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BOP Delivers New Earned-Time Credit Restrictions – Update for September 14, 2022

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

THE GOOD, THE BAD, AND THE UGLY

thegood220914One provision of The First Step Act, signed into law in December 2018, allowed eligible inmates to earn credits toward an earlier release from prison, more halfway house or home confinement. The credits, called “earned time credits” or ETCs, were to be granted to prisoners participating in certain needs-based educational programs and productive activities. For every 30 days of successful participation, the prisoners could earn up to 15 days off their sentence up to a maximum of 12 months (365 days). ETCs could also be used to entitle the inmates to more halfway house or home confinement on a 1-1 basis: 30 days of ETC credit would earn 30 days more of home confinement, for instance.

The challenge for the Bureau of Prisons has been to keep accurate track of the credits earned by inmates. It is a multi-step analysis: First, is the inmate eligible to participate in the earned-time credit program? Second, has the inmate’s needs been properly assessed? Third, has the inmate enrolled in programming that addresses that need? Fourth, how many credits has the inmate earned in any given month?

When the BOP adopted the ETC system in January 2022, the system it enacted was 180 degrees opposed to the Draconian proposal the agency had floated previously. The adoption seems to have caught the BOP flat-footed, because it simply threw up its hands (figuratively speaking) and declared that any inmate eligible for the credits as of January 15th was assumed to have participated in eligible programs for every day since December 21, 2018 (or when the inmate arrived in the system, whichever was later).

Sweet deal. As a result, thousands of inmates were released in the days following the January adoption date.

But every Christmastime ends, and so did the BOP’s ETC giveaway. Since January 15, the agency has struggled with how to quickly calculate inmate ETCs on a rolling basis. In April, the BOP revealed in a court case that it was developing a computer program – an “auto-calculation” system – to update each inmate’s ETC credits continuously. The BOP estimated Auto-Calc would be implemented by about August 1.

The BOP finally delivered its Earned Time Credit “Auto Calculation” system last Thursday. “On time and under budget” is not a mantra at the Bureau. Delivery took about 50% longer than the BOP predicted it would. And, as Walter Pavlo said in Forbes last Friday, it “landed with a thud.”

Why the thud? The Auto-Calc system was accompanied by a memo that announced several interpretative rules the BOP is imposing by fiat. You know, rules that interpret other rules. And unlike the adoption of last January’s formal rules, there was no rulemaking proceeding, no “notice and comment” period, and scant indication the changes were coming.

The First Step Act spelled out prisoner eligibility in detail, But that hasn’t stopped the BOP from adding its own bells and flourishes.

The good news in the memo (such as it is) is that

• the BOP’s official stance is that ETCs will be applied first to reduce sentence length, and second to more halfway house and home confinement. The agency had been doing that since last January, but it had never announced that as BOP policy. Given how arbitrary the BOP can be, the announced adoption of the reduction-first approach as policy is a good thing.

• any halfway house or home confinement awarded using ETCs will be granted “in addition to release needs-based recommendations made under the Second Chance Act.” In other words, if the Second Chance Act would have entitled a prisoner to placement in a halfway house for six months even without ETCs, and you have 120 days of ETC credit applied to halfway house, you would be placed for 10 months.

• the Auto-Calc system will update ETCs monthly.

• the BOP verified that ETCs may be applied toward early release in addition to the early release benefit for RDAP graduates. In other words, RDAP now double counts toward early release, up to 12 months off for successful completion of the program as well as an additional credit of up to 150 days ETC credits for finishing RDAP.

• In order to earn 15 days credit for every 30-day period instead of 10 days for every 30-day period, inmates need to (1) start out with a low- or minimum-risk PATTERN level; OR (2) have dropped to a low- or minimum-risk PATTERN level and maintained it for two consecutive assessment periods. This is good news, because a number of inmates who entered the system with low or minimum scores have been told in the past few months that they have to have two consecutive assessment periods under their belts before getting 15 days of ETC credits in a month.

thebad220914But there is bad news in the memo, too:

• The memo codifies what I first learned last month. The BOP will not credit ETCs toward early release for inmates who are 18 months from release. At 18 months, the BOP says, “the release date becomes fixed, and all additional ETCs are applied toward” halfway house or home confinement.

This is a slight improvement over what the BOP was saying a month ago. In a declaration the BOP filed in Marier v. Bergami, the BOP manager said the cutoff was 24 months. But it still means, practically speaking, no inmates with sentences of less than 42 months will have enough time to collect ETCs entitling them to 12 months off their sentence (the maximum allowed by law).

This also means that unless an inmate can complete the in-custody portion of RDAP with at least 18 months left, the RDAP ETCs will apply to more halfway house or home confinement, not more time off.

Pavlo complained in Forbes last week that “with this more restrictive condition, BOP is even going against the Department of Justice’s intent of FSA which was to ‘transfer eligible inmates who satisfy the criteria in § 3624(g) [awarding of FSA credits] to supervised release to the extent practicable, rather than prerelease custody [halfway house and home confinement]’… In Fiscal Year (FY) 2019, the cost of incarceration fee for a federal prisoner at a federal facility was $107.85 per day; in FY 2020, it was $120.59 per day. It costs less than half that to place a minimum security prisoner on home confinement and it costs nothing if the prisoner is not in custody at all. Thousands of prisoners will be affected by this unilateral decision by the BOP. For many prisoners, their date for returning to society has been prolonged by a memorandum that is both unfair and arbitrary.”

