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Thanksgiving Week: Please Pass the Gravy – Update for November 27, 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.

GRAVY

gravy241127Many see supervised release as gravy on the mashed potatoes of incarceration. While it may not be very good, it sure beats more potatoes without gravy. What courts don’t agree on is whether supervised release is intended to be for rehabilitation, extra punishment, or both.

Last week, the 4th Circuit came down on the punishment side of the equation, ruling that after a prisoner got his sentence vacated on appeal, being resentenced from 72 months down to 69 months but with an increase in supervised release from 4 years to 10 years, the new sentence was presumptively and unconstitutionally vindictive.

Years ago, the Supreme Court ruled in North Carolina v. Pearce that resentencing after a successful appeal or collateral attack to a higher term is presumptively vindictive and a violation of the 5th Amendment. Since Pearce, however, the Supreme Court has tempered the Pearce presumption, noting in Alabama v. Smith that it was not designed to prevent an increased sentence on retrial for some valid reason “associated with the need for flexibility and discretion in the sentencing process but was premised on the apparent need to guard against vindictiveness in the resentencing process” Smith limited the Pearce presumption to cases where there was a “reasonable likelihood that the increase was the product of actual vindictiveness.”

Last week, the 4th said, “When the same judge, in the same posture, imposes a harsher sentence following a successful appeal, the “presumption of vindictiveness applies to any unexplained increase in the sentence.”

clementines241127Comparing prison time to supervised release time, the Circuit said, “likens clementines to kumquats and likely draws on subjective choice.” Still, because the district court reduced [the] term of incarceration by only three months and increased his term of supervised release by six years, the “second sentence was indeed harsher than the first. Because the prisoner’s second sentence was harsher than his first and he was sentenced ‘by the same judge, in the same posture, following a successful appeal… a presumption of vindictiveness applies to any unexplained increase in his sentence.”

kumquats241127Because the district court considered the same factors – alcohol abuse and medical condition – in the second sentencing as it did in the first, the 4th “conclude[d] that Pearce’s presumption of vindictiveness arose and was not rebutted… In these circumstances, we vacate the sentence and remand for resentencing.

United States v. Chang, Case No. 23-4615, 2024 U.S.App. LEXIS 29484 (4th Cir. November 20, 2024)

North Carolina v. Pearce, 395 U.S. 711 (1969)

Alabama v. Smith, 490 U.S. 794 (1989)

– Thomas L. Root

Thanksgiving Week: Stuffing Goes With Turkey – Update for November 26, 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.

STUFFING

Walter Pavlo reported in Forbes last weekend that the Bureau of Prison – despite being told by Congress in the First Step Act almost six years ago to expand halfway house capacity to accommodate prisoners using FSA credits, has increased contracted-for halfway house bed space by a paltry 1% in the last 6 years.

stuffedturkey241126The BOP Office of Public Affairs reported that as of January 1, 2019, the BOP was contracting for 10,408 halfway house beds. As of two months ago, the BOP contracted for 10,553 halfway house beds. Pavlo wrote that “the BOP is now telling some halfway house providers… that they are canceling some solicitations for additional capacity because of ‘budgetary and staffing considerations.’”

Pavlo reported, “Many prisoners and their families are telling me that case managers are telling them that there is no room at halfway houses, and the result is that many minimum security prisoners spend a greater portion of their sentence in prison rather than in the community… BOP notes that ‘many of the unfilled beds in a halfway house are at locations that are hard to fill or are outside of the release residence area of individuals requesting community confinement placement’.”

So the Bureau argues to prisoners that the halfway houses are stuffed without room for people, who therefore lose the benefit of their FSA credits. Pavlo says that’s a myth. He and former BOP Director Hugh Hurwitz surveyed halfway houses and BOP usage of them, finding that only 82% of the BOP’s contracted halfway house capacity is being used. What’s more, the halfway houses have even more space open than that, space the halfway houses would like to fill but is not under BOP contract.

halfwayhouse241126“BOP could look to modify those existing contracts to increase the number of beds available,” Pavlo wrote.

For now, it appears that the halfway house shortage has less to do with stuffed beds and more to do with BOP unwillingness to fill them.

Forbes, Bureau of Prisons Halfway Houses Must Change Due to First Step Act (November 23, 2024)

– Thomas L. Root

Thanksgiving Week: Pardon Me If I Serve Up Turkey – Update for November 25, 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.

TURKEY TIME FOR JOE BIDEN

Today, Minnesota turkey farmer John Zimmerman and his son Grant visited the White House to see two of their prize turkeys, Peach and Blossom, receive presidential clemency, something that thousands of human federal prisoners would happily take the birds’ place in order to receive.

turkeypardonme241125President Joe Biden pardoned the 7th and 8th turkeys to receive clemency in his Administration. The spectacle is an annual Thanksgiving ritual that this year is being staged amid a clamor for Biden to issue a veritable feast of real pardons and commutations in the waning days of his Administration.

