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Acquitted Conduct Bill Advances in House – Update for December 3, 2021

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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 REPORTS ACQUITTED CONDUCT BILL; LEGISLATORS PRESS BIDEN ON SENTENCING COMMISSION

innocent161024Bipartisan legislation introduced by Rep. Kelly Armstrong (R-ND) that would restrict a federal court from considering a defendant’s acquitted conduct at sentencing was approved by the House Judiciary Committee on November 17th, and now moves to the full chamber for consideration.

“The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution,” Armstrong said. “The current practice of allowing federal judges to sentence defendants based on conduct for which a jury acquitted them is not right and is not fair.”

The Prohibiting Punishment for Acquitted Conduct Act of 2021, H.R. 1621, is a companion bill to the same legislation, S.601, awaiting a vote in the Senate.

Meanwhile, Armstrong joined Rep. Jamie Raskin (D-Maryland) last week in urging President Joe Biden to prioritize filling vacancies that have left the Sentencing Commission without a quorum, saying the situation has stalled criminal justice reform.

noquorum191016Armstrong and Raskin said in a letter that the vacancies have “forestalled the important work of updating and establishing new sentencing guidelines.” The Commission’s last meeting was in December 2018, a week before passage of the First Step Act. The lack of a quorum also meant the commission could not update the sentencing guidelines needed to help implement the law, potentially resulting in its uneven application by judges across the country (such as in compassionate releases).

Ripon Advance, House Judiciary Committee advances Armstrong’s bipartisan acquitted-conduct bill (November 22, 2021)

Reuters, Bipartisan lawmakers urge Biden to prioritize sentencing panel nominees (November 22)

Letter to President Biden on USSC Vacancies (November 22, 2021)

– Thomas L. Root

Making a Lawyer Look Slimy is Interesting, But Not Material – Update for December 2, 2021

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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.

3rd CIRCUIT THROWS OUT § 1001 FALSE STATEMENT CONVICTION
Don't sell this guy anything with pseudoephedrine in it.
Don’t sell this guy anything with pseudoephedrine in it.

Last week, I was picking up some prescriptions when I recalled I needed a new box of allergy pills (Claritan® knockoffs). Say what you will about voter suppression, it takes considerably less ID to vote than it does to buy these over-the-counter pills. After presenting my driver’s license (which the clerk scanned into some government meth-head database), I had to read and sign a notice that warned me darkly that if I really to use these pills in my methamphetamine lab, I would be violating 18 USC § 1001 if I represented otherwise by signing the form.

A utility infielder of a statute if ever there was one, § 1001 seems to me to be the mattress tag of federal criminal statutes. Every government form you will ever sign warns that false statements are punishable under 18 USC § 1001.  The statute is often used to nail people who federal law enforcement wants to get but have no other grounds on which to proceed. A Catholic priest named in dozens of abuse complaints over the years, but whose conduct is beyond the statute of limitations? Nail him on a 1001 beef.  A national security adviser who talked to the Russian ambassador before taking office (something which is hardly uncommon)? Get a couple of FBI agents to badger him until he lies about the calls, and then charge him.

Don’t get me wrong. The retired priest occupies a station in this world somewhere below what my dog deposits on the lawn every morning. And as for the former national security advisor? He’s a whack-a-doodle of the first order.

But while you can choose your friends, the U.S. Attorney gives you your defendants. And they are often scummy or whacky. One who might fit both bills was a guy named Joe Johnson. Joe was a Bill Cosby fan. Maybe too much of one. When women began suing Cosby for sexual improprieties, Joe fiercely defended his idol.

At first, the defense was all online. Finally, he inserted himself into a civil case brought against Cosby by one of the women in U.S. District Court for the Eastern District of Pennsylvania.

lawyerguilty160901Trying to discredit the woman accuser’s legal counsel, Joe filed a phony praecipe in the lawyer’s name which had attached to it what was purported to be an IRS accusing the lawyer of tax evasion. The reports of the case don’t indicate whether the IRS document was real or fake, which doesn’t really matter, because the fake part was the praecipe, which represented that the attorney himself had filed it.

As soon as the praecipe was put on the electronic docket, the lawyer whose name appeared as the filer saw the filing. Upon reading it, counsel told the court that – while the praecipe had his name on it – he had never filed it.

The praecipe was promptly stricken from the docket, and the judge asked the FBI to look into it. It did not take long for the trail to lead back to Joe, who was convicted under 18 USC § 1001 of “knowingly and willfully… mak[ing] any materially false, fictitious, or fraudulent statement or representation” in a matter within the jurisdiction of the federal government.

