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Demagoguing Home Confinement – Update for November 16, 2023

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

SENATE REPUBLICANS SEEK TO CORRAL CARES ACT TERRORISTS

Just when CARES Act prisoners still serving home confinement thought it was safe for them to believe they would remain at home, Sen. Marsha Blackburn (R–TN) has introduced S.J.Res. 47, legislation that would reverse a DOJ rule allowing prisoners on CARES Act home confinement to complete their sentences at home.

caresbear231116On October 30, Blackburn and 26 co-sponsoring Senators introduced the bill under the Congressional Review Act, 5 USC Ch. 8, which would overturn a Justice Department rule allowing some federal offenders to remain under house arrest after the end of the government’s COVID-19 emergency declaration.

“While there are certainly plenty of legitimate issues with the BOP that merit senators focusing oversight on the Bureau, CARES Act home confinement is an example of a program that is working—rehabilitating people while holding them accountable, all while driving down costs and maintaining community safety,” Kevin Ring, vice president of criminal justice advocacy at Arnold Ventures, a private philanthropy group, said.

cotton171226Sen. Tom Cotton (R-AR) – whose opposition to the First Step Act was responsible for getting those prisoners with 18 USC § 924(c) convictions excluded from obtaining FSA credits for successfully completing recidivism reduction programs written into the law –declared that extending CARES Act home confinement (especially now that every single federal inmate has been vaccinated or offered the vaccine for COVID-19) “betrays victims and law-enforcement agencies that trusted the federal government to keep convicted criminals away from the neighborhoods that the offenders once terrorized.”

There’s nothing quite as easy to demagogue as crime and punishment.

Never mind that the Bureau of Prisons has refused CARES Act home confinement to anyone convicted of sex crimes, terrorism, violent offenses, or even those who had a violent disciplinary report while in prison. CARES Act home confinees had to have low or minimum security status and be at low or minimum risk of recidivism under the Dept. of Justice PATTERN scoring system.

The Congressional Review Act, which was passed 27 years ago, creates a process for Congress to overturn federal agency rules. In 2017, a Republican-controlled Congress used the CRA to invalidate dozens of Obama-era federal rules. Any member of Congress can introduce a CRA joint resolution of disapproval, which is referred to the relevant Senate or House committee. A CRA resolution must be passed by a majority in both the House and Senate and then signed by the president. If the President vetoes the CRA resolution, Congress can override the veto with a two-thirds majority in both houses.

flyelephantgun231116Given that the Biden Administration pushed the new rule and the Senate is controlled by Democrats, passage of S.J.Res. 47 is doubtful. If it would pass both houses, but Biden vetoes it, there is no chance two-thirds of Congress would override it.

Last week, BOP Director Colette Peters told a House subcommittee that “as of August 31, 2023… less than 0.05% of people [on home confinement] have been returned to custody for committing new crimes.” Given that statistic, S.J.Res. 47 seems a lot like shooting a fly with an elephant gun.

S.J.Res. 47, Congressional disapproval of the rule submitted by the Dept of Justice relating to CARES Act (October 30, 2023)

Reason, Senate Resolution Would Send Federal Offenders Back to Prison 3 Years After Being Released to Home Confinement (November  6, 2023)

National Health Law Program, Congressional Review Act (October 2020)

– Thomas L. Root

BOP Director Plays Chico Marx To House Subcommittee – Update for November 14, 2023

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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.

WHO YOU GONNA BELIEVE, ME OR YOUR OWN EYES?


In testimony last week before a House Judiciary subcommittee, Bureau of Prisons director Colette Peters boasted that the agency has “modernized our mission, vision, core values, and strategic framework to formalize our commitment to transformative change… Our diverse and adept workforce champions a modern approach to corrections, where safety, humane environments, and effective reintegration are paramount.”

“[M]odernize[] our… strategic framework to formalize our commitment to transformative change?” Does the BOP use AI to generate bureaucratic mumbo-jumbo, or is this the combined output of a special Central Office committee on obfuscation? A more basic question: does that line even mean anything?

chico231114It apparently doesn’t mean much. A day after Director Peters delivered her bureaucratic buzz-word-laden report to the subcommittee, the Dept of Justice Office of Inspector General dropped a stunning rebuttal to that “safety, humane environments…” part of the Director’s word salad. The OIG’s findings on conditions of the women’s prison ar FCI Tallahassee, juxtaposed with Director Peters’ happytalk, reminded me of the classic Chico Marx line: “Who you gonna believe, me or your own eyes?”

Peters says “safe[]” and “humane.” The OIG report described its surprise inspection last May as “alarming.” 

