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Feds Descend on USP Thomson – Update for June 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.

DOJ INSPECTOR GENERAL LAUNCHES USP THOMSON INVESTIGATION

A week ago, three members of Congress called for an immediate federal investigation into violence and abuse at  USP Thomson, prompted by a Marshall Project/NPR report from two days before.

thomson220610Yesterday, the Dept. of Justice Inspector General launched an investigation into Thomson, based on the news report’s details of inmate deaths and alleged Bureau of Prisons staff abuses.

Sens. Richard Durbin and Tammy Duckworth, and Rep Cheri Bustos (all D-IL), wrote in last week’s letter to DOJ Inspector General Michael Horowitz that it was “imperative” he look into allegations that

• Staff purposely stoked tensions between cellmates and intentionally paired men whom they knew would attack each other;

• Staff encouraged assaults against sex offenders and informants and falsely told inmates that a particular person was a sex offender, resulting in repeated physical and sexual assaults;

• Abusive shackling leaving scars known as “the Thomson tattoo,” including use of a room known as “the dungeon,” where men would lie shackled to a bed for hours without food or water;

• abusive behavior towards incarcerated persons after the SMU was transferred to USP Thomson;

• The highest rate of pepper-spray usage in the BOP; and

• Staff laughing and joking at a Jewish inmate as he lay dying in a hospital following an assault after staff placed him in a recreation cage with white supremacists.

prisonfight220211The letter said, “If these reports prove accurate, they describe conduct that would almost certainly contravene numerous BOP policies, as well as infringing the civil rights of individuals in BOP custody and possibly violating federal criminal statutes.”

Yesterday, AFGE Local 4070 President Jon Zumkehr said in a released statement, “We fully support the investigation into the allegations into USP Thomson and we have also invited Sen. Durbin and Sen. Duckworth to visit USP Thomson.” No doubt Thomson staff also enthusiastically anticipates root canal procedures performed without anesthetic.

Back in May 2020, the union complained that a staff shortage at Thomson was resulting in unsafe working conditions as the BOP used augmentation – assigning non-custody workers like nurses, psychologists and cooks to fill in as correctional officers – to address the employee shortage. WQAD-TV reported that over 2,000 overtime shifts were being authorized every month just to keep up with daily prison functions.

In a speech on the Senate floor yesterday, Durbin – who is chairman of the Senate Judiciary Committee – promised a Committee hearing in the next few weeks on BOP oversight, including the continued overuse of solitary confinement and restricted housing in federal prison facilities such as USP Thomson. Currently, he said, about 7.8% of BOP inmates are housed in a form of restricted housing.

'Enjoy retirement,' Durbin tells Carvajal, 'preferably sooner rather than later.'
‘Enjoy retirement,’ Durbin tells Carvajal, ‘preferably sooner rather than later.’

“We need answers from the Biden Administration on the failure to reduce the use of restricted housing,” Durbin said, “and we will discuss what BOP must do to address the staffing crisis that has contributed to this disastrous situation.”

Durbin also renewed his call for the immediate replacement of BOP Director Michael Carvajal, who announced his retirement months ago but is staying on until a replacement is named.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

Press release, Durbin Slams BOP Mismanagement, Allegations Of Abuse At USP Thomson (June 9, 2022)

Sen. Durbin, Letter to DOJ Inspector General (June 1, 2022)

NPR, Lawmakers call for probe into deadly federal prison (June 2, 2022)

– Thomas L. Root

Supremes Burning Midnight Oil To Finish Term – Update for June 8, 2022

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

SUPREME COURT FACES HISTORIC BACKLOG IN FINAL MONTH OF TERM

The Supreme Court – waiting until the bitter end to do the largest share of its work in more than 70 years – has scheduled a rare second opinion day for today.

scotus161130At 10 am, the Court will issue one or more opinions. It still has a lot to choose from.