Establishing a § 1001 violation requires that a defendant make a false representation knowingly and willfully, that the representation was “material,” and that the representation was made relating to a matter within the jurisdiction of the federal government. Joe’s phony praecipe rang all of those bells.  Save one.

Last week, the 3rd Circuit reversed Joe’s conviction, sending him home in time to eat Thanksgiving dinner and watch some Cosby Show reruns. What Joe filed, the Circuit said, was false and intentional, but it was not material.

materiality211202To be material, a false statement must have “a natural tendency to influence, or be capable of influencing, the decision of the decision-making body to which it was addressed.” The issue is whether the false statement had a “natural tendency to influence” or was “capable of influencing” the governmental decision-making body at issue. “Put differently,” the Circuit said, “materiality requires evidence showing that the false statements were of a type capable of influencing a reasonable decisionmaker.”

The Government presented general testimony from the Judge that he usually looks to the civil docket in making decisions, and of course that Joe stuck a false praecipe into it. But, the Circuit said, “this established only relevance, not materiality. The Government did not present evidence connecting Joe’s filing to a specific decision by the Judge that might have been affected by Joe’s false statement. And to form the basis of a jury’s conclusion, the Government’s evidence cannot be purely theoretical, and evidence of such a capability to influence must exceed mere metaphysical possibility.” The 3rd held that “the Government needed proof of an actual decision that could have been affected by the false praecipe.” And that proof was lacking.

United States v. Johnson, Case No. 20-1449, 2021 U.S.App. LEXIS 34920 (3d Cir., November 23, 2021)

– Thomas L. Root

Omicron! More COVID in BOP’s Future? – Update for November 30, 2021

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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.

SOMETHING NEW ABOUT COVID – AND IT’S NOT GOOD

Last week, I suggested COVID might not be over, but may just be in a “lull.” Sadly (and unusual for me, according to my wife), I may be right.

coviddelta210827

First, how’re things in the Bureau of Prisons? After hitting a low of 95 inmates and 258 staff with COVID on November 19, the BOP numbers started climbing again. As of last night, inmate cases had increased by 41% since then, and staff cases remained at 258. Facilities reporting COVID jumped from 92 to 102 in a week (constituting 83% of all BOP installations) reported inmate or staff COVID.

The White House said last week that 92% of federal employees got the vaccine by President Biden’s November 22 deadline. But the BOP reported as of last Friday that only 66.5% of its estimated 37,000 employees had been jabbed. That number still trails the 70.9% of inmates who have been vaccinated, and is way off the government average. BOP staffers, however, can remain pretty confident – given the agency’s serious staffing shortage – that no one’s going to be fired for refusing a dangerous and untested vaccine that only a handful of Americans, say 225 million or so, have received without serious adverse effects.

(Americans like me: I’ve had three doses of Pfizer, and the only side effect I have suffered is weight gain… or maybe that’s from doughnuts).

A Times of India story last week reported that the FCI Texarkana study done by the Centers for Disease Control last August confirmed that “there is no statistically significant difference in the transmission of coronavirus between fully vaccinated and non-vaccinated.” That is, being around fully vaccinated people does not protect an unvaccinated person from contracting the virus.

Bloomberg reported yesterday that the predicted winter surge may have already begun. The city’s positive test rate rose to a two-month high as hospitals admitted more than 100 new virus patients last Friday, contributing to a 25% jump in hospitalizations in just two weeks.

xi211130News broke last Thursday of a new, potentially fearsome COVID threat, variant B.1.1.529. The variant is called “Omicron,” which was not the next letter in the Greek alphabet but was the next letter in the Greek alphabet beyond “xi,” a letter that sounded a lot like the leader of a large country in which COVID may have first escaped from a lab. Maybe.

At any rate, COVID Omicron is already spreading, the Biden administration was told. And, before long, evidence emerged that the variant carried worrisome mutations. When it first appeared on a global database of coronavirus genomic sequences, scientists were surprised. “This was the weirdest creature they’d seen to date,” The Washington Post reported. It had an unruly swarm of mutations. Many were known to be problematic, impeding the ability of antibodies to neutralize the virus. But there had never been a variant with so many of these mutations gathered in a package.”

“We have seen these mutations in other strains, in twos and threes, and each time they were a little harder to neutralize, but didn’t spread particularly well. Now, all together? It’s a complete black box,” Benjamin Neuman, a virologist at Texas A&M University, said in an email to the Post.

COVIDvaccine201221On Saturday, COVID-19 cases caused by the Omicron variant were confirmed or suspected in a widening circle of nations, including Britain and Germany. The pharmaceutical companies whose vaccines had appeared to chart a path out of the pandemic are expediting development of new formulations targeting the variant.

