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Biden Proposes Clemency Lite – Update for September 20, 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.

ADMINISTRATION TROTS OUT COMMUTATION PLAN THAT IS OPAQUE AND TINY

clemencypitch180716President Biden’s administration last week announced something that looks like a clemency plan, only much smaller. Last Monday, White House spokesman Andrew Bates said the Administration “will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve.”

Those who have been invited to apply fall into a specific category: drug offenders released to CARES Act home confinement who have four years or less on their sentences. Neither the White House nor the Dept of Justice would say how many people have been asked to submit commutation applications or whether it would be expanding the universe of prisoners who would be considered.

However, according to news reports, about 1,000 home confinees – about 25% of the people on CARES Act home confinement – are included in the batch the White House wants to review. Weldon Angelos, who was pardoned for a marijuana conviction by President Donald Trump last year and works with the current administration on criminal justice reform, told Marijuana Moment that about 1,000 people were asked to report to their designated halfway houses to fill out the clemency form in recent days.

Udi Ofer, the ACLU’s deputy national political director, said he was troubled by the possibility that the White House was cleaving off CARES Act recipients into those deserving commutation and those who didn’t, arguing that the Bureau of Prisons, in originally releasing inmates under the CARES Act, had already made a determination between those who posed a threat of violence and those who didn’t.

clemency170206“We are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency,” Ofer told Politico.

Others disagree that then BOP’s decisions on home confinement – which have largely been delegated to 122-odd executive officers at BOP facilities – are a consistent or reliable indicator of who should get clemency. “It’s not clear how the Bureau of Prisons chose people for this home confinement program, which raises the question of whether it’s fair to give a special benefit to these folks not available to those who have filed clemency petitions sometimes years ago and have been patiently waiting,” said former DOJ Pardon Attorney Margaret Love.

Biden’s limited clemency plan appears not to be enough for some lawmakers. Last Friday, 28 House Democrats called on Biden to commute the sentences of all 4,000 CARES Act home confinees, as well to establish a review board for pending clemency petitions.

“We urge you to use your authority as President to immediately commute the sentences of the 4,000 people who, under the [CARES Act], are currently on home confinement and at risk of being sent back to federal prison, and further, to create an independent clemency board to review the more than 15,000 pending clemency petitions,” the letter, spearheaded by Reps. Cori Bush (Missouri), Bonnie Watson Coleman (New Jersey), Pramila Jayapal (Washington), and David Trone (Maryland), said.

The President had announced in May that he would tackle clemency in 2022.

noplacelikehome200518A BOP spokesperson told The Hill last week that the agency is focused on the “expanded criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred… The BOP and the [Department of Health and Human Services] continue to explore all potential authorities that could be exercised after the end of the pandemic to help address this issue.”

Politico, Biden starts clemency process for inmates released due to Covid conditions (September 13, 2021)

CNN, Administration to start clemency process for some federal inmates on home confinement due to Covid conditions (September 13, 2021)

Marijuana Moment, Biden Administration Asks Prisoners with Certain Federal Drug Convictions to Apply for Clemency (September 13, 2021)

The Hill, Democrats urge Biden to commute sentences of 4K people on home confinement (September 17, 2021)

– Thomas L. Root

There Ain’t No Easter Bunny… – Update for September 16, 2021

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

HOW’S THAT 65% BILL DOING?

After answering yet another email about the mythical 65% bill – legislation that purportedly would reduce everyone’s sentence to 65% of what the court imposed – I thought I would lead with this sad news:

There is no Santa Claus. There is no Easter Bunny. And there is no 65% Bill.

easterbunny210916While Congresswoman Sheila Jackson Lee (D-Texas) has introduced such a bill in a number of previous sessions of Congress since 2001, there is no such bill in the hopper now. When she did introduce it, the bill never even got a committee hearing. If it did exist, it wouldn’t get one now. A 65% bill would stand a chance of passage approaching zero.

In sum, the so-called 65% bill is like a pink unicorn: fun to imagine, but not real. And neither is the rumor that everyone will get a sentence cut because of COVID.

So what is real? First, a letter sent last week by 25 state attorneys general to House and Senate leadership, urging an expansion of Section 404 of the First Step Act to include people sentenced under 21 USC § 841(b)(1)(C). You recall that in Terry v. United States last June, the Supreme Court held that Section 404 did not qualify pre-2010 crack sentences for sentence reduction. The state attorneys general want legislation to change that.

