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“Say It Ain’t So, Joe” – Biden’s Failure on Criminal Justice Reform – Update for March 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.

WHY NOTHING IS BEING DONE ON CRIMINAL JUSTICE REFORM

nothinghere190906President Joe Biden’s campaign platform included ending the federal death penalty and solitary confinement, decriminalizing marijuana, and using clemency to free federal inmates serving sentences for some nonviolent and drug crimes. “More than a year into the new administration,” Reason magazine reported last week, “few of those promises have been fulfilled.”

More like zero. No clemencies. No bills passed. No retroactive changes to mandatory minimums. No EQUAL Act. Nothing.

Any hopes that might change were dampened after last week’s State of the Union speech, which included nothing of the criminal justice reforms that Biden promised during the campaign.

“Let’s come together to protect our communities, restore trust, and hold law enforcement accountable,” Biden said in the sole reference to reform in his speech. Biden drew bipartisan applause for his calls to fund, not defund, the police.

Biden promised to end private prisons, cash bail, mandatory-minimum sentencing, and the death penalty during his presidential campaign. Candidate Biden also said the United States could reduce its prison population by more than half. As The Marshall Project put it at the time, “Biden has… quietly, been elected on the most progressive criminal justice platform of any major party candidate in generations.”

nolove220307But Biden has discovered that mainstream voters largely do not love the progressive platform. Rising murder rates have made many Democrats hesitant to stray too close to any criminal justice reform. The Democrats’ research recently showed that some voters in battleground districts think the party is “focused on culture wars,” POLITICO reported. The Democrats fear that being soft on crime could cause Democrats to lose substantial ground to the GOP in this fall’s midterm elections.

In fact, the perception among voters – even where the statistics show otherwise – is that crime is on the rise.

But, as Reason put it, “the administration’s effort to forget some of the more tangible reforms it promised is not a profile in courage.” The Biden campaign promised to broadly use clemency for some non-violent and drug crimes, but the White House has been less than clear on when that would happen. Many presidents wait until the final years of their terms to flex their clemency powers. “In the meantime, though,” Reason said, “there are still federal inmates serving sentences in understaffed, dangerous prisons for nonviolent drug offenses — something that Biden supposedly thinks is an outrage.”

Other parts of the federal criminal justice system are being neglected, too. The Sentencing Commission has lacked a quorum since halfway through Trump’s presidency. Thus far, Biden has resisted calls to appoint the four replacements needed. Part of Biden’s platform to “ensure humane prison conditions” included ending solitary confinement, with very limited exceptions. Last week, The Appeal reported a draft White House executive order leaked August would order federal inmates to be housed in the “least restrictive setting necessary.” But the proposed order reportedly outraged law enforcement groups, and the proposal quietly died.

crackpowder160606So how about the crown jewel, the EQUAL Act? Last week, the Attorney General and Deputy AGs Lisa O. Monaco and Vanita Gupta met with members of FAMM and families “who have been impacted by the federal criminal justice system.” A Dept of Justice news release said Associate AG Gupta noted DOJ’s support for the EQUAL Act, saying, “the current sentencing differential between crack and powder cocaine is not based in evidence and yet has caused significant harm in particular to communities of color. It’s past time to correct this.”

Sure it is. But what’s being done in the Senate? Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that “every day matters: on average, every single workday, about 5 people — 4 whom are typically black and the other who is most likely Latino — are sentenced based on unjust crack sentencing rules in federal court… Nearly six months after the U.S. House overwhelmingly voted with majorities in both parties in pass a bill to equalize crack and powder penalties, this bipartisan bill remains stuck in neutral in the U.S. Senate.”

Reason, Criminal Justice Campaign Promises Absent From Biden’s State of the Union Speech (March 1, 2022)

Politico, Biden draws bipartisan applause for calls to ‘fund the police’ (March 1, 2022)

The Marshall Project, What Biden’s Win Means for the Future of Criminal Justice (November 8, 2020)

Brennen Center, Criminal Legal Reform One Year into the Biden Administration (January 24, 2022)

Letter to President Biden on Solitary Confinement (June 3, 2021)

The Appeal, Will Biden Step Up On Solitary Confinement? (February 28, 2022)

New York Times, Inside a Near Breakdown Between the White House and the Police (February 2, 2022)

Dept of Justice, Readout of Justice Department Leadership Meeting with FAMM (March 1, 2022)

Sentencing Law and Policy, Why is getting the EQUAL Act through the US Senate proving so challenging? (March 1, 2022)

– Thomas L. Root

Everything’s Running Backwards (Or Sideways) at the BOP – Update for March 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.

THE BOP’S COLLAPSING COVID UNIVERSE

hawking220303The famed physicist Stephen Hawking theorized that there would come a time when the universe stopped expanding and would start collapsing instead. When that happened, he said, time (and everything else) would run backward.

The BOP has made it happen. How else does one explain the fact that the total number of COVID tests done by the agency peaked at 129,677 on January 25, 2022, and has fallen ever since? As of last night, the BOP claimed to have tested 790 fewer people since April 2020 than it claimed to have tested a little more than a month ago.

