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Freaky Friday – Update for November 12, 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.

NEWS OF THE WEIRD

What’s Done is Done: In the 1st Circuit, Junito Melendez was denied a First Step Act § 404 sentence reduction under the Fair Sentencing Act (FSA). Junito finished his prison sentence in 2007 and got off supervised release three years later. Unfortunately, after ten years as a free man, he is now facing a new drug conspiracy charge.

goingback211112Therein lies the problem. Junito was released from his prior 109-month sentence within 15 years of the current conspiracy charge, so he faces a mandatory 10-year minimum sentence under 21 USC § 841(b)(1)(B). But if the prior sentence were to be changed consistent with the FSA, his release date would have been much earlier, and it would thus have fallen well more than 15 years before the current case. Had that been the case, he’d be facing no mandatory minimum now.

The 1st Circuit turned him down, holding that the word “release” in 21 USC § 802(57), which defines a “serious drug felony,” focuses on the “historical facts of a defendant’s sentence when determining whether § 802(57)‘s definition is met.” Regardless of what a different, shorter sentence might have yielded, the historical fact is that Junito was released in 2007. What’s more, the Circuit said, “Congress used the phrase ‘serious drug felony’ in the statute, signaling its intent for the backward-looking language of § 802(57)… to apply to the 10-year mandatory minimum.”

There just ain’t no shortening a sentence that’s already completely in the past tense.

I Should Have Been Watching Him While He Was Watching Me: Jason Sheppard, on supervised release after a drug sentence, discovered that his girlfriend had developed a cozy “personal relationship” with his probation officer, one Jeff Sciarrino. That’s one way to keep tabs on your supervisee, we suppose.

[Read the salacious details here]

Needless to say, the discovery did not enhance Jason’s relationship with his girlfriend. They broke up over her cheatin’ heart.

breakingup211112In his grief, Jason moved for early termination of supervised release under 18 USC § 3583(e), arguing that the breakup “was negatively impacting his rehabilitation, thereby undermining any utility in continued supervision.” Jason made the rather obvious claim to the district court that “the probation officer was never concerned with [his] rehabilitation and appears to use his position for his own personal interests.”

The district court denied Jason’s motion, and last week the 3rd Circuit agreed. It held the District Court acted within its discretion to conclude that  Probation Officer Sciarrino’s amorous misconduct “has little to do with whether Sheppard should continue under the supervision of a different officer.”

The Circuit criticized the District Court, however, for holding that the PO’s misconduct “actually undermines” Jason’s motion for early termination, because the upset may interfere with Jason’s mental health treatment.” The Circuit said, “the District Court’s order includes an inference that Sheppard is responsible not only for his own conduct, but also must shoulder any and all negative repercussions from the misconduct of his probation officer. This inference is improper… when evaluating a motion for early termination, a district court, particularly in the absence of holding an evidentiary hearing, may not impute a probation officer’s alleged improper actions to a defendant serving a term of supervised release, so as to justify continued (or additional) rehabilitative oversight.”

Nevertheless, the Court was not very happy with the U.S. Probation Office:

A probation officer’s communications of such a “personal” nature with an assigned defendant’s significant other are not only entirely inappropriate and unprofessional, but they also undermine the primary objective of supervised release – i.e., “to facilitate the integration of offenders back into the community rather than to punish them.” It also challenges the role of probation officers as trusted government officials who, in performing their duties, are “supposed to have in mind the welfare of the probationer…” In Sheppard’s case, his probation officer implicated Sheppard’s personal life in his own — and to such a degree that, according to Sheppard, it caused him to break up with his live-in girlfriend, with whom he considered to be in a “lifelong commitment.” If this is not the antithesis to assisting Sheppard in transitioning back into the community, and having his “welfare” in mind, we do not know what is.
supervisedleash181107In all candor, I am constrained to note that even when Probation Officers act appropriately, they provide little benefit to supervisees beyond what Probation Officer Lothario provided to Jason. Supervised release is largely a snare for the unwary supervisee, with a sorry record of violating about one of three post-release folks entrusted to the Probation Office’s care.

United States v. Melendez, Case No 20-1575, 2021 U.S.App. LEXIS 31858 (1st Cir., October 22, 2021)

United States v. Sheppard, Case No 20-3088, 2021 U.S.App. LEXIS 32722 (3d Cir., November 3, 2021)

– Thomas L. Root

Supreme Court Adds Drug, Bivens Cases to Docket – Update for November 10, 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.

