Prisons Federal Correctional Center Yazoo City in Mississippi guilty of violating the civil rights of the American Federation of Government Employees’ (AFGE) local President Cyndee Price at the facility, as well as retaliating against her in violation of the union contract.

     In 2020, Price was the first Black woman elected to serve as the local union president at any Federal Correctional Complex in the nation. But after that, the arbitrator ruled, prison wardens prohibited Price from using 100% official time to perform her union work, although previous Local President Vincent Kirksey had been granted 100% official time for the past seven years, and male local presidents at other BOP facilities also are on 100% official time.

     Bankston ordered the agency to pay Price overtime pay for the 1,080 hours of union work she performed on her own time that should have been performed during duty hours under the approved contract and past practice. Price was also awarded $300,000 in compensatory damages, as well as attorney’s fees and expenses.

•    A former BOP employee from FMC Lexington was sentenced last Friday to 80 months in federal prison after pleading guilty to committing five counts of sexual abuse of a ward. The employee, Hosea Lee, was a correctional officer serving as a drug treatment specialist. Between August and December 2019, Lee engaged in sexual acts with four separate female inmates who were in his drug classes.

•    A Mississippi woman, Tarshuana Thomas, was arrested Monday after being indicted by a federal grand jury for alleged fraud involving federal COVID-19 Paycheck Protection Program loans. The US Attorney said Thomas, who worked as a CO at FCC Yazoo City at the time of the alleged fraud, devised a scheme to obtain PPP funds by filing fraudulent loan applications.

The Atlanta Voice, Senator Ossoff grills Federal prison officials over deplorable conditions at Atlanta Penitentiary (July 28, 2022)

The New York Times, Prison Personnel Describe Horrific Conditions, and Cover-Up, at Atlanta Prison (July 26, 2022)

Forbes, Outgoing Federal Bureau Of Prisons Director Carvajal Subpoenaed By Senate Subcommittee (Jul 19)

WRDW-TV, Ossoff leads hearing on troubled Georgia federal prison (July 26, 2022)

WJTV, Arbitrator finds Yazoo County federal prison guilty of violating civil rights (July 26, 2022)

Dept of Justice, Former BOP Employee Sentenced to 80 Months in Prison for Sexual Abuse of a Ward (July 29, 2022)

Mageenews.com, Former BOP Correctional Officer Charged with COVID-Relief Fraud (July 29, 2022)

– Thomas L. Root

Musings on a Slow Month – Update for July 26, 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.

THE GOOD, THE BAD, AND THE WEIRD

summertime220725In the only good news to come from Washington so far this sleepy July, Senate Democrats have introduced a bill to decriminalize marijuana at the federal level this week, although the legislation faces long odds in the evenly divided chamber.

Majority Leader Charles Schumer (D-NY) worked with Sen Cory Booker (D-NJ) and Ron Wyden (D-OR) on the measure. The senators circulated a draft of the bill last year and made tweaks after feedback from Senate committees.

The Cannabis Administration and Opportunity Act (S.4591) would remove marijuana from the list of drugs covered by the Controlled Substances Act. States, however, can still maintain and create prohibitions on producing and distributing marijuana.

marijuana160818The CAOA is the Senate’s answer to the MORE Act (H.R. 3617), passed in the House last spring on a 220-204 vote. Like the MORE Act, the CAOA will require all federal non-violent marijuana-related convictions and arrests be expunged within a year. Some lawmakers on both sides of the aisle have criticized Schumer for trying to push through a broad cannabis reform bill at the expense of a marijuana banking bill that has greater bipartisan support.

The bad is that the EQUAL Act (S.79), which passed the House (361-66) last September, remains stalled in the Senate. The Act, which would equalize sentences for crack and powder cocaine (and offer retroactivity to anyone serving a crack offense now) has well over 60 votes in the Senate. The Senate Majority Leader – the guy who schedules votes on bills – is a cosponsor. So what’s the holdup?