In the nearly four years he has been in office, Biden has granted 25 pardons and 132 commutations out of the thousands of applications filed. He has also pardoned two classes of people who were not incarcerated, people convicted of simple marijuana possession and members of the military who were court-martialed because of their sexual orientation.

Nearly all of the commutations have involved drug offenses. They number 38 more commutations than his predecessor, Donald Trump, granted in his first term, but fewer than one-tenth of the sentences Barack Obama commuted in his second term. About 8,002 petitions for clemency are pending (including for the two turkeys).

turkeyprison161114Last Wednesday, a gobbling flock of advocates, former prisoners, and families joined 67 congressional leaders in a joint letter urging President Biden to grant clemency to non-violent federal cannabis prisoners before his term ends.

Among federal prisoners, “90% of people are convicted of non-violent offenses. Now is the time to use your clemency authority to rectify unjust and unnecessary criminal laws passed by Congress and draconian sentences given by judges,” the letter says. “We urge you to use your executive clemency power to reunite families, address longstanding injustices in our legal system, and set our nation on the path toward ending mass incarceration.”

Reps Ayanna Pressley (D-MA), James Clyburn (D-SC), and Mary Gay Scanlon (D-PA) were lead signers of the letter.

pardonturkey231121Also, in a briefing last week, Prison Policy Initiative stated, “Although he’s extended pardons and commutations during his term, President Joe Biden has yet to use his clemency powers for a person facing the federal death penalty, despite openly opposing capital punishment at one time. Biden can still heed increasing calls from advocates to improve his minimal clemency record and clear federal death row of all 40 current death sentences… Given that president-elect Donald Trump enthusiastically supports the death penalty — and has historically abused the pardon power — President Biden could spare 40 lives immediately and reclaim the true function of clemency by commuting all federal death sentences.”

Not that President-elect Trump is anti-pardon. He loves them… for the right people.

Last week, a Trump-appointed federal judge said it would be “beyond frustrating and disappointing” if Trump grants sweeping clemency to most of the defendants charged in the January 6, 2021, attack on the Capitol. Federal Judge Carl Nichols (District of Columbia) blasted the prospect of “blanket pardons” or “anything close” during the sentencing of a defendant facing eight assault charges.

Politico said, “Nichols’ comments were a surprise from the typically restrained judge and came at the end of a hearing in which he and federal prosecutors grappled at length with the potential impact of Donald Trump’s election on ongoing Jan 6 cases. He added that “anything close to blanket clemency would be similarly frustrating.”

This American Life: America’s Next Top Gobble (November 15, 2024)

Guardian, Biden must Trump-proof US democracy, activists say: ‘There is a sense of urgency’ (November 24, 2024)

Letter to President Biden (November 20, 2024)

The Appeal, U.S. Reps Urge Biden to Use Clemency to Correct “Extreme Use of Incarceration” (November 20, 2024)

Prison Policy Initiative, Talking turkey about the death penalty: outgoing governors and the president must use their clemency power now (November 18, 2024)

Politico, Trump-appointed judge opposes ‘blanket pardons’ for Jan. 6 defendants (November 19, 2024)

– Thomas L. Root

A Win for FSA Statutory Clarity – Update for November 21, 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.

COURT HANDS BOP LOSS ON FSA CREDIT COMMENCEMENT

In a detailed and lengthy decision, a Middle District of Alabama district court ruled on November 4th that otherwise eligible prisoners must start earning First Step Act time credits from the moment they are sentenced rather than when the BOP says they can.

prisoners221021As first blush, the issue seems pretty clear. Section 3632(d)(4)(A) of Title 18 says that a “prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits…” Section 3635(4) defines a “prisoner” as “a person who has been sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense, or a person in the custody of the Bureau of Prisons.”

You don’t have to be a lawyer to figure out that an eligible prisoner, therefore, is anyone who has been sentenced to prison for a federal crime (we’ll leave the other category, “a person in the custody of the Bureau of Prisons,” for another day), provided he or she has not been convicted for one of the 63 exempt crime categories — such as sex offense or using a gun in a crime in violation of 18 USC § 924(c), to name only two of the myriad of exclusions — and is not an alien with a final order of deportation. The exclusions leave about half of the people in BOP facilities eligible for FSA credits.

The BOP denied Sohrab Sharma 122 days of FSA credit, finding that he was not an “eligible prisoner” from the commencement of his sentence until he was finally delivered to FPC Montgomery and again when he was locked up and transferred for an unspecified violation of prison rules. Under 28 CFR § 523.42(a), a BOP-adopted rule, “[a]n eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served).”

ambiguity221128The Court held that “the statute unambiguously addresses the question of when an inmate is eligible for FSA credits,” to which 28 CFR § 523.42 “adds a layer of eligibility not found in the statute [that] conflicts with its express language.”