For now, despite the courts and government arguing that COVID is over, it seems that more ugly may be on the way.

Washington Post, More than 9 in 10 federal workers and military personnel are vaccinated, with only a small percentage seeking exemptions, White House says (November 24, 2021)

Bloomberg, New York City May Be at Start of Winter Surge of Covid-19 (November 28, 2021)

Times of India, Scientists have figured out how vaccinated people spread COVID-19 (November 26, 2021)

Washington Post, ‘You’ve got to prepare for the worst’: World responds to new variant’s arrival (November 27, 2021)

Washington Post, Omicron mutations alarm scientists, but new variant first must prove it can outcompete delta (November 29, 2021)

– Thomas L. Root

Will Biden and the Easter Bunny Let Everyone Go Home? – Update for November 29, 2021

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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.

MYTHBUSTERS

Cake201130Today, the LISA Newsletter began its 7th year of weekly publishing for federal inmates. Our first newsletter – sent on Sunday, November 29, 2015 – went to 13 inmates. Readership has grown a little since then: this week’s newsletter was sent last night to over 8,000 subscribers, both in and out of prison.

At the same time, we have made over 1,125 posts, all of which – thanks to the miracle of the Internet – are available on this site.

To celebrate, I’m going to take today to bust some of the best inmate myths coming into my e-mailbag:

questionmark211129

Question: Have you heard this 65% rumor that’s going around that Biden has supposedly signed into law and goes into effect at the beginning of next year? ~ JH

Answer: No, JH, not true. The “65% law” rumor has been around for as long as there have been sentencing guidelines. Before 1988, courts sentenced defendants to very general terms of years, often five years or 10 years. How long you actually served was up to the parole board. Under the parole board guidelines, you would do at least 1/3 but not more than 2/3 of your sentence. The exact point at which you would be paroled depended on the parole board guidelines, which were sort of like the current sentencing guidelines, although not nearly as detailed.

easterbunny210916The 65% rumor may be based on the maximum amount of time (2/3) one would serve under an “old law” sentence. Starting in 2003, Congresswoman Sheila Jackson Lee (D-Texas) introduced a bill at the beginning of each Congress to release certain federal inmates at 2/3 of their sentence. The bill would always be referred to the House Judiciary Committee, where it would die without ever being considered.

People who talk about how Congress should “bring back parole” suffer from a dangerous form of amnesia. The parole board was arbitrary and mean-spirited, providing minimal due process protections that make Guidelines sentencing look fair and loving by comparison. Currently, there is no “65% law” bill pending in Congress. Such a bill is unlikely ever to get serious consideration unless the guidelines are abandoned, and parole is reinstituted.

questionmark211129

Question: We have heard the Federal Bureau of Prison Nonviolence Reform Act of 2021 passed both House and Senate about 5 days ago; is this true? This says you must have attained age 45, no violent charges, and no discipline at the institution. I hope it has passed both as my Mother said but nobody else’s family can find where it has passed. Did Mother “jump the gun”? ~ NP

Answer: Sorry, NP, Mom “jumped the gun.” This rumor blends some provisions of a couple of old bills introduced five years ago that never went anywhere and died at the end of the two-year Congress in which they were proposed. There are no such bills pending now, let alone being reported by House or Senate committees. And nothing is named the “Federal Bureau of Prison Nonviolence Reform Act of 2021″ or anything close to it.

questionmark211129

Question: I heard that an inmate was granted compassionate release but the prison somehow canceled it. I do not have the case number, however, I can give you the particulars of the case. The case was in 2003, in Central Islip, New York, and the defendant, Samuel Torres, was sentenced to 30 years in prison for drugs, weapons, and arson. If you could see why the motion was granted but then from what I hear, canceled… ~ RM

compassionaterelease190517Answer: “Compassionate release” is the popular but misleading term for a sentence reduction under 18 USC § 3582(c)(1)(A)(i). It is a resentencing by the court. The BOP has no authority to “cancel” a sentence reduction by the court. The sentence is what the court says it is – not what the BOP may want it to be.

(By the way, the case you referred me to does not exist).

questionmark211129Questions: I’ve been hearing that Biden is talking about giving us inmates up to a year off for Covid. Is there any truth to that at all? ~ MS

Is there any truth to this gossip about people locked up during covid will get 10-18 months off their sentence?? ~ ML

Hello, have you heard anything about non-violent offenders getting an 18-month time cut for the pandemic? ~ AC

Answer: Biden has said nothing of the such. No one else has said anything of the such. The COVID-19 Safer Detention Act (S.312 and H.R. 3669), pending in both the House and Senate, have been favorably reported by the respective Judiciary Committees, but neither has come to a floor vote. Skopos Labs – which handicaps legislation – gives the bills only a 3% chance of passing.

elderly180517The bills change the Elderly Offender Home Detention (EOHD) program to make people 60 or older eligible when they have served 2/3 of their good-time adjusted sentence, not their total sentence. The bills also give people turned down for EOHD placement the right to ask a court for that placement instead, much like compassionate release works now, and requires during the pandemic that any inmate with a COVID risk factor be deemed to have an extraordinary and compelling reason for a sentence reduction under 18 USC 3582(c)(1)(A)(i). Finally, the bills cut the exhaustion waiting period from 30 to 10 days as long as the pandemic emergency lasts.