At this rate, the BOP is “untesting” more inmates a day than it is testing.

This is not surprising. The total number of inmate COVID cases peaked a year ago in February and then began a steady decline that made keeping accurate records of how many BOP prisons had caught the virus since April 2020 impossible. The number dropped by 5,300 until just before Christmas. In other words, about 3% of the inmate population “uncaught” COVID in the last year.

How is this possible? Only Hawking knows…

Then there’s the problem with the official vaccine count. Forty-one BOP facilities claim to have vaccinated more than 100% of their inmates. For instance, FCI La Tuna (on the Texas-New Mexico state line) has an inmate population of 967. Yet as of last Friday it claimed to have vaccinated 1,239 inmates. To be sure, inmates come and go. Some transfer, some are released, some newbies arrive. But across the system, the BOP claims to have vaccinated more than 4,000 prisoners than it has in custody.

ratchet211108A year ago, the agency quietly adopted the voodoo standard that it would subtract from its inmate COVID total anyone who had gotten COVID while a BOP prisoner but later was released. Sort of like the person was never an inmate and the COVID case had never occurred. That metric was weird enough, apparently intended to obscure how badly the BOP COVID mitigation plan had failed. Ironically, the agency has seemed to go the other way on vaccinations: a prison counts an inmate vaccination on its tally long after the prisoner is released.

The BOP keeps its finger on the COVID scale. Its rule for recordkeeping is to adopt whatever standard that makes it look good, accuracy be damned.

The BOP claimed 459 inmates recovered from COVID between a week ago last Friday and last Wednesday. But then, only three recovered over the next three days. As of Friday, 1,253 prisoners and 1,019 employees were sick. As of last night, the number fell to 475 inmates and 671 staff still with COVID. The BOP said COVID remained in 113 facilities.

At least 305 inmates remain dead. There’s not much the BOP can do about those numbers. The BOP reported last week that two inmates, one at Tucson and one at FMC Lexington, have died of COVID. One got sick on January 14 and was quickly declared “recovered” on January 24. The second got sick on January 18, and “recovered” even more quickly, after only seven days.

Despite being declared “recovered… in accordance with the Centers for Disease Control and Prevention (CDC) guidelines,” as the BOP always defensively puts it, one prisoner went to the hospital eight days after recovery and died there. The other died in his cell.

The BOP currently reports that 70.7% of staff and 76.4% of inmates have been vaccinated. Both of those numbers are squishy for reasons already mentioned. (The total number of BOP employees (36,553) has dropped by 138 over the past few weeks).

Threatening to lock up BOP employees: Great for morale in an agency that can't hold on to workers...
Threatening to lock up BOP employees: Great for morale in an agency that can’t hold on to workers…

Remember a month ago, when a BOP employee gave two U.S. senators a tour of FCI Danbury after the top brass there refused them entrance? On Feb 11 Shaun Boylan, a BOP financial program specialist and vice president of the BOP employees’ union at Danbury, has filed a complaint with the BOP’s Equal Employment Opportunity Office claiming he has been repeatedly retaliated against for engaging in union activities, including giving Senators Richard Blumenthal and Chris Murphy (both D-CT) a tour of the facility in January.

Boylan said the harassment included his supervisor telling others that “I would be assigned to the phone room and that criminal charges are pending against me.”

The BOP said it “altered” the congressional tour to maintain COVID-19 protocols. Danbury FCI is currently the subject of a federal Occupational Safety and Health Administration complaint for its COVID management.

At this point, does COVID matter anymore? The Wall Street Journal suggests we’re not out of the woods yet. The paper said last week that a more infectious type of the Omicron variant, known as BA.2, “has surged to account for more than a third of global Covid-19 cases sequenced recently, adding to the debate about whether countries are ready for full reopening.” Health authorities are examining whether BA.2 could extend the length of Covid-19 waves that have peaked recently.

“We’re looking not only at how quickly those peaks go up, but how they come down,” World Health Organization epidemiologist Maria Van Kerkhove said. “And as the decline in cases occurs…we also need to look at: Is there a slowing of that decline? Or will we start to see an increase again?”

BOP Press Release, Inmate Death at FMC Lexington (February 24, 2022)

BOP Press Release, Inmate Death at USP Tucson (February 24, 2022)

CTInsider, Records: Danbury federal prison named in two complaints alleging work place issues, infrastructure problems (February 22, 2022)

Wall Street Journal, Fast-Spreading Covid-19 Omicron Type Revives Questions About Opening Up (February 23, 2022

– Thomas L. Root

‘The AUSA Herself Said It’ – Ipse Dixit Takes It On The Chin – Update for March 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.