The inspection report identified “serious operational deficiencies,” with “the most concerning” being “the alarming conditions of its food service and storage operations.” The New York Times reported that the OIG inspectors only “expected to find serious problems endemic to other crumbling, understaffed facilities run by the Bureau of Prisons. What they encountered shocked them: Moldy bread on lunch trays, rotting vegetables, breakfast cereal and other foods crawling with insects or rodents, cracked or missing bathroom and ceiling tiles, mold and rot almost everywhere, roof leaks plugged with plastic bags, windows blocked with feminine hygiene products to keep out the rain, loose ventilation covers that created perfect hiding places for contraband and weapons.”

Tallahasseelunch231114AThe inspection report identified “serious operational deficiencies,” with “the most concerning” being “the alarming conditions of its food service and storage operations.” DOJ Inspector General Michael Horowitz said, “When we go to Tallahassee and we see windows leaking and ceilings leaking onto inmate living space, and we see female inmates having to use feminine hygiene products to keep the water from coming into their space, that’s something you should never have to deal with.”

In as much defense as she deserves after 15 months on the job, Peters did tell the Subcommittee the day before the OIG report was issued that the BOP’s unmet infrastructure needs are dire. She estimated that $2 billion was needed to clear the backlog of repairs and renovations identified as urgent. The Tallahassee Food Service Administrator position, responsible for food safety, had been vacant for two years. As it happened, FCI Tallahassee’s current Food Service Administrator’s first day on the job coincided with the first day of OIG’s inspection.

badexample231114In another embarrassment for the BOP, a federal judge last week ruled that the Alabama prison system, which has been sued by the DOJ for 8th Amendment violations, may inspect four federal prisons as part of its discovery in building its defense in the case. The State apparently intends to show that its prison conditions are no worse than those in the BOP. Alabama requested to inspect the FCC Coleman in Florida, FCI Yazoo City in Mississippi, and USP Atlanta.

House Subcommittee on Crime and Federal Government Surveillance, Oversight of the Bureau of Prisons (November 7, 2023)

New York Times, Justice Dept. Watchdog Describes Unsanitary Conditions at Florida Prison (November 8, 2023)

Dept of Justice Office of Inspector General, Inspection of the Federal Bureau of Prisons’ Federal Correctional Institution Tallahassee (November 8, 2023)

AL.com, Judge rules Alabama can inspect federal prisons to build defense in DOJ lawsuit (November 9, 2023)

– Thomas L. Root

Supreme Court May Walk Back Bruen, But Constitutionality of 922(g)(1) Still Up In The Air – Update for November 13, 2023

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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.

HARD CASES MAKE BAD LAW

The Supreme Court appears poised to refine the New York State Rifle & Pistol Association v. Bruen Second Amendment test for the constitutionality of gun laws, adding a “dangerousness” element that – surprisingly enough – may help a lot of people convicted of felon-in-possession crimes.

SCOTUS heard argument last week in United States v. Rahimi, the case that challenged whether subsection (8) of 18 USC 922(g) – that bans people subject to domestic protection orders from possessing guns – is constitutional under the Second Amendment.

Mr. Rahimi fired off a few rounds at a fast-food joint when his friend's credit card was declined.
Mr. Rahimi fired off a few rounds at a fast-food joint when his friend’s credit card was declined.

Defendant Zackey Rahimi was a bad actor. While under a domestic protection order for stalking an ex-girlfriend, he ran amok in December 2020, shooting up houses, blasting away at bad drivers, firing at a police car, and even loosing off five rounds into the air when a credit card was declined at a Whataburger. In short, he was the government’s dream defendant for its position that Uncle Sam has the right to keep some people away from guns.

And the government needed a dream defendant. The Supreme Court’s 2022 Bruen decision adopted a new standard, specifically that when the Second Amendment covers one’s conduct (such as possessing a firearm), the government can limit that conduct only by showing “that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Bruen thus superseded the Court’s long-standing practice of allowing the government to weigh its interest in public safety against the possibility of imposing a limitation on Second Amendment rights.

Last week’s argument suggests the Court may write some “public safety” back into the Bruen standard. The government argued that the “destabilizing consequences” of the 5th Circuit’s Rahimi ruling require the Court to uphold 18 USC § 922(g)(8) based on the general tradition of Congress taking guns from people who are not responsible, law-abiding citizens – “for example, people who had been loyal to the British government during the Revolutionary War, felons, and drug addicts,” as Amy Howe put it in SCOTUSBlog.

lawabiding231113But the justices puzzled over what “responsible” or “law-abiding” citizen meant exactly. “Responsibility,” Chief Justice John Roberts told the government, is “a very broad concept.” Justice Amy Coney Barrett agreed that domestic violence is dangerous. But in more marginal cases, she asked, how does the government show that other kinds of behavior are dangerous?