• The memo states that “inmates who refuse or fail to complete any portion of the needs assessment and/or refuse or decline any program recommended to address a specific identified need area, are considered “opted out” and will not earn ETCs.” This hardly seems to be bad news, except that it assumes that the failure to complete needs assessment or refusal or declining to take a program is intentional.

More than one inmate has already reported that he or she was marked “refused” for not taking a program that simply was not available at the time. One inmate only saved from being marked “refused” by proving that he had sent the staff member responsible for the program a request to be put on the “wait list.”

• Starting eight months ago, the memo says, “all components of the SPARC-13 needs assessment must be complete to be eligible to earn ETCs. Failing to do so is considered ‘opted out.’ In other words, if an inmate fails to complete a required survey to enroll in a recommended program which addresses a specified need, the inmate will not be eligible to earn FTCs.”

The SPARC-13 is the Standardized Prisoner Assessment for Reduction in Criminality, a battery of surveys mandated by the BOP’s Initial Review of the SPARC-13 Needs Assessment System, issued last March. Judging from inmate reports, few have been given the surveys to complete. Even if they are asked to do so now, it is not clear whether any programs completed between January 15 and September 8 will count if the SPARC-13 was not done prior to that time.

• the memo states that “while inmates continue to earn FTCs, inmates can only apply the FTCs if they have no detainers, unresolved pending charges, and/or unresolved immigration status issues.”

These restrictions do not appear in the First Step Act and make little sense. It is logical that the BOP would not send inmates to detainers to halfway house or home confinement. That is a long-standing limitation. But there is no security issue in letting inmates with detainers benefit from shortened sentences. If an inmate gets a year off, the BOP simply lets the detaining agency know to pick up the inmate on Sep 12, 2022, instead of Sep 12, 2023, for instance.

Pavlo quotes a retired BOP employee as saying of the memorandum, “BOP is creating their own language and leaving the discretion in the hands of case managers to interpret who is eligible and who is not. They have completely disrespected the intent and FSA law states.”

theugly220914Finally, the ugly. The memo notes that “as a reminder, the unit team will determine an inmate’s eligibility to earn FTCs based on the current conviction and prior criminal convictions.” This means that basic decisions applying the statute are decentralized among close to a thousand unit teams. Given some of the errors already made by unit teams unschooled in the FSA, the amount of administrative remedy and judicial review such decision-making decentralization will spawn is likely to be quite significant.

A final thought: The Administrative Procedure Act (5 USC § 552), with its “arbitrary and capricious” standard, governs just about all federal agencies. However, Congress specifically stated in 18 USC § 3625 that the APA does not “apply to the making of any determination, decision, or order under this subchapter.”

The catch here is that § 3625 is specific to 18 USC Chapter 229, Subchapter C. The portion of the FSA establishing ETCs is set out in the newly-created Subchapter D. Congress either decided not to exempt the BOP’s implementation of the ETC from the APA, or it just forgot to do so. Either way, the ETC program appears to be subject to APA challenges, something new for BOP management.

Forbes, Bureau of Prisons’ Interpretation of First Step Act Will Leave Thousands of Inmates Incarcerated (September 9, 2022)

BOP, Memo on Implementation of Auto-Calculation (September 8, 2022)

BOP, Initial Review of the SPARC-13 Needs Assessment System (Mar 2022)

Declaration, ECF 10-1, Marier v. Bergami, Case No 21C50236 (ND Ill, Aug 9, 2022)

– Thomas L. Root

Phooey on Lawyers… Hire NPR To Get a Quick Compassionate Release – Update for September 12, 2022

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

A TALE OF TWO RELEASES

caresbear210104A lot of people wish they could get this kind of press. Hours after a story aired on NPR’s Morning Edition last week about CARES Act home confinee Eva Cardoza being sent back to prison for a positive marijuana test, a federal judge found “extraordinary circumstances” that called for her immediate release from FCI Danbury. “Petitioner’s family is currently experiencing a dire, urgent situation,” ruled US District Judge Sarala Nagala, citing five kids being supervised by her fiancé, who has heart disease and colon cancer.

NPR had reported that Eva was one of 230 CARES Act people released during the pandemic only to be sent back after small infractions. The BOP told NPR that 442 CARES Act people have been returned to prison. More than half allegedly violated rules about alcohol or drug use. The BOP says only 17 people out of 11,000 released were returned for committing new crimes. Ten committed drug crimes, while the rest of the charges included smuggling non-citizens, nonviolent domestic disturbance, theft, aggravated assault, and DUI.

Not everyone gets NPR-level attention. Judge Micaela Alvarez (SDTX) last month denied compassionate release to an inmate with a terminal cancer diagnosis, in part because he did not show that he “is not receiving proper medical care” and “does not claim that his cancer will go into remission if released from prison, or even that his prognosis will improve.”

medicalcare220912Last week, Kevin Ring, president of FAMM, wrote to the judge to invite her to participate in FAMM’s #VisitAPrison campaign, to visit a prison to learn more about the living and working conditions (including access to medical care) of incarcerated people and correctional officers). Ring suggested that the inmate’s family’s “devastat[ion] at the prospect of not being with him at the end of his life” was a genuine concern. Beyond that, he described Judge Alvarez’s implication that the inmate was receiving proper medical care from the BOP as “chilling, given all we know about the substandard medical care in federal prisons, especially during the COVID-19 pandemic. The Inspector General of the Department of Justice made disturbing findings in a 2021 audit of the Butner Federal Medical Center, where Mr. Chapa is housed. Indeed, one of the most notoriously dangerous prisons for women, is the Federal Medical Center at Carswell, is located in your home state of Texas.”

