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Explainer: When Federal Prisoners Can Get Relief Under Range, Dubin – Update for June 12, 2023

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

ASK THE PROFESSOR

explainer230612Last week, I reported on the 3rd Circuit’s en banc ruling that someone convicted of a nonviolent “crime punishable by imprisonment for a term exceeding one year” (18 USC § 922(g)(1)) could not constitutionally be prohibited from possessing a gun or ammo. That report was followed by a dispatch on the Supreme Court’s decision last Thursday that dramatically limited the reach of the aggravated identity theft statute (18 USC § 1028A).

This was followed by the predictable questions from prisoners: “When can I use the Range decision to get my § 922(g) conviction vacated? And how about getting rid of my aggravated identity theft conviction under § 1028A?”

Very good questions, and inquiries for which the hopemongers who will write any motion for a federal prisoner in exchange for a modest fee – let’s call them what they are, hopemongers – have a ready answer. That answer usually starts with, “Pay me…”

Now let’s ask the professor.  Or, because he’s nowhere around, ask me…

professor230612To be sure, a lot of people could be affected by the decisions, provided there’s a procedural route to raise them. About 21% of federal prisoners have a § 922(g) conviction, while about 2% are doing time for aggravated ID theft. That’s a potential of about 35,000 felon-in-possession and 3,500 § 1028A defendants.

Range: Remember first that the Range decision is only binding in the 3rd Circuit. If your case isn’t from there, Range doesn’t help you. In fact, as I reported a week ago, the 8th Circuit just went the other way in its United States v. Jackson decision.

However, if your 1-year deadline for filing a § 2255 motion hasn’t expired, by all means challenge § 922(g) constitutionality in your motion. But if your time has expired, your options are limited. Under 28 USC § 2255(f)(3), you can file within a year of a new SCOTUS ruling on the constitutionality of a statute, but Range is not a Supreme Court case. If you have already lost your § 2255 motion, you have to get Court of Appeals permission to file another § 2255 and that standard likewise requires that the motivating decision be from the Supreme Court.

So how about a 28 USC § 2241 petition? We’ll know a lot more about § 2241s in a few weeks when SCOTUS decides Jones v Hendrix. For now, fitting a Range-type claim into the standards for bringing a § 2241 (under the § 2255(e) saving clause) will be tough.

dice161221For § 922(g) defendants, it may be worth a shot if your conviction came from a 3rd Circuit district court. For everyone else, it’s a waiting game…

ID Theft: For those beyond the § 2255 filing deadline, the traditional 28 USC § 2241 petition for habeas corpus will likely be available under the saving clause.

Because Dubin is a statutory interpretation and not a constitutional holding (despite Justice Gorsuch’s argument that it could easily have been), the route of filing a second or successive § 2255 (under the rules set up by § 2255(h)) is probably unavailable.

General Pro Tip: If you’re proceeding on § 2255 or § 2241, find competent help. Procedural questions are boring but vitally important to winning.

Ohio State University law prof Doug Berman observed last week that “offenders now looking to pursue what might be called “Dubin claims” could, of course, face procedural barriers of all sorts. But the still-open-ended sentence reduction authority of 3582 might be one ready means for at least some (over-sentenced) prisoners to secure relief…”

USSC, Quick Facts – Felon in Possession (June 2022)

USSC, Quick Facts – Sec 1028A Aggravated Identity Theft Offenses (July 2022)

Sentencing Law and Policy, How many of the many thousands convicted of federal aggravated identity theft might now have Dubin claims? (June 8, 2023)

– Thomas L. Root

Supremes Put Identity Theft In Its Place – Update for June 9, 2023

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

IDENTITY THEFT TAKES A ‘ROAD TRIP’

roadtrip230609The Supreme Court yesterday unanimously but unclearly narrowed the circumstances when aggravated identity theft under 18 USC § 1028A can be included as part of federal criminal charges, with Justice Gorsuch grousing in a concurrence that “criminal statutes are not games to be played in the car on a cross-country road trip. To satisfy the constitutional minimum of due process, they must at least provide ordinary people with fair notice of the conduct they punish…”

Dr. David Dubin was convicted of healthcare fraud under 18 USC § 1347 after he overbilled Medicaid for psychological testing performed by the company he managed. The Doc would overstate the qualifications of the employee who actually performed the testing, sort of like having a patient get a shot from a nurse and then claiming a doctor performed the jab. Dave’s falsehood inflated the amount of reimbursement by a princely $338.00.