The government argued that “responsibility” is “intrinsically tied to the danger you would present if you have access to firearms.” The government told the Court that it can disarm “dangerous individuals” without violating the  Second Amendment.

Roberts clearly thought Zack had no business possessing a gun: “You don’t have any doubt that your client’s a dangerous person, do you?” he asked Zack’s counsel. Justice Samuel Alito wondered whether Rahimi’s position was that “except for someone who has been convicted of a felony, a person may not be prohibited from possessing a firearm in his home?” Justice Elena Kagan interpreted Rahimi’s position as being that the government had to show a historical regulation “essentially target[ed] the same kind of conduct as the regulation under review” to be constitutional.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said,

There seems to be a majority of Justices (and perhaps even all the Justices) who are prepared to rework the Bruen originalist approach to the Second Amendment to uphold the federal criminal firearm prohibition in Rahimi. But I… was especially struck by the claim by Rahimi’s lawyer that there were no complete criminal bans on the possession of guns by certain people until 1968. If originalism as a mode of constitutional interpretation really cared about history, that would seem to be a quite significant bit of history for resolving this case.

nickdanger220426The Rahimi issue is whether people subject to domestic protection orders are dangerous. But if SCOTUS focuses on “dangerousness,” that suggests that maybe people disqualified from owning firearms because of prior convictions – like Bryan Range in the 3rd Circuit case now awaiting a decision on certiorari – convicted of nonviolent crimes may still benefit from Bruen.

New York State Rifle & Pistol Association v. Bruen, 142 S.Ct. 2111, 213 L.Ed. 2d 387 (2022)

SCOTUSBlog, Justices appear wary of striking down domestic-violence gun restriction (November 7, 2023)

Sentencing Law and Policy, Some press pieces reviewing SCOTUS argument in Rahimi Second Amendment case (November 7, 2023)

Reason, Only ‘Dangerous Individuals’ Lose Their Gun Rights Because of Protective Orders, the Government Says (November 8, 2023)

– Thomas L. Root

A Year Later, Banks May Have Started What Chevron Could Finish – Update for November 10, 2023

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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.

FRAUD STORM BREWING OVER 3RD CIRCUIT BANKS RULING?

A defense attorney calls it “really a potential sea change in federal sentencing,” Bloomberg Law reported last week.

Fraud170406A year ago, the 3rd Circuit held in United States v. Banks that the loss enhancement under USSG § 2B1.1(b)(1) – the linchpin of economic crimes sentencing – is limited to actual loss. Relying on the 2019 Supreme Court Kisor v. Wilkie decision, the 3rd applied the ordinary meaning of “loss” to determine that § 2B1.1 includes only what was lost because the word “intended” is only mentioned in the § 2B1.1 commentary. The Circuit held that “the loss enhancement in the Guideline’s application notes impermissibly expands the word ‘loss’ to include both intended loss and actual loss.”

Bloomberg reported that the ruling has sparked a debate on how much deference to give the Sentencing Commission’s interpretation of its own Guidelines, including the loss scale that can dramatically increase the sentencing range in fraud crimes. The Guideline suggests in the commentary using the greater of actual or intended loss when determining sentences. But the 3rd said the USSC lacked authority to expand the meaning of “loss” to include what was intended but did not happen.

“We are getting these absurd results where nonviolent criminals are getting extraordinary sentences,” one defense attorney told Bloomberg.

loss210312Bloomberg said Banks “could significantly reduce prison time for defendants in securities and commodities cases since it is difficult to figure out actual losses in those situations… It could also impact charging decisions, especially in 3rd Circuit territory, where prosecutors may think twice about devoting resources to cases with small actual losses.”

But in the year since Banks was decided, defense attorneys have had limited success using the decision outside of the 3rd Circuit. In December, an Eastern District of _ichigan court in United States v. McKinney sided with the Banks ruling in a case involving a defendant who pleaded guilty to fraud against JPMorgan Chase. The judge reasoned that she didn’t have to defer to the Sentencing Commission because the definition of loss isn’t “genuinely ambiguous.” Later, the 6th Circuit cast some shade on relying on Banks in United States v. Xiaorong You, holding in a trade secrets theft case that “Banks’s attempt to impose a one-size-fits-all definition is not persuasive” and that the Guidelines commentary is entitled to deference.

Two other circuits, the 1st and 4th Circuits, have declined to take a position. In United States v. Limbaugh, the 4th declined to apply F.R.Crim.P. 52(b) “plain error” to an “intended loss” sentence, holding that the Banks holding “is a new and fast-developing area of the law, and as of now, we do not have the kind of robust consensus in other circuits that would allow us to label as “plain” any error committed here.” The 1st Circuit did the same in United States v. Gadson.

