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Just a Uniform Change Away – Update for October 6, 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.

YOU’RE A LAWBREAKER… AND PRETTY INCONSISTENT, TOO, YOUR HONOR

Inmates often say of the correctional officers – whose conduct is often eminently indictable but for the fact that the COs have badges – that they’re “just a uniform change away” from being inmates themselves. The COs are not alone.

istamendment211006Last week, a Wall Street Journal investigation found that more than 130 federal judges failed to recuse themselves from civil cases that involve companies that they or their family members invest in, in clear violation of federal law. These judges ruled in favor of the companies in two-thirds of the cases, and one judge in Texas had 138 cases where he had a conflict of interest.

“I dropped the ball,” one judge told the Journal when asked about his conflict of interests. Try that excuse at your next sentencing.

Speaking of sentencing, a new analysis by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University identifies federal courthouses where wide judge-to-judge sentencing differences currently occur.

“While special circumstances might account for some of these differences,” the report concludes, “half of the courthouses in the country had median differences in prison sentences of 16 months or more, and average differences of 21 months or more.” This means that depending on which judge a defendant draws, his or her sentence on the same facts would vary by over a year and half, on the average.

judge160222Seven courthouses showed perfect agreement among judges on sentencing, those at Lincoln, NE; Providence, RI; Albany, GA; Ft. Myers, FL; Las Cruces, NM; and El Paso and Del Rio, TX. On the other end, five courthouses showed more than 60 months difference in the median prison sentence handed out across judges serving on the same bench, those at Tampa, FL; Benton, IL; Orlando, FL; Greenbelt, MD; and Philadelphia, PA.

Wall Street Journal, 131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest (September 28, 2021)

TRAC, Equal Justice and Sentencing Practices Among Federal District Court Judges (September 30, 2021)

– Thomas L. Root

COVID’s Ugly… and Puzzling – Update for October 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.

COVID IN PRISON: WHO TO BELIEVE?

This is not my usual complaint about the BOP’s voodoo accounting for inmate COVID patients (although if cooking the books is a sin, a lot of BOP bean counters had better be pretty busy on Sunday morning). This is a more general head-scratch about how everything we knew about COVID seems, day by day, to be proven wrong.

Vaccinesticker211005How about the one that the vaccine (or a prior bout of COVID) will provide enduring protection? The government loves to trot out the argument that compassionate release due to the dangers of COVID is passe, because the prisoner is either (1) fully vaxxed; or (2) recovered from a prior bout of COVID, and thus naturally immune. It now appears that this chestnut is running headlong into the real world.

Diamonds Are Forever… But Not Vaccines: There is mounting evidence that vaccines are shorter-lived than the government says they are, and having COVID once does not immunize you from getting it again. Reuters reported last Friday that six months after receiving the second dose of the two-shot vaccine from Pfizer, many recipients no longer have vaccine-induced antibodies that can immediately neutralize worrisome variants of the coronavirus. In other words, that Pfizer poke you got in April likely isn’t doing anything for you now.

COVID Ain’t One-and-Done:  As for immunity due to having had COVID once, a review of all of the BOP’s press releases in inmate deaths – available at BOP.gov – since March 1, 2021, 19 of 28 reported deaths (68%) were of inmates who had previously recovered from COVID.

plague200406Let that sink in. More than half of the federal prisoners who died of COVID in the last seven months had already had COVID-19 once, and the prior bout from which they had recovered was not nearly as serious as the second one.

Now back to vaccines: the Centers for Disease Control and Prevention descended on FCI Texarkana last August when an early breakout of COVID-19 Delta erupted. The CDC study found that while 93% of the Texarkana inmates (39 of 42) infected with COVID-19 Delta were unvaccinated, 70% (129 of 185) infected had received both doses of vaccine. Infections were found in 89% of those vaccinated more than four months previously and 61% in those vaccinated in the last two months.

The data are showing CDC scientists (and the rest of us) that immunity from a prior COVID infection or vaccine is far from substantial protection.

BOP Numbers:  The BOP’s COVID numbers fell from 631 inmates and 547 staff on Sept 24 to 480 and 497 last Friday. But COVID is still present in 112 of 122 facilities. Four more inmates died last week. Inmate vaccinations jumped four points to 65.6%. Staff vaccinations still lag, up less than a half point to 54.8%.

antivax211005Staff Shots: A Presidential Executive Order to enforce vaccinations of BOP staff (not inmates) will begin this coming Friday. If staff are not fully vaccinated by Nov 22, they will face employment termination. BOP staff from USP Lewisburg, USP Allenwood, USP Canaan, FCI Schuylkill, and LSCI Loretto picketed last week against the mandate. Forbes reported last week that an Inspector General’s survey of BOP employees show substantial staff hesitancy or resistance to getting the vaccine, and “almost a third of those respondents reported that they have considered leaving the agency.”