The District Court ruled that an eligible inmate is entitled to FSA credits from the date the sentence commences under 18 USC § 3585(a) which “specifies ‘the date the defendant is received in custody awaiting transport to’ his initial BOP-designated facility as the date his or her ‘sentence to a term of imprisonment commences’ for purposes of determining whether he can begin to earn FSA time credits.”

The Court said, “The BOP must apply time credits to eligible prisoners who have earned them and cannot categorically make prisoners ineligible for such credits in a manner that contravenes the statutory scheme set forth in 18 USC § 3632.”

Sohrab’s case was sent back to the BOP to determine whether he was an “eligible prisoner” for the purpose of those 122 days, instead of being categorically excluded because he was riding a bus or sitting in segregation.

While the decision is welcome, it is a district court opinion that has no binding precedential value in its own circuit, let alone anywhere else. The government being the government, count on the opinion having utterly no impact on how the BOP applies 28 CFR § 523.42 in any case other than Sohrab’s.

Sharma v. Peters, Case No. 2:24-CV-158 (M.D. Ala., November 4, 2024), 2024 U.S.Dist. LEXIS 199823

– Thomas L. Root

Matt Gaetz: Mere Anarchy at the Dept of Justice – Update for November 19, 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.

THINGS FALL APART

thingsfall241119I tuned out the poetry we studied in high school English, which makes me wonder why President-elect Donald Trump’s announcement last week that Matt Gaetz would be his Attorney General made me recall W.B. Yeats’ work, The Second Coming:

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world;

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned…

Trump has vowed to execute every prisoner on federal death row, to expand the federal death penalty to include drug traffickers and migrants who kill U.S. citizens, to use the military to round up and run out immigrants, and to grant all law enforcement officers immunity from criminal prosecution.

Writing in The Watch last week, Radley Balko observed that Trump “of course promised to weaponize federal law enforcement to settle grudges, exact retribution, and protect his interests.”

Congressman Matt Gaetz (R-FL) is slated to serve as Attorney General. Gaetz, whose legal career spans about three years as a junior associate in a small Florida law firm, has never tried a case nor managed an enterprise, but he’s intended to run the Dept of Justice, of which the Bureau of Prisons is a part.

pervert160728In 2020, Gaetz was accused of child sex trafficking and statutory rape over claims that he paid a 17-year-old high school student for sex. Following an investigation, DOJ decided not to seek charges, concerned that it might not be able to prove the charge beyond a reasonable doubt. Gaetz resigned from the House last week just before the House Ethics Committee was to release a report on the sex charges, alleged drug use and other misconduct.

One DOJ official said of the nomination, “What the f— is happening?!” Another said that Gaetz is the “least qualified person ever nominated for a position in the Department of Justice.”

MSNBC admitted that “in a sense, everybody is unqualified” to serve as Attorney General, because DOJ “is so deep, broad and complex that no one can come in truly prepared for all of it. Nobody comes in knowing everything about tax or antitrust or civil rights or criminal or civil or environmental work. They do not know the intricacies of the work of its many divisions, from the Federal Bureau of Prisons to the Federal Bureau of Investigation.” But, MSNBC argued, AGs need “three qualities: integrity, judgment and independence. With those qualities, you can handle the job… [W]ith Gaetz, you might end up with somebody who is wholly unqualified for the job coupled with somebody who lacks integrity, judgment and independence.”

But why should federal prisoners care? It might be beneficial to have a man who had once been a DOJ target running things.

dungeon180627Don’t count on it. As a state legislator, Gaetz sponsored a bill requiring the Florida governor to sign death warrants for prisoners on death row as soon as their appeals were exhausted. Last July, Gaetz toured El Salvador’s notorious Terrorism Confinement Center where, CNN reported, “convicts and pretrial detainees “spend 23½ hours a day in bleak group cells, eat a bland meatless diet and have just 30 minutes a day for exercise or Bible class.”

“There’s a lot more discipline in this prison than we see in a lot of the prisons in the United States,” Gaetz said at the time. “We think the good ideas in El Salvador actually have legs and can go to other places and help other people be safe and secure and hopeful and prosperous.”

In other transition news, Sen. John Thune (R-SD) will serve as Majority Leader—the person who will control which bills are voted on—in the new Senate, which convenes on Jan 3, 2025. Thune has consistently opposed even modest marijuana reform proposals, once calling legalization a “dangerous path.”