No one proposes cutting sentences across the board because of COVID.

questionmark211129Question: I have heard about a reform bill that is supposed to have a 2-point reduction for federal inmates and/or mandatory minimums going down. Please tell me there is truth to this.

Answer: Only sort of.  S.1014 – the First Step Implementation Act of 2021 – has been reported to the Senate floor by the Judiciary Committee. The bill would make the reductions in mandatory minimums for drug and gun offenses granted in § 401 and 403 of the First Step Act retroactive. This would let people with life or 20-year mandatory sentences under 21 USC § 841(b)(1)(A) move for a reduction of sentence, as well as people with stacked 18 USC § 924(c) sentences, seek reductions from their sentencing judges using the same mechanism as the crack defendants used under First Step Section 404.

Remember that a 2-point reduction in the Guidelines is made by the Sentencing Commission, not by statute, so such a change would come from the Sentencing Commission. The Sentencing Commission, now down to a single member, has not had a quorum to enable it to meet since First Step passed in 2018.

questionmark211129Question: When will the Senate vote on the EQUAL Act?

crackpowder160606Answer: The EQUAL Act, which reduces crack cocaine penalties to be the same as powder cocaine penalties, passed the House of Representatives on Sept 28. However, there is no requirement that the Senate act on a bill passed by the House at any certain time, or even at all.

The Senate only has 10 more work days left this year. With the battle over Biden’s $2 trillion Build Back Better bill, just passed by the House, now looming in the Senate, the chance any criminal justice bill will be voted on this year is highly remote.

S. 312 – COVID-19 Safer Detention Act
H.R. 3669 – COVID-19 Safer Detention Act
S.1014 – First Step Implementation Act of 2021
H.R. 1693 – EQUAL Act

– Thomas L. Root

The COVID Calm and BOP Staff Vax Noncompliance – Update for November 24, 2021

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

JUST A COVID LULL?

deadcovid210914The BOP’s official inmate COVID numbers continued to fall last week, ending Friday at 95 ill inmates, a 34% decrease from the week before. Ominously, however, staff cases increased by 4% to 263. COVID remains in 92 facilities, down only two from a week before.

But in the last few days, things have turned around (and not in a good way). As of last night, 107 inmates were ill, 258 staff were sick, and COVID was present in 100 facilities (82% of all BOP prisons).

The BOP reported one additional inmate death last week, but it was from last July (and apparently escaped the Bureau’s notice). Ruben Castillo, who had had COVID before he arrived at the BOP, died of what the Bureau said were “post-COVID cardiac complications.” Yet the courts and government continue to argue that inmates who have had COVID don’t face any continuing risks.

As of last Friday, 70.2% of inmates were vaccinated. But with the November 22 deadline for BOP staff vaccinations now having passed, only 65.7% have gotten the shot, according to BOP statistics, up just 1.3 points from last week. This compares to a systemwide vax rate of 90% for federal workers.

So those noncompliant BOP staffers will be fired now, right?

noodle211124Well, that was the story once. But now, the punishment has gone from 40 lashes with a cat-o’nine-tails to 30 lashes with a soggy spaghetti noodle. NBC reports that “for those who haven’t met the requirement or requested a medical or religious exemption, the federal government will continue an “education and counseling process, followed by additional enforcement steps over time if needed’,” quoting a White House official.

White House press secretary Jen Psaki said the administration doesn’t “anticipate facing any governmental operational disruptions due to [the vaccine] requirement and in fact, the requirement will avoid disruptions, in our view, in our labor force because vaccinations help avoid COVID.”

The U.S. reported a seven-day average of nearly 95,000 new COVID infections last Thursday, up 31% over the past two weeks. “I’ve been predicting a pretty bad winter wave again, and it looks like it’s starting to happen,” Peter Hotez, the dean of the National School of Tropical Medicine at Baylor College of Medicine, said last week. “There’s just too many unvaccinated and too many partially vaccinated [people].”