SCOTUS TO HEAR BIVENS, ‘PILL MILL’ CASES

policeraid170824Fifty years ago, the Supreme Court ruled in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics that a person could sue federal agents and employees for violating his or her constitutional rights, even when there was not a specific law authorizing such a suit. (Bivens had its genesis in agents kicking down the door to Webster Bivens’ apartment, searching it and arresting him on drug charges, all without a warrant. The charges were later dismissed, and Webster was held to have the right to sue the agents for money damages arising from their violation of his 4th Amendment rights.

Since then, the Supreme Court recognized Bivens claims for damages for violations of the 4th, 5th and 8th Amendments, but in 2017 froze things by holding in Ziglar v. Abbasi that “expanding the Bivens remedy is now a disfavored activity.”

Last Friday, the justices agreed to decide in whether a Bivens remedy should be available to the owner of an inn on the US-Canada border who complained a Border Patrol agent violated both his 1st and 4th Amendment rights, while declining to reconsider Bivens itself.

feelgood211019The Court also granted certiorari in Ruan v. United States and Kahn v. United States, consolidating those cases to decide whether when the government prosecutes a doctor under 21 USC § 841 for issuing a prescription outside “the usual course of professional practice,” the government must also prove that the doctor knew or intended that the prescription be outside the scope of professional practice. The Court will also decide whether a “good faith” defense protects doctors who have an honest but mistaken belief that they have issued professional practice.”

Those cases relate to so-called pill mills, where doctors allegedly dispense opioids to patients much too freely to feed addictions rather than for a medical purpose. The Supreme Court will consider where the line is to be drawn between doctor discretion – especially in experimenting with pain management techniques – and garden-variety illegal drug dealing.

Egbert v. Boule, Case No 21- 147 (certiorari granted November 5, 2021)

Ruan v. United States, Case No 20-1410 (certiorari granted November 5, 2021)

Kahn v. United States, Case No 20-5261 (certiorari granted November 5, 2021)

– Thomas L. Root

POTUS Pot Pardons Possible, CRS Says – Update for November 9, 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.

COULD BIDEN USE BLANKET CLEMENCY ON POT OFFENDERS?

A Congressional Research Service report issued last week concluded that if President Joe Biden’s easiest path to fulfilling his goal of getting the federal government out of marijuana regulation business is to use his clemency power.

marijuana160818While the study concluded that Biden could not lawfully deschedule marijuana as a controlled substance, it nevertheless said the President has substantial control over how the law is enforced and may use his clemency authority at any time “after an offense is committed: before the pardon recipient is charged with a crime, after a charge but prior to conviction, or following conviction. The power is not limited to pardons for individual offenders: the President may also issue a general amnesty to a class of people.”

In addition, the Report notes, “the President could direct the Department of Justice to exercise its discretion not to prosecute some or all marijuana-related offenses. Although DOJ generally enjoys significant independence, particularly with respect to its handling of specific cases, the President has the authority to direct DOJ as part of his constitutional duty to ‘take Care that the Laws be faithfully executed’.”

The CRS is Congress’s public policy research institute, working primarily for members of Congress and their committees and staff on a nonpartisan basis.

Meanwhile, an article in Inquest last week observed that “there is deeply rooted legal precedent for presidents to use their authority to grant clemency to large classes of people. Presidents have deployed this authority to advance the public welfare, whether following a war or in response to unjust punishments, or simply to help heal a nation torn by crisis… Broad clemency has been issued by presidents George Washington, John Adams, James Madison, Abraham Lincoln, Theodore and Franklin Delano Roosevelt, Harry Truman, Lyndon B. Johnson, Gerald Ford, and Jimmy Carter.”

A lot of people are hoping to see this on the news...
A lot of people are hoping to see this on the news…

Noting that “the federal system… is the single largest incarcerator in the nation,” the article argued “ President Biden can lead by example, embracing categorical clemency as a tool to mitigate the system’s structural injustices… The president can act by issuing categorical clemency through a proclamation to a class of people based on two categories of eligibility: Personal characteristics or membership in a certain group, or shared circumstances. Such a proclamation should contain a presumption that all people who fit the criteria announced by the president will have their sentences commuted unless the DOJ can prove an articulable and current threat of violent harm.”