COVID Infection is Arbitrary, and So is Compassionate Release: The gross disparities in grant of compassionate release are getting more notice. A CNN report last week noted that “17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted. Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts.” Breyer argued that “You need a national standard,” adding that without one, “it creates a vacuum and it creates uncertainty, and most importantly it creates disparity.”

Just over 40% of motions decided in March 2020 were approved, CNN reported, but that fell to less than 17% in December and about 11% in June 2021. The decline this year came as the number of new coronavirus cases behind bars receded and vaccines became widely available in the prison system.

limp211005At Last, A Reason for Guys to Get Vaxxed: Still wondering about taking the vaccine? A report last week spotlighted mounting evidence that COVID-19 may sabotage men’s sexual health. Men may be six times more likely to develop brief or long-term erectile dysfunction after contracting the virus, according to research published in March. So guys, your reasons for rejecting vaccination are starting to seem… kind of limp.

CDC, Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021 (September 24, 2021)

Am Council on Science & Health, Prison Breakout … of the Delta Variant (September 26, 2021)

NCPA.com, Bureau of Prisons’ staff face vaccinate mandate; union picket ensues (September 29, 2021)

Reuters, Science News Roundup: Delta increases COVID-19 risks for pregnant women; Pfizer/BioNTech vaccine antibodies gone by 7 months for many (October 1, 2021)

CNN, Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic (September 30, 2021)

Natl Geographic, COVID-19 may impair men’s sexual performance (September 22, 2021)

– Thomas L. Root

Happy New Year! – Update for October 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.

WE’RE BA-A-A-CK…

happynewyear211004… the nine Supreme Court justices will say this morning, the first Monday in October and the first day of the Court’s new year. The high court begins its new term – which lasts until June 30, 2022 but is known as “October Term 2021” – with hearing arguments on one federal criminal issue and granting review to another.

First, the grant of certiorari. Last week at its annual “long conference,” where the Court disposed of over 1,200 petitions seeking review of lower court decisions, the Supremes granted review to a First Step Act case. Back when Congress passed the Fair Sentencing Act of 2010 to reduce the disparity crack and powder cocaine sentences, it did not make the Fair Sentencing Act retroactive to the thousands of crack sentences already imposed.

In Section 404 of the 2018 First Step Act, Congress granted retroactivity at the discretion of the defendant’s sentencing judge, but did not specify any standards for the judge to apply in deciding whether to reduce a sentence. The question raised in Concepcion v. United States is whether, when a court is deciding whether to resentence a defendant under the Fair Sentencing Act, the court must or may consider intervening developments (such as prison record or rehabilitation efforts), or whether such developments only come into play (if at all) only after courts conclude that a sentence reduction is appropriate.

FSAsplit190826

The 3rd, 4th, 10th, and DC circuits have held that district courts must consider all subsequent facts, and not just the changes to statutory penalties, when conducting Fair Sentencing Act resentencings. But in the 1st, 2nd, 6th, 7th and 8th circuits are only required to adopt the revised statutory maximum and minimum sentences for crack cocaine spelled out in the Fair Sentencing Act. In the 5th, 9th, and 11th circuits, district courts are prohibited from considering any intervening case law or updated sentencing guidelines, and are not required to consider any post-sentencing facts during resentencings.

Don’t expect a decision before June 2022.

Now, for today’s argument. The Supreme Court will begin its term hearing argument in Wooden v United States. Defendant Wooden broke into a storage facility and stole from 10 separate storage units many years ago. When he was found in possession of a gun years later, the district court sentenced him under the Armed Career Criminal Act to 15 years, because it found that he committed three violent offenses – the breaking into the 10 storage units – “on occasions different from one another.” The Court of Appeals agreed, arguing that the crimes were committed on separate “occasions” because “Wooden could not be in two (let alone ten) of [the storage units] at once.”

BettyWhiteACCA180503This has long been the worst aspect of the ACCA, itself as well-meaning but lousy law. A number of circuits hold that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously.” Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.

The Supreme Court will resolve the Circuit split. A decision is expected early next year, and – if the Court agrees defendant Wooden, a number of people serving ACCA sentences may be filing 28 USC § 2255 or 28 USC § 2241 petitions seeking reduced sentences.