IPSE DIXIT

Like I’ve said before, “ipse dixit” is a cool Latin phrase that essentially means “he himself has said it.”  Essentially, an ipse dixit is a statement that is considered to be true for no better reason than someone in authority has said it was true.

ukrainewhite220301Some documents are confidential? Ukraine is run by Nazis? Inflation is transitory?  Ipse dixits, every one of them…

Edward Gibbs pled to an indictment accusing him of trafficking in at least 500 grams of meth (methamphetamine to your purists). That’s all he’d admit to. The Presentence Report found relevant conduct: 839 grams of meth seized from his car, a 907-gram deal Ed tried to set up with a co-defendant, and another 907-gram deal that Ed engineered for his son. The PSR also stated – without any explanation whatsoever – that during the conspiracy, a co-conspirator “distributed over 4.5 kilograms of methamphetamine ice” to members of the charged conspiracy,” all of which went into Eddie’s Guidelines calculation.

With the extra 4.5 kilos of “ice,” Ed’s sentencing range was 235-293 months. Without it, he was looking at 188-235 months.

Naturally, Ed’s lawyer objected. The Assistant United States Attorney said Eddie had admitted to it in a proffer session. Ed’s lawyer had been there and remembered nothing of the such. The AUSA had not been at the meeting but said she had seen notes from an agent who had been. The judge overruled Ed’s objections to the drug quantity, accepting the AUSA’s representations as evidence.

And why not? After all, the AUSA is an agent of the government, and she said it was so. It must be so.Ipsedixit220301


Last week, the 7th Circuit reversed. While district courts may consider evidence that would not be admissible at trial, that information nonetheless must have some basis. A sentencing judge may “rely on a presentence report if it ‘is well-supported and appears reliable.'” If a PSR meets those criteria, the burden shifts to the defendant to “com[e] forward with facts demonstrating that the information in the PSR is inaccurate or unreliable.

Generally, a bare denial is not enough to shift the burden back to the prosecution to prove that the PSR‘s account is accurate. “But this all assumes that the PSR has a solid basis,” the 7th said. “If a PSR “asserts ‘nothing but a naked or unsupported charge,'” then a defendant’s denial is enough to ‘cast doubts on its accuracy’. Similarly, if the PSR omits crucial information, then the defendant’s denial alone can shift the burden of proof back to the prosecution.

“Here,” the 7th held, “the district court did not have any evidence backing up the AUSA’s eleventh-hour representations about what the evidence would show, and so nothing was available to resolve the dispute about drug quantity… In the end the only thing in the record was counsel’s statement.”

That statement was an ipse dixit, and that, the Circuit said, “falls short of proof.”

United States v. Gibbs, Case No 20-3304, 2022 U.S. App LEXIS 4706 (7th Cir., February 22, 2022)

– Thomas L. Root

Once Upon A Week Down In Washington – Update for February 28, 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 POLS WERE BUSY LAST WEEK (OR NOT)

jackson220228Rocket Woman: Only 15 years ago, Ketanji Brown Jackson was an assistant public defender in Washington, DC. Six years later, she was a federal judge. Ten months ago, she was confirmed as a judge on the US Court of Appeals for the D.C. Circuit. Last week, her dizzying ride through the judiciary continued as President Joe Biden nominated her to take retiring Justice Stephen Breyer’s spot on the Supreme Court.

Picking Judge Jackson fulfills Biden’s promise to appoint a black woman to the high court. But she’s no token: Harvard Law (editor of the Harvard Law Review), a law clerk for Justice Breyer (whom she will replace), an attorney (and later vice-chair) at the U.S. Sentencing Commission, a public defender with one uncle who was a big-city police chief and another who was doing life on a federal drug charge (until he got clemency from Obama). Jackson would be the only Supreme Court justice with extensive Guidelines experience and the only one who ever did federal criminal defense work

There will be the usual bickering in the Senate leading up to her confirmation, but she’ll get confirmed: Sen. Charles Grassley (R-Iowa), the ranking minority member of the Senate Judiciary Committee expressed enthusiasm about Judge Jackson’s support for the First Step Act during last spring’s hearing on her appointment to the Court of Appeals (although he didn’t vote to confirm). But three other Republicans did.  All it takes is 51 votes in the Senate: the Democrats will provide 50, and Kamala Harris will break the tie if a Republican does not defect. At least one will.

The appointment is good news for federal inmates. Judge Jackson is reliably liberal, and she knows federal criminal law. As a Sentencing Commission member in 2011, she was passionate about equalizing the sentences for crack and powder. The Wall Street Journal said yesterday, “Supreme Court nominee Ketanji Brown Jackson would, if confirmed, be the first justice in decades to have worked as a lawyer representing poor criminal defendants, a background that could add a new perspective to the high court’s deliberations.”

That makes her the equal (if not superior) to any of the other eight Justices.

More Demands for BOP Accountability: As I noted last week, the drums on Capitol Hill continue to sound for the BOP. Senate Judiciary Committee chairman Sen Richards Durbin (D-Ill), Sen Grassley, and California Sens Dianne Feinstein and Alex Padilla (both D) sent a letter to Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco demanding the Justice Department turn over a pile of information about employee misconduct and procedures in place to stem sexual abuse.