Of course, all of the foregoing supposes the President will use his clemency power at all. The Administration has thus far said not to expect pardons or commutations prior to late next year.

Congressional Research Service, Does the President Have the Power to Legalize Marijuana? (November 4, 2021)

Inquest, Mass Clemency (November 2, 2021)

– Thomas L. Root

6th and 7th Circuits Pound Compassionate Release – Update for November 8, 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.

ROUGH WEEK FOR COMPASSIONATE RELEASE

A trio of cases last week suggest that at least two other federal circuits are joining the 11th in taking a dismissive view of compassionate release for COVID reasons.

ratchet211108Rachel Effect: About 22 years ago, John Bass – who ran a substantial drug-trafficking organization in Michigan for about a decade – began serving two concurrent life-without-parole sentences for murdering a hitman whom John had hired to kill his half-brother.

Yes, there is a certain amount of irony in murdering a hitman, even one you hired to hit someone else, but we’ll save that for another time.

In 2020, John filed a motion for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i) – commonly called a motion for compassionate release – due to his frail medical condition and susceptibility to COVID. The district court granted his motion in January 2021, but John only enjoyed a few weeks of freedom before the government convinced the 6th Circuit to stay John’s release, sending John back to prison.

Last week, the Circuit held the district court abused its discretion is letting John out, and reversed the release permanently.

In its 2-1 decision, the 6th Circuit focused almost exclusively on the seriousness of John’s crime, disagreeing with the district court that 22 years in prison was “sufficient, but not greater than necessary to fulfill the purposes of his punishment.” The Circuit held that the crimes “were so severe that the Government sought the death penalty, and Bass’s own defense counsel assured the jury that Bass would never leave prison in an effort to avoid imposition of the death penalty.”

violent160620The district court justified its decision to release John by repeatedly emphasizing his rehabilitation and education. But, the 6th wrote, the district court “failed to square this lengthy rehabilitation analysis with the fact that Bass’s original sentence was life imprisonment without the possibility of release… In deciding Bass’s original sentence, the jury and the district court had already considered and rejected the possibility that he could be rehabilitated, or that his capacity for rehabilitation warranted the potential for an early release. This is not to say that compassionate release is never available for a defendant sentenced to life imprisonment without the possibility of release. We assume that there are circumstances that would warrant compassionate release for a defendant so sentenced. But the nature of Bass’s life sentence calls into question the district court’s decision to afford substantial weight to his efforts at rehabilitation after only 22 years in prison.”

The decision includes an interesting discussion of sentence disparity. The district court had ruled John’s sentence was too long compared to a co-conspirator who was sentenced in a state court for his crimes. The Circuit disagreed, holding that although “district courts may consider disparities among codefendants, the only disparities relevant are those among federal defendants on a national scale… By considering state court sentences, a district court actually is re-injecting the locality disparity that the Sentencing Reform Act of 1984 was designed to guard against.”

[Editor’s note]: The whole “disparity” argument comes down to (1) fairness to the defendant, and (2) perception of the public. A defendant figures 10 years is 10 years, or life is life, whether it’s served in a federal prison or a state joint. Likewise for the public, there’s no difference in where the sentence is served: if one guy gets five years in state while another gets 20 in a federal prison, the public sees a disparity that tends to cause disrespect and lack of confidence in the judicial system. But implicit in the 6th Circuit holding is that the public understands and appreciates the nuances in the system, the “separate sovereigns” and all that claptrap.]

double211108I don’t usually mention dissents, but Judge Helene White wrote a notable one in this 2-1 case. She quite rightly suggested the majority was applying a different standard because it was the government appealing a compassionate release decision favorable to the defendant, instead of the usual disappointed prisoner appealing the district court’s siding with the government. Judge White admits that if she had been the district judge, she would not have granted John’s motion. “However,” she said, “the district court adequately explained its decision and did not abuse its discretion in concluding otherwise. We must apply the same rules on review without regard to whether the government or the inmate is aggrieved by the district court’s decision… We require district courts to provide only the most minimal explanation, and we must defer to their judgment in weighing the § 3553(a) factors and not substitute our own…”

It looks like a ratchet: if the district court denies a compassionate release motion, it has almost untrammeled discretion. If, however, it grants one, the circuit court will examine its decision with a magnifying glass and gimlet eye.