Wooden v. United States, Case No. 20-5279 (Supreme Ct., argued Oct 4, 2021)

Concepcion v. United States, Case No. 20-1650 (Supreme Ct., certiorari granted Sep 30, 2021)

Law360, Supreme Court Will Seek To Solve Crack Resentencing Puzzle (September 30, 2021)

SCOTUSBlog.com, What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer. (October 1, 2021)

– Thomas L. Root

Clemency Should Be ‘Easy Lift’ For Biden, Some Say – Update for October 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.

BIDEN CARES ACT CLEMENCY CALLED INADEQUATE

We know a little more about the Biden Administration’s plan to solicit commutation applications from some CARES Act prisoners on home confinement, and as more is known, the criticism is mounting.

clemencypitch180716A few weeks ago, the Department of Justice started sending out commutation applications to about 1,000 people (about one out of four those on CARES Act home confinement). Biden is targeting people who have been convicted of a drug offense and have four years or less remaining on their sentences, directing them to apply to DOJ’s Office of the Pardon Attorney.

Last week, The New Republic observed that “Biden is wedded to an inefficient process that’s created a backlog of close to 16,000 petitions. The administration is going out of its way to frame its approach as the opposite of Trump’s chaotic one, which bypassed the Justice Department and freed people seemingly based on the president’s whims.” The New York Times reported last spring that Biden intends to “rely on the rigorous application vetting process,” as opposed to Trump’s approach, “empowering friends, associates and lobbyists to use their connections to the president, his family and his team to push favored requests to the front of the line…”

clemencybacklog190904

But the need to rely on the DOJ pardon system doesn’t sit well with some. Last week, Amy Povah, founder of the Can-Do Clemency Project, told Forbes, “President Biden has been handed an easy political gift. There are 4,000 inmates functioning in society, obeying the laws, bonding with family and held accountable for their past actions. There is no better group vetted to be given clemency than this group of CARES Act inmates… If those at home under CARES Act don’t all qualify to stay there, I’m concerned that we’re dealing with an overly conservative mindset, not consistent with the will of those who voted for President Biden.”

“This should be an easy lift for the Biden administration,” law professor Mark Osler, a former Assistant U.S. Attorney, told The New Republic. “They were handed a carefully vetted group of people who even Attorney General Barr thought should be out in society.”

Osler said the system Biden wants to rely on doesn’t work. “The fact that their commitment to a broken process is going to undermine this is really disappointing,” Osler told TNR. He has long argued that clemency cases should be taken away from DOJ. Before a case makes it to the President, Osler said, “the first thing the pardon attorney’s staff do is seek out the opinion of the local prosecutor and then give that opinion substantial weight. What do you think is going to happen?”

clemency170206No one is saying whether special considerations will be applied to CARES Act home confinees, allowing them to skip DOJ Pardon Attorney review and that office’s embarrassing backlog of cases. FAMM president Kevin Ring complained last week that outside of what they’ve seen in the media, no one knows what Biden plans. “It’s a crazy lack of transparency,” Ring said. “Friday afternoon, there’s a phone call to BOP halfway houses saying, this person should fill out a clemency petition in the next couple of days. Who? Why? What [are] the criteria?”

Unsurprisingly, the pressure remain high for Biden to do more. A week ago, five members of the Maryland congressional delegation wrote to Attorney General Merrick Garland and BOP Director Michael Carvajal, asking for reconsideration of the Trump-era legal opinion (which the Biden DOJ has agreed with) that CARES Act people have to return to prison after the COVID-19 emergency passes. And last Friday, three national law enforcement organizations – the Law Enforcement Leaders to Reduce Crime & Incarceration, Law Enforcement Action Partnership, and Fair and Just Prosecution — wrote to the President to urge him “to use your clemency power to ensure that all people successfully placed on home confinement under the CARES Act do not return to full custody.”

While all of the attention seems to be on CARES Act people, any focus on a re-do of the DOJ pardon system will ultimately benefit prisoners whether still in prison or at home.

Forbes, Biden Considering Options To Avoid Returning Federal Inmates To Prison Post Covid-19 (September 19, 2021)

The New Republic, Biden’s Conservative Vision on Clemency (September  21, 2021)

Maryland Congressional Delegation, Letter to Attorney General (September 17, 2021)

Law Enforcement Action Partnership, Letter to President Biden (September 24, 2021)

– Thomas L. Root

EQUAL Act Jumps Low Hurdle, High Hurdle is Next – Update for September 30, 2021

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

HOUSE PASSES EQUAL ACT

crackpowder160606Over 25 years ago, the United States Sentencing Commission – never a hotbed of progressive thought – concluded that the draconian drug policy of considering every gram of crack cocaine to be the equivalent to 100 grams of powder cocaine was irrational and resulted in disproportionately severe crack sentences being imposed mostly on black defendants.