Dave was also convicted of aggravated identity theft under § 1028A(a)(1), because when he submitted the false claim to Medicaid, the claim included the name and numeric identifier of the patient. Section 1028A(a)(1) applies when “during and in relation to” certain offenses – including healthcare fraud – a defendant “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”

The Government told SCOTUS that § 1028A(a)(1) was automatically satisfied because Dave’s fraudulent Medicaid billing included the patient’s Medicaid reimbursement number — a “means of identification.”

identitythefy230609Writing for the 9-0 Court, Justice Sotomayor rejected the government’s “sweeping reading, as long as a billing or payment method employs another person’s name or other identifying information, that is enough.” She observed that by that metric, “a lawyer who rounds up her hours from 2.9 to 3 and bills her client electronically has committed aggravated identity theft. The same is true of a waiter who serves flank steak but charges for filet mignon using an electronic payment method.”

The “staggering breadth” of the Government’s reading – under which everyday overbilling cases would account for the majority of violations – “underscores the implausibility of the Government’s interpretation,” the Court ruled. “While the Government represents that prosecutors will act responsibly in charging defendants under its sweeping reading, this Court cannot construe a criminal statute on the assumption that the Government will use it responsibly.”

The Court held instead that under § 1028A(a)(1), a defendant “uses” another person’s means of identification “in relation to” a predicate offense only when the use is “at the crux of what makes the conduct criminal… A far more sensible conclusion from the statutory structure is that § 1028A(a)(1)’s enhancement targets situations where the means of identification itself is at the crux of the underlying criminality, not just an ancillary billing feature.”

The decision did not go far enough to satisfy Justice Gorsuch, who argued in a concurrence that § 1028A was unconstitutional,

not much better than a Rorschach test. Depending on how you squint your eyes, you can stretch (or shrink) its meaning to convict (or exonerate) just about anyone… We have a term for laws like that. We call them vague. And in our constitutional order, a vague law is no law at all.

aggidentityrohr230609The Dubin ruling is important because the ID theft law adds a two-year mandatory prison sentence onto underlying offenses that do not impose a mandatory prison sentence of any kind. Sentencing judges may not consider the severity of the offense, even if the amount of money involved is quite small or there are other mitigating factors.

The impact on people currently serving time for violations of 18 USC § 1028A is unclear but likely to be positive. For those beyond the deadline to file post-conviction motions under 28 USC § 2255, the traditional 28 USC § 2241 petition for habeas corpus will likely be available under the § 2255(e) saving clause. The extent of that remedy will be further defined in Jones v. Hendrix, Case No. 21-857, due to be decided by the Supreme Court in the next three weeks.

Because the Dubin decision is a statutory interpretation and not a constitutional holding (despite Justice Gorsuch’s persuasive argument that it could easily have been), the route of filing a second or successive § 2255 motion (under the rules set up by § 2255(h)) is probably unavailable.

Dubin v. United States, Case No. 22-10, 599 U.S. —, — S.Ct. —, — L.Ed.2d —, 2023 U.S. LEXIS 2420 (June 8, 2023)

New York Times, Supreme Court Narrows the Reach of an Aggravated Identity Theft Law (June 8, 2023)

– Thomas L. Root

3rd Circuit Sharply Limits § 922(g)(1) ‘Felon-In-Possession’ – Update for June 8, 2023

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

A DAY AT THE ‘RANGE’

manyguns190423In a case with substantial implications for gun possession rights, the United States Court of Appeals for the 3rd Circuit ruled Tuesday that 18 USC § 922(g)(1) – the so-called felon-in-possession statute – is unconstitutional as applied to a man convicted of a nonviolent crime over 25 years ago.

The en banc decision ruled 11-4 that Bryan Range – convicted of 62 Pa. Stat. Ann. § 481(a) back in 1995 for falsely stating his family’s income to qualify for food stamps – nevertheless “remains one of ‘the people’ protected by the 2nd Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms.”

Although 18 USC § 922(g)(1) is often described in shorthand as prohibiting people convicted of felonies from possessing guns, it is more nuanced than that. In fact, it prohibits people convicted of a “crime punishable by imprisonment for a term exceeding one year” from firearms and ammo possession (and some crimes are excluded in 18 USC § 921(a)(20) from the calculus).