It is not likely that Judge Alvarez will accept the invitation or change her position.

NPR, A sudden homecoming for one of the people sent back to prison with no warning (August 31, 2022)

Reason, 11,000 Federal Inmates Were Sent Home During the Pandemic. Only 17 Were Arrested for New Crimes (August 31, 2022)

Order, United States v. Chapa, Case No 7:18cr960 (S.D.Tex., August 25, 2022)

Letter from FAMM to Judge Alvarez, Aug 29, 2022

– Thomas L. Root

Sentence Reduction Decisions – Two Outta Three Ain’t Bad – Update for September 8, 2022

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

Three Circuits Hand Down Late August Sentence Reduction Decisions

endofsummer220908Traditionally, not much gets done in August, and that rule applies even more to the week before Labor Day. People are returning from vacation or grabbing some extra days to tack on the long weekend, while those stuck in the office are afflicted with end-of-summer ennui.

Last week, that rule didn’t apply to three courts of appeal, all of which handed down rulings on the limits of compassionate release under 18 USC § 3582(c)(1)(A) and First Step Act Section 404 sentence reductions. Two were good for prisoners; one was not.

First Circuit Punts: Al Trenkler was convicted of a car bombing 30 years ago. The jury found Al had harbored only an intent to destroy property, but the trial judge inferred from the evidence an intent to kill and imposed a life sentence. But the law required life sentences to be assigned by the jury. The error – which everyone acknowledges – has never been fixed because of procedural roadblocks too complex to be explained here.

Al filed for compassionate release 18 months ago, based on his health and COVID-19 pandemic as well as his claim that questions surrounded his guilt; the fundamental unfairness of his conviction; sentence disparity and the unlawfully-imposed life sentence.

While Al did not sufficiently persuade the district court that questions surrounding his guilt, fundamental unfairness, and co-defendant sentence disparity constituted “extraordinary and compelling” reasons for compassionate release, the court decided the sentencing error did. Noting that Al had no other avenue for relief from the sentencing error, the district court reduced his sentence from life to 41 years.

The government appealed. Last week, the 1st Circuit sent the case back to the district court.

While the appeal was pending, the 1st ruled in United States v. Ruvalcaba that while district courts may generally consider “any complex of circumstances” in deciding that a prisoner should be granted compassionate release, that doesn’t mean that “certain reasons, standing alone, may be insufficient as a matter of law when measured against the ‘extraordinary and compelling’ standard… After all, it is possible that the whole may be greater than the sum of its parts, and reasons that might not do the trick on their own may combine to constitute circumstances that warrant a finding that the reasons proposed are, in the aggregate, extraordinary and compelling.”

howdidhedothat220908In Al’s case, the Circuit said, “it is clear the district court found the sentencing error constituted an extraordinary and compelling reason warranting a sentence reduction. But its analytical path is susceptible to multiple interpretations when it comes to how it navigated the list of reasons Trenkler offered. On one hand, we can appreciate the possibility that the district court discarded Trenkler’s other proposed reasons one by one but… deemed the circumstances surrounding the sentencing error alone to meet the “extraordinary and compelling” criteria. But we can also see how discarding all proposed reasons except one could represent a singular reason-by-reason analysis, not a review of the individual circumstances overall. In the end, our careful review of the district court’s thorough (but pre-Ruvalcaba) decision leaves us uncertain as to whether it took a holistic approach when reviewing Trenkler’s proposed reasons and ultimately concluding that the sentencing error constituted a sufficiently extraordinary and compelling reason to grant relief.”

The 1st decided that “given the importance of the issues and the gravitas of abuse-of-discretion review, we conclude that the prudent approach is to remand to afford the district court the opportunity to reassess the motion with the benefit of Ruvalcaba’s any-complex-of-circumstances guidance.”
3rd Circuit Reverses Sec 404 Resentencing: Clifton Shields was eligible for a Fair Sentencing Act sentence reduction under Section 404 of the First Step Act. He argued that his rehabilitation and the fact that he couldn’t be found to be a career offender if he were sentenced today (because courts now looked at some predicate offenses differently than they did when he was sentenced) meant his sentence should be reduced from 360 months to time served.

The district court cut his sentence to 262 months, but refused to consider “whether under current law Shields would be considered a career offender” because it believed that “[t]he First Step Act does not permit the court to consider other statutory or sentencing guideline amendments enacted since the date the defendant committed his or her offense.” The district court held that the reduced sentence it was imposing, at the bottom of Cliff’s amended Guidelines range, reflected its consideration of those factors as well as the documents Cliff had submitted as evidence of rehabilitation.

Last week, the 3rd Circuit reversed the district court, holding that district courts are authorized to take into account, at the time of resentencing, any changed circumstances, including post-sentencing developments. Noting that the Supreme Court’s Concepcion decision last June acknowledged “the broad discretion that judges have historically exercised when imposing and modifying sentences, and acknowledged that district courts deciding Sec 404(b) motions regularly consider evidence of… unrelated, nonretroactive Guidelines amendments when raised by the parties,” the Circuit said that while a district court is not required to accept arguments about intervening changes in the law, it should “start with the benchmark Guidelines range recalculated only to the extent it adjusts for the Fair Sentencing Act and should consider Shield’s arguments that he no longer qualifies as a career offender and his renewed objections to the firearm enhancement and the drug weight… used to calculate his Guidelines range.”