But just as sex sells in the marketing ethos, outrageous punishment sells in the political world. At least until a few years ago, no member of Congress ever lost an election because he or she was too tough on crime.

Fourteen years ago, Presidential candidate Barack Obama decried the crack-to-powder disparity, and in April 2009, his Dept of Justice lobbied for the elimination of the 100:1 ratio. The House passed a 1:1 bill that year, but by the time the Senate took it up the following summer, 1:1 had become 18:1 in order to satisfy certain troglodytes in that chamber, chief among them the unlamented former senator Jefferson Beauregard Sessions III of Alabama.

Jefferson Beauregard Sessions III
Jefferson Beauregard Sessions III

The resulting Fair Sentencing Act mandated a new 18:1 crack/powder quantity disparity ratio, but without retroactivity, so that accidents of time hammered a defendant who was sentenced in July 2010, for example, with a 100:1 sentence, while one whose lawyer managed to delay sentencing until the dog days of August benefitted from a much shorter mandatory minimum. Under this formula, people caught with 28 grams of crack receive the same sentence as someone caught with 500 grams of powder cocaine, despite the American Medical Association’s findings that there is no chemical difference between the two substances.

The Fair Sentencing Act became retroactive to all defendants with crack mandatory minimums (but see United States v. Terry) by the passage of the First Step Act in December 2018.

Fast forward to last week. The EQUAL Act, pending in both houses of Congress, proposes the elimination of any disparity between crack and powder cocaine. But Sen Charles Grassley (R-Iowa) a conservative lawmaker from the heart of the corn belt but a champion of criminal justice reform, said candidly that he didn’t think he could find enough Republican votes to come up with the 60 needed to pass the EQUAL Act in the Senate.

This past Tuesday, the House decided to give Grassley the chance to try anyway, passing the EQUAL Act (H.R. 1693) by a lopsided vote of 361-66. (Grassley may have a point. All 66 nay votes in the House were from GOP lawmakers).

Surprisingly (at least to me), Representative Louie Gohmert (R-Texas), a former judge who has said some people – not without some justification, I might add – think he is the “dumbest guy in Congress,” was a sponsor of the EQUAL Act. The Congressman said the measure was “a great start toward getting the right thing done. He said during floor debate that as a judge, “Something I thought Texas did right was [to] have an up-to-12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they’ve got a better chance of making it out, understanding just how addictive those substances are.”

In the Senate, at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A Senate version of the EQUAL Act, S.79, was introduced by Sen. Cory Booker (D-NJ) and currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Kentucky), and Thom Tillis (NC). It remains before the Committee on the Judiciary.

The House version of the EQUAL Act that just passed provides that in the case of a defendant already serving a sentence based in any part on cocaine base may return to court to receive a sentence reduction, in a procedure that appears to be similar to the Section 404 procedure for Fair Sentencing Act retroactive resentencings, but with one interesting twist: Section 404 proceedings do not require the district judge to consider whether a sentence reduction is consistent with the sentencing factors in 18 USC § 3553(a). The EQUAL Act procedure permits imposition of a sentence reduction only “after considering the factors set forth in section 3553(a) of title 18, United States Code.”

Is this a good thing? Probably anything that adds structure (however slight) to the process is beneficial. Without any standard, nothing prevents a district judge from making arbitrary decisions. Even with a § 3553(a) requirement, a Sentencing Commission study of the compassionate release process has found that a defendant’s likelihood of success ranged from about 70% in Oregon to a lousy 1.5% (Western District of North Carolina).

crack-coke200804Anything that can avoid swapping one disparity for another is probably a good thing.

So what would be the practical effect of such a change? When the Fair Sentencing Act passed, the U.S. Sentencing Commission responded by reducing sentencing ranges across the board for crack offenses, so that a five-year mandatory sentence for a defendant without a prior criminal history possessing 28 grams of crack equaled what the Guidelines said his sentence should be. If the ratio falls to 1:1, and if the Sentencing Commission makes the same adjustments, a hypothetical defendant with no prior record (and no sentencing enhancements) would see the following sentencing range adjustments:

chart210624

Of course, as they say in the commercials, “actual results may vary.” But if the courts are mandated to consider § 3553(a) first, maybe they will vary less.