The court is scheduled to hand down 30 more opinions, 48% of its expected total in argued cases, as its 2021-22 term ends in slightly more than three weeks. While most people are awaiting rulings that could hold that abortion is not a constitutional right but carrying a concealed gun is, there are five decisions of particular interest to federal inmates and defendants:

• Concepcion v. United States, Case No. 20-1650. Issue: Whether, when deciding if it should “impose a reduced sentence” under Section 404(b) of the First Step Act (Fair Sentencing Act retroactivity), a district court must – or even may – consider intervening legal and factual developments.

• Ruan v. United States, Case No. 20-1410. Issue: Whether a physician charged with prescribing controlled substances outside the usual course of professional practice may be convicted under 21 USC § 841(a)(1) without regard to whether, in good faith, he or she “reasonably believed” or “subjectively intended” that the prescriptions fall within that course of professional practice.

• United States v. Taylor, Case No. 20-1459: Whether 18 USC § 924(c)’s “crime of violence” definition excludes attempted Hobbs Act robbery (which could end up excluding all attempted crimes of violence from being predicates for § 924(c) offenses).

• Egbert v. Boule, Case No. 21-147: Whether one can sue a federal officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims.

• Kemp v. United States, Case No. 21-5726: Whether F.R.Civ.P. 60(b)(1) authorizes relief based on a district court’s error of law.

scotussplit190627The Supreme Court typically announces opinions on Monday, but as June progresses, more second opinion days like today are likely.

Supreme Court Faces Historic Case Backlog as Fractious Term Comes to an End (June 1)

The New York Times, We preview the five biggest rulings expected from the Supreme Court in the next few weeks (June 8, 2022)

– Thomas L. Root

Earned Time Credits Just Got Easier to Spend – Update for June 7, 2022

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

PATTERN CHANGES MAKE MANY MORE ELIGIBLE FOR CREDITS

In April, the Dept of Justice told Congress that it would roll out a new version of the PATTERN recidivism risk measurement system in May, one that contained adjustments it said would improve accuracy and possibly benefit up to 33,000 federal prisoners.

Nothing has been publicly announced since, although a lot of inmates have reported that their categories were changing while their PATTERN point scores were not. A hard-to-find report by the Attorney General I obtained last week confirmed that while no scoring categories have changed in the revised PATTERN system – known as PATTERN 1.3 – the cut points did.

PATTERNsheet220131Cut points are crucial, being the level at which an inmate’s recidivism rating changes from “minimum” to “low,” from “low” to “medium,” and from “medium” to “high.” Because the First Step Act generally does not let anyone with a “medium” or higher risk level cash in earned time credits (ETCs), a prisoner’s level can make a difference of up to a year on sentence length, and enhanced home confinement or halfway house.

It is now harder for a male to be a PATTERN “minimum” – the former cut point of “8 or less” fell to a new cut point of “5 or less” – although the female “minimum” cut point rose from “5 or less” to “7 or less.” But the big change is from “low” to “medium.”

The former male cut point between “low” and “medium” rose from 30 to 39. The women’s “low to medium” cut point jumped from 31 to 38. The former “medium to high” cut point went from 44 to 55 for males and 31 to 53 for females.

Under the old PATTERN, 40% of males were “minimum” or “low.” Under PATTERN 1.3, that number jumped to 68%. Female “minimums” and “lows” increased from 78% to 86%. The PATTERN 1.3 changes made 33,070 more inmates eligible to use their ETCs.

cutpoints220607PATTERN is still criticized by some commentators for being insufficiently dynamic, meaning that too much of what goes into scores – like age and criminal history – cannot be changed despite a prisoner’s best efforts. The DOJ report asserted that “PATTERN 1.3 displays dynamic validity… Across the four gender/recidivism tools examined, approximately 25 to 35% of individuals had a lower [risk] designation during their last assessment compared to their first, and between 3 and 5% had a higher risk designation.” The DOJ position suggests that category changes in future PATTERN amendments are unlikely.