The issue is tied up with a 1993 SCOTUS ruling in Stinson v. United States that held Guidelines commentary is authoritative unless it violates the Constitution, violates a federal statute, or is inconsistent with, or a plainly erroneous reading of, the applicable Guideline. The 4th, 6th, 9th, and 11th Circuits all agree with the 3rd’s position that the Supreme Court in Kisor v. Willkie replaced Stinson’s highly deferential standard — to guideline commentary, at least — with a less deferential one.

conspiracy160606However, some other circuit courts have taken the opposite view. The 5th Circuit is the latest, ruling in the en banc United States v. Vargas decision that while the Guidelines are silent on the treatment of conspiracies, its commentary includes them and thus subjects a defendant to increased prison time. In deferring to the commentary, the 5th held that it is bound to follow Stinson, “like night follows day.” Under Stinson, the court went on to explain, the commentary is authoritative unless it is inconsistent with, or a plainly erroneous reading of, the applicable guideline.

Some commentators believe the Supreme Court will need to decide the issue. While SCOTUS has not taken up the issue, it will address Chevron deference this term, and the outcome of that could presage, if not settle, the Banks issue.

Bloomberg Law, Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling (November 1, 2023)

United States v. Banks, 55 F.4th 246 (3d Cir, Nov 30, 2022)

United States v. McKinney, 645 F. Supp. 3d 709 (E.D. Mich. 2022)

United States v. Xiaorong You, 74 F.4th 378 (6th Cir. 2023)

United States v. Limbaugh, No. 21-4449, 2023 U.S. App. LEXIS 317 (4th Cir., Jan. 6, 2023)

United States v. Gadson, 77 F.4th 16 (1st Cir. 2023)

Kisor v. Wilkie, 588 U.S. —, 139 S. Ct. 2400, 204 L. Ed. 2d 841 (2019)

Stinson v. United States, 508 U.S. 36 (1993)

United States v. Vargas, 77 F.3d 673 (5th Cir. 2023) (en banc)

Federalist Society, How Much Should Courts Defer to U.S. Sentencing Guidelines Commentary? (August 9, 2023)

– Thomas L. Root

Pot Ascendent? Federal Marijuana Legalization Effort Resumes – Update for November 9, 2023

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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.

MARIJUANA LEGISLATION RESURRECTED

A bipartisan but Republican-led effort to legalize marijuana federally was reintroduced in Congress last week, just before red-as-a-beet Ohio voters approved recreational marijuana.

marijuana221111Rep Nancy Mace (R-SC), was expected to reintroduce the States Reform Act (H.R. 6028) before Oct 24, when her office refiled a bill “to amend the Controlled Substances Act regarding marihuana.” The bill, which currently has no text, is being sponsored by Representatives Dean Phillips (D-MN), David Trone (D-MD), Tom McClintock (R-CA), and Matt Gaetz (R-FL).

A previous version of Mace’s pot legalization bill introduced in late 2021 would have removed marijuana from the Controlled Substances Act and set a 3.75% federal excise tax on sales.

In the Senate, Majority Leader Charles Schumer (D-NY) says he intends to amend marijuana legislation there to include “criminal justice provisions,” mentioning expungements as he’s done in the past but also citing in the letter additional measures such as resentencing for current federal cannabis prisoners.

New York Times, Ohio Issue 2 Election Results: Legalize Marijuana (November 8, 2023) 

MJBiz Daily, Republican-led federal marijuana legalization effort reappears in Congress (November 2, 2023)

H.R. 6028, States Reform Act

Marijuana Moment, Schumer Emphasizes ‘Moral Responsibility’ Of Adding Criminal Justice Provisions To Marijuana Banking Bill As Republicans Push For Floor Vote (November 2, 2023)

– Thomas L. Root

Acquitted Conduct Rides Again on Capitol Hill – Update for November 7, 2023

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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.

HOUSE COMMITTEE SENDS ACQUITTED CONDUCT BILL TO FULL HOUSE

The House of Representative Committee on the Judiciary last Wednesday unanimously approved the Prohibiting Punishment of Acquitted Conduct Act of 2023 (H.R. 5430). Spearheaded by Rep. Steve Cohen (D-TN), the bipartisan measure was approved 23-0.

acquitted230106

In September, Cohen introduced the bipartisan measure with Rep Kelly Armstrong (R-ND), with Sens Richard Durbin (D-IL) and Charles Grassley (R-IA) introducing a companion bill, S.2788, in the Senate. This legislation would end the practice of judges increasing sentences based on conduct for which a defendant has been acquitted. It will now advance to the full House of Representatives for a floor vote. The Senate has yet to act on the measure.

During markup of the bill, Cohen said, “Just about every Supreme Court Justice who’s been around lately – John Paul Stevens, Anthony Kennedy, and Antonin Scalia… Ruth Bader Ginsberg, Clarence Thomas, going down to Neil Gorsuch and Brett Kavanaugh have all said this needs to be changed. So with that I would ask that we… arrive at justice. People should be convicted of proven crimes and sentenced for those crimes.”