But first, the EQUAL Act has to pass the Senate…

– Thomas L. Root

‘What Might Have Been’ Part of § 3553(a) Analysis, 9th Circuit Says – Update for September 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.

A HOLDING OF CONSEQUENCE

A 9th Circuit decision handed down last Thursday appears arcane, but it is very consequential for current and future compassionate release and retroactive Guidelines reductions that will certainly be adopted in the future.

A decade ago, Jose Lizarraras-Chacon was convicted of heroin distribution. He entered into a Rule 11(c)(1)(C) plea agreement for 210 months. After the First Step Act passed, he filed for the 2014 Guidelines Amendment 782 two-level reduction under 18 USC § 3582(c)(2). Jose pointed out to the court that after First Step, his prior state drug conviction the government had used to enhance his sentence with a 21 USC § 851 notice no longer counted as a felony drug case.

criminalrecord2100928A § 3582(c)(2) motion requires a court to first consider whether a defendant’s sentencing range has gone down because of a retroactive Guidelines change. If it has, the court has to consider whether to reduce the sentence in light of the 18 USC § 3553(a) sentencing factors. Jose argued that the court should consider that fact he could no longer get enhanced under 21 USC § 851 if he were sentenced after First Step. The district court refused, saying it was not allowed to consider subsequent changes in the law when reaching a § 3582(c)(2) decision.

The 9th Circuit reversed, holding that a court’s discretionary decision under the § 3553(a) factors at step two of the § 3582(c)(2) inquiry “exceeds the limited scope of a resentencing adjustment applicable to step one.” While at step one, a district court may substitute only the new Guidelines amendments for the guideline provisions applied when the defendant was sentenced, “at step two, there are no similar limitations on what a district court may consider.”

“An underlying principle in federal judicial tradition is that the punishment should fit the offender and not merely the crime,” the Circuit held. “In seeking to ensure that the punishment fit the offender, the Supreme Court has explained that judges should use the fullest information possible concerning the defendant’s life and characteristics… It follows that in a § 3553(a) factor analysis, a district court must similarly use the fullest information possible concerning subsequent developments in the law, such as changes in sentencing guidelines, legislative changes to a mandatory minimum, and changes to a triggering predicate offense to ensure the punishment will fit the crime and critically, to ensure that the sentence imposed is also sufficient, but not greater than necessary to reflect the seriousness of the offense, promote respect for the law, and provide just punishment; to afford adequate deterrence; and to protect the public.”

The Court’s analysis should apply equally to § 3553(a) factors being considered for compassionate releases. The decision means that when arguing whether a sentence is “just punishment” or provides deterrence, the fact that the sentence originally opposed would be unlawful if handed down today should have a major impact on a district court’s reasoning.

United States v. Lizarraras-Chacon, Case No. 20-30001, 2021 U.S.App. LEXIS 28823 (9th Cir., September 23, 2021)

– Thomas L. Root

Police Reform Goes Down; EQUAL Act May Be Next – Update for September 27, 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.

NO GOOD NEWS ON CRIMINAL JUSTICE REFORM

good-bad-news-400pxDemocratic and Republican negotiators in the Senate last Wednesday called off talks aimed at overhauling police tactics and accountability, with the lawmakers unable to reach a compromise in the wake of nationwide protests sparked by the killings of Black Americans by law-enforcement officers.

Sen. Cory Booker (D-NJ) said, “In the end we couldn’t do it, if you just take some of those issues of transparency, professional standards and accountability, we couldn’t get there.”

The implications for criminal justice reform are significant. If the two parties can’t get together on reforms most everyone believes are needed, other reform measures could be stillborn. Last week, Sen Charles Grassley (R-Iowa) – one of the two sponsors of the First Step Act – said that the EQUAL Act, which will reduce penalties for crack to match those for powder cocaine, doesn’t have enough support in the Senate to pass. Attempting to eliminate the disparity, Grassley said last week, would jeopardize the likelihood he and Sen. Richard Durbin (D-Illinois) can get the 60 votes needed to bring the justice reform bills to the floor. Among Republican colleagues, it’s a non-starter, he said.

compromise180614“Does that mean that there’s not some possibility for compromise? I would be open to that, but I’m going to have to get enough Republicans to go along to make sure we don’t scuttle the other good provisions we have,” Grassley said.