COVID Isn’t the Only Thing the Vaccine Prevents: In two other cases last week, the 6th and 7th Circuits held that a vaccinated inmate is disqualified from receiving a COVID-19 compassionate release. The 6th flatly held that “a defendant’s incarceration during the COVID-19 pandemic – when the defendant has access to the COVID-19 vaccine – does not present an extraordinary and compelling reason warranting a sentence reduction… The COVID-19 vaccine is available to inmates at Traylor’s facility, and Traylor has received both doses of the Pfizer vaccine.”

Vaccinesticker211005The 7th Circuit also slammed the door on COVID-19 compassionate release, holding that “unless a prisoner can show they [sic] are unable to receive or benefit from a vaccine… the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release… Because the prisoner is vaccinated, he is ineligible for relief on remand.”

The fly in the ointment – as the death of General Colin Powell illustrates and the data all support – is that vaccine efficacy fades over time. No one knows for how long that time is, but the CDC has already recommended boosters, which could be. At the same time, vaccine effectiveness varies according to a person’s condition, with studies showing that it is less effective in obese people. With a new COVID delta subvariant just identified in the UK, not to mention the increasing occurrence of “breakthrough” infections among the vaccinated, the appellate courts may discover that the effects of the coronavirus is quite resistant to the “one-size-fits-all” vaccine approach.

United States v. Bass, Case No. 21-1094, 2021 U.S. App. LEXIS 32738 (6th Cir., Nov 3, 2021)

United States v. Traylor, Case No. 21-1565, 2021 U.S. App. LEXIS 32493 (6th Cir., Nov 1, 2021)

United States v. Kurzynowski, Case No. 20-3491, 2021 U.S. App. LEXIS 32966 (7th Cir., Nov 5, 2021)

National Geographic, An Offshoot of the Delta Variant is Rising in the UK (November 2, 2021)

The Wall Street Journal, Rising Covid-19 Breakthrough Cases Hinder Efforts to Control Virus (November 6, 2021)

– Thomas L. Root

Waive It ‘Goodbye’? – Update for November 5, 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.

ONE AIN’T DONE

oneanddone200616A lot of possible objections or defenses can be waived if they aren’t raised at the right time. If a defendant doesn’t raise an objection to the indictment or venue or speedy trial before the jury is seated, the objections are lost. Rule 12 of the Federal Rules of Criminal Procedure lists a whole bevy of such issues.

Many other rights are often waived if the defendant enters into a plea agreement with the government. Such rights, which have to be specifically and expressly waived in the plea agreement, usually include the right to appeal, the right to file other types of post-conviction challenges, and even – often enough – the right to file requests for documents under the Freedom of Information Act.

A plea waiver is common and enforceable. But the government has to raise the defense of plea waiver in order to get any traction. Let’s say a defendant signs a plea deal with the government that includes a promise not to appeal or bring a collateral attack on a conviction or sentence. Later, she files a habeas corpus motion under 28 USC § 2255 claiming, for example, her lawyer screwed up at sentencing. If the government doesn’t raise the plea waiver as a defense at the time it files its objection to the § 2255 motion, it can’t come back later and assert the defense.

It’s “one and done.”But how long is “done?” Derrick Borden found that out last week. Despite having signed a plea waiver that prevented any post-conviction challenges to his conviction, Derrick filed motion to vacate his 18 U.S.C. § 924(c) conviction after the Supreme Court’s decision in United States v. Davis invalidated the basis for that count. The government, agreeing that the § 924(c) conviction should be vacated, did not raise the plea waiver as an objection.

After the § 924(c) was vacated, Derrick was resentenced. Not liking how that turned out, he appealed the new sentence as being too much. The government raised the plea waiver as a defense to the new § 2255, arguing Derrick had no right to appeal.

Derrick argued that the government – having waived its right to invoke the waiver against his first § 2255 motion – was not allowed to selectively enforce the plea deal, and that the letter it wrote the district court waiving the waiver the first time around should be read to have abandon its right to enforce the waiver for all time.

Waivers160215Last week, the 2nd Circuit turned him down, apparently a bit miffed that Derrick tried to sandbag the government for having done the right thing. “To start, the Circuit said, “consenting to permit Borden to move to vacate his § 924(c) conviction was in Borden’s interest, in the interest of judicial economy, and in the interests of justice… we see no reason to discourage the Government from consenting to the correction of a constitutional error by offering limited relief from an appeal waiver (or waiver of other post-conviction relief) that benefits the defendant.”