The Sentencing Commission considered prohibited acquitted conduct from being used in sentencing last winter but decided the issue needed more review. On June 30, the Supreme Court denied review on 13 different cases raising the issue.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog last week that “this notable vote committee certainly does not ensure Congress will get this bill to the desk of the President, but it should serve as a strong message to the U.S. Sentencing Commission that it should have bipartisan support for any acquitted conduct reforms it might be considering during its current amendment cycle.”

H.R. 5430, Prohibiting Punishment of Acquitted Conduct Act of 2023

S. 2788, Prohibiting Punishment of Acquitted Conduct Act of 2023

Sentencing Law and Policy, Prohibiting Punishment of Acquitted Conduct Act receives unanimous bipartisan support in US House Judiciary Committee (November 3, 2023)

– Thomas L. Root

Sometimes Interests Are Confluent, Not Conflicting – Update for November 6, 2023

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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.

A RISKY WITNESS IS RISKY BUSINESS

risky-business-4fea6b87b70a6Monica Wright was standing trial for a meth conspiracy. She hired Hal Garfinkel, a skilled defense attorney, to represent her.

The government had the usual list of underlings who had flipped on Monica ready to testify, the best witness being Joey Deherrera. In his opening statement, Hal made a big deal to the jury running down what he thought the government would have Joey say.

But when it came time for Joey to testify, the government announced he wouldn’t take the stand. While being prepped to testify, Joey told the government that during a meeting a few and warned of a potential conflict: The government wouldn’t say how Joey had changed his position, but it did say that if Hal called Joey to the stand and he testified to being pressured to change say if Joey had changed his story, Hal would have to take the stand to impeach him. Consequently, it was possible that Hal’s decision not to call Joey could be motivated by self-interest and in conflict with Monica’s best interest.

Monica told the court that Hal had explained all of this, but she agreed Joey should not be called and she wanted to keep Hal as her lawyer. But after she was convicted, Monica changed her tune, arguing on appeal that Hal had labored under a conflict of interest.

Last week, the 7th Circuit rejected Monica’s claim. “An actual conflict exists if an attorney is torn between two different interests,” the Circuit held, “or is required to make a choice advancing his own interests to the detriment of his client’s interests.” The first step in proving such a conflict is “establishing the existence of a conflict of interest” and the second is showing an adverse effect from the conflict.

conflictmix180907The 7th ruled there was no actual conflict of interest in Monica’s case. Neither the government nor Hal thought so, just that there might be. Hal told the court that if Joey “is going to testify consistent with the interview last night, I can’t imagine why Miss Wright would want him on the stand. I don’t want him on the stand. I think… that vitiates any conflict.” While not calling Joey might be to Hal’s benefit, the Circuit held, Hal believed it was also in Monica’s best interest. It is evident that the district court agreed. When questioning Monica about how she wished to proceed, the court admitted, “We’re not really sure what [Joey] might testify to.”

What the government, Hal, and the trial court all seemed to understand, the 7th said, “are the risks inherent in calling a witness who changed his story the night before testifying.” This is true even if Joey could provide potentially helpful testimony to Monica’s defense. Joey’s testimony had suddenly changed in at least one respect — he belatedly accused Hal of pressuring him to change his testimony. That made him an extremely risky witness.”

lovelawyer220527The risks associated with calling Joey aligned Monica’s interest with her lawyer’s alleged personal interests. There was no actual conflict of interest because he was not caught between “advancing his own interests to the detriment of” Monica’s.

The risks associated with calling Joey also prevented Monica from proving that failing to call him had an adverse effect on her defense. Because Hal had good reason not to call Joey, the Circuit held, “Monica cannot show a reasonable likelihood that his counsel’s performance would have been different had there been no conflict of interest.” As a consequence, Monica’s 6th Amendment claim failed.

United States v. Wright, Case No 22-2922, 2023 U.S.App. LEXIS 28998, (7th Cir. Nov. 1, 2023)

– Thomas L. Root

Gunning for Bruen – Update for November 3, 2023

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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.

RAHIMI ORAL ARGUMENT NEXT WEEK IS HIGH STAKES FOR SECOND AMENDMENT

scotus161130On Tuesday, the Supreme Court will hear oral arguments in United States v. Rahimi, a case that will determine the constitutionality of 18 USC § 922(g)(8), the subsection of the federal firearms possession statute that bars people subject to domestic protection orders from having guns or ammo. Rahimi may well do more than that, addressing the constitutionality of all of 922(g) – including possession of guns by felons.