Under Pennsylvania law, Bryan’s crime was a misdemeanor, one for which he served probation only. But it was punishable by up to five years imprisonment, regardless of what the legislature called. The maximum statutory penalty is what matters to § 922(g)(1), and that theoretical max prohibited Bryan from gun possession.

After Bryan tried and failed to buy a shotgun, he sued in federal court for a declaratory judgment that § 922(g)(1) violated his 2nd Amendment rights. The district court disagreed, and a three-judge 3rd Circuit panel upheld that denial last November. But then, a majority of current 3rd Circuit appellate judges voted last January to hear the case en banc.

gun160711Last June, the Supreme Court changed the 2nd Amendment landscape in New York State Rifle & Pistol Association v. Bruen. In that decision, SCOTUS held “that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct… Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s ‘unqualified command’.”

The 3rd ruled that the Government had failed to show that “our Republic has a longstanding history and tradition of depriving people like Range of their firearms.” Judge Thomas Hardiman (who was in the running for the Supreme Court seat now occupied by Neil Gorsuch), wrote for the majority. He noted in a footnote that “[e]ven rebels who took part in the 1787 tax uprising in Massachusetts known as Shays’ Rebellion could generally get their weapons back after three years,” and concluded that punishing Bryan Range by revoking his gun rights for an offense that did not involve violence gave lawmakers too much power “to manipulate the 2nd Amendment.” Thus, “§ 922(g)(1) cannot constitutionally strip him of his 2nd Amendment rights.”

Judge Hardiman called the ruling a narrow one, but how that could be so is questionable. Dissenting Judge Cheryl Ann Krause, an Obama appointee to the 3rd Circuit, complained that while it “describes itself as limited ‘to Range’s situation,’ today’s opinion is not designated non-precedential as appropriate for a unique individual case, but has precedential status, necessarily reaching beyond the particular facts presented. It is also telling that it tracks precisely the 5th Circuit’s deeply disturbing opinion in United States v. Rahimi, which, finding no precise historical analogue, struck down as unconstitutional the ban on gun possession by domestic abusers.”

(Note: Rahimi struck down as unconstitutional the ban on gun possession by people subject to domestic violence protection orders, which can be and often are entered without hearings and without counsel. It’s a stretch – if not outright disingenuous – to call someone subject to such an order a “domestic abuser”).

Dissenting Judge Patty Shwartz complained that “[w]hile my colleagues state that their opinion is narrow, the analytical framework they have applied to reach their conclusion renders most, if not all, felon bans unconstitutional.”

gunfreezone170330The New York Times said “Judge Hardiman’s opinion directly addressed many of the core issues raised in the Supreme Court’s decision last June, in expansive language that seemed to suggest that the constitutional foundation of many gun laws was eroding.”

The Range decision created an immediate Circuit split due to last week’s 8th Circuit United States v. Jackson decision, which I wrote about a few days ago. But whether the Government seeks to rush Range to the Supreme Court like it has done with Rahimi is uncertain. Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman is not convinced the Solicitor General would find Range a good certiorari candidate:

Though the federal government would normally seek certiorari review of this kind of ruling, I wonder if the feds might seek to urge the Supreme Court to take up a different case raising the same issue. Bryan Range’s case seems particularly sympathetic, as he was only convicted nearly three decades ago of making a false statement to obtain food stamps in violation of Pennsylvania law. But, whatever the vehicle, the constitutionality of Section 922(g)(1) is clearly one (of a number of) post-Bruen 2nd Amendment issues the Supreme Court is going to have to confront.

Range v. AG United States, Case No. 21-2835, 2023 U.S. App. LEXIS 13972 (3d Cir. June 6, 2023)

New York Times, Man Convicted of Nonviolent Crime Can Own Gun, U.S. Court Rules (June 6, 2023)

Associated Press, US appeals court says people convicted of nonviolent offenses shouldn’t face lifetime gun ban (June 6, 2023)

United States v. Jackson, Case No 22-2870, 2023 U.S.App. LEXIS 13635 (8th Cir. June 2, 2023)

Sentencing Law and Policy, En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender (June 6, 2023)

– Thomas L. Root

DeSantis Wants to Stop the ‘Jailbreak’ – Update for June 6, 2023

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

WHO CARES ABOUT THE 2024 PRESIDENTIAL ELECTION? YOU SHOULD.

turnback230606Cher used to croon about how nice things could be if she could only turn back time.