Second, a lot of criticism of the President over the CARES Act. Writing in the Washington Examiner last week, Matt Schlapp – chairman of the American Conservative Union – argued that Congress should act to ensure that CARES Act home confinees stay at home after the pandemic ends. He wrote, “As a former influential senator and Judiciary Committee chairman, President Joe Biden is at least partially responsible for the explosive growth of our federal prison population. His legislative record is riddled with bills he supported, and sometimes wrote, that filled BOP cells and encouraged states to do the same. Indeed, there are thousands of Americans still serving draconian sentences authorized by some of then-Sen. Biden’s bills.”

chart210624Meanwhile, a piece in the Deseret News made the conservative argument for the EQUAL Act, which would retroactively make crack cocaine sentencing levels equal to those of powder cocaine: The EQUAL Act already passed through the U.S. House Judiciary Committee with a vote of 36-5, garnering support from both sides of the aisle. It faces another battle to pass through the rest of Congress, and Utah’s delegation should be there to vote in support. The debate over crack versus powder cocaine has no basis in science, in rationality, or in ethics. Because of this, many individuals have been needlessly imprisoned for far too long in comparison to the crime committed. Congress should pass the EQUAL Act to ensure these penalties are equalized and fairness is restored to criminal sentencing.”C

So when will Congress get to any criminal justice reform measures? No one knows. Only a few bills have been voted out of committee in the Senate – the COVID-19 Safer Detention Act, the First Step Implementation Act of 2021, and the Prohibiting Punishment of Acquitted Conduct Act. In the House, the EQUAL Act is the only criminal justice bill voted out of committee. No floor votes have been scheduled for any bills. With infrastructure and the $3.5 trillion spending bills taking center stage in Congress, it is unlikely that criminal justice reform will get any attention until next year.

Letter to Sens Charles Schumer and Mitch McConnell (September 2, 2021)

Washington Examiner, Biden promised to address over-incarceration. He’s blowing his opportunity (September 8, 2021)

Deseret News, Conservatives should support sentencing reform for crack cocaine (September 8, 2021)

– Thomas L. Root

Too Early, Too Late – Update for September 15, 2021

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

TIMING IS EVERYTHING

timewaits200325Two decisions last week remind us that timing is key.

Julio Cardenas filed a 28 USC § 2255 motion arguing that his defense attorney had rendered ineffective assistance to him. In fact, he had no idea how ineffective counsel had been (and was continuing to be).

Julio lost his direct appeal, and the Supreme Court then denied certiorari. Julio filed for Supreme Court rehearing, and that was denied, too.

Fast forward a year. Julio’s attorney filed his § 2255 motion, but did so a year after denial of Supreme Court rehearing. But courts have uniformly held that the deadline for filing a § 2255 motion is really a year after the Supreme Court first denies certiorari, not a year after the later date when it denies rehearing whether its earlier denial of cert was correct. As a result, Julio’s § 2255 was filed 47 days past the date it was due under 28 USC § 2255(f)(1).

Julio asked his district court to accept it anyway under a doctrine called equitable tolling. A prisoner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Equitable tolling is warranted only in “rare and exceptional circumstances,” as the courts like to say.

Last week, the 5th Circuit said Julio didn’t have such circumstances here. The 5th said Julio’s counsel simply messed up. His lawyer admitted he now knew that a “petition for rehearing on a denial of certiorari on direct appeal does not toll the AEDPA time limit. All I can say in my defense is the concept is so counterintuitive that it did not even occur to me to check or research the question.”

The Circuit said Julio’s lawyer’s mistake was “precisely the kind of case that does not warrant equitable tolling…”

worm210913Timing also played a role in a second 5th Circuit decision last week. Leondus Garrigan filed an 18 USC § 3582(c)(1)(A) compassionate release motion, but he sent his request to the warden two weeks after filing the motion in district court. After his court denied the compassionate release motion, Leo filed a motion for reconsideration, pointing out that his administrative remedies were now exhausted, and the court could rule on the motion.

The district court denied the reconsideration, and last week, the 5th agreed: 

The primary basis on which Lionel justified reconsideration,” the Circuit ruled, “was a purported ‘manifest error of law.’ But there was no legal error in the underlying judgment. Because he filed his motion in the district court before the warden received his request, he failed to exhaust his administrative remedies. To be sure, after Garrigan’s first motion was denied without prejudice, he successfully exhausted. But it is irrelevant that he achieved exhaustion in the intervening period between the denial and his motion for reconsideration – he was required to properly exhaust before filing the motion. The district court did not have discretion to excuse his failure to do so.

United States v. Garrett, Case No 20-61083, 2021 U.S. App. LEXIS 27214 (5th Cir., Sept. 9, 2021)

United States v. Cardenas, Case No 18-40790, 2021 U.S. App. LEXIS 26910 (5th Cir., Sept. 7, 2021)

– Thomas L. Root

Biden Plans to Commute Some Drug Defendants, Vax BOP Staff – Update for September 14, 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.

SO WHAT HAPPENS NOW?

The morning after President Biden announced an executive order that all federal employees would get the COVID vaccine, the Bureau of Prisons numbers were stubbornly high. The number of sick inmates was up 5% from a week ago, standing at 553 (the highest count since March 15). More ominously, the number of sick staff jumped 12% to 563, nearly equal to the number of sick