2nd Circuit Outlier: Victor Orena filed for compassionate release, arguing in part that he had new evidence that called into question the validity of his conviction. The district court denied the § 3582(c)(1)(A)(i) motion, refusing to consider the new evidence.

outlier220908In a June decision that the 2nd Circuit affirmed again last week, the appellate court upheld the denial. The Circuit ruled that when considering a motion for a § 3582(C)(1)(A)(i) sentence reduction, “a district court does not have discretion to consider new evidence proffered for the purpose of attacking the validity of the underlying conviction in its balancing of the 18 USC § 3553(a) factors. Facts and arguments that purport to undermine the validity of a federal conviction must be brought on direct appeal or pursuant to 28 USC § 2255 or 2241.”

The problem with this approach is that a district court must consider the sentencing factors of 18 USC § 3553(a), including whether the sentence reduction will still represent fair and just punishment for the offense. What the defendant ought to have been sentenced to (or what he or she would be sentenced to if sentenced today) seems like the logical starting point for determining whether the reduction being sought remains consistent with the sentencing factors.

When the Circuit is confronted with whether a district court must assume that a sentence that could not lawfully be imposed today is the starting point for measuring consistency with the sentencing factors, we might get a decision that is more like Trenkler and Shields.

United States v. Trenkler, No. 21-1441, 2022 U.S. App. LEXIS 24290 (1st Cir. Aug. 29, 2022)

United States v. Shields, No. 19-2717, 2022 U.S. App. LEXIS 24719 (3d Cir. Sep. 1, 2022)

United States v. Amato, 37 F.4th 58 (2d Cir. 2022)

– Thomas L. Root

How Bad is Sex Abuse? That Depends on Who’s Doing It… – Update for September 6, 2022

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

‘SKY PILOT’ GROUNDED IN CALIFORNIA EVEN AS TEXAS ALLEGATIONS UNFOLD

In maybe the most reprehensible of the sex abuse charges coming out of the FCI Dublin scandal, former Bureau of Prisons chaplain James Highhouse was sentenced last week to 84 months in prison — more than double his laughably short 24-30 month Guidelines range – for sexually abusing a female inmate and lying to authorities.

skypilot220906The Assistant U.S. Attorney prosecuting the case said Highhouse engaged in predatory conduct with at least six women from 2014 to 2019. The government said he would tell women he abused at Dublin that everyone in the Bible had sex and that God wanted them to be together. An Army veteran, Highhouse pressured one inmate into sex on Veterans Day by telling her she needed to serve her country and on Thanksgiving by telling her she needed to show her gratitude for him, prosecutors said.

Highhouse warned his inmate victims not to report him, telling one of them “no one will believe you because you’re an inmate, and I’m a chaplain,” the AUSA said in a sentencing memorandum. “The staff members at FCI-Dublin solidified [the inmate’s] concerns about not being believed. One counselor was particularly vocal about inmates “snitching” on corrections officers, advising them to instead “tell Trump about it.” When [the inmate] inquired about the procedure for reporting sexual assault, a different corrections officer told her that she would be sent to the Segregated Housing Unit (SHU) if she did so. Although the purpose of doing so is for protection of the victims, the SHU is disciplinary housing, and as result, inmates lose privileges and are in essence –even if not in purpose – treated like they did something wrong.”

“Today’s sentencing sends a clear message to BOP employees that abusing their position of trust will result in serious consequences,” Dept of Justice Inspector General Michael Horowitz said last Wednesday.

Swetnoodle220906erious consequences? Really? Ohio State Law Professor Doug Berman observed in his Sentencing Law and Policy Blog yesterday that the Guidelines sentencing range Highhouse faced for raping female inmates (24-30 months) was risibly short, especially when compared to other Guidelines ranges for other federal offenses:

There are many disconcerting and notable aspects of this story, but I am still struck that a prison official/chaplain can sexually abuse a prisoner repeatedly and yet only face a guideline sentencing range of 24 to 30 months.  That range is, generally speaking, well below the guideline ranges typically facing lower-level drug offenders and lower-level fraudsters.

Meanwhile, a BOP spokesman said Director Collette Peters – who now has been on the job for a month –is “fully committed” to fixing Dublin’s problems and is working with new Warden Thahesha Jusino to make improvements.

DOJ and the BOP may soon get a chance to prove their commitment to rooting out abuse if a Texas congressman gets his way. Last Wednesday, Marc Veasey (D-TX) called for an investigation into FMC Carswell after the Ft Worth Star-Telegram reported allegations of systemic sexual abuse and cover-up at the women’s facility. “These claims must be investigated swiftly,” Veasey said in a tweet, “and as your member of Congress, I will do everything in my power to ensure there is justice for these victims and that institutional change will take place.”

sexualassault211014The week before, the Star-Telegram published the result of a months-long investigation into Carswell. A dozen women currently or previously incarcerated at the prison described sexual assaults and rapes by staff members, the paper reported, while a former staff member and union president said reports of misconduct are ignored or covered up.

Last Friday, the Star-Telegram decried the sexual assaults, noting that, “equally alarming, the facility showed a systemic history of covering misconduct up and creating an atmosphere of secrecy and retaliation, making it difficult for these women to report alleged abuse. All of this means that the problem is likely much larger than the reports of abuse indicate.”