I give you Cher-lovin’ Florida Governor Ron DeSantis. Ron, running for the Republican presidential nomination behind former President Donald Trump, said a week ago that if elected president, he would call on Congress to repeal the First Step Act.

DeSantis criticized the Act as “basically a jailbreak bill.”

“So one of the things I would want to do as president is go to Congress and seek the repeal of the First Step Act,” DeSantis said. “If you are in jail, you should serve your time. And the idea that they’re releasing people who have not been rehabilitated early so that they can prey on people in our society is a huge, huge mistake.”

DeSantis has apparently forgotten that when he was in the House of Representatives in 2018, he voted for the House version of the bill, a much more pro-prisoner bill than the one that finally became First Step. He resigned his seat to run for governor before the final version passed.

rightthings230606Now many would say that basing a presidential campaign on not being Donald Trump is perhaps a canny strategy. And many also opine that Trump only championed the First Step Act because Jared Kushner – who really believed in its goals – convinced the then-president that black voters would love him for it. But James Carville was correct when he said that the right things usually get done for the wrong reasons.

The Daily Beast (a liberal publication) argued last week that First Step was a “bipartisan recognition that the growth of our carceral state has not been an effective crime deterrent… There are many people still in federal prisons who don’t need to be there, because they have aged out of crime and pose little risk to the community. These people, who are disproportionately Black and Latino, should be allowed to return to the workforce and their families.”

The Daily Beast called on Congress to build on the First Step Act by passing the First Step Implementation Act and the Safer Detention Act. “Fifty years after the beginning of mass incarceration, presidential candidates should be making the case for how they will do their part to end it,” the Beast wrote. “Congress should pass the First Step Implementation Act and Safer Detention Act and the current and future administrations must do their part to support these and other critical reforms and ensure their successful implementation.”

marijuana220412In other discouraging news, the Kiplinger letter reported last week that the Drug Enforcement Administration (DEA) is planning to propose a ban on delta-8 THC, CBD, and other alternative cannabinoids derived from hemp.

Those in support of the potential ban argue that delta-8 THC and other hemp-derived cannabinoids are created through “chemical synthesis” and should be classified as controlled substances. Kiplinger said a ban would be a “major step in the wrong direction.”

The Hill, DeSantis says he would push to repeal Trump criminal justice reform if elected (May 26, 2023)

Daily Beast, Ron DeSantis Is Flat-out Wrong About the First Step Act (June 2, 2023)

The Kiplinger Letter, Is a Possible Delta-8 THC Ban in the Works? (June 2, 2023)

– Thomas L. Root

8th Circuit Writes History on Constitutionality of 922(g) – Update for June 5, 2023

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

HISTORY LESSON

gunb160201Since the Supreme Court’s New York State Rifle & Pistol Ass’n, Inc. v. Bruen decision almost a year ago, the constitutionality of just about every federal limitation on gun possession (short of machine guns and howitzers) has been thrown into question. The most important limitation to most of this site’s readers is 18 USC § 922(g)(1), the messy statute prohibiting some convicted felons (but not all of them, see 18 USC § 921(a)(20) for the confusing details) from possessing guns or ammo.

Courts have ruled that prohibiting the users of controlled substances from possessing guns is unconstitutional, something that Hunter Biden’s lawyers are very interested in. One U.S. District Court has held that denying gun possession to someone under indictment is unconstitutional. And the 5th Circuit has held that denying a gun to someone subject to a domestic protection order is unconstitutional.

The most-watched case currently is the 3rd Circuit’s Range v. Attorney General. After a three-judge panel summarily said that § 922(g)(1)’s limitation preventing a guy convicted of a minor fraud three decades ago from having a gun was constitutional, the Circuit last January withdrew the decision and sent the case to an en banc reconsideration. That decision has not yet been handed down.