In a long article on a crack cocaine defendant who finally got compassionate release, the Mississippi Free Press last week reported, “FAMM President Ring told the Mississippi Free Press more about what he sees as the senators’ political calculations. ‘The problem is that lawmakers are scared that if this bill comes up, Republicans will be allowed to offer amendments to it because that’s usually how the process works,’ he said.

Ring said that votes on amendments unrelated to the bill can be “weaponized by political opponents… As a result, the political calculation has been made to shelve the bill in the Senate.”

crackpowder160606In addition, Dream Corps JUSTICE Policy Director Kandia Milton, in June 23, 2022, letter, indicated that the group is concerned about a competing Senate bill sponsored by Sen Charles Grassley (R-IA) — the SMART Cocaine Sentencing Act, S.4116 – that “maintains a disparity between these two forms of the same drug (2.5-1), lower the mandatory minimum threshold to 400 grams from 500 grams and, worst of all, mandates that the U.S. Attorney must approve all petitions for retroactivity.” Milton wrote. “Our sense of urgency is driven by the reality that if we do not pass [EQUAL] by the August recess, we won’t get another clean shot until after the midterm elections, an unpredictable two-month window at the end of the year,” he added. “We are very close to eliminating the disparity between crack cocaine and powder cocaine, and we recognize there is more work to be done.”

The weird: Two weeks ago, the Senate Judiciary Committee whiffed for a second time on approving the nomination of the seven candidates for the Sentencing Commission. At the beginning of last Thursday’s work session, Durbin said, “We have decided on a bipartisan basis to hold over for a second time the Sentencing Commission nominees while members are in… we’re going to try to find a path for all seven nominees to move together, which I think would be a positive thing and maybe even historic around here.”

The terse statement suggested some substantial pushback on one or more nominations. Laura Mate, who signed a 2014 letter to Congress supporting more reasonable mandatory minimums for sex offenders, and former federal judge John Gleeson, whose criticism of the Guidelines while on the bench was legendary, were both pilloried by several Republicans during their June nomination hearing.

Nevertheless, last week the Committee finally got the job done. It advanced the slate of seven nominees to the floor of the full Senate for its approval, bringing the Commission one step closer to being able to amend the Sentencing Guidelines.

noquorum191016The USSC has been unable to implement the First Step Act or, for that matter, do anything else after losing its quorum just as the bill was enacted in December 2018.

The Senate Judiciary Committee voted to send to the full Senate four Democrat and three Republican candidates nominated by President Joe Biden to revitalize the Commission.

Committee chairman Durbin told the Committee that while he had reservations about some nominees, it was important to move them forward as a group to “enable the commission to get back to doing its work.” He said, “[T]he Sentencing Commission has not had a quorum for three years. With no quorum, the Commission—created in 1984 and tasked by Congress to promote transparency and consistency in sentencing—has been unable to update the sentencing guidelines to provide guidance to judges. Today, we make an important step to rectify the situation… [and] enable the Commission to get back to its work.”

Cannabis Administration and Opportunity Act (S.4591)

Seeking Alpha, Senate Democrats-backed marijuana legalization bill coming next week (July 14, 2022)

Bloomberg, Pot Gets Senate’s Attention in Long-Shot Decriminalization Bill (July 14, 2022)

Politico, Schumer’s legal weed bill is finally here (July 21, 2022)

KYFR, North Dakota lawmakers, advocates push for equal sentencing in federal cocaine and crack crimes (July 12, 2022)

Senate Judiciary Hearing (July 14, 2022)

Mississippi Free Press, ‘Model Inmate’: Father Finally Has Crack Sentence Reduced as U.S. Senate Shelves Reform Bill (July 22, 2022)

Independentcloud.com, Cannabis Bill Senate: US Democrats Demand Senate Pass Its Own Marijuana Banking Bill (July 21, 2022)

Reuters, US Senate committee advances nominees to restock sentencing panel (July 21, 2022)

Sen Richard Durbin, Judiciary Committee Advances Ten Nominees, Including Two Judicial Nominees, Seven Sentencing Commission Nominees, And An Assistant Attorney General (July 21, 2022)

– Thomas L. Root