PATTERN 1.3 is a welcome change, but real problems with the First Step Act earned time credits remain. Writing in Forbes last week, Walter Pavlo reported that “according to insiders at the BOP, prisoners and former executive staff with connections to the current state of the BOP as it relates to the FSA, there is ‘mass confusion at every institution,”’ and that the Designation and Sentence Computation Center, the entity ultimately responsible for calculating sentence duration, is backed up and the programming is not in place for FSA. The result is that thousands of prisoners are incarcerated beyond their legal release date.”

bureaucrat200421Pavlo wrote that “BOP staff who have no official program statement to work from are spreading misinformation to prisoners. Many prisoners are being told that they do not qualify for FSA credits for a variety of reasons, [and] many those reasons are just not true. As a result, prisoners are not only confused but have no place to go to get clarification. Now, some are going to Court.”

DOJ, First Step Act Annual Report – April 2022

Forbes, First Step Act Inaction Keeps Federal Inmates In Prison (May 30, 2022)

– Thomas L. Root

Criminal Justice Reform Bottled Up in Fractious Senate – Update for June 6, 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.

SENATE CRITICIZED FOR INACT… – SQUIRREL, SQUIRREL!

Readers all seem to wonder why the EQUAL Act (S.79), a bill that would finally equalize punishment for crack cocaine and powder cocaine offenses, could pass the House of Representatives with an 85% vote last year and have over 60% support in the Senate (and support of the leadership), but still be sitting around with no vote in sight.

grid160411After the House passed EQUAL last fall, Ohio State University law professor Doug Berman wondered in his Sentencing Law and Policy blog whether the Senate would “move quickly to finally right a 35-year wrong?”

Nope. In a commentary last week, FAMM President Kevin Ring explained why thousands of families are still waiting for the Senate to act:

The Senate is broken. And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake…

So what’s the problem? Senators may have to vote on amendments that get offered to the bill and they are scared. They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis. In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments. But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber. The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.

Add to that explanation another one. Just like I can easily distract my dog by shouting, “Squirrel, squirrel!” and pointing in some direction, the Senate is easily distracted. The Ukraine crisis needs a big weapons bill, a mass shooting needs a debate on gun control, a Supreme Court decision leak needs a spate of bills on abortion… every crisis in the headlines disrupts Senate business.

squirrel220606A bill to fund the fight against the next COVID wave, battles over gun control and abortion (sure to be fired up with Supreme Court decisions on both due this month), and the fact that a third of senators are up for re-election, all make focus on EQUAL – which should be an easy lift – difficult.

Berman said last week, “I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be.”

Of all the criminal justice reform measures before Congress – including the First Step Implementation Act (S. 1014), the Safer Detention Act (S. 312), the Marijuana Opportunity Reinvestment and Expungement Act (H.R. 3617) – EQUAL is the one closest to the finish line. If EQUAL can’t get to a final vote in the Senate, it’s hard to imagine any other measure getting to the President’s desk, either.

Medium, The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction (June 2, 2022)

Sentencing Law and Policy, Hoping it is not yet time to give up on passage of the EQUAL Act (June 2, 2022)

PBS, Congressional stalemate makes a quick compromise on COVID funding unlikely (June 1, 2022)

– Thomas L. Root

BOP: Not a ‘Common Jailor’ But A Pretty Indifferent One – Update for June 3, 2022

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

WHERE HAVE WE HEARD THIS ONE BEFORE?

Complaints about the BOP healthcare system are as common as kvetching about the food it serves. There may be a reason for that.

chickie220603Vincent “Chickie” DeMartino, serving the final 30 months of a 300-month sentence for an attempted mob hit, sought compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of his deteriorating health – in particular, complications with his right eye – and because of the BOP’s “cavalier attitude” in addressing his worsening medical problems.

Vince argued that his poor health and the BOP’s refusal to do anything about it constituted the “extraordinary and compelling” reasons required by the statute for a reduction of his sentence to time served.

Last week, the United States District Court for the Eastern District of New York agreed. As the Daily News colorfully put it

A Brooklyn judge sprang a violent mobster from prison because he said the federal Bureau of Prisons did a lousy job taking care of the wiseguy’s medical problems.