Last week, the 8th Circuit jumped into the fray, rejecting a defendant’s claim that “he had a constitutional right under the 2nd Amendment to possess a firearm as a convicted felon.”

bersa230605Defendant Edell Jackson was caught at a scene where shots had been fired with a cheap handgun in his pocket. He had two prior felony drug convictions. After a trial, he was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1). An appeal, he argued that § 922(g)(1) is unconstitutional as applied to him because his drug offenses were nonviolent and did not show that he is more dangerous than the typical law-abiding citizen.

Last week, the 8th Circuit held that § 922(g)(1) was “not unconstitutional as applied to Jackson based on his particular felony convictions.” The 8th noted that Supreme Court gun decisions, including Bruen, recognized that an individual right to keep and bear arms should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons” but rather is “subject to certain reasonable, well-defined restrictions.” Those assurances, the Circuit held, along with the history that supports limitations on gun possession by felons means there is “no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).”

The Court marched through history, beginning with pre-colonial England and ending with the 1968 Gun Control Act, to argue that the right to bear arms was subject to restrictions, including “prohibitions on possession by certain groups of people.” The 8th noted that the now-withdrawn Range panel decision concluded that legislatures may disarm citizens who are not “law-abiding” (those unwilling to obey the laws “whether or not they had demonstrated a propensity for violence”). Edell’s argument was more refined: he contended that the constitution limited the laws to prohibiting gun possession “by those who are deemed more dangerous than a typical law-abiding citizen”).

The 8th held that by either § 922(g)(1) “is consistent with the Nation’s historical tradition of firearm regulation” and therefore constitutional:

We conclude that legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms,” the 8th ruled. “Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.

This Jackson panel decision – a ruling by three judges in the notoriously conservative Circuit – will hardly be as definitive as the Range decision expected from an en banc panel consisting of up to 25 active appellate judges, and it is certainly subject to attack for what I think is superficial historical analysis. But as a portent of how far Bruen may go in invalidating § 922(g)(1), Jackson is concerning.

There’s little doubt that the constitutionality of most if not all of § 922(g) will end up in front of the Supreme Court, but don’t look for that before 2025 at the earliest. All of this matters because it could invalidate thousands of § 922(g) convictions for people now serving sentences.

gun160718Meanwhile, remember United States v. Rahimi, the 5th Circuit decision that § 922(g)(8) – that prohibits people with domestic violence protection orders from gun possession – is unconstitutional? I reported that the government wasted no time seeking Supreme Court review. On May 30, defendant Rahimi filed his opposition to the government’s petition (after seven parties ranging from a New York county district attorneys’ group to California Governor Gavin Newsom filed petitions supporting grant of certiorari).

The very next day, the government asked SCOTUS to waive the usual two-week delay before considering the petition. With the delay, it is likely the Court will break for the summer without considering the petition until the end of September. The government is in a hurry to get this case heard.

United States v. Jackson, Case No 22-2870, 2023 U.S.App. LEXIS 13635 (8th Cir. June 2, 2023)

Range v. Attorney General, 53 F.4th 262 (3d Cir. 2022) (per curiam), rehearing en banc granted, 56 F.4th 992 (3d Cir. 2023)

Sentencing Law and Policy, 8th Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition (June 2, 2023)

United States v. Rahimi, Case No 21-11001, 61 F.4th 443 (5th Cir. 2023)

Rahimi v. United States, Case No 22-915 (Petition for certiorari filed Mar 17, 2023)

CNN, Texas man urges Supreme Court to stay out of major Second Amendment case (May 31, 2023)

– Thomas L. Root

Marijuana Reform Must Include Criminal Justice Provisions, Schumer Says – Update for June 2, 2023

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

SCHUMER PUSHES FOR MARIJUANA CRIMINAL JUSTICE REFORM

marijuana221111Senate Majority Leader Charles Schumer (D-NY), the man who controls what gets voted on in the Senate, again argued last week in a Senate speech that it is critical to add criminal justice reform provisions to a bipartisan marijuana banking bill.

Schumer noted the reintroduction of the Secure and Fair Enforcement (SAFE) Banking Act (S.1323), legislation that would “enable cannabis businesses to access critical banking infrastructure.”

“Just last week, the [Senate Banking Committee] held its first hearing on this legislation,” he said, “And I will also work to make sure we include critical criminal justice provisions to SAFE Banking.”

Schumer intends to schedule a committee vote in the near future to discuss proposed additions.