Associated Press reported that the letter “is the latest illustration of increasing scrutiny of the scandal-plagued bureau following the AP’s reporting. Last week, the Senate launched a bipartisan working group to focus on the federal prison system, and lawmakers have been introducing legislation to increase oversight of the nation’s 122 federal prisons.”

In a case of bad timing, the letter was sent to the AG the same day James T. Highhouse, the former chaplain at FCI Dublin, pled guilty in San Francisco federal court to five felonies relating to his work at the FCI-Dublin female prison in the Northern District of California. Highhouse admitted he sexually abused a Dublin inmate multiple times and then lied to the FBI about it.

BOPsexharassment191209In a separate report, the AP said “whistleblower” employees of the BOP say high-ranking prison officials are bullying them for exposing wrongdoing and threatening to close FCI Dublin if workers keep reporting abuse, even as members of Congress say they’re being stonewalled in efforts to pry information from what AP calls “the beleaguered bureau.”

AP reported, “The Bureau of Prisons’ proclivity for silence and secrecy has endured, workers and lawmakers say, even after an Associated Press investigation revealed years of sexual misconduct at the women’s prison — the federal correctional institution in Dublin, California — and detailed a toxic culture that enabled it to continue for years.”

EQUAL Act: Thursday, leading New York civil rights and criminal justice organizations sent a letter to Senate Majority Leader Chuck Schumer (D-NY) pushing him to bring the EQUAL Act (S.79) to a vote within the next month.

crackpowder160606The EQUAL Act will “finally and fully eliminate the racially unjust federal sentencing disparity between crack and powder cocaine offenses, one of the worst vestiges of the failed War on Drugs,” Black Starr reported. In September, EQUAL passed in the House by a 361-66 vote, supported by everyone from the Freedom Caucus on the right to the Progressive Caucus on the left. In the Senate, where the legislation was introduced by Senator Cory Booker (D-NJ), EQUAL currently has seven Republican and five Democrat cosponsors.

Up in Smoke: The Wall Street Journal reported last Tuesday that because of the “tough midterm election and divisions in Congress, the Biden administration is sidestepping the politically sensitive issue of loosening marijuana laws, even as the idea has gained broad public support.

“More than half of U.S. states have legalized cannabis use for some purposes,” the Journal said. “Lawmakers have proposed decriminalizing marijuana… Those promoting changes include a diverse range of political figures… If someone like myself and a progressive like Alexandria Ocasio-Cortez can find some common ground, it begs the question, why hasn’t the president acted?” Rep Dave Joyce (R-Ohio), told the Journal. Joyce, who has worked on decriminalization of pot, said, “The solutions are there. It’s just a matter of political will.”

marijuanahell190918The problem isn’t political will, it’s political ‘won’t’.” Major legislation to decriminalize cannabis is stuck “amid opposition from some Republicans and some moderate Democrats. President Biden hasn’t acted on his own campaign-trail promises to decriminalize marijuana and expunge criminal records of users. The White House said cannabis policy is under study, but declined to comment further.”

The MORE Act of 2021 (H.R. 3617) passed the House in September, but seems dead in the Senate.

More than two in three Americans support legalizing marijuana, according to a 2021 Gallup poll, up from one-half a decade ago. Still, as The Skimm reported last week, “while Americans largely want to legalize weed, it’s not a top priority for them either. Forty-three percent of US adults also reportedly have access to rec weed. So, the urgency to get the federal gov involved may not be very high.” What’s worse, The Skimm said, Biden has remained blunt about marijuana: “He doesn’t believe in legalizing it… Biden said he wants more research on marijuana’s effects before changing his stance. But he has previously supported decriminalizing weed (a hot take for someone who helped spearhead the country’s war on drugs).”

New York Times, Biden Picks Ketanji Brown Jackson for Supreme Court (February 25, 2022)

SCOTUSBlog.com, In historic first, Biden nominates Ketanji Brown Jackson to Supreme Court (February 25, 2022)

Wall Street Journal, Judge Ketanji Brown Jackson Would Bring Rare Criminal-Defense Experience to Supreme Court (February 27, 2022)

Associated Press, Senators push Garland to reform prisons after AP reporting (February 23, 2022)

The Hill, Former federal prisons chaplain pleads guilty to sexually abusing inmate (February 2, 2022)

Associated Press, Whistleblowers say they’re bullied for exposing prison abuse (February 23, 2022)

Black Starr News, Schumer Pressed To Pass Bill Addressing Crack\Cocaine Sentencing Disparity (February 25, 2022)

S.79, EQUAL Act

Wall Street Journal, Push to Relax Marijuana Laws Hits Roadblocks (February 22, 2022)

MORE Act of 2021, H.R. 3617

The Skimm, Breaking Down the Buzz: Why the US Isn’t Puff, Puff, Passing Marijuana Legalization (February 23, 2022)

– Thomas L. Root

Senators Decide BOP Needs Adult Supervision – Update for February 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.