The 2nd said the government’s letter let Derrick “obtain precisely the relief he sought. And although courts construe plea agreements strictly against the government, that standard does not necessarily extend to a letter that is not a separate plea agreement upon which the defendant relied in waiving any rights.

United States v. Borden, Case No. 19-4316-cr, 2021 U.S. App. LEXIS 32030 (2d Cir., Oct. 26, 2021)

– Thomas L. Root

Weed, Yes; Washington, No? – Update for November 4, 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.

BUT WAIT, THERE’S MORE…

An opinion piece in The Hill last week (admittedly written by the political director of NORML, who certainly has no particular point of view) argued that because marijuana is popular, but Congress is not, the Senate should quickly take up and pass the Marijuana, Opportunity, Reinvestment, and Expungement (MORE) Act, H.R. 3617, which would repeal marijuana prohibition by removing cannabis from the Controlled Substances Act, ending the existing state/federal conflict in cannabis policies.

marijuana-dc211104

The bill passed the full House in the last Congress with a bipartisan vote of 228-164, but died at the end of December when the two-year Congress ended without a Senate vote on the measure.

The Hill piece argued, “Given that Senate Majority Leader Charles Schumer (D-NY) along with Sens Cory Booker and Ron Wyden (D-Ore) have released their own draft proposal to repeal prohibition, which largely includes the MORE Act, it would be prudent for House Speaker Nancy Pelosi (D-CA) along with Leader Steny Hoyer (D-MD) and Whip James Clyburn (D-SC) to again pass the act and demonstrate to the American public that congressional leadership can be responsive to the public’s overwhelming desire to see cannabis legalized.”

potscooby180713That may be overly rosy. Morgan Fox of the National Cannabis Industry Assn, said last week that while the House will probably pass MORE this year, “it doesn’t look like any sort of comprehensive de-scheduling and regulation bill is going to be able to get through the Senate this year, just because of the politics at play. Democrats want something that’s very robust and contains a very strong social and restorative justice provisions. Republicans are not on board with that, even the ones that are pretty staunch supporters of ending federal prohibition.”

He said that watering down the bill would be required to get the 10 Republican votes needed to pass a filibuster in the Senate. “So I think that at this point, we’re really just trying to feel out where lawmakers are and see where we can compromise in terms of bigger legislation,” he said.

The Hill, Reforming marijuana laws before the holidays: A three-pronged approach (October 27, 2021)

Cannabis Administration and Opportunity Act (July 2021)

Insurance Journal, Takeaways from Our Conversation on Federal Legalization (October 26, 2021)

– Thomas L. Root

Crack-Powder Equality Gains Traction in the Senate – Update for November 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.

EQUAL ACT MAY HAVE FOUND FAVORABLE WINDS IN SENATE

The EQUAL Act, S.79, which would eliminate all disparities between crack and powder cocaine (and make those changes retroactive) received a much-needed boost in the Senate last week.

crackpowder160606Last month, the House of Representatives passed the EQUAL Act (H.R. 1693) on a bipartisan vote of 361-66. But the same legislation in the Senate, S.79, has not yet even gotten a Committee hearing. In fact, Sen Charles Grassley (R-IA) – a supporter of the Act – has said he doubts he can find the votes for passage of EQUAL in the Senate.

Things may be looking up. But last Wednesday, Sen Lisa Murkowski (R-AK) became the 9th co-sponsor of S.79 (and the 5th Republican to do so). And last week, Durbin – who as chairman of the Judiciary Committee controls its docket – issued a press release urging his colleagues to support EQUAL.

Wednesday, by the way, was the 35th anniversary of the passage of the Anti-Drug Abuse Act. The country was reeling from the tragic death of University of Maryland basketball star Len Bias, who died of a drug overdose just days after being drafted by the Boston Celtics. Assuming that the drug that killed Bias was crack, Congress passed a law that would impose harsher penalties on crack offenses. It later became known that Len overdosed on powder cocaine, not crack, but the narrative that crack was more dangerous than powder had already found its legs. The Sentencing Commission and the Obama Administration both called for crack-powder equity, but it hasn’t yet happened.