Rep. Earl Blumenauer (D-OR), who is a lead sponsor of the House version of the SAFE Banking Act (H.R. 2891) and chair of the Senate Cannabis Caucus, said at a recent press briefing that advocates and lawmakers should “align” on any incremental proposals to end the drug war.

Marijuana Moment, Schumer Again Pushes For ‘Critical’ Criminal Justice Amendments To Marijuana Banking Bill (May 19, 2023)

The Crime Report, Senate Majority Leader Schumer Stresses Need for Criminal Justice Provisions in Marijuana Banking Bill (May 19, 2023)

– Thomas L. Root

Maybe Our Last COVID-19 Post – Update for June 1, 2023

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

A SHARP POST-MORTEM OF BOP’S COVID RESPONSE

covidneverend220627COVID is largely dead and gone, having been demoted from pandemic to endemic, allowing for a sober review of the BOP’s response. Last week, Stat – a Boston Globe health science publication – ran a statistics-based study of how BOP managed the pandemic. The review wasn’t pretty.

The study found that

•    BOP facilities with high-risk patients didn’t prioritize them –

The study noted that FMC Devens – a medical center – did not vaccinate a single inmate for Covid-19 until Feb 11, 2021 — “almost two months after its counterparts across the federal Bureau of Prisons got started.” Other facilities, including FCI Sandstone and FCI La Tuna, a federal prison in Texas with one of the highest cumulative Covid-19 case rates, didn’t begin vaccinating until February 2021, either. Other facilities appeared to receive shots shortly after the FDA authorized them but only vaccinated a fraction of their residents.

•    Federal prisons weren’t testing residents to prevent outbreaks –

By 2021, tests were widespread and cheap. Despite this, BOP prisons weren’t “even coming close to the CDC’s March 2021 recommendations that prisons should consider, at minimum, testing a random sampling of 25% of their incarcerated population each week.”

•    The BOP’s own accounting of its early Covid response is incomplete –

The BOP lacks data showing how many tests it ran earlier in the pandemic. Records show, for example, that one medical center, MCFP Springfield, did not test any inmates until June 2020. A BOP spokesperson told STAT the BOP “administered COVID-19 tests to the inmate population as early as March 2020” but had no idea how many tests were administered or when.

• A slow booster rollout –

People housed in prisons were among the first eligible for COVID boosters because of their high COVID risk. While several BOP prisons did well mounting quick booster campaigns — FCI Bastrop, a 900-person prison, administered nearly 550 shots in just two months — “booster rates at several prisons were shockingly low, months after additional shots were authorized.”

crazynumbers200519Commentators have complained for several years that the BOP’s COVID stats were deeply flawed, especially because of the agency’s practice of deleting from the total number of inmates who caught COVID people who were subsequently released or transferred to another facility. To this day, no one outside the BOP has any idea of the extent of the pandemic from April 1, 2020, to May 11, 2023.  As of the last day COVID stats were reported, the BOP said it had 43,681 inmates who had recovered from COVID. At its peak, the BOP reported more than 55,000 cases.

The study represents a stark illustration of the poor quality of BOP health services treatment of inmates and sketchy reliability of its data.

Stat, ‘Worse than what we thought’: New data reveals deeper problems with the Bureau of Prisons’ Covid response (May 23, 2023)

DOJ Inspector General, COVID-19 Interactive Data (May 12, 2023) 

– Thomas L. Root

It’s Peters Versus The ‘We Be’s’ At BOP – Update for May 31, 2023

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

TEN MONTHS IN, COLETTE PETERS’ JOB HAS NOT GOTTEN EASIER

peters220929Last week, Walter Pavlo – usually a strident critic of the Bureau of Prisons – wrote a somewhat hagiographic report on BOP Director Colette Peters’ efforts to change the direction of the agency.

Pavlo reported on the BOP’s late-April conference in Colorado of every warden and regional director in the BOP for a bi-annual meeting in Aurora, Colorado. “As part of the event,” Pavlo recounted, Peters “had those who were formerly incarcerated address the group to be a part of what Director Peters calls ‘Listening Sessions’. We… were provided a stage to speak to this group of corrections executives to talk about the challenges facing the BOP. In looking at the faces of those in the audience, it was a bit of a shock for them to hear from former inmates about how to better run a prison, but such is the new approach by Director Peters, who also promised a listening session from victims of crime as well. At the conclusion of the presentation, the audience politely applauded and Director Peters then rose from her chair to emphasize the importance of the event. Slowly, but surely, those wardens and regional directors also rose to show their appreciation, or their perceived buy-in of the event. Time will tell.”