Federal Court Judge Raymond Dearie issued a scathing ruling Thursday, saying the feds weren’t competently treating made man Vincent “Chickie” DeMartino’s maladies. The goodfella had more than two years left of his 25-year sentence for an attempted hit on a fellow Colombo family member.

The Court found that Vince suffered from high blood pressure which puts him at severe risk of stroke and numerous ophthalmologic issues. Vince said he was essentially blind in his right eye and had 20/400 vision overall, which made him legally blind.

healthcare220224What made his condition “all the more extraordinary and compelling,” the Court held, was “the BOP’s lack of responsiveness and candor with respect to his medical conditions.” Despite the BOP being aware of the condition, the District Court said, “the record reflects a consistent pattern on the part of the BOP of downplaying Mr. DeMartino’s conditions and delaying treatment. Despite the severity of his ocular conditions, it has been a herculean task for Mr. DeMartino to see an ophthalmologist.”

A month ago, the Court told the parties that Vince required “immediate appropriate care.” The government promised the Court that Vince would see an outside specialist right away. That of course did not happen. Vince’s prior visits to the eye doc had been canceled, according to the BOP, because the facility Health Administrator asserted that the “retina specialist does not need to see the defendant again unless he is having further complications.”

This statement, charitably put, lacked the kind of candor that the government would have demanded from Vince, were the tables turned.. The Court found the statement to be “misleading, as the Health Administrator’s note omitted reference to the ophthalmologist’s recommendation that Mr. DeMartino undergo pars plana vitrectomy surgery.”

When the Court ordered the Government and BOP to provide clarification about Vince’s need for surgery from the same ophthalmologist who had recommended surgery, the Government pulled the old “bait-and-switch.” It provided a memorandum from an optometrist – not an ophthalmologist and definitely not the one who had recommended the surgery – to support the appalling lack of care. The BOP optometrist said Vince’s surgery was unnecessary, but then qualified his opinion by admitting that he could not “directly determine the need, or lack thereof, for surgery” and would need to “defer questioning related to a need for surgery and/or the urgency of surgery to an ophthalmologic surgeon.”

That’s sort of like saying “it’s definitely not going to rain tomorrow, but I have not seen a weather forecast and even if I had, I’m not a meteorologist and I really have no idea whether what I just said is right or not.”

healthbareminimum220603“All told,” the court ruled, “this record leaves the Court with the impression that the BOP has undertaken the bare minimum of care for Mr. DeMartino, limiting its efforts to ensuring that he does not require emergency surgery, but minimizing the fact that his vision is failing and refusing to implement any meaningful plan to monitor or treat the conditions in the longer term… The BOP is not a common jailor. Theirs is a far more challenging and vital responsibility. Human beings are entrusted to their care for decades on end. There is no excuse for inaction or dissembling and, in this Court’s view, no alternative to immediate release.”

Order (ECF 276), United States v. DeMartino, Case No 1:03cr265 (EDNY, May 26, 2022)

– Thomas L. Root

Balancing Accounts For Unused ETC Credits – Update for June 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.

DYER STRAITS

Three and a half years ago, the First Step Act became law amid great fanfare. One of the many provisions that held great promise for all concerned was the incentive-based programming scheme, that would let federal inmates earn credits that reduced their sentences for successful completion of programs designed to address their needs.

Such a program would reduce recidivism by ex-felons, thus benefitting both them and society.

mismanagement210419Trust the Federal Bureau of Prisons to turn a high-minded program into a furball. The BOP required almost two years to propose detailed rules for the implementation of the “earned time credit” program, rules which – by the way – were draconian in their application and reasonably calculated to strangle the ETC program before it began.

It took another 14 months (and a new Administration) for the BOP to finally adopt the rules, which rules – mercifully enough – did an about-face from what was proposed. But those rules, which among other things retroactively credited inmates with credit back to the day the First Step Act passed, created a whole new raft of problems.