Although optimistic about prospects for his justice reforms, such as the First Step Implementation Act and the COVID-19 Safer Detention Act, Grassley acknowledged the looming challenge is “dealing with all the other things that are on the agenda right now and have been all year.” He anticipates Democratic Senate Majority Leader Chuck Schumer (D-NY) will give Durbin and him time to debate and pass their package this fall. “But with the progress of negotiations and floor time and all the other stuff that’s in the news more often than this is, I think it could be delayed into 2022,” Grassley said.

Grassley’s realistic appraisal is in stark contrast to the hopeful tone in yesterday’s New York Daily News. William Underwood, whose life sentence was cut by compassionate release and who now works with The Sentencing Project, wrote that while “bipartisanship on Capitol Hill is in short supply these days, these bills can pass the Senate with broad support from both parties. Passing these two bills would acknowledge that each and every one of us, when given the opportunity, can be better than the worst thing we have ever done.”

marijuana160818One piece of hopeful news came last week with the House of Representatives passing the National Defense Authorization Act. Tucked into that bill were provisions of the SAFE Banking Act, which would protect banks by prohibiting regulatory actions to keep them from servicing legitimate marijuana businesses. Passage suggests that action to normalize the sale and use of marijuana may continue, and lead to retroactive changes in federal criminal pot laws.

Wall Street Journal, Bipartisan Police-Overhaul Talks End With No Deal (September 22, 2021)

Sioux City Journal, Grassley skeptical of GOP support for cocaine penalty reforms (September 20, 2021)

Marketwatch, House includes cannabis banking measure in defense bill (September 22, 2021)

New York Daily News, Bend Open the Prison Bars (September 26, 2021)

– Thomas L. Root

Going Back to the Well – Update for September 24, 2021

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

PROCEDURAL BOOTSTRAPPING

well210924Back to the Well Once Too Often: Federal prisoners who lose their 28 USC § 2255 motions sometimes resort to filing motions to set aside the § 2255 judgment under Federal Rule of Civil Procedure 60(b), as a clever means of getting around seeking permission for a second or successive § 2255 under 28 USC § 2244. It seldom works.

A few fun facts: First, although a post-conviction motion under 28 USC § 2255 challenges a criminal conviction or sentence, the § 2255 proceeding itself is considered to be a civil action. That is how a movant even has the option to employ Fed.R.Civ.P. 60(b), or any other Federal Rule of Civil Procedure, for that matter. Second, Rule 60(b) – which governs motions to set aside the judgment – is usable after a final judgment is rendered, although that some time constraints and designated bases for invoking the Rule that are beyond today’s discussion. Third, the Anti-Terrorism and Effective Death Penalty Act – known as the AEDPA – puts severe restrictions on prisoners bringing more than a single § 2255 motion without meeting some pretty high standards (a new retroactive rule of constitutional law or some killer new evidence) and getting advance approval from a United States Court of Appeals under 28 USC § 2244. These restrictions can run headlong into a Rule 60(b) motion.

Desmond Rouse and several co-defendants were convicted based on what they called “outdated, false, misleading, and inaccurate” forensic medical evidence, testimony that had since been recanted, and juror racism. Having failed to win their § 2255 motions, they filed a motion to set aside the § 2255 judgment under Rule 60(b), arguing that a “new rule” announced in Peña-Rodriguez v Colorado would now let them “investigate whether their convictions were based upon overt [juror] racism,” and the witness recantations showed they were actually innocent.

Last week, the 8th Circuit rejected the Rule 60(b) motion as a second-or-successive § 2255 motion.

aedpa210504The Circuit held that newly discovered evidence in support of a claim previously denied and a subsequent change in substantive law “fall squarely within the class of Rule 60(b) claims to which the Supreme Court applied § 2244(b) restrictions in Gonzalez v. Crosby back in 2005. The requirement in § 2244(b)(3) that courts of appeals first certify compliance with § 2244(b)(2) before a district court can accept a motion for second or successive relief applies to Rule 60(b)(6) motions that include second or successive claims. Our prior denial of authorization did not sanction Appellants’ repackaging of their claims in Rule 60(b)(6) motions to the district court. The motions are improper attempts to circumvent the procedural requirements of AEDPA.”

Back to the Well is Just Fine: In the 7th Circuit, however, a prisoner who filed reconsideration on denial of his First Step Act Section 404 motion chalked up a procedural win. Within the 14 days allowed for filing a notice of appeal after his district court denied him a sentence reduction, William Hible filed a motion asking the district judge to reconsider his denial. The judge denied the motion, and Bill filed his notice of appeal, again within 14 days of the denial. The government argued the notice was late, because a motion for reconsideration doesn’t stop the appeal deadline from running.