The Supreme Court’s 2022 New York State Rifle & Pistol Association v. Bruen adopted a new originalist 2nd Amendment standard:

We hold that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s “unqualified command.

Bruen superseded the Court’s long-standing practice of allowing the government to weigh its interest in public safety against the possibility of imposing a limitation on 2nd Amendment rights.

Since Bruen, several 922(g)-based restrictions have been declared unconstitutional. Possession of guns by people who are subject to domestic protection orders, who use controlled substances – illegal under 922(g)(3), and who have been convicted of nonviolent criminal offenses, illegal under 922(g)(1), have been held to be unconstitutional under Bruen. The government has sought certiorari on all of these decisions, suggesting to the Supreme Court that a Rahimi decision can clean them all up (and in the government’s favor).

sexualassault211014Social and public health advocates argue in essence that “validating the federal law prohibiting persons subject to domestic violence protective orders from gun possession will literally mean the difference between life or death for many victims of abuse, their family, friends, law enforcement, and the broader community,” as the Bloomberg School of Public Health puts it.

Rahimi provides the Supreme Court with an opportunity to clarify how lower courts should apply the new framework laid out in Bruen. This will significantly impact the continued viability of current gun laws and the ability of legislators to address what the Bloomberg School calls “the ongoing gun violence epidemic.”

But others suggest that 922(g)(8) looks “more like a political performance than a serious effort to reduce abusive behavior.” Writing in Law & Liberty, George Mason University laws professor Nelson Lund argues that nevertheless, “the government’s brief [in Rahimi] may look like little more than a Hail Mary pass aimed at persuading the Justices to revise or deceptively “clarify” the novel Bruen test. This gambit, however, could very well succeed. The Bruen holding has its roots in a dissenting opinion written by then-Judge Kavanaugh before he was promoted to the Supreme Court. His opinion was exposed to serious objections arising largely from the paucity of historical evidence that could support a viable history-and-tradition test. Bruen suffers from the same weakness, and it was clear from the start that the Court would find itself driven toward reliance on means-end analysis, although not necessarily the very deferential form that Bruen rejected.”

Mr. Rahimi fired off a few rounds at a fast-food joint when his friend's credit card was declined.
Mr. Rahimi fired off a few rounds at a fast-food joint when his friend’s credit card was declined.

Robert Leider, an assistant professor at George Mason University’s Antonin Scalia Law School in Arlington, Virginia, said at a Federalist Society forum in September that “the real legal question that everyone is interested in with Rahimi is to see how the court clarifies and applies the text, history and tradition test that it announced two terms ago in Bruen. Unquestionably, the government sought review in this case to water down the test.”

Solicitor General Elizabeth B. Prelogar took steps to expedite the review of Rahimi, citing the “substantial disruption” that invalidation of the domestic violence gun restriction would create. Meanwhile, as the American Bar Association Journal put it, Prof. Leider said the Solicitor General “slow-walked [the] cert petition in another gun case, in which the full U.S. Court of Appeals for the 3rd Circuit in June struck down the so-called felon-in-possession statute, barring those sentenced to prison for more than one year from possessing a firearm.”

That 3rd Circuit case, Range v. Atty General, involves a man convicted of food stamp fraud 25 years before who was prevented from buying a gun.

“Mr. Rahimi is the poster child for irresponsible gun possession,” Leider said. “I think the government wanted this case and not the Range welfare fraud case because this case is much easier on the judgment line.”

He’s right that Rahimi is a tough case for those hoping that Bruen may ultimately limit the proscription on nonviolent felons owning guns (such as the case in the 3rd Circuit en banc decision in Range v. Attorney General. The evidence suggests that the presence of firearms in abusive relationships increases the risk of injury and death substantially.

After seeking cert on the Range decision, the government suggested the Court sit on the petition until a decision is handed down in Rahimi.

United States v. Rahimi, Case No. 22-915 (oral argument November 7, 2023)

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022)

Johns Hopkins University, Bloomberg School of Public Health, Questions and Answers on U.S. v. Rahimi, the Major Gun Case Before the Supreme Court During its 2023–2024 Term (October 10, 2023)

American Bar Association Journal, Supreme Court takes on first major gun case since landmark ruling last year softened regulations (November 2, 2023)

Law & Liberty, Domestic Violence and the Second Amendment (November 1, 2023)

USA Today, Domestic violence abuse victims need more protections — not less stringent gun regulations (November 2, 2023)

– Thomas L. Root

Court Doubts BOP Medical Care Standards – Update for November 2, 2023

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

‘WE ARE STILL HUMAN’: CARSWELL MEDICAL CARE ON TRIAL IN SOUTH FLORIDA HEARING

healthbareminimum220603A woman whose 18-month federal sentence last April came with a promise by a BOP medical official that he’d personally see that she would receive the care she needed to treat her life-threatening seizure condition was back in court after only eight weeks in FMC Carswell, due to her attorney’s concern that “the BOP has proven unable to manage or prevent these life-threatening episodes.”