Problems for people like Doug Dyer.  Doug was on CARES Act home confinement in December 2021 when he filed a petition for habeas corpus, demanding immediate release due to the application of First Step Act earned-time credits to which he claimed entitlement. The BOP had not yet adopted the new rules, and predictably, told the judge that Doug had nothing coming.

nothingcoming181018But a month after Doug’s filing the BOP adopted the final ETC rules. Doug (and thousands of other inmates) were credited with 540 ETC days. The same day the rules were adopted, the BOP granted Doug immediate release from home confinement (51 days before his normal release date). The government then moved to dismiss the habeas corpus as being moot, because Doug had gotten what he wanted.

Doug opposed the government’s motion, arguing that because only he could only use 51 days of credit out of the 540 he was awarded, he should get to use the balance to reduce his supervised release time.

The district court agreed, reducing his supervised release by 489 days. The court ruled “the relevant statutory provision provides that ‘[t]ime credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in… supervised release’. 18 U.S.C. § 3632(d)(4)(C). Therefore, the unambiguous, mandatory language of the statute provides that earned-time credits may be applied to a term of supervised release.”

So Doug got a year and a half off his supervised release time (about half of what he was to serve).

I generally don’t criticize a good pro-prisoner decision like this one, but Doug’s court is just plain wrong. The Court hung its hat on 18 U.S.C. § 3632(d)(4)(C), which says

Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.

There's nothing like getting your facts straight, Your Honor ...
There’s nothing like getting your facts straight, Your Honor… or the law, for that matter.

The District Court read this to mean that ETCs could be used to reduce the period of incarceration or supervised release. But the remainder of the subsection not only makes it clear that the term “supervised release” is being used as the alternative to “prerelease custody,” and that the subsection is to be read with reference to 18 U.S.C. § 3624(g).

And here’s the problem. Subsection 3624(g)(3) authorizes the Director of the BOP to “transfer the prisoner to begin any such term of supervised release at an earlier date, not to exceed 12 months, based on the application of time credits under section 3632.”  It does not authorize the Director to reduce the term of supervised release at all.

Read in conjunction with § 3624(g)(3), it’s pretty clear that § 3632(d)(4)(C)’s reference to “shall be applied toward time in prerelease custody or supervised release” is intended to mean the three options the BOP has for applying ETC credits: more halfway house or home confinement (the “prerelease custody” option) or release from custody up to 12 months early to begin one’s supervised release.

puzzled171201Given that no statute authorizes the BOP to reduce a prisoner’s supervised release, it’s hard to figure how a district court can grant habeas corpus to in essence demand that the BOP do so.

No matter. Doug’s supervised release was cut in half. But I strongly doubt that this decision will influence any other district court to do the same for the small subset of inmates in Doug’s position.

The opinion has not been picked up by LEXIS.

Order (ECF 16), Dyer v. Fulgam, Case No. 1:21-cv-299 (E.D. Tenn. May 20, 2022)

– Thomas L. Root

Biden Orders More CARES Act Placement – Update for June 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.

BIDEN EXECUTIVE ORDER BREATHES NEW LIFE INTO CARES ACT HOME CONFINEMENT

President Biden last week instructed the Dept of Justice to “continue to implement the core public health measures, as appropriate, of masking, distancing, testing, and vaccination in federal prisons,” an order which specifically includes CARES Act home confinement.

home210218The Executive Order as well directs DOJ to update the BOP’s COVID-19 testing procedures, update “protocols with alternatives to facility lockdowns and restrictive housing to prevent the spread of COVID-19; and determine how many individuals who meet the requirements to be released on home confinement.”

The BOP directives came as a virtual footnote to an executive order President Biden signed on the second anniversary of George Floyd’s killing by Minneapolis police.

The Executive Order declared in Section 1 that the Administration’s policy is to ensure that “no one should be required to serve an excessive prison sentence.” To that end, the Order states, “My Administration will fully implement the First Step Act, including by supporting sentencing reductions in appropriate cases and by allowing eligible incarcerated people to participate in recidivism reduction programming and earn time credits.”

DOJ has been directed to update its “regulations, policies, and guidance in order to fully implement the provisions and intent of the First Step Act, and shall continue to do so consistent with the policy announced in section 1 of this order.”