Associated Press, Chaplain who sexually abused inmates gets 7 years in prison (August 31, 2022)

Dept of Justice, Federal Prison Chaplain Sentenced for Sexual Assault and Lying to Federal Agents (August 31, 2022)

US Attorney, Sentencing Memorandum (Case No 22-cr-000016, ND Cal, August 24, 2022)

Sentencing Law & Policy, Noticing surprisingly low federal guideline range for sexual abuse of prisoners (September 5, 2022)

Dublin Independent, New BOP Director Collette Peters Vows To Improve Conditions at Federal Correctional Institute Dublin (August 31, 2022)

Star-Telegram, Congressman ‘deeply disturbed’ by Star-Telegram report on Fort Worth prison rapes (August 31, 2022)

Star-Telegram, Report on Fort Worth’s women’s federal prison is devastating. Reform must happen now (September 2, 2022)

– Thomas L. Root

Government Can’t Walk Away From Plea Deal, 4th Says – Update for September 2, 2022

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

‘WE DIDN’T AGREE THAT YOU COULD WIN’

The government prefers one-sided plea agreements, but – as a decision last month reminded us – sometimes the U.S. Attorney overreaches.

headsiwin220902(So why am I getting around to reporting this now, a month after the case was handed down? Vacation, county fair, August being August…)

Shelby Petties cut a deal in which the government agreed to drop two counts if he pled to having committed a crime of violence – kidnapping – while having failed to register as a sex offender. Shelby reserved the right to appeal on the ground that while he did the kidnapping, it is not categorically a crime of violence (COV).

Shelby appealed and won a ruling that kidnapping is not a COV. But when the case went back to the district court, the judge allowed the government to refile the dismissed charges against Shelby. The government’s view was that Shelby had agreed to plead guilty in order to appeal an issue that – if he won – the government could circumvent by undoing the agreement.

Shelby argued that the government’s view reduced the benefits he got from the plea agreement to zero. The 4th Circuit agreed.

“We give plea agreements greater scrutiny than we apply to ordinary commercial contracts,” the Circuit ruled, “because of the context: a defendant’s waiver of his constitutional right to trial, induced by the government’s commitments in the plea agreement.”

plea161116Here, Shelby gave up his right to go to trial on Count Two in exchange for the government’s promise to dismiss Counts One and Three and to “not further prosecute him for conduct constituting the basis” for the indictment. “The government entered into this agreement with full knowledge that Petties might appeal — and appeal successfully — his conviction on Count Two,” the Circuit held. “The possibility of a successful appeal was a contingency expressly contemplated by the parties and their agreement…”

United States v. Petties, Case No 21-4332, 2022 U.S.App.LEXIS 21158 (4th Cir., Aug 1, 2022)

– Thomas L. Root

Back to School – Update for September 1, 2022

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

A LEGISLATIVE PRIMER

hateschool220902For those of you who sat in the back row in high school government class throwing spitballs, here’s what you missed about how our laws are made.  Every year or so, I find it necessary to cover the Congressional essentials. Now, with the Senate and House about to  return from their August vacations in another week or so, here are a few things to remember about the Congressional legislative process.

First, a “Congress” is a limited-time deal, a two-year conclave of lawmakers. The current Congress, called the “117th Congress,” will end on January 2, 2023. A new one, the 118th Congress will begin its two-year run begin the next day.

During the two-year Congress, thousands of bills and resolutions will be proposed. Few will get passed. The ones that don’t make it through the House and Senate and to the president’s desk for signing die when the 117th Congress ends.

Of the many criminal justice bills that have been introduced since January 2, 2022, only two have any real chance of passage. The EQUAL Act (S.79) – which reduces crack penalties to match cocaine powder penalties – has passed the House but awaits a Senate vote. The MORE Act (HR 3617) – which would decriminalize marijuana – has passed the House twice but is awaiting Senate action.

The mid-term election comes the first week of November. Every member of the House is up for re-election, as are one-third of the senators. And that’s a problem. A 2/3 majority the Senate supports crack cocaine reform, and an even greater majority supports decriminalization of marijuana. So passage ought to be easy, right?

demagogue220902The biggest obstacle to passing either of these bills right now is the upcoming election. A strong anti-crime sentiment has taken root in the country, and to avoid getting swept up in an anti-crime tide, the Wall Street Journal said last week, “Democrats will have to show they’re serious about the issue.” hardly anything about crack cocaine punishment and marijuana decriminalization have anything to do with the kinds of local violent crime they concern the public. Nevertheless, you can be sure that the Senate Majority Leader – who controls the agenda – will not force senators to take a stand on the bills prior to the midterm election. No legislator wants to do the right thing on the EQUAL Act, for example, only to have an opponent at home claim that the senator voted to let drug dealers out of prison early.

The problem with cannabis reform is different. While virtually no one objects to decriminalization, the real battle over marijuana relates to banking regulation and taxation. A group of senators led by Richard Durbin (D-IL) has proposed their own alternative bill, And that has taken the wind out of the sails for the MORE Act.

The bottom line is this: The financial stakes in decriminalizing and regulating marijuana across the nation are huge. Concerns about adjusting federal sentences for what is likely not to be more than 20,000 prisoners (less than .01% of the population) is not important enough to control the debate.

time161229There aren’t many legislation days left for the 117th Congress. While it is not clear that EQUAL or MORE will make it through the Senate, it is safe to predict that no other criminal justice legislation – such as First Step retroactivity, prohibiting punishment for acquitted conduct, or adjustments to the elderly home detention pilot program – will become law in this Congress. The prospect is that come January, we’ll be starting over.