COVIDvaccine201221That “too many” number apparently includes inmates, too. Although a much larger percentage of federal inmates have been jabbed than staff,  a former prisoner-turned-writer for Biz News last week argued that opposition by prison staffs to “vaccine mandates highlights an illogical situation that has developed with little discussion: To date, neither the federal government nor any state or municipality has officially mandated the jab for their incarcerated populations. That doesn’t make sense: Prisoners, who are at higher risk for infection and death than corrections officers, aren’t required to get vaccinated while corrections officers, who are at lower risk, are being told they must get vaccinated.”

Expect more of those arguments. In New York City, where the mayor has ordered all city corrections staff to be vaccinated, union chief Benny Boscio complained last week that “it is extremely hypocritical to mandate our officers be vaccinated, while there is no mandate for the inmates in our custody…”

Except where the mandate neither has teeth nor much effect.

BOP, Inmate Death at FCI Stafford (November 17, 2021)

CNBC, Covid cases rise yet again in U.S. ahead of Thanksgiving holiday (November 19, 2021)

The Hill, Experts predict an alarming surge of US COVID-19 cases this winter (November 18, 2021)

NBC News, Administration expects 95% compliance with federal worker vaccine mandate (November 23, 2021)

Washington Post, Federal workers can be fired for refusing vaccination, but must show up to work until their cases are determined, new guidance says (September 17, 2021)

Stat News, Vaccine mandates should cover the incarcerated, too, not just prison guards and workers (November 18, 2021)

Corrections1, NYC correction officers refusing to get COVID shots despite looming mandate (November 17, 2021)

– Thomas L. Root

5th Circuit Parses Heck v. Humphrey – Update for November 23, 2021

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

WHAT THE HECK? CIRCUIT RULES ADVERSE PRISON DISCIPLINARY DECISION DOES NOT BLOCK SUIT

heck211123State prisoner Darvin Santos sued prison officers for using excessive force against him in violation of his constitutional rights. The alleged excessive force was used during an altercation between Darvin and officers that resulted in his being found to have violated a laundry list of prison rules.

The district court granted summary judgment for the correctional officers, holding that Darvin’s claims were barred by Heck v. Humphrey.

lobster211123Heck, a 1994 Supreme Court case, holds that a defendant can’t sue officials for damages for investigative or prosecutorial violations of rights incident to a prosecution, unless he or she could prove that the conviction or sentence had been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a habeas corpus decision. This means, for example, that if the cops smash down my door without a warrant and find evidence that I have been importing under-length lobsters, which evidence is used to convict me, I cannot do my time and then sue for money damages because of the illegal search. Heck thus prevents a lot of costly and frivolous litigation.

Darvin’s district court extended Heck to a disciplinary proceeding, holding that unless he could show the disciplinary proceeding resulting from the incident where the excessive force was used had been overturned, Heck barred his lawsuit.

As a general proposition, this holding is pernicious. The standard of evidence for a criminal conviction – reasonable doubt – provides some protection against a defendant having been railroaded into a conviction that prevents a later civil action judged under the more relaxed “preponderance of the evidence” standard. But the standard of evidence for a prison disciplinary hearing is the laughably slight “some evidence” standard. That is, as the Supreme Court puts it, there only has to be “some evidence” to support the charge:

Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing. Although the evidence… might be characterized as meager, the record [only cannot be] so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.

sunwest211123I have “some evidence” that the sun’s going to rise in the west tomorrow. Holding that a prisoner’s right to vindicate a civil rights violation because of a kangaroo-court prison disciplinary hearing found him or her guilty on such a gossamer evidentiary standard is downright dangerous.

Last week, the 5th Circuit reversed Darvin’s dismissal, but not for the reasons I prefer. Rather, the 5th noted that Heck is not “implicated by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his sentence.” Instead, a claim is barred only if granting it “requires negation of an element of the criminal offense or proof of a fact that is inherently inconsistent with one underlying the criminal conviction.”

Here, the 5th said, it isn’t clear from the record whether any of Darvin’s claims were barred by Heck. Darvin was found guilty of nine rules violations, but only one – a charge of “aggravated disobedience” – might be inconsistent with his claims. As for that one, the Circuit said, the disciplinary report “does not currently permit that inference.”

Furthermore, the disciplinary sanctions imposed (except for loss of good-conduct time) only bear on the circumstances of confinement rather than on the duration. A decision that imposes such sanctions (like loss of telephone privileges, access to commissary, and the like, for a period of time) are not barred by Heck, the Circuit said.

Santos v. White, Case No. 20-30048, 2021 U.S. App. LEXIS 34120 (5th Cir., November 17, 2021)

– Thomas L. Root

Biden Pardons Turkeys But No Prisoners – Update for November 22, 2021

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

BIDEN ISSUES FIRST PARDONS… NO HUMANS MAKE THE LIST

turkey211122There was no shortage of complaints from criminal justice reform advocates last Friday as President Biden “pardoned” two turkeys with the rather vegan names of “Peanut Butter” and “Jelly” in a White House ceremony.