PATTERNB190722

The Order also requires DOJ to adopt “a strategic plan and timeline to improve PATTERN, including by addressing any disparities and developing a needs-based assessment system.”

E0 14074, Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety (May 25, 2022)

Government Executive, Biden Moves to Improve Public Health Conditions in Federal Prisons and Jails (May 26, 2022)

– Thomas L. Root

Congress Races Glacier, And Glacier Wins – Update for May 31, 2022

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

NOTHIN’S HAPPENIN’ HERE

Every week, I get a lot of emails from people like this one this morning:

“I am sorry, I know that everyone sends you messages asking for information about the bills in the house and senate, but i have to ask.  Have you heard anything about the prohibiting punishment of acquitted conduct act?”

People are always just wanting “an update” on bills pending (or on bills they just imagine are pending) in Congress.

nothing160321My answer is always the same: if anything is going on with one of these bills, I will cover it in the newsletter. If I haven’t mentioned it, nothing’s going on. 

Like last week. Nothing went on last Monday. And after Tuesday’s horrific shooting in a Uvalde, Texas, school, Congress’s focus turned to anguished sound bites and to what feel-good knuckle-headed legislation might be passed in response. Think I’m over-reacting?  Ask “One-Door” Ted Cruz. Or “High-Caliber” Joe Biden.

But, as for criminal justice reform, here’s an update on legislation:

EQUAL Act: Senate Majority Leader Chuck Schumer held a news conference in front of the Second Circuit courthouse in New York City to call on lawmakers to support the EQUAL Act (S.79), which would end the sentencing disparity between crack and powder cocaine that has had a disproportionate effect on black defendants.

In September, the House passed the bill 361-66, which ends a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. Since then, the Senate Judiciary Committee has approved the bill, sending it to the Senate floor for a vote.

The New York Daily News reported that Schumer, “who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor.”

Senators Rob Portman (R-OH) and Cory Booker (D-NJ) are sponsoring the bill, which has 21 cosponsors, 11 of the Republican. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer said last Monday. “We want to get this done as soon as we can.”

But all is not roses. At the end of April, Sen Charles Grassley (R-IA) introduced the SMART Cocaine Sentencing Act (S.4116), which cuts the crack-powder ratio to 2.5 to 1 and puts retroactivity decisions in the hands of the Dept of Justice. While the bill only has three cosponsors, it is generally seen as being intended to be a bargaining chip, to be used during floor debate to water down EQUAL.

Marijuana: Nearly every House Democrat and three House Republicans voted in April to pass the MORE Act (H.R. 3617). It would decriminalize marijuana, something 27 states and the District of Columbia have already done.

nothing190906

Meanwhile, expectations are wavering over a marijuana legalization bill in the Senate. Most of the pressure for cannabis reform is coming from state financial regulators, who last week urged Congress to pass marijuana banking reform as part of a large-scale manufacturing bill that’s currently being finalized in conference committee. In a way that would be helpful, because marijuana criminal reform has been held hostage to the problems state dispensaries have in accessing the banking system.

Experts predict, however, that the MORE Act won’t have enough Republican votes for passage. The bill faces opposition from some Democrats, including Sen Joe Manchin (D-WV), who has said that he is unsure about legalizing adult-use marijuana.

Much of the slowdown in criminal justice reform results from violent crime rates nationwide, which have cooled the reformers’ ardor. Recent polling reflects public concerns about rising crime rates and dissatisfaction with how public leaders are addressing the problem.

nothingcoming181018Guns: Note to people who email me asking when Congress is going to reform the 18 USC 924(c) possession of a gun during drug and violent crimes statute. The rising violent crime rates – not to mention mass shootings in Buffalo and Uvalde, Texas, pretty much guarantee that no one is going to call for changes in 924(c) that will benefit defendants.

New Legislation: One bill introduced last week is good for federal prisoners. The Family Notification of Death, Injury, or Illness in Custody Act of 2022 (already introduced in the House as HR 6296), would require the DOJ to establish guidelines for the Bureau of Prisons and state correctional systems to notify families of incarcerated people if their loved one has a serious illness, a life-threatening injury or if they die behind bars.