Wall Street Journal, Don’t Count Out Crime as a 2022 Midterm Issue (August 18, 2022)

The American Prospect, Democrats in Danger of Missing the Marijuana Moment (August 25, 2022)

JDSupra, Cannabis and Social Justice Reform: Are We Doing Enough? (August 25, 2022)

– Thomas L. Root

No Place Like Home – Update for August 31, 2022

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

CONNECTICUT DISTRICT COURT FINDS HOME CONFINEMENT IS A PROTECTED LIBERTY INTEREST

I reported May 9 on a habeas corpus action in Connecticut U.S. District Court that claimed that the petitioners had had their CARES Act home confinement revoked without due process. A few weeks ago (while I was out, but I don’t apologize for a vacation in August), the Court decided that the petitioner had a liberty interest in her home confinement and that her revocation had violated her due process rights.

home190109The Court ruled that before home confinement is revoked, a prisoner is entitled to the two-step process described by the Supreme Court in Morrissey v, Brewer, 408 US 471. That 1972 decision required a preliminary hearing to determine whether there is probable cause to justify the inmate’s detention before hearing made by a factfinder uninvolved in starting the revocation process. The inmate must be given notice of the hearing and the violation that is being alleged, and he or she should have the chance to cross-examine adverse witnesses and present evidence. Any adverse decision should explain the reasons for the revocation.

If probable cause is found for detention, the Court said, a full revocation hearing must still be conducted before the inmate’s home confinement is revoked. That hearing requires written notice of the violations, disclosure of evidence, a chance for the accused to be heard in person and to present witnesses and evidence, the right to cross-examine adverse witnesses, and a written opinion issued by a “neutral and detached” hearing body. The burden of proof by a preponderance lies with the government.

Coincidentally, Davina Chen, National Sentencing Resource Counsel for the Federal Public Defenders, sent a memo just a few days before the Tompkins decision, noting a July 22 USA Today article on CARES Act revocations. She warned:

I am beginning to hear an uptick of reports of people being remanded for suspect reasons or no reason at all… What we have experienced so far is that early attorney involvement is crucial and can, in some cases, prevent clients from being returned to prison – some of them for decades… [W]e believe that our clients have a Fifth Amendment right to a hearing before a neutral and detached decisionmaker, an opportunity to be heard both on whether they have violated the conditions of their home confinement and why return to prison is not warranted, and in some instances counsel. Maybe you won’t get that ¬– but maybe you can also convince BOP not to tear your client away from the community!

Tompkins v. Pullen, Case No 3:22-CV-00339, 2022 US Dist LEXIS 141271 (D.Conn, August 9, 2022)

USA Today, They were released from prison because of COVID-19. Their freedom didn’t last long. (July 22, 2022)

Federal Defenders Organization memorandum, CARES Act Home Confinement Revocations (August 3, 2022)

– Thomas L. Root

Scrutiny is ‘Difficult’… But Aplenty – Update for August 30, 2022

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

BOP DIRECTOR DOESN’T LACK FOR MATERIAL

criticize220830In her first video message to Bureau of Prisons staff, reported on last week in Government Executive, new Bureau of Prisons Director Colette Peters acknowledged the bumpy ride the BOP has experienced over the past few years: “We have had a great deal of scrutiny from auditing and oversight entities both internal to and external of our agency. While these findings are difficult to hear, we must work diligently to address these deficiencies in order to improve our environment for everyone who works and lives at the bureau.”

Last week suggests that Peters has no shortage of current ‘scrutiny’ to work with.

CARES Act Management: On Monday, NPR reported that only 17 of the 442 inmates returned to prison from CARES Act home confinement had committed new crimes. The number of new offenders represented less than two-tenths of a percent of the 11,000 sent home. Most of the 17 offenses were drug-related.

NPR criticized the BOP for a lack of due process and being too quick to revoke CARES Act status for insignificant infractions. With suits against the BOP over CARES Act revocation proliferating, NPR said, the agency is “considering a new federal rule to make the process more clear.”

The Hot Mess at Carswell: On Friday, the Ft. Worth Star-Telegram dropped another ticking bomb on the Director’s desk. The paper’s investigation found that FMC Carswell – the only federal medical facility for women inmates in the country – “has been plagued with systemic sexual abuse for years. The Star-Telegram spoke to 12 former and current inmates at the facility, as well as prison staff and experts familiar with the investigative process at the Bureau of Prisons, which has oversight of federal prisons. Hundreds of pages of incident reports, federal records and court documents reveal a pattern of sexual misconduct and cover-ups.”

sexualassault211014What’s more, the paper reported, Carswell inmates “say they are not always able to report sexual assaults due to fear of retaliation. Even when staff members report sexual assaults, Carswell upper management has at times failed to investigate misconduct, the union president at the prison said.” One Carswell staff member described the facility as “the perfect place for sexual misconduct.”

Finally, the newspaper reported, the BOP failed to provide victims with any mental health care to deal with trauma from the assaults. The BOP denied the claims, asserting that “every inmate and pretrial detainee in a BOP facility has daily and regular access to Health Services and Psychology Services staff.”

Lying Warden, Freezing Inmates: Meanwhile, the New York Post reported a week ago that the warden of a federal prison in California – identified by the paper as FCI Terminal Island – failed to fix a broken camera system in the lockup and kept prisoners in the cold after a heating malfunction during an unusually cold winter.”

The unidentified warden “risked the safety and security of inmates and staff” with the 2019 heating and surveillance failures at the prison near Los Angeles, according to a heavily redacted Dept of Justice Inspector General report of the probe obtained by the paper through a Freedom of Information Act request.

liar151213Investigators also found that the warden “lacked candor” in sworn interviews with agents. The DOJ’s Public Integrity Section declined to prosecute after the investigation, according to the documents.