Suzanne Kaye suffers from severe, stress-induced seizures. She went into cardiac arrest on the floor of the courtroom last year when she was convicted of threatening to shoot FBI agents in the “f****** ass. When she was sentenced, her lawyer warned that sending her to prison could kill her.

At sentencing, the Court found that there was “no doubt” that Suzanne “does suffer from a serious health condition, in fact perhaps a number of health conditions,” that she was “medically frail,” and that “she will require much medical care.” But despite her undisputed seizure disorder and other medical ailments, the Court relied on testimony from the FMC Carswell Medical Director that the BOP could “provide Ms. Kaye with whatever medical care she needs.”

Suzanne self-surrendered in mid-July. Only two months later, her attorney told the court that Suzanne “has required emergency outside hospitalization on at least two separate occasions. Specifically, counsel has been advised that Mrs. Kaye has suffered ongoing, repeated seizures—including two major episodes—with the latest episode involving cardiac arrest. (It has also resulted in blood clots that are now not being monitored)…” The BOP’s “repeated failure is contrary to the picture painted by the government at sentencing. Counsel has also been advised fellow inmates have been forced to attempt to [provide] life-saving care during these seizures because prison officials failed to do so.”

BOPMedical221208BOP medical official Mark Holbrook told the judge in April that some inmates have medical needs beyond what the Bureau of Prisons can treat. Suzanne, he said, was not one of them. But five months later, her heart and lungs briefly stopped working on the floor of a friend’s cell. Inmates screamed at the guards to call for help. “Granny’s eyes were wide open, but you could see that the light was no longer there,” wrote Katherine Moore, one of two incarcerated women who performed CPR on Kaye until medics arrived. “She was gone.”

“That was my mistake,” Dr. Holbrook admitted to the judge last month.

The Palm Beach Post reported, “Letters from half a dozen inmates and the testimony of Carswell’s own medical director depict a standard of care unlike the one Holbrook promised. One where Kaye must depend on her fellow inmates to keep her heart beating, and doubts over the legitimacy of her seizures dampen what care she does receive.”

When vouching for Carswell, the doctor said Suzanne would have access to a neurologist to treat her seizures and a psychologist to treat the anxiety that triggers them. He also promised a combination of anti-seizure medications that would take the place of her medical marijuana. “He made several promises and several assurances. It appears none of which occurred,” Suzanne’s attorney told the judge last month. “I’m not saying he lied — maybe he meant to and he forgot — but it is inexcusable in my opinion.”

Dr. Holbrook told the judge he left a voicemail with someone he believed was Carswell’s clinical director and never heard back. Maitee Serrano-Mercado, Carswell’s clinical director, testified that she was never contacted by Holbrook, and prison staff only belatedly learned that Kaye had a history of seizures.

Still, Dr. Holbrook said he was thankful Suzanne was at Carswell because it is “the best location” for her to be provided care. “Second best” undoubtedly would be an abattoir.

DrNoBOPHealth230925The Post noted that Carswell, once dubbed by the Fort Worth Weekly as a “hospital of horrors,” is “the only federal medical facility for incarcerated women in the country. It lost its accreditation during the pandemic and has not gotten it back. Indeed, the BOP seems to have no interest in doing so.

Carswell clinical director Serrano-Mercado argued at the hearing that Suzanne’s seizures might not be real. Serrano-Mercado admitted that the staff treating Suzanne are the same who treated a woman named Gwen Rider, a Carswell inmate who committed suicide in August. Like Suzanne, Rider was sent to Carswell because she needed medical treatment for epileptic seizures. Staff accused her of faking her seizures, too.

Suzanne was hospitalized again two weeks ago. Her mother, Brenda Kaye, told The Palm Beach Post that BOP medical personnel accidentally fractured her sternum while checking to see if she exhibited a pain response.

In an email to The Post, Suzanne called the treatment of herself and other women at the prison “nothing short of torture.” “People come in here walking and leave in wheelchairs. People die here,” she wrote. “I don’t want to be one of them.”

medical told you I was sick221017After publishing this report in my newsletter last weekend, I received an email from a prisoner at Carswell. She had been present when Suzanne and two other prisoners suffered seizures:

I had run to get an officer for the first one (which was Suzanne) and she wouldn’t call it on the radio, a medical emergency so I had to run to inside [the Recreation area] and get the officers there. They came running, Once they made it over there another girl went down in a bad grand mal seizure, then another one went down, also a really bad one that seemed like it was never-ending. The rec officers did their best, then other officers showed up but medical never showed up. The officers on the scene had to put the ladies on the back of their easy-go car and drive them up to the hospital area one at a time.