The bill’s introduction in the Senate last Thursday comes more than two years after the Associated Press reported that BOP had ignored its internal guidelines by failing to notify the families of inmates who were seriously ill with COVID. The legislation – introduced by Sens. Jon Ossoff, D-Ga., and John Kennedy, R-La. – is “the latest step by members of Congress to further oversight of the beleaguered federal prison system, which has lurched from crisis to crisis in recent years,” AP reported.

New York Daily News, Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’ (May 23, 2022)

S.4116, SMART Cocaine Sentencing Act

Gray DC, Cannabis legalization remains stalled on Capitol Hill (May 26, 2022)

Vigour Times, How Criminal Justice Reform Fell Apart (May 26, 2022)

AP, Senate bill would set up medical notification to inmates’ kin (May 23, 2022)

– Thomas L. Root

Cleaning Up Before The Long Weekend – Update for May 27, 2022

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

IT’S ACADEMIC

Study Finds Judges Inconsistent in Granting Compassionate Release: lawyerjoke180807Only a lawyer (or brilliant law student in this case) could require 44 pages and 194 footnotes to conclude the obvious: district courts are all over the map on granting or denying compassionate release due to the inmate’s vaccination status.

A Columbia Law Review Note published last week finds “disparate outcomes resulting from the vast judicial discretion within the compassionate release space” on the treatment of compassionate release movants on the basis of their vaccination status. The Note “argues that the current system results in inequitable geographical-based outcomes” and “calls on the United States Sentencing Commission to offer guidance to federal courts on how to approach compassionate release requests in the context of the First Step Act and the ongoing COVID-19 pandemic.”

Columbia Law Review, Unequal Treatment: (In)compassionate Release from Federal Prison in the Context of the COVID-19 Pandemic and Vaccine (May 13, 2022)

Have You Kissed Your Public Defender Today? An Urban Institute study released last week found that defendants represented by Criminal Justice Act panel attorneys (those appointed by the court) and private counsel have 18-25% greater odds of being sent to prison once convicted than those represented by a federal public defender. What’s more, “individuals represented by private and CJA panel attorneys received 4-8% longer sentences than those who used a public defender.”

lovelawyer220527

The study concludes that because federal public defenders have “specific expertise in federal criminal cases and more familiarity with the judges and prosecutors,” they may be “more likely to encourage their clients to take plea deals but may also secure their clients favorable sentencing outcomes.”

Urban Institute, Counsel Type in Federal Criminal Court Cases, 2015-18 (May 18, 2022)

– Thomas L. Root

What Does Oyer Plan To Do About the Backlog? – Update for May 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.

WHAT WILL NEW PARDON ATTORNEY DO WITH CLEMENCY BACKLOG, LEGISLATORS WANT TO KNOW

A bipartisan group of representatives has demanded information from Elizabeth Oyer, the new Pardon Attorney, about her plans for processing the 17,400-strong backlog of clemency petitions pending (some for years).

paperwork171019“The growing backlog of clemency petitions undermines the promise of a fair and just criminal legal system,” Representatives Ayanna Pressley (D-MA), Mary Gay Scanlon (D-PA), David Joyce (R-OH), and Kelly Armstrong (R-ND) wrote in a letter last week to Pardon Attorney Elizabeth Oyer. “Every application represents a person, a family, and a community. And every delayed response represents a miscarriage of justice, a dysfunctional process, and a policy failure in desperate need of repair.”

The letter demanded a full report from Oyer by June 7 that includes “applicant demographic data (including age, race/ethnicity, gender, parental status, state of residence, incarceration status), month and year of application submission, representation by an attorney, type of clemency request, type of relief sought, type of offense(s), and office currently reviewing application.”

Bloomberg, Lawmakers Press DOJ on Backlog of 17,000 Clemency Petitions (May 18, 2022)

Letter to Elizabeth Oyer (May 17, 2022)

– Thomas L. Root