Making Fun of Women and Blacks: A California TV station reported last week that a BOP whistleblower told the BOP Internal Affairs division earlier this month that the author of a “racist and misogynistic Instagram page” entitled “Good Verbal,” works at FCC Victorville, based on the private jokes and inside knowledge of the posts.

The page, that mocks women prisoners getting sexually assaulted at FCI Dublin, female officers sleeping their way to the top and black prisoners getting thrown into the SHU, among other posts,” included details suggesting the author was assigned to work at Victorville.

The whigoodverbal220830stleblower asked that IA investigators identify the author, discipline that person, and shut down the page. “I refuse to work in a dangerous environment and be subjected to this type of treatment by alleged fellow staff members,” the letter to Internal Affairs read. “I am one of many people that are the targets of these nasty and highly offensive posts. It should also be noted that other institutions in various regions across the county are affected by this disgusting page. This page has the potential to turn into a national law enforcement issue.”

As of August 30, “Good Verbal” remained posted on Instagram and appeared to be unrepentant, saying: “Our humor is not for everyone. This is how we deal with the horrible things we must see to earn money. We are the modern day sin eaters. We try to manage those that are unfit for society.”

Who’s the Rat?  Finally, at a detention hearing last week for one of the three defendants charged with the murder four years ago of James “Whitey” Bulger, the government revealed that inmates at USP Hazelton knew in advance that Bulger was arriving on October 29, 2018. He died 12 hours later.

snitch160802NBC News called Bulger’s death “a stunning security failure for the federal prison system. The previously undisclosed revelation that USP Hazelton inmates were tipped off to Bulger’s arrival raises additional questions about the federal Bureau of Prisons’ handling of his transfer to one of the country’s most violent prisons.”

“It’s just absurd that this happened,” a former BOP gang investigator told NBC.

A Bit of Support from a Critic: One piece of criticism the new Director received within about a day of her swearing-in four weeks ago was her decision to keep outgoing BOP Director Michael Carvajal on for a month as an advisor.  Last week, Shane Fausey – national president of the National Council of Prison Locals union and a strident critic of BOP management – defended keeping Carvajal on. With an agency the size of the BOP, “you don’t just turn off the lights and say have a nice day. It requires a transitional period to understand, and I hate to use the word, ‘bureaucracy’ of the federal government,” Fausey said.  “Whatever your personal feelings are with Director Carvajal, I think it’s essential for the success of Director Peters that he stay on board to kind of guide her at the beginning of her tenure.”

Government Executive, A New Director Is Bringing Hope to the Federal Prisons Agency (August 22, 2022)

NPR, Released during COVID, some people are sent back to prison with little or no warning (August 22, 2022)

Ft Worth Star-Telegram, They were sexually assaulted in prison. An overwhelmed mental health system failed to help (August 26, 2022)

Ft. Worth Star-Telegram, ‘I’m nobody to them.’ Survivors report sexual abuse by staff at Fort Worth Carswell prison (August 26, 2022)

New York Post, Warden failed to fix camera system, heat at California federal lockup: watchdog (August 22, 2022)

KTVU-TV, Whistleblower outs racist, misogynistic Instagram page at California federal prison (August 24, 2022)

NBC, Twist in Whitey Bulger murder case: Inmates at West Virginia prison knew in advance he was coming (August 23, 2022)

– Thomas L. Root

Money for Nuthin’ – Update for August 29, 2022

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

YO MOMMA

Ruel Hamilton, a Dallas real estate developer, liked politicians. He liked them so much that he gave money to members of the Dallas City Council just because he could.

money160118In 2017, Ruel wanted to get a paid-sick-leave ordinance on the ballot in the upcoming election. He thought the policy made good sense: in fact, he already had a more generous policy in place for his own employees. Plus, he thought having the ordinance on the ballot would increase voter turnout, another good thing (and one which would help secure the reelection of City Council members Ruel liked).

Ruel called City Councilman Dwaine Caraway to discuss getting the measure on the ballot. His call came at a bad time: Dwaine was in the middle of negotiating a plea deal with the US Attorney over some other bribery allegations when the call came in. The government – always happy to ensnare another defendant when possible – encouraged Dwaine to meet with Ruel (and to let the FBI secretly record the confab).

At the meeting, Dwaine and Ruel talked about how Dwaine’s mother needed a $6,200 healthcare bill paid that very day and how busy, tired and broke Dwaine was. They then discussed the paid-sick-leave initiative, how that vote might come out if it was put on the agenda by the Mayor, and how Ruel hoped Dwaine would run for reelection.

money170419Ruel kept reminding Dwaine that he was there to help in any way he could. Dwaine finally said, “You can answer that bill that I just threw out there… for about [$6,200] today and that will help me… do what I need to do.” Ruel happily obliged: “Can I just write a check to Dwaine Caraway?” he asked. Dwaine clarified that the money was not a loan and was not related to his campaign. He said he had to “go pay for my mama.”

Ruel gave him a check for $7,000 but neither asked for nor was promised that Dwaine would do anything in return. It was indeed “money for nuthin’.” Nevertheless, Ruel soon found himself on the wrong end of an indictment for bribery in violation of 18 USC § 666.