Last week, the 7th Circuit agreed with Bill. The 7th observed that while the Federal Rules of Criminal Procedure lack any parallel to the Federal Rules of Civil Procedure 59, the Supreme Court “has held repeatedly that motions to reconsider in criminal cases extend the time for appeal. But under the Sentencing Reform Act of 1984, only Criminal Rules 35 and 36 offer any prospect of modification by the district judge. Rule 36 is limited to the correction of clerical errors. Under Federal Rule of Appellate Procedure 4(b)(5), a motion under Rule 35 does not affect the time for appeal.

 timewaits210924The government argued these rules govern sentence reduction proceedings, but the 7th disagreed. The Circuit said the First Step Act authorizes reduction of a sentence long after the time allowed by Rule 35. Thus, “the First Step Act’s authorization to reduce a prisoner’s sentence is external to Rule 35,” so the provision in Rule 4(b)(5) about the effect of Rule 35 motions does not apply here. A reconsideration motion in a 404 proceeding thus stops the running of the time to appeal, and Hible’s notice of appeal was timely.

Rouse v. United States, Case No. 20-2007, 2021 U.S. App. LEXIS 27795 (8th Cir., September 16, 2021)

United States v. Hible, Case No. 20-1824, 2021 U.S. App. LEXIS 27548 (7th Cir., September 14, 2021)

– Thomas L. Root

Clemency Tips – Update for September 23, 2021

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

YOU’RE STILL LOCKED UP – SHOULD YOU FILE FOR CLEMENCY?

writing160425On Monday, I wrote about the Biden clemency initiative. And I have gotten questions about it, principally this one: What should you do if you’re not in the cohort of 1,000 people on CARES Act home confinement that Joe purportedly has asked to submit a clemency request?

Write one anyway. Like the lottery people say, you can’t win if you don’t buy a ticket. The commutation forms and instructions are available online. You probably should get your application in the hopper anyway, doing your best to show that you’re non-violent, show rehabilitation during your incarceration, and explain why your situation is similar to the 1,000 prisoners invited to file or otherwise praiseworthy.

Some pointers:

A commutation petition is not the time to say this...
A commutation petition is not the time to say this…

(1) No one cares about your innocence: Explaining that you’re actually innocent or that you were convicted by bad lawyering, corrupt courts, or cheating prosecutors is a bad idea. No one in the Administration wants to hear that, even if it happens to be so. The commutation process wants to hear about your remorse and rehabilitation, not about how you may have been done wrong. Clemency is an act of executive grace, completely discretionary and utterly unreviewable. Imagine that you have a gun with only one bullet. This shot absolutely has to count. Whining about your judge or lawyer fires your one bullet right into your foot.

(2) Truth counts:  Maybe the “gun with one bullet” analogy isn’t such a good one. You want to demonstrate that Gandhi has nothing on you when it comes to non-violence, but don’t sugar-coat things. If you were a hot-blooded young gun in your past, admit that and explain how you’ve aged out of it, found a spiritual path, whatever. But be truthful about your history. Glossing over prior conduct figuring that no one in Washington will examine your past in too much detail is not a winning strategy. Betting on the other side being lazy or incompetent is no plan.

(3) Reach for the possible, not the ideal. You want a pardon. Of course you do. Everyone would love to have his or her federal crime wiped off the books. But, if history is a guide, pardons are for celebrities – political or otherwise – or, if you’re a little guy, for people with decades-old offenses and a history since conviction that should make them Time’s Person of the Year. You want a pardon, sure. But that ain’t gonna happen. File for a commutation, which does not forgive your crime, but says that you’ve been punished enough and should have the rest of your sentence commuted.

So how should you write your petition? Attorney Brandon Sample has posted tips on writing clemency petitions at clemency.com. (Brandon’s site contains a lot of good information, and invites you to contact him – which is not to say that hiring Brandon or another attorney who knows the process is a bad idea: it’s a very good idea, especially if you have a decent shot at getting some traction from the Biden initiative).  

Speaking of lawyers, Margaret Colgate Love – who was U.S. Pardon Attorney during the George H.W. Bush and Bill Clinton administrations – has written a lot on clemency and is available for hire as well.

There are other effective legal advocates out there, too. I have just mentioned two whose work for which I have respect.

obtaining-clemencyWhile not attorneys for hire, the people at Amy Povah’s Can-Do Foundation – focused on clemency for non-violent drug offenders –have posted some tips on applying for clemency or (and this is important) getting friends or family to write in support. Some of Can-Do’s information is a little dated, having been written during the Wild West days of Trump clemency, but there are nuggets of good advice on the website.