MIKE CARVAJAL’S LEGACY

adult220225The Associated Press reported last Friday that a bipartisan group of senators led by Jon Ossoff (D-GA) and Mike Braun (R-IN) has launched a working group “aimed at developing policies and proposals to strengthen oversight of the beleaguered federal prison system and improve communication between the Bureau of Prisons and Congress.”

Senator Ossoff said in a press release that the Senators will “examine conditions of incarceration in U.S. Federal prisons, protect human rights, and promote transparency.”

The AP says the task force – which calls itself the Senate Bipartisan Prison Policy Working Group – formed “following reporting by The Associated Press that uncovered widespread corruption and abuse in federal prisons.”

The chairman of the Senate Judiciary Committee, Senator Richard Durbin (D-IL) will be part of the group.

prisoncorruption2310825AP has called the federal prison system “a hotbed of corruption and misconduct… [that] has been plagued by myriad crises in recent years, including widespread criminal activity among employees, systemic sexual abuse at a federal women’s prison in California, critically low staffing levels that have hampered responses to emergencies, the rapid spread of COVID-19, a failed response to the pandemic and dozens of escapes.”

“The COVID-19 pandemic exposed serious weaknesses in our federal prison system, but also provided a blueprint for reform. Congress should take an active role in ensuring that BOP builds on the lessons of the pandemic to ensure the safety of incarcerated persons and the community, promote rehabilitation and reentry, and maximize alternatives to incarceration,” Kyle O’Dowd, Associate Executive Director for National Association of Criminal Defense Lawyers said. “The Prison Policy Working Group can open a bipartisan dialogue on these issues and lead the way in creating a more humane and rational prison system.”

accountable220225David Safavian, General Counsel, American Conservative Union, said, “It is high time that Congress addresses issues facing both federal prisoners and correctional officers alike. The newly created Senate Prison Policy Working Group must help develop policies that strengthen public safety, advance human dignity, and ensure that the prison bureaucracy is held accountable for the results it delivers to the taxpayers.”

Ossoff and Braun recently introduced legislation recently that will require the director of the BOP to be confirmed by the Senate, legislation co-sponsored by a bipartisan group of senators including Senate Minority Leader Mitch McConnell (R-KY).

Associated Press, Senate launches group to examine embattled US prison system (February 17, 2022)

Senator Jon Ossoff, Sens. Ossoff, Braun Launch Bipartisan Working Group to Examine U.S. Prison Conditions, Promote Transparency (February 17, 2022)

The Hill, Senate group to examine federal prison system after corruption, abuse allegations (February 18, 2022)

– Thomas L. Root

Playing with COVID Numbers – Update for February 24, 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.

BOP DECLARES COVID RECOVERIES AS MEDIA BLAST MANAGEMENT

The BOP declared another 2,800 inmates cured last week, declaring at week’s end that 1,717 prisoners and 1,415 staff still have the virus. As of last night, the number was down to 1,257 inmates and 1,397 staff. The BOP is reporting COVID at 125 facilities. The agency reported no new deaths.

deadcovid210914There isn’t a lot of reason to trust the BOP’s stats. For instance, 2,500 inmates “recovered” over Valentine’s Day weekend, but from the following Wednesday to Friday, only two more were cured. Over last weekend, another 450 were healed. But yesterday, only one was cured. As of last Tuesday, the agency had performed 129,251 COVID tests on inmates since 2020, but as of last night, only 128,895 had been done. The number of tests waiting to be processed was 94 for 10 days in a row ending a week ago Tuesday and has been 136 every day since. For the same period a year ago, the number was never the same from February 5 through February 24, fluctuating between a high of 1,131 and a low of 695.honeymoon220224

A reasonable person could conclude that the stats are being made up.

But does it matter? After all, COVID is finally over. Or maybe not, as COVID variant BA.2 vies with Vladimir Putin for headlines.

In other news, if the BOP ever enjoyed a media honeymoon on its COVID management, that time has passed. CNN last week savaged the BOP’s COVID response in a story based on inmate deaths at FPC Alderson:

The deaths of… three women imprisoned in West Virginia reflect a federal prison system plagued by chronic problems exacerbated by the pandemic, including understaffing, inadequate medical care, and few compassionate releases. The most recent statistics from the Federal Bureau of Prisons report 284 inmates and seven staff members have died nationwide because of covid since March 28, 2020. Medical and legal experts say those numbers are likely an undercount, but the federal prison system lacks independent oversight… The Alderson inmates and their families reported denial of medical care, a lack of covid testing, retaliation for speaking out about conditions, understaffing, and a prison overrun by covid. Absences by prison staff members sickened by the virus led to cold meals, dirty clothes, and a denial of items like sanitary napkins and clean water from the commissary… In an email, BOP spokesperson Benjamin O’Cone said the agency does not comment on what he called “anecdotal allegations.”