“Peanut Butter and Jelly were selected based on their temperament, appearance, and, I suspect, vaccination status,” Biden said. “Yes, instead of getting basted, these two turkeys are getting boosted.”

But when a reporter asked whether he would be pardoning “any people in addition to turkeys,” Biden treated the question as a joke. “You need a pardon?” the president quipped. He didn’t reply to a follow-up question about marijuana prisoners as he walked away from assembled journalists.

turkeyb161123The turkeys may not get roasted, but the President isn’t so lucky. Law professor and clemency expert Mark Osler wrote in the Minneapolis Star-Tribune that “those of us who work in the field of clemency are left with a bitter taste in our mouths. Biden’s pardon of those turkeys represents the first time he has shown any interest at all in clemency. The problem isn’t just that Biden isn’t granting any clemency, it’s that he isn’t denying any, either. Following the lead of his predecessor, former President Donald Trump, Biden is just letting requests sit.”

Osler cited the 18,000 pending clemency petitions – 16,000 more than when Obama took office – and the danger CARES Act people may be sent back to prison when the pandemic ends, as “two genuine crises unfolding in federal clemency.”

A few days earlier, Interrogating Justice complained that

President Joe Biden campaigned heavily on justice reform, including with the federal Bureau of Prisons. He acted swiftly after his inauguration by terminating private prisons that housed federal inmates. However, since then, there has been virtually nothing. Various justice-reform groups have called out the president for his apparent lack of action. Points of frustration start with the increased population of federal prisons, the BOP’s inept handling of the pandemic, the failure to apply First Step Act time credits and most recently the question of granting clemency to all prisoners who are at home confinement under the CARES Act. And these are just a few of the many issues that plague the BOP.

turkeyprison161114The Minneapolis Post argued that “

While campaigning for president last year, however, Biden promised sweeping changes to the criminal justice system. And Biden could not have been more clear that he was committed to reform — promising, “as president” to “strengthen America’s commitment to justice and reform our criminal justice system. Then Biden got elected. And he’s been busy with other things…”

The Hill called it Biden’s “do-nothing” approach to clemency, which

he seems to have delegated entirely to the DOJ… Most of the Democratic candidates for president endorsed this change because the DOJ had proven itself incapable of handling clemency impartially and efficiently for decades… So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War? The only apparent answer is that Biden does not want to look like he is interfering with DOJ. But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.

New York Times, Boosted, Not Basted: Biden Pardons 2 Turkeys in Thanksgiving Tradition (November 19, 2021)

New York Post, Biden laughs off question about clemency for humans before pardoning turkeys (November 19, 2021)

Minneapolis Star-Tribune, When it Comes to Human Pardons, Thanks for Nothing (November 19, 2021)

Interrogating Justice, The Biden Administration Has Gone Quiet on Justice Reform at the BOP (November 15, 2021)

Minneapolis Post, When will Biden make good on his promise to reform criminal justice? (November 15, 2021)

The Hill, Biden can’t let Trump’s DOJ legacy stifle reform (November 17, 2021)

 Thomas L. Root

Durbin to Carvajal: ‘Drop Dead’ – Update for November 18, 2021

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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, ALREADY A ‘HOTBED OF ABUSE’, DITHERS WHILE INMATES SUFFER, INSPECTOR GENERAL SAYS

Turkeys may not be the only creatures with heads on the chopping block.

dropdead211118US Senate Majority Whip Dick Durbin (D-Illinois), chairman of the Senate Judiciary Committee, last Tuesday publicly demanded that Attorney General Merrick Garland fire Federal Bureau of Prisons Director Michael Carvajal, who was appointed during the Trump Administration.

Durbin’s call came after the Associated Press reported that since the beginning of 2019, over 100 federal prison workers have been arrested, convicted or sentenced for crimes, including the warden of FCI Dublin – a women’s prison in central California – indicted for sexual abuse, an associate warden at MDC Brooklyn charged with killing her husband last August, guards taking cash to smuggle drugs and weapons, and supervisors stealing property such as tires and tractors.

The Associated Press said its investigation revealed that the BOP “is a hotbed of abuse, graft and corruption, and has turned a blind eye to employees accused of misconduct. In some cases, the agency has failed to suspend officers who themselves had been arrested for crimes.” While the BOP workforce amounts to one-third of Dept of Justice personnel, its employees account for two-thirds of the criminal cases against DOJ workers in recent years. Of 41 DOJ employee arrests this year, 28 were of BOP employees or contractors.