Last week, Peters told Federal News Network that her greatest challenge is to be at BOP long enough to change the “we be’s” employed by the agency. “’We be’ here when you got here, ‘we be’ here when you leave,” she said. “And what I tell people is that isn’t what happened in Oregon. I was able to stay for ten years. I hope I’m able to have a significant tenure here in order to make that happen. But you are absolutely right. Real change happens, boots on the ground. It’s the wardens that we need to lean into. It’s the captains we need to lean into. It’s the lieutenants that can really, really establish and set that culture.”

revolvingdoor230531One thing Peters has in abundance is challenges. The DOJ Office of Inspector General reported in May on decaying BOP facilities and just last week told ABC News, “We’re seeing crumbling prisons. We’re seeing buildings that we go into that have actually holes in the ceilings in multiple places, leading to damages to kitchens, to doctor’s offices to gymnasiums. And they’re not being fixed.”

Earlier this month, the Government Accountability Office added the BOP to its ‘H List,’ citing the “BOP’s longstanding challenges managing staff and resources, and planning and evaluating programs that help incarcerated people have a successful return to the community.” The Partnership for Public Service recently issued its annual survey of the best and worst places to work in the government and the BOP ranked dead last among 432 agencies.

sadprison210525The BOP sex abuse scandal continues to fester, but it’s a good sign that the DOJ is being very public about it. Last week, the US Attorney in the Northern District of Florida announced that former recreation CO Lenton Hatten pled guilty to a one-count indictment charging him with sexual abuse of a female inmate at FCI Tallahassee.

Pavlo argues that “Colette Peters is a different leader but she is indeed a leader who is not afraid to establish a new direction for an Agency that is searching for one. Even if those who are in the BOP disagree with Peters’ approach, they all know that the path the Agency is on is not sustainable without change. Director Peters has, for now, the support of Congress, something that her predecessor lacked.”

Forbes, Colette Peters’ Challenge: Change The Culture Of The Bureau Of Prisons (May 22, 2023)

Federal News Network, How BOP Director Colette Peters plans to raise employee engagement (May 26, 2023)

ABC, Inside the crisis of the crumbling federal prison system (May 26, 2023)

US Attorney Northern District, Fla, Former Federal Correctional Officer Pleads Guilty To Sexual Abuse Of An Inmate (May 26, 2023)

– Thomas L. Root

Acquitted Conduct Coming Around Again at Supreme Court – Update for May 30, 2023

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

IS 13 A LUCKY NUMBER FOR ACQUITTED CONDUCT?

lucky13-230530For the past five months, we’ve been watching McClinton v. United States, a petition in front of the Supreme Court challenging the constitutionality of acquitted-conduct sentencing.

You’d think that fact that a jury has acquitted a defendant of criminal conduct should prevent a court from taking that conduct into account at sentencing, but since United States v. Watts in 1997, as long as a defendant is convicted of any criminal offense, punishment for that offense can be enhanced to account for conduct for which a jury found the defendant not guilty.

Some state courts have held acquitted conduct sentencing to be unconstitutional, and some former Supreme Court Justices – Antonin Scalia, Ruth Bader Ginsburg – and current Justice Clarence Thomas have condemned the practice.

McClinton and four similar petitions were relisted once in January. “Relisting” means the justices considered the petitions at a weekly conference and then deferred a decision on whether to grant review (certiorari) to the next conference. A “relist” suggests that one or several Justices support granting the petitions.

duplicity2305309In late January, the Dept of Justice got the Supreme Court to place a hold on McClinton and four other petitions by essentially assuring SCOTUS that proposed Guidelines amendments rolled out by the Sentencing Commission on January 12th – which included a proposal to ban acquitted conduct sentencing – were going to fix the problem. DOJ told the Supreme Court that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.”

You may recall that after selling the Supreme Court on tabling the acquitted conduct petitions, DOJ filed an unctuous set of comments with the Sentencing Commission a few weeks later arguing the USSC lacked authority to place restrictions on acquitted-conduct sentencing because 18 USC § 3661 bars restricting judges as to the information about the background and conduct of defendants that they can consider.