So the BOP manipulates the stats, and it ignores the anecdotes. Controlling the information and disparaging the information you can’t control – it’s the BOP’s mission statement.

healthcare220224Meanwhile, Oregon Public Broadcasting continues its coverage of a suit against the BOP brought by FCI Sheridan inmates, reporting that “dire conditions inside the federal prison in Sheridan, Oregon, have not improved over the course of the pandemic and numerous medical requests from inmates inside the facility continue to go unaddressed, according to Lisa Hay, Oregon’s federal public defender, in a recent filing. “What’s most dismaying to me is that we’re hearing the same kinds of complaints for two years and I feel somewhat helpless,” Hay told OPB in an interview a week ago. “People are dying, people are being harmed, people are being harmed psychologically and physically.”

“The system of care at the FCI Sheridan does not allow for adequate access to care,” Michael Puerini, M.D., a corrections medical care expert, stated in an inspection report filed last month. “Access to care is a fundamental aspect of the care system. Without access to care, adults in custody are essentially left without healthcare, much to their peril.”

Puerini wrote that “The Sheridan facility, at the time of our visit in September, was not following CDC guidelines regarding care of Covid patients in that patient who had tested positive for Covid were not being checked on a daily basis, as specified in the guidelines.”

CNN, Covid-19 rips through West Virginia women’s prison as federal agency takes heat (February 18, 2022)

Wall Street Journal, Fast-Spreading Covid-19 Omicron Type Revives Questions About Opening Up (February 23, 2022)

Oregon Public Broadcasting, Inmates at Oregon’s only federal prison report dire medical care (February 11, 2022)

Status Report, Stirling v. Salazar, Case No. 3:20-cv-00712 (February 4, 2022, ECF 98)

– Thomas L. Root

Emergency Continues, And So Does CARES Act Home Confinement – Update for February 22, 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.

BOP CARES ACT AUTHORITY EXTENDED

caresbear210104The BOP’s CARES Act authority to place inmates in home confinement expires, according to the law, 30 days after the end of the national pandemic emergency. That emergency was originally declared by President Trump and extended by President Biden. Biden’s last extension was set to expire March 1, 2022, by operation of 50 USC § 1622(d).

Last Friday, Biden extended the national emergency for another year. He said, “The COVID-19 pandemic continues to cause significant risk to the public health and safety of the Nation. For this reason, the national emergency declared on March 13, 2020, and beginning March 1, 2020, must continue in effect beyond March 1, 2022.”

Section 12003(b)(2) of the CARES Act provides that

During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.

So the BOP authority continues as long as there’s a national emergency and the Attorney General “finds that emergency conditions will materially affect the functioning of the Bureau.” Attorney General William Barr made that finding on March 26, 2020, and again a week later.

home210218What this means is the BOP’s authority to place people in home confinement under the CARES Act will continue for another year unless Attorney General Merrick Garland would decide the BOP no longer needs to decrease population. Given that the BOP must still absorb another 6,085 federal prisoners from private prisons, that inmate totals are trending upward again, and that the BOP is still understaffed, it is unlikely that the AG will abandon the CARES Act any time soon.

The White House, Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-⁠19) Pandemic (February 18, 2022)

– Thomas L. Root

Sample-ing a First Circuit Compassionate Release Win – Update for February 21, 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.

LET’S GO, BRANDON…

jrhigh220221I’m no fan of the current political meme “Let’s go, Brandon.” I think we can be critical of the incumbent President (or the former President, for that matter) without sounding like a lot of 7th-grade boys sitting in the back of the school bus.

But today, I mean it literally. Vermont-based Federal post-conviction attorney Brandon Sample (who has no connection with this blog other than the fact of his dedication to criminal defense and his skill in winning against sometimes-substantial opposition) swung for the fence on a First Circuit compassionate release appeal. Last week, he hit a walk-off homer.

Brandon’s client, Juan Ruvalcaba, was convicted of a sprawling drug-distribution conspiracy over 15 years ago and sentenced to life in prison. “Life” was the sentence that the 21 U.S.C. § 846 count required at that time because of Juan’s prior drug convictions.

In 2020, Juan asked his court for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of COVID and his medical condition. He also argued that the fact that the mandatory minimum sentence for his drug conviction had been changed by the First Step Act – being dropped from life to 25 years – was an additional extraordinary and compelling reason for a sentence reduction.

henhouse180307A § 3582(c)(1)(A)(i) motion, for those of you who just came in, requires that a moving party show that there is one or more “extraordinary and compelling reason[s]” for a sentence reduction, and that, after considering the sentencing factors of 18 U.S.C. § 3553(a), a reduction is warranted. Time was only the Bureau of Prisons could bring such motions on behalf of inmates – sort of like letting the fox decide which chickens in the henhouse would be released to go “free-range” – but First Step changed that to let inmates file for compassionate release on their own.

The Sentencing Commission has defined what facts may constitute “extraordinary and compelling” reasons in a Policy Statement (USSG §1B1.13). However, because the Commission has been out of business for lack of a quorum since First Step changed the compassionate release statute in December 2018, the Policy Statement is still written as though only the BOP director is doing all of the filing.

Juan’s district court disagreed that the First Step change to his mandatory minimum could be an extraordinary and compelling reason for compassionate release. What’s more, the court held that it was obligated to follow the Sentencing Commission Policy Statement, which did not identify sentence length or a subsequent non-retroactive change in the sentencing statute as elements justifying a sentence reduction.