The AP report was too much for Durbin, who said,

Director Carvajal… has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic,failing to address chronic understaffing, failing to implement the landmark First Step Act, and more. It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded Director who is not a product of the BOP bureaucracy.

choppingblock211118On Wednesday, the DOJ Inspector General put an exclamation point on Durbin’s well-justified rant. An IG report found that three years after passage of the First Step Act, the BOP has yet to implement one of the linchpins of the legislation, to reduce recidivism by giving prisoners incentives to successfully certain educational programs and productive activities. The primary holdup? BOP management and union staff have been unable to come up with ground rules for meetings to discuss how the educational and incentives programs should be implemented.

Remember how the 1968 Paris Peace Talks were stalled for months over whether the table over which “official conversations” would be held should be round or rectangular? Yeah, this has been something like that. BOP’s national union won’t conduct formal policy negotiations on Zoom, but rather demanded in-person negotiations. BOP management refused. The disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which has stalled the development of more than 30 BOP policies, about half of which were created or revised because of First Step.

The First Step Act requires the BOP to provide Evidence-Based Recidivism Reduction (EBRR) programs and productive activities to all inmates in its custody no later than January 15, 2022. The BOP has taken the position that this means that no credits need be awarded until then. No one believes that. In litigation, even the United States Attorney’s Offices defending the BOP have abandoned that tortured interpretation of the Act. The IG’s report said:

In August 2021, the BOP told us that the [First Step Act] contemplates a phased-in approach to time credit implementation and requires that all inmates be assigned to programming based on their assessments no later than January 15, 2022. As a result, the BOP stated that “implementation of time credits is fully permissible as a phased approach.” While we agree that the FSA affords the BOP a 2-year phase-in period to provide all inmates with EBRR programs and productive activities, we also note that the phase-in statute makes no reference to delaying the use of incentives and rewards, including time credits. Instead, the statute states that by January 15, 2020, the BOP “may offer to prisoners who successfully participate in such programs and activities [with] incentives and rewards.”

As a result of the BOP’s failure to talk to its union, as many as 60,000 inmates have not properly received earned-time credits for successful completion of First Step Act’s recidivism programs, the Department of Justice inspector general found. “We are concerned that the delay in applying earned time credits may negatively affect inmates who have earned a reduction in their sentence or an earlier placement in the community,” the report stated.

unsupervised211118Inmates around the country have filed petitions for habeas corpus against the BOP, demanding credit, with mixed results. Even now, the BOP stands firm. The courts are wrong. The US Attorneys are wrong. And, the latest, the Inspector General is wrong:

BOP disagrees with OIG’s characterization of the agency’s delayed implementation of FSA requirements… Although the COVID- 19 pandemic has created unprecedented challenges for the federal government, BOP has taken significant steps in implementing the FSA’s requirements, consistent with the FSA’s phased approach, and has complied with all mandatory statutory guidelines to-date.

Happy Thanksgiving, Director Carvajal. Use some of the long weekend to dust off your resume.

Press release, Durbin Calls On AG Garland To Dismiss BOP Director Carvajal (November 16)

Associated Press, Workers at federal prisons are committing some of the crimes (November 14, 2021)

Associated Press, Durbin calls for Garland to remove federal prisons director (November 17, 2021)

Forbes, Office of Inspector General Critical of Federal Prison Implementation of First Step Act (November 17, 2021)

ABC, DOJ finds Bureau of Prisons failed to apply earned time credits to 60,000 inmates (November 17, 2021)

Dept of Justice, Office of Inspector General, Management Advisory Memorandum 22-007 (November 16, 2021)

– Thomas L. Root

A (Sentencing) Army of One – Update for November 16, 2021

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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.

JUDGE BREYER TELLS BIDEN HE’S LONELY ON THE SENTENCING COMMISSION

Senior District Judge Charles Breyer, who sits on the U.S. District Court for the Northern District of California, is the last man standing.

lastman211116The U.S. Sentencing Commission’s lone remaining member last Thursday called upon President Biden to act now to nominate enough new commissioners to put the Commission back in business so it can help implement the 2018 First Step Act.

“I would be surprised and dismayed if nominees are not sent to the Senate by the early part of next year,” Judge Breyer said in an interview with Reuters.