Finally, while its focus is slightly different (or perhaps larger than just clemency), Attorney Brittany Barnett’s Buried Alive project has worked on some high-profile commutation as part of its work on drug life-without-parole sentences. Alice Marie Johnson, one of President Trump’s most deserving commutations (and later, pardons), was represented by Barnett.

Dept. of Justice Pardon Attorney website

Brandon Sample, Clemency Resources

Margaret Colgate Love, Clemency Resources

Can-Do Foundation, Clemency Resources

Buried Alive Project

– Thomas L. Root

BOP, COVID, Vaccine and Rumors – Update for September 21, 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.

COVID’S GRIP

coviddelta210730Despite the BOP’s best efforts to quickly declare COVID-suffering inmates to be “recovered” – which the agency insists is done in conformance with Centers for Disease Control and Prevention guidelines – the numbers continue to creep upward. As of yesterday, the BOP reported 627 inmates (up 13%) with COVID. The agency reported four more inmate deaths than a week ago. Staff numbers were holding at 562, down one from a week ago.

The BOP phenomenon of inmates dying of COVID weeks or months after “recovery” was noted last week by the Beaumont Enterprise. That is hardly surprising. Even if the BOP is carefully determining that “recovered” inmates have no symptoms 10 days after a positive COVID test – and a number of inmate reports suggest that the agency’s approach to “recovered” is fairly slapdash – that does not mean the inmate is “recovered.” Guidance released last week by the CDC states that this means simply that “isolation and precautions can be discontinued 10 days after symptom onset and after resolution of fever for at least 24 hours, without the use of fever-reducing medications, and with improvement of other symptoms.”

As many prisoners have found out, COVID may be a long-haul thing. A CDC study released last week reported that one in three people who survived COVID-19 may suffer from long COVID. The study found that 35% of survey responders reported at least one ongoing symptom of COVID-19 two months after the initial positive test. Fatigue was reported by 17% of those long COVID patients; difficulty breathing and loss of taste or smell were reported by 13%; and muscle or joint pain was reported by 11%.

COVIDvaccine201221As of last Friday, 61.6% of BOP inmates had been vaccinated. Staff vaccinations still lag at 54.0%, up only 4/10th of a point since last week. That may be changing, however. The Safer Federal Workforce Task Force last week set November 22 as the deadline for federal employees to get fully vaccinated under President Biden’s new mandate. By and large, the staff will either get vaxxed or quit (bad news for an already-understaffed BOP).

However, 24 Republican state attorneys general warned the Biden administration last week that their states would sue to block the federal employee mandate if the plan is not abandoned.

Forbes last week noted that the pandemic had not particularly influenced federal criminal sentences. It noted that in Fiscal Year 2020, federal judges cited the Covid-19 pandemic as a basis for lower sentences in just over just 2.5% of all cases at most. Forbes cited SDNY Judge J. Paul Oetken’s observation that time served during the pandemic is “essentially the equivalent of either time and a half or two times what would ordinarily be served,” and SDNY Judge Paul A. Engelmayer’s statement that “prison is supposed to be punishment, but it is not supposed to be trauma.”

unicorn210921That being the case, there is no truth to the rumor, reported regularly by inmate emails, that anyone – Biden, Congress, or even the shuttered Sentencing Commission – is considering an across-the-board sentence reduction for federal inmates because of the pandemic. You can expect that if that happens, President Biden will personally ride up to BOP headquarters on a pink unicorn to deliver the happy news.

Beaumont Enterprise, Second senior, COVID recovered federal inmate dies in Beaumont (September 15, 2021)

Los Angeles Times, 1 in 3 COVID-19 patients suffer from long COVID, a CDC study of Long Beach residents finds (September 16, 2021)

CDC, Ending Isolation and Precautions for People with COVID-19: Interim Guidance (September 14, 2021)

CDC, Post-Acute Sequelae of SARS-CoV-2 Infection Among Adults Aged ≥18 Years — Long Beach, California, April 1–December 10, 2020 (September 17, 2021)

Government Executive, Coronavirus Roundup: A November 22 Deadline for Feds to Get Vaccinated; Booster Shot Clashes (September 14, 2021)

Columbus Dispatch, Ohio and 23 other state attorneys general tell Biden to drop vaccine mandate or be sued (September 17, 2021)

Forbes, The U.S. Sentencing Commission’s Inadequate Response To Covid-19 (September 17, 2021)

– Thomas L. Root