Sen Murkowski’s support is significant. With at least six Republican votes in the bag for EQUAL (and several more quite likely), the magic number of 60 (needed to avoid a filibuster) is within reach. A Judiciary Committee hearing will make the level of support clearer.

crack211102Holly Harris, President and Executive Director of criminal justice reform group Justice Action Network, issued a statement saying, “The EQUAL Act has strong conservative support, from Senators Murkowski, Graham, Paul, Portman, and Tillis, and from more than 150 Republicans in the House. It has the backing of law enforcement, prosecutors, civil rights groups, and advocates from the far left to the far right and everywhere in between. The EQUAL Act may be Congress’s last chance to pass bipartisan legislation squarely focused on racial injustice, and it’s time for a vote in the Senate.”

A commentator in an Iowa newspaper, wrote last week that “law enforcement leaders, including US attorneys with whom I worked during the Trump Administration, as well as the National District Attorneys Association and the Major Cities Chiefs Association, all support the EQUAL Act because they believe it builds trust between law enforcement and the communities they serve.”

Support like that will help swing Republican votes in the Senate toward EQUAL.

Interrogating Justice, EQUAL Act Gets Much-Needed Path Forward in Senate (October 28, 2021)

Sen Richard Durbin, Durbin: The Senate Must Follow the House’s Lead & Eliminate the Federal Crack and Powder Cocaine Sentencing Disparity (October 28, 2021)

The Hill, After 35 years, Congress should finally end the sentencing disparity between crack and powder cocaine (October 27, 20231)

Justice Action Network, Marking 35th Anniversary of Infamous “War on Drugs” Bill, Sen Lisa Murkowski is First Woman in Senate to Sign Onto Equal Act (October 27, 2021)

Mason City, Iowa, Globe Gazette, Chuck Grassley is back, as is criminal justice reform (October 27, 2021)

– Thomas L. Root

Biden Administration Promises a Fix for CARES Act Home Confinees – Update for November 1, 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.

ATTORNEY GENERAL PLEDGES TO SEEK CARES ACT PATCH

return161227By now, everyone knows that a Dept. of Justice Office of Legal Counsel opinion issued in the last days of the Trump Administration ruled that the CARES Act requires that anyone the Bureau of Prisons sent to home confinement under the Act must return to prison when the COVID-19 emergency ends. A few months ago, the Biden DOJ agreed that the opinion was correct.

Since then, there has been a hue and cry from elected officials, advocates, and celebrities that no inmates on home confinement should be forced back to prison if they have complied with home confinement terms. Last Wednesday, Attorney General Merrick Garland made the most solid commitment yet from the Biden Administration that a way out of the legal thicket will be found.

During a Senate Judiciary Committee oversight hearing on DOJ, Garland said “it would be a terrible policy to return these people to prison after they have shown that they are able to live in home confinement without violations, and as a consequence, we are reviewing the OLC memorandum… [and] all about other authorities that Congress may have given us to permit us to keep people on home confinement.” Garland told Sen Cory Booker (D-NJ) that while he doesn’t know how long the DOJ review might take,

but we can be sure that it will be accomplished before the end of the CARES Act provision which extends until the end of the pandemic, and so, we’re not in a circumstance where anybody will be returned before we have completed that review and implemented any changes we need to make.

At the opening of the session, Committee Chairman Richard Durbin (D-IL) complained that he was “frustrated by DOJ’s handling of COVID and prison issues.” He complained to Garland that he’d written to DOJ multiple times about home confinement with no reply, and that the Department had supported only 36 of over 31,000 compassionate release requests filed with it.

hear211101We’re only a little more than nine months into the Biden Administration, but I already have this disconcerting feeling that Joe has overpromised but underperformed. We’ll see whether Garland – by all accounts a careful and thoughtful lawyer – was hinting at a significant DOJ effort to solve the CARES Act home confinement problem, or was just saying what he thought the Judiciary Committee wanted to hear.

Senate Committee on the Judiciary, Oversight Hearing on Dept of Justice (October 27, 2021)

Josh Mittman, FAMM, on Twitter (October 27, 2021)

Interrogating Justice, AG Garland Gives Hope to Those on COVID-19 Home Confinement (October 28, 2021)

– Thomas L. Root

You Know, Joe, You Could Be Doing A Lot More… – Update for October 28, 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.

WHO YOU GONNA BELIEVE, JOE BIDEN OR YOUR OWN EYES?

whoyabelieve201214President Joe Biden’s Administration has said all the right things about criminal justice reform, making its inaction or, worse, contrary actions on significant initiatives in Congress (or even in the President’s own Dept. of Justice) frustrating and baffling. So do we believe what we hear or what we see?