The time they had broken Suzanne’s collar bone I believe [they were] trying to get her heart to beat again. Just thought I would share an experience I had firsthand to put more information out there! Medical here does not care about us. They are desensitized and should all for the most part be replaced. We are still human and do not deserve to be treated like this. 

Palm Beach Post, ‘Inexcusable’: Attorney blasts federal prison officials over Boca woman’s medical care (October 27, 2023)

Motion for Hearing (ECF 200), United States v. Kaye, Case No 9:21-cr-80039 (SD Fla., September 12, 2023)

– Thomas L. Root

What To Know In Applying For Criminal History Sentence Reduction – Update for October 31, 2023

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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.

RETROACTIVE GUIDELINES BECOME EFFECTIVE – WHAT NOW?

mrexplainer230828Tomorrow, the first Guidelines amendments in five years will become effective, including the two retroactive criminal history Guidelines, the first retroactive guidelines in almost a decade. Although the Sentencing Commission adopted the new compassionate release Guideline – USSG § 1B1.13 – by a 4-3 vote, a Congress preoccupied with Ukraine, government funding, and a House of Representatives paralyzed by lack of a Speaker, was not motivated to use its veto.

I’ve gotten a lot of questions about the two retroactive Guidelines. Here’s a little guidance.

A Guidelines amendment doesn’t help anyone who’s already been sentenced unless it is designated as being retroactive. There haven’t been many over 34 years. If the amendment is retroactive, it will be listed in USSG § 1B1.10(c).

The two retroactive Guidelines are found in Amendment 821. Part A of the amendment cuts “Status Points” – the two points added to criminal history scores when the offense was committed while on probation, parole or supervised release from another crime – by one point for people with seven or more criminal history points and eliminates them altogether for people with six or fewer criminal history points.

There are no eligibility limitations under this part of the amendment based on crime type, violence, or weapons but these are factors a court may consider in determining whether to grant a sentence reduction.

Part B of the Amendment creates a new USSG § 4C1.1 that provides a decrease of two offense levels for “Zero-Point Offenders” (no criminal history points) whose offense did not involve specific aggravating factors:

• No adjustment under USSG § 3A1.4 (terrorism);

• Defendant did not use violence or threats of violence in the offense;

• The offense did not result in death or serious bodily injury;

• The offense of conviction is not a sex offense;

conditions231031• Defendant did not personally cause substantial financial hardship;

• Defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in the offense;

• The offense is not covered by USSG § 2H1.1 (involving individual rights);

•  Defendant did not receive an adjustment under § 3A1.1 (Hate Crime Motivation or Vulnerable Victim) or § 3A1.5 (Serious Human Rights Offense); and

• Defendant did not receive an adjustment under § 3B1.1 (aggravating role) and was not engaged in a continuing criminal enterprise under 21 USC § 848.

People with release dates before February 1, 2024, will not be able to receive a reduction in their sentences.

To get the retroactive Guideline reduction, you file a motion under 18 USC § 3582(c)(2). There’s no exhaustion of administrative remedies – no need to send a copout to the warden – before filing. You simply write a motion and file it.

A motion should first show the court that you are eligible for the reduction. That’s not always a slam dunk. For the status point reduction, if taking off the one or two points you will save does not drop you to a lower Criminal History Category, “status point” retroactivity won’t help you. For the “zero point” reduction, you have to show that you meet the conditions.

Eligibility is a legal question. You are or you aren’t. But once the eligibility is established, it becomes a matter of the judge’s discretion. The court can give you a sentence reduction that cannot be more than the bottom of your new sentencing range. But the judge may decide to give you less than the bottom of the new range or even give you nothing at all. And what the judge decides as far as the amount of reduction you can get is unreviewable.

goodboy200903For that reason, a well-written motion for sentence reduction will not only explain to the court about your history and the offense but also cite post-sentencing reasons – such as a good disciplinary record or a history of programming – that convince the court that the reduction is deserved and consistent with the sentencing factors of 18 USC § 3553(a).

A note on below-Guidelines sentences: Section 1B1.10 suggests to the court that it may grant you a reduction, but “a reduction comparably less than the amended guideline range… may be appropriate.” The Guideline gives the example of someone who was sentenced 20% below his original sentencing range. In that case, 1B1.10 suggests, “a reduction of approximately 20 percent below the minimum term of imprisonment provided by the amended guideline range… would amount to a comparable reduction and may be appropriate.”

Sentencing Law and Policy, Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity (October 25, 2023)

Alan Ellis, How Zero-Point Offender Change Should Work Retroactively (October 6, 2023)

USSC, Materials Relating To The 2023 Criminal History Amendment

– Thomas L. Root