The U.S.S.C. lost its quorum after the December 2018 meeting, which ironically enough occurred just about a week before First Step was signed into law. Judge Breyer said the lack of quorum meant the Commission could not provide guidance on how to implement the law, creating a “vacuum” in which judges inconsistently decide whether inmates under the measure can secure compassionate release amid the COVID-19 pandemic.

noquorum191016“Some people were granted compassionate release for reasons that other judges found insufficient,” he said. “There was no standard. That’s a problem when you try to implement a policy on a nationwide basis.” The Commission’s outdated Guideline 1B1.13, ignored by most circuits but used as a bludgeon by others, was perhaps the primary mischief-maker, but with no quorum, the U.S.S.C. was powerless to fix things.

Judge Breyer said that was aware that nominees are currently being vetted. The White House had no immediate comment.

Ohio State University law professor Doug Berman has been beating the drums in his Sentencing Law and Policy blog to revitalize the USSC for several years. So far, no one – including the “criminal justice reform” President Biden – has listened.

Reuters, U.S. sentencing panel’s last member Breyer urges Biden to revive commission (November 11, 2021)

Sentencing Law and Policy, Should I give up hoping Prez Biden will soon make long-needed nominations to US Sentencing Commission? (October 24, 2021)

– Thomas L. Root

Fecklessness Is No Legal Strategy, 1st Circuit Says – Update for November 15, 2021

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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.

SOMETIMES THE DIFFERENT DRUM IS POUNDING OUT THE WRONG BEAT

diffdrummer211115Sandy Flores-Rivera was one of 46 people charged with a drug-trafficking conspiracy. At trial, most of the evidence against Sandy and her co-defendants came from three cooperating witnesses, all of whom fingered Sandy and helped the government present non-testimonial evidence.

After the jury returned guilty verdicts against Sandy and the other defendants, the government belatedly disclosed some pretrial documents created by a cooperating witness. One was a letter to the lead prosecutor, in which the witness described himself as the government’s “best cooperator: “I promised you to do everything you said and I have done it to the point that you know how this has gotten, we have more than we expected, more evidence and more strength for the case…” Another document consisted of notes that the cooperating witness kept of conversations he had with other cooperators while they were in prison together, in which he had encouraged them to testify. Finally, the government disclosed a note showing the FBI knew the cooperating witnesses were talking to each other in jail.

Of course, the government’s failure to disclose this evidence – which suggested the cooperating witnesses were singing a version of the “truth” they thought would be most pleasing to the authorities who controlled their fates – was a slam-dunk violation of the constitutional requirement of disclosure enshrined in Brady v. Maryland.

[Remember Brady? Brush up on it here]

Sandy and the other defendants moved for a new trial under Rule 33(b) of the Federal Rules of Criminal Procedure due to the Brady violation, but the district court turned them down. On appeal, the other defendants again raised the Brady violation, and this time someone listened: the 1st Circuit granted those other defendants new trials because the court found it was “reasonably probable that the impeachment evidence would have caused the jury to acquit” them.

lawyerjoke180807Sandy’s lawyer, however, marched to a different drummer: he didn’t bother raising the Brady issue in Sandy’s appellate brief, but rather argued a couple of loser claims that hadn’t even been preserved in the lower court record. Those issues ran into what the 1st Circuit called “a stone wall of controlling precedent.” In fact, the Circuit even pointed out in amazement that Sandy’s counsel had joined in the new trial motion at the district court but inexplicably “did not renew the argument despite his clear awareness of his ability to adopt a co-appellant’s arguments in a consolidated case… since he reserved his right to do so in Sandy’s opening brief.”

After losing her appeal while her co-defendants won theirs, Sandy filed a post-conviction motion under 28 USC § 2255 claiming her attorney rendered ineffective assistance on appeal. Last week, the 1st Circuit agreed.

The Circuit said the government’s case against Sandy “depended quite heavily on the largely uncorroborated testimony of the three cooperators. Hence, she would have prevailed on the Brady issue just like her co-defendants had she raised the issue. And for that reason, she establishes prejudice under Strickland.”

Appellate counsel performs deficiently, the Circuit said, when he or she “ignor[es] issues that are clearly stronger than those presented.” Forgoing an argument is not a reasonable strategic decision when there is no downside to objecting to an error or when the omitted argument would not “detract from” but would rather “build upon” another challenge.

feckless211115“Here,” the 1st ruled, “any reasonable attorney handling Flores-Rivera’s appeal would have known of the Brady claim’s availability even after a cursory review of the district court docket and the arguments offered by Flores-Rivera’s co-defendants… Appellate counsel opted to forgo an obviously serious, preserved Brady claim in favor of two dubious plain-error challenges, one of which was foreclosed by binding precedent. That choice resembles rejecting a lifeboat in favor of two lily pads… Fecklessness is not a strategy.”

Flores-Rivera v. United States, Case No. 18-1963, 2021 U.S. App. LEXIS 32404 (1st Cir. Oct 29, 2021)

– Thomas L. Root