(As an aside, I note that McClinton’s counsel promptly informed the Supreme Court about DOJ’s gamesmanship in trying to torpedo McClinton because the Sentencing Commission would fix the problem at the same time it was whining to USSC that the agency lacked the legal right to do so).

The Sentencing Commission decided on April 5 not to act on acquitted conduct this year, although it said it would try to take the issue up next year. Now, maybe because of DOJ’s duplicity, the Supreme Court relisted those original five cases for a second time, to be discussed at last Thursday’s conference. And now, the five pending petitions have been joined by an additional eight cases raising the same or similar issues.

As John Elwood put it in SCOTUSBlog last week, “We’ll find out soon how lucky these 13 petitions are.” ‘Soon’ could be this morning at 9:30 am Eastern, when the results of last week’s conference are announced.

McClinton v. United States, Case No. 21-1557 (petition for certiorari pending)

SCOTUSBlog, Acquitted-conduct sentencing returns (May 24, 2023)

Sentencing Law and Policy, Catching up, yet again, with a big bunch of relisted acquitted conduct petitions pending before SCOTUS (May 24, 2023)

– Thomas L. Root

USSC Retro Inquiry Gets a Boost – Update for May 26, 2023

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

SENTENCING COMMISSION ANALYZES EFFECT OF CRIMINAL HISTORY RETROACTIVITY

retro160110When it adopted proposed Guidelines amendments last month, the Sentencing Commission asked whether two of them – the new USSG § 4C1.1 that would provide a 2-level reduction to people with non-violent non-sex offenses with zero criminal points and the abandonment of extra criminal history points (called “status points”) applied to people who were on probation, parole or supervised release when they committed their current offense (and thus should have really known better) – should be retroactive.

Any change in the Sentencing Guidelines does not benefit people who have been sentenced before the change was effective unless the Sentencing Commission – in a separate proceeding – determines that the change should be retroactive. If it does, those already sentenced may petition their sentencing judges to resentence them as though the new Guideline applied to their sentence.

It doesn’t happen often: the last retroactive Guidelines change that was declared to be retroactive was the 2014 across-the-board 2-level reduction in the drug quantity tables of USSG § 2D1.1. That change, to pick an illustration, reduced the offense level of someone who sold a kilo of cocaine from 26 to 24. If the defendant had no prior criminal convictions and no other aggravating factors (such as stupidly having a gun), his or her advisory sentencing range would have dropped a year, from 63 to 51 months).

manyaslip230526There are many a slip ‘twixt cup and lip, of course: the Guidelines reduction must have reduced the sentencing range: a veteran criminal with the top level of criminal history and an offense level of 39 might see her level fall to 37, but the advisory sentencing range would still start at 360 months. And if all of the eligibility hurdles are crossed, the sentencing judge may still decide the defendant’s a bad dude and decline any reduction. But still, for those who are eligible, a Guidelines reduction that goes retroactive provides hope.

Currently, the Commission is taking public comment on the wisdom of letting people benefit from retroactivity of the very wise changes proposed for criminal history scoring. That comment period ends June 23. After that, the USSC will decide whether to add the § 4C1.1 amendment to the retroactivity list. If it does, Congress will get 6 months to decide whether to veto it.

If retroactivity is adopted and gets past Congress, prisoners will be able to apply for a reduction under 18 USC § 3582(c)(2) and USSG § 1B1.10 (the statute and guideline, respectively, that govern the process).

Two issues that always arise are whether the retroactivity would create a flood of court filings that would gum up the federal courts, and exactly how many people might benefit. Last week, the USSC staff issued a study that gives the retroactive argument a boost.

releaseme211231The staff estimated that 11,500 BOP prisoners with status points would have a lower guideline range if the abandonment of status points becomes retroactive. The current average sentence for that group is 120 months and would probably fall by an average of 14 months.

The report also figures that about 7,300 eligible prisoners with zero criminal history points would have a lower guideline range if the zero-point Guidelines change becomes effective. The current average sentence of 85 months could fall to an average of 70 months.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said, “Putting these particulars together in a very rough way, it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive. That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality.”

USSC, Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment (May 15, 2023)

Sentencing Law and Policy, US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines’ criminal history rules (May 15, 2023)

– Thomas L. Root