In 2021, Thune acknowledged that marijuana is an “area that’s still evolving, and our country’s views on it are evolving,” adding that “how we deal with it nationally, is still an open question.”

President Biden promised in 2022 that rescheduling marijuana from Schedule I to Schedule III – which could lead to the easing of criminal penalties – would be done by the end of 2024. A DEA hearing on the matter is set for December 4. It’s not clear that final rules can be rolled out before a new and possibly hostile Congress is seated.

Radley Balko – Substack, The “broligarch” threat to criminal justice reform (November 13, 2024)

NBC, Justice Dept. employees stunned at Trump’s ‘insane,’ ‘unbelievable’ choice of Matt Gaetz for attorney general (November 10, 2024)

MSNBC, An attorney general needs 3 qualities to be successful. Matt Gaetz doesn’t even have one. (November 14, 2024)

CNN, Matt Gaetz would oversee US prisons as AG. He thinks El Salvador’s hardline lockups are a model (November 14, 2024)

Marijuana Moment, Every GOP Senate Majority Leader Candidate Opposes Marijuana Legalization (November 12, 2024)

– Thomas L. Root

Senators Push for Massive Biden Clemency Push – Update for November 18, 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.

SENATORS URGE BIDEN TO COMMUTE THOUSANDS OF SENTENCES

President-elect Trump may accomplish something this month that no one has yet been able to do yet: get President Biden to wield his clemency powers.

release161117Senate Democrats are pressuring Biden to shorten the sentences of thousands of federal drug prisoners incarcerated before he leaves office. In a letter sent to Biden October 21st but only surfacing last week, seven Senate Judiciary Committee members plus an eighth Senator urged Biden to commute drug mandatory minimums that were shortened by the First Step Act but not retroactively.

The FSA cut mandatory life under 21 USC § 841(b)(1)(A) for one prior drug conviction from 20 to 15 years and for two priors from life to 25 years. The change started out in the legislative process to be retroactive, but retroactivity was amended out of the bill before passage to secure Republican votes.

The group of Democrats, led by Senate Judiciary Committee chairman Richard Durbin (D-IL), is urging Biden to categorically lower the sentences of people sentenced under § 841(b)(1)(B) mandatory minimums so they match what they would have received under the First Step Act amendment. In some cases, sentences would be cut to time served.

“[O]ver 8,000 federal clemency petitions are awaiting decision,” the letter notes. “You have granted only 25 pardons and 131 commutations thus far, denying nearly 8.000 petitions.’ We respectfully request that your Administration act with urgency to grant relief to deserving individuals and further reduce the clemency backlog… One significant step in the right direction would be to grant categorical relief to incarcerated individuals who were sentenced under harsh mandatory minimums that the bipartisan First Step Act substantially reduced.”

Sen Peter Welch (D-VT), one signer, said, “President Biden should heed our call and use the power of executive clemency while he has it.”

crackpowder160606The letter also urges Biden to use clemency to cut the sentences of people convicted for crimes related to crack cocaine who would face less time in prison if crack and powder cocaine were punished at a one-to-one ratio and urged him to restart Obama’s clemency initiative, which granted clemency to nearly 1,700 people – mostly for drug offenses – who met certain qualifications.

“The letter came just weeks before Election Day,” Politico noted last week. “But it reflects concerns that have only intensified since Trump won the White House.”

At the same time, pressure is intensifying to convince Biden to commute the death sentences of the 40 people on federal death row. Their crimes range from drug-related murders to murder in a national park to terrorist killings and the fatal shooting of a bank guard during a robbery.

Of 50 federal executions in the past century, Trump carried out 13 of them in six months beginning in July 2020. Trump has promised to execute everyone on death row in his next Administration.

The ACLU last week called on Biden to “act now to finish the death penalty reform work his administration began in 2020. He must commute the sentences of all people on federal death row to stymie Trump’s plans and to redress the racial injustice inherent to capital punishment.”

The Atlantic last week called on Biden to offer pardons to Liz Cheney, a former Republican Congresswoman who served on the House January 6th Committee, Chairman of the Joint Chiefs of Staff Mark Milley, prosecutor Jack Smith, and “to all of Trump’s most prominent opponents.” Trump and his allies have promised to prosecute them for imagined crimes arising from prosecuting, investigating or just criticizing him since the January 6, 2021, riot.

Politico, Biden faces pressure from Hill Democrats to grant clemency for drug crimes (November 13, 2024)

Letter to President Biden from Sen Durbin et al (October 21, 2024)

Slate, Joe Biden Can Preemptively Halt One Brutal Trump Policy (November 12, 2024)

ACLU, Biden Must Use Final Months in Office to Commute Federal Death Sentences (November 14, 2024)

The Atlantic, Pardon Trump’s Critics Now (November 13, 2024)

– Thomas L. Root

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