Brandon took Juan’s appeal to the 1st Circuit, and last week, that court joined a majority of other federal courts of appeal in holding that § 1B1.13 does not apply to prisoner-filed compassionate release motions. What’s more, the 1st Circuit ruled that a district court was free to consider that the prisoner is serving an over-long sentence that would not be mandatory had it been imposed after the First Step Act.

“The text of the current policy statement makes pellucid that it is ‘applicable’ only to motions for compassionate release commenced by the BOP,” the Circuit ruled. “To find the existing policy statement “applicable” to prisoner-initiated motions, we would need to excise the language referring to motions brought by the BOP. That would be major surgery and undertaking it would be well outside our proper interpretive province…. We may not ‘blue pencil’ unambiguous text to divorce it from its context.”

bluepencil220221The appeals court admitted that someday, the Sentencing Commission will be back in business and probably make § 1B1.13 relevant in a First Step world. Then, “district courts addressing such motions not only will be bound by the statutory criteria but also will be required to ensure that their determinations of extraordinary and compelling reasons are consistent with that guidance.” But until then, compassionate release will be interpreted “through the lens of the statutory criteria, subject to review on appeal.”

The 1st Circuit also held that an excessive sentence could be a reason for a sentence reduction, at least where a subsequent but non-retroactive change in the law had lowered a mandatory minimum. “Our view that a district court may consider the FSA’s prospective amendments to sentencing law as part of the ‘extraordinary and compelling’ calculus fits seamlessly with the history and purpose of the compassionate-release statute. In abolishing federal parole, Congress recognized the need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable.”

Such a safety valve should “encompass an individualized review of a defendant’s circumstances and permit a sentence reduction — in the district court’s sound discretion — based on any combination of factors (including unanticipated post-sentencing developments in the law),” the Circuit ruled. Thus, a district court, reviewing a prisoner-initiated motion for compassionate release in the absence of an applicable policy statement, may consider any “complex of circumstances raised by a defendant as forming an extraordinary and compelling reason warranting relief.”

Juan still has to sell his district court on the wisdom of granting any sentence reduction on remand, but – judging from his appellate win – he probably has the lawyer who can do it, if anyone can. Go, Brandon!

United States v. Ruvalcaba, Case No. 21-1064, 2022 U.S.App. LEXIS 4235 (1st Cir., February 15, 2022)

– Thomas L. Root

Senate Takes on BOP, and Other Short Rockets – Update for February 18, 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.

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Some short takes to end the week:

Mike Carvajal’s Legacy: The Associated Press yesterday reported that a bipartisan group of senators, led by Jon Ossoff (D-Georgia) and Mike Braun (R-Indiana) has launched a working group “aimed at developing policies and proposals to strengthen oversight of the beleaguered federal prison system and improve communication between the Bureau of Prisons and Congress.”

prisoncorruption2310825Giving itself a well-deserved victory lap, the AP says the task force – which calls itself the Senate Bipartisan Prison Policy Working Group – formed “following reporting by The Associated Press that uncovered widespread corruption and abuse in federal prisons.”

The chairman of the Senate Judiciary Committee, Sen. Richard Durbin (D-Illinois) also will be part of the group. I’m hoping to see Senator Chuck Grassley (R-Iowa)

AP called the federal prison system “a hotbed of corruption and misconduct… [that] has been plagued by myriad crises in recent years, including widespread criminal activity among employees, systemic sexual abuse at a federal women’s prison in California, critically low staffing levels that have hampered responses to emergencies, the rapid spread of COVID-19, a failed response to the pandemic and dozens of escapes.”

Advocates from across the spectrum lauded the announcement. “The COVID-19 pandemic exposed serious weaknesses in our federal prison system, but also provided a blueprint for reform. Congress should take an active role in ensuring that BOP builds on the lessons of the pandemic to ensure the safety of incarcerated persons and the community, promote rehabilitation and reentry, and maximize alternatives to incarceration,” Kyle O’Dowd, Associate Executive Director for National Association of Criminal Defense Lawyers said. “The Prison Policy Working Group can open a bipartisan dialogue on these issues and lead the way in creating a more humane and rational prison system.”

David Safavian, General Counsel, American Conservative Union, said, “It is high time that Congress addresses issues facing both federal prisoners and correctional officers alike. The newly created Senate Prison Policy Working Group must help develop policies that strengthen public safety, advance human dignity, and ensure that the prison bureaucracy is held accountable for the results it delivers to the taxpayers.”

More BOP accountability… Ironically, that may be BOP Director Mike Carvajal’s legacy.

Associated Press, Senate launches group to examine embattled US prison system (February 17, 2022)

Senator Jon Ossoff, Sens. Ossoff, Braun Launch Bipartisan Working Group to Examine U.S. Prison Conditions, Promote Transparency (February 17, 2022)

And This is Kind of What the Senators Are Talking About: A BOP employee pleaded guilty Thursday to charges he sexually abused at least two inmates at FCI Dublin, the first conviction in a wave of arrests resulting from what prisoners at the women’s facility and employees called “the rape club.”

sexualassault211014The latest, a recycling technician, is one of four employees, including the warden and chaplain, who’ve been arrested for sexually abusing Dublin inmates. The Associated Press said last week that several other Dublin workers are under investigation.