But then, the guy so far can’t get his signature infrastructure bill through his own party’s caucus. Maybe I am expecting too much from the septuagenarian chief executive.

Still, what Biden himself could be doing without Congress is addressing the 4,000 inmates on CARES Act home confinement. Those people, according to both Trump’s and Biden’s Dept of Justice, will have to return to prison when the national pandemic emergency ends, which could be as soon as early next year. Recently, 28 House Democrats became the latest to urge Biden to “immediately commute the sentences” of the CARES Act home confinees. The lawmakers also urged the creation of an independent board to review a massive backlog of more than 15,000 petitions seeking clemency.

“Nearly all of those released have thrived since returning home by reconnecting with their families and communities, and by engaging actively in civic life,” David Trone (D-MD) and his colleagues wrote to the president. “Mr. President, with a stroke of your pen you could remove the threat of reincarceration that looms over thousands of people who have already demonstrated their commitment to being productive members of their communities.”

Last week, Kara Gotsch, deputy director at the Sentencing Project, a Washington-based nonprofit focused on injustices in the criminal justice system, said the DOJ’s opinion is “devastating” for those who are staying at home and now face the possibility of being sent back to federal prison. “It is really a shame that the White House and DOJ appear to be standing by that memo issued by the Trump administration,” she said.

The Capital News Service reported Gotsch has been in communication with the Biden administration, asking for grants of clemency for everybody who’s been serving sentences in home confinement, but the White House is considering granting it to only some.

“I think that’s a step in the right direction, but there’s no reason why anyone who has proven themselves to be successful on the home confinement program should be sent back,” she added.

warondrugs211028If the Administration is so concerned about racial disparity, it might urge the Senate to take up the EQUAL Act (S.79). According to the Sentencing Commission, no class of drug is as racially skewed as crack: 79% of sentenced crack offenders in 2009 were black, versus 10% white and 10% Hispanic. Combined with a 115-month average imprisonment for crack offenses versus 87 months for powder offenses, this makes for more African-Americans spending more time in the prison system.

Instead, Biden is pushing a proposal that would enhance sentences for certain synthetic opioids related to fentanyl. A coalition of nearly 100 civil rights and criminal justice reform groups last week warned that the plan will exacerbate racial disparities.

“Since the inception of the war on drugs, African Americans and Latino people have borne the brunt of enforcement-first approaches,” Sakira Cook of the Leadership Conference on Civil and Human Rights, said. She argued that about 70% of defendants charged with fentanyl-related crimes have been minorities.

The Biden Administration defends the initiative as needed to stop the overdose epidemic.

Last week Kristen Clarke, the DOJ’s civil rights chief, highlighted the racial disparities in state juvenile detention systems. “Nationally, black children are over four times more likely to be incarcerated than white children,” Clarke said. “And the disparity is even greater in Texas, where Black children are over five times more likely to be incarcerated.”

Apparently, racial disparities are only important when the states cause them.

NPR, A proposed Biden drug policy could widen racial disparities, civil rights groups warn (October 20, 2021)

Drug Policy Alliance, Letter to Congress (October 22, 2021)

CNN, ‘Big, big shifts’: How Biden’s civil rights pros have reoriented the Justice Department (October 20, 2021)

Southern Maryland Chronicle, Democrats in Congress press Biden to extend COVID-related prisoner releases (October 19, 2021)

– Thomas L. Root

Misteaks Happen, but Rule 36 Doesn’t Always Fix Them – Update for October 26, 2021

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7TH CIRCUIT SAYS TWO WRONGS SOMETIME DO MAKE A RIGHT

hammer160509Dave McClain ran into some trouble after the BOP released him from a drug trafficking sentence in 2012. He violated the terms of his supervised release by picking up a new drug charge, not to mention a state charge for fleeing an accident in which someone died. The state tried him first, sentencing him to 20 years. The federal court then sentenced him to 120 months for the new drug charge and 24 months for the supervised release violation. The court let 24 months of the 120-month sentence run concurrent with his state fleeing-the-scene sentence, but everything else was consecutive.