In giving the jury instructions for the federal-programs-bribery counts, the district court told the jury that neither a quid-pro-quo exchange nor any “official act” by the council members was required to convict Ruel for bribery. Essentially, the district court said, whether Ruel bribed Dwaine or just paid an illegal gratuity to him didn’t matter.  Both violated 18 USC § 666, the district judge said.

piublicdefender220829But Ruel wasn’t just some down-on-his-luck dopehead represented by an underpaid court-appointed attorney. Rather, he hired Paul Clement (a former US Solicitor General), high-powered defense attorney Abbe David Lowell, and the combined power of three top-tier Washington law firms. Not only was Ruel’s legal team successful in keeping him out of prison pending appeal (no mean feat), but it buried the US Attorney in an avalanche of appellate issues.

Ruel’s legal fees probably would have choked a horse, but like my dad always said, ‘no one ever regrets buying the best there is.’ Ruel’s  team clobbered the two AUSAs prosecuting the case.
quid220829Last week, the 5th Circuit vacated Ruel’s conviction. Holding that “bribery requires a quid pro quo – a specific intent to give or receive something of value in exchange for an official act – [while an] illegal gratuity does not,” the 5th rejected precedent from five other circuits, ruling that 18 USC § 666 does not cover illegal gratuities, only bribery. Because of this, the government must show that the defendant had a specific intent to give something of value in exchange for an official act. The jury was never instructed that a quid pro quo was an essential element of the offense, making Ruel’s conviction defective.

“Section 666 criminalizes only a quid pro quo, not mere gratuities,” the Circuit held. “The district court’s instruction allowed the jury to convict based on mere gratuities. For these reasons, we vacate Hamilton’s convictions….’

United States v. Hamilton, Case No 21-11157, 2022 US App. LEXIS 23648 (5th Cir. Aug 23, 2022)

– Thomas L. Root

Transgender Rights Come to Prison – Update for August 25, 2022

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

We have been out for the past 10 days for some needed medical work.  Glad to be back.

TRANSGENDER INMATES PROTECTED BY ADA, 4TH RULES

In a case with significant implications for the Bureau of Prisons, the 4th Circuit last week held that gender dysphoria is covered by the Americans With Disabilities Act.

trans220106Kesha Williams, a man who identifies as a woman, sued the Fairfax County, Virginia, sheriff for being housed with men during a 6-month jail sentence. The sheriff argued that the ADA – which excludes “gender identity disorders” from conditions covered by the Act – does not extend to gender dysphoria (a condition that had not been identified when the Act was passed in 1990).

The Circuit disagreed. Relying on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (DSM-5), the 4th said that

the definition of gender dysphoria differs dramatically from that of the now-rejected diagnosis of “gender identity disorder.” Rather than focusing exclusively on a person’s gender identity, the DSM-5 defines “gender dysphoria” as the “clinically significant distress” felt by some of those who experience “an incongruence between their gender identity and their assigned sex.” And the DSM-5 explains that the discomfort or distress caused by gender dysphoria may result in intense anxiety, depression, suicidal ideation, and even suicide. In short, “being trans alone cannot sustain a diagnosis of gender dysphoria under the DSM-5 as it could for a diagnosis of gender identity disorder under earlier versions of the DSM.” For if a transgender person does not experience “clinically significant distress,” she could not be diagnosed as having gender dysphoria under the DSM-5.

A 2013 update of the DSM that became the 5th edition removed the diagnosis of gender identity disorder, replacing it with gender dysphoria. “Reflecting this shift in medical understanding, we and other courts have thus explained that a diagnosis of gender dysphoria, unlike that of ‘gender identity disorder,’ concerns itself primarily with distress and other disabling symptoms, rather than simply being transgender,” the 4th said.

The Circuit ruled that even if gender dysphoria and gender identity were not categorically distinct, the prisoner would still be protected under the ADA because her gender dysphoria has a “known physical basis.” When prison officials failed to provide hormone therapy to the prisoner, she experienced emotional, psychological, and physical distress. “Williams does not merely allege that gender dysphoria may require physical treatment such as hormone therapy,” the 4th wrote. “She maintains that her gender dysphoria requires it.”

The Circuit said that excluding gender dysphoria from the ADA “would discriminate against transgender people as a class, implicating the Equal Protection Clause of the 14th Amendment.”

The 4th further noted that in 2008, Congress’s amendment to the ADA instructed courts to apply the statute broadly, intending to make it easier for people with disabilities to access protection under the ADA and stating that the definition of disability should be construed in favor of people calling for coverage “to the maximum extent permitted by the ADA’s terms.

The sheriff’s policy classified prisoners’ gender according to their genitalia. That policy, the Court found, violated the Prison Rape Elimination Act (PREA). “A policy that houses transgender inmates based solely on their genitalia puts transgender inmates at further risk of harm,” the 4th ruled.

The BOP estimates that about 1,200 inmates identify as transgender.

Even before this decision, some of the BOP’s 10,800 female inmates have been vociferous in their opposition to having transgender females – most of whom retain male genitalia – from being housed with them. The news last month that a transgender woman inmate housed by New Jersey in a female prison had impregnated two female inmates has raised concerns about transgender inmate housing. None of those concerns will be allayed by the 4th Circuit’s holding.

Williams v. Kincaid, Case No 21-2030, 2022 US App LEXIS 22728 (4th Cir, Aug 16, 2022)

Washington Post, 4th Circuit first to rule gender dysphoria a protected disability (August 17, 2022)

Tucson Sentinel, Appeals Court Ruling on Transgender Rights: What It Means (August 22, 2022)

NBC News, N.J. trans prisoner who impregnated 2 inmates transferred to men’s facility (July 19, 2022)
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– Thomas L. Root