The employee pled guilty to three counts of sexual abuse of a ward. Sentencing guidelines in similar cases have ranged from three months to two years, the AP said. The employee, on administrative leave since last April, remains “currently employed with the Bureau of Prisons,” the agency said last Friday. He had been allowed to transfer to another BOP facility while under investigation.

The AP published results of its investigation of FCI Dublin a week ago, saying it had found “a permissive and toxic culture at the Bay Area lockup, enabling years of sexual misconduct by predatory employees and cover-ups that have largely kept the abuse out of the public eye.” Inmates told AP they had been subjected to years of “rampant sexual abuse by correctional officers and even the warden, and were often threatened or punished when they tried to speak up.”

Federal News Network, Worker pleads guilty to abusing inmates at US women’s prison (February 11, 2022)

Associated Press, AP investigation: Women’s prison fostered culture of abuse (February 6, 2022)

Violent Offender Recidivism: The US Sentencing Commission last week released a study suggesting that violent federal offenders committed new crimes at double the rate of nonviolent offenders.

welcomeback181003Over an 8-year period, 64% of violent offenders released in 2010 were rearrested, compared to 38% of non-violent offenders. The median time to rearrest was 16 months for violent offenders and 22 months for non-violent offenders. What’s more, while recidivism dropped with age, in all categories violent offender committed new crime at a higher rate than nonviolent. For ages 60+, violent offenders’ recidivism rate was 25%, compared to 12% for nonviolent.

Violent offenses were defined based on the sentencing guidelines applied. By the definitions used, 9% of federal prisoners are serving time for violent crimes and 34% have prior violent-crime convictions.

US Sentencing Commission, Recidivism of Violent Federal Offenders Released in 2010 (February 10, 2022)

– Thomas L. Root

Just When You Thought It Was Safe To Stay At Home… – Update for February 17, 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.

BUREAU OF PRISONS MUDDIES THE WATER ON CARES ACT PRISONERS REMAINING AT HOME

A BOP letter responding to a request from Rep. Sheila Jackson Lee (D-Texas) last week has renewed concern that CARES Act home confinees aren’t out of the woods yet.

muddywaters220217You may recall that the CARES Act, gave BOP the authority to send medically vulnerable prisoners to home confinement because of COVID. Since CARES passed in March 2020, the BOP has sent about 9,000 prisoners home, and of those – according to the BOP – only three have been returned to prison for committing new crimes.

However, despite the success of the program, the Department of Justice Office of Legal Counsel issued an opinion in the dying throes of the Trump Administration that when the pandemic ended, all of those folks – who had reconnected with families, gotten jobs, and generally reacclimated to society – would have to go back to prison. There was near-universal condemnation of the opinion, but last July, the newly-installed Biden people at DOJ offered as the Trumpian opinion was probably right.

flipflop170920Then, in December (with the President looking for some kind of criminal justice “win” to placate his progressives), CARES Act people rejoiced when the OLC reversed the January 2021 opinion. In fact, the jubilation was so great that none of the celebrants seemed to notice that the BOP had sent a memorandum to OLC a few days before saying that if return to prison was not mandatory, the agency planned to develop a plan to evaluate “which offenders should be returned to secure custody.

“Which offenders should be returned” is one of those compound statements, necessarily assuming that some of the CARES Act people should be returned. Some people are now taking note of just how ominous the statement is, and are asking what the BOP means by it.

“Sentence length is likely to be a significant factor,” the memo from BOP’s Office of General Counsel said, “as the more time that remains will provide the agency a more meaningful opportunity to provide programming and services to the offender in a secure facility. The nature of the sentence imposed, the interests of the prosecuting U.S. Attorneys’ Office, the potential impact on any victims or witnesses, and deterrence are other potential factors for the criteria BOP would develop. It is likely that inmates that have longer terms remaining would be returned to secure custody, while those with shorter terms left who are doing well in their current placement would be allowed to remain there, subject to the supervisory conditions described above.”

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Asked by two dozen other members of Congress to clarify, the BOP last week said it was preparing regulations that would be adopted “at the appropriate time.” Until then, the letter said, “we cannot speak to specifics.”

When he appeared before the House Subcommittee on Crime, Terrorism and Homeland Security two weeks ago, BOP Director Michael Carvajal said the BOP is “committed to returning people to society” and his agency “follows the laws that have been implemented and continue to do so.”

Right, Mike.

KXAN-TV, What will happen to inmates released under CARES Act? Prison officials vague (February 8, 2022)

BOP, Memo on CARES Act Return Authority (December 10, 2022)

BOP,  Letter to Rep. Bonnie Watson Coleman (February 7, 2022)

– Thomas L. Root