I don’t know what 20 years equated to in Illinois, but apparently not much. After his state bit was done, Dave went to federal prison for the balance of his sentence. That sentence changed several times. In 2013, a Supreme Court decision resulted in a sentence cut from 144 to 90 months – 72 months for the drugs and 18 months for the supervised release violation. The court’s ruling that 24 months of his federal time be concurrent with the state sentence he’d just completed stayed in place, leaving Dave with 66 months of federal time to do after he got out of state prison.

mistake170417The 2013 resentencing was where the first mistake was made. The written judgment didn’t match what the judge said at sentencing. Instead, the written judgment said that 24 months of the drug sentence – as well as the entire 18-month supervised release sentence – would run concurrent to the state sentence. That gave Dave only 48 months of federal time after he got out of state prison, rather than extra the 66 months the judge intended him to serve.

In 2016, Dave got resentenced again, taking advantage of the Sentencing Commission’s change in the drug guidelines to reduce all categories by two levels. That cut his overall sentence to 70 months, with 24 months running concurrent and 48 months running consecutive to the state sentence. The 2016 judgment repeated the 2013 mistake, making the supervised release violation concurrent to state time. If that wasn’t enough, the math was wrong: 24 and 48 add up to 72 months, not the 70-month total stated in the judgment.

It took the parties five years to catch the error. In February 2021, Dave and the Government jointly proposed a revised sentence. The agreed-upon judgment imposed 70 months in prison, correcting the mathematical errors. The correction didn’t fix the error making Dave’s supervised release violation concurrent to state time.

welcomeback181003The Federal Bureau of Prisons sent to Dave home confinement in April 2021 for the final two months of his sentence. But that was about when some eagle-eyed prosecutor finally figured out that the district court’s written judgment gave Dave 18 months more concurrent time than the court had imposed at sentencing. The government filed a motion under Federal Rule of Criminal Procedure 36 to make that time consecutive, essentially telling Dave that he had to go back to prison for another 18 months.

Rule 36 lets a district court correct clerical errors in a judgment at any time. The government cited the discrepancy between the oral and written sentences, and argued that the written sentence should be corrected so that Dave did 64 months – not 48 months – after his state sentence was over. The district court granted the Rule 36 motion over Dave’s objection, holding it had authority do so because clerical errors had caused the written sentence to differ from the sentence imposed at the sentencing hearing. Dave went back to prison.

Dave appealed. Last week, the 7th Circuit held that Dave was done and sent him home.

The Circuit admitted that an inconsistency between an oral pronouncement and the written sentence is a clerical error within the scope of Rule 36, and “Rule 36 allows for correction of such a clerical error at any time.” But Rule 36, the 7th said, did not apply here.

The government argued that if the sentences as of February 2021 were left to stand, Dave would be released after serving only 48 months of imprisonment consecutive to his state sentence, rather than the orally pronounced sentence of 64 months. The appeals court replied, “That point has some truth, but it does not necessarily make either sentence ripe for correction under Rule 36… The uncontroversial proposition that an oral pronouncement controls when the corresponding written judgment differs is not useful here, when (1) multiple changes to the sentence were made without further oral pronouncements, and (2) the written judgment under attack does not correspond to the only oral pronouncement. The government fails to explain why the 2013 oral pronouncement remains the reference point even though it was later modified twice—once with the government’s agreement and once with no objection.”

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The Circuit said the problem was that the Rule 36 grant did not do what it purported to do, that is, to conform the 2013 written sentence to the oral pronouncement that Dave serve 66 months total of federal time after the state sentence. Instead, in granting the Rule 36 motion, “the district court imposed the 66 months from 2013 and subtracted the 2 months from the 2016 guidelines-based reduction.” The 7th observed that “[t]he district court treated this as an unremarkable simplification, but to get there, it had to simultaneously discard and incorporate the 2016 and February 2021 modifications. It treated the oral 2013 sentence as the one true sentence, but it still incorporated adjustments that came years later.” Rule 36 does not go that far.

The government pointed out that the 2016 and 2021 reductions resulted in a sentence below Dave’s retroactively amended guideline range, something the district court did not have the authority to impose. But the Circuit said ‘tough’: “If an order accurately reflects the judge’s decision,” it cannot be corrected by a Rule 36 motion, “even if the sentence was erroneous.”

Here, the February 2021 written sentence – meant to correct the 2016 sentence – reflects not only the judge’s decision but the joint proposal of the parties. Even if the district court lacked the authority to enter that sentence, it was not corrected within 14 days under Rule 35(a), so it was still enforceable.

United States v. McClain, Case No 21-2089, 2021 U.S.App. LEXIS 31162 (7th Cir., October 18, 2021)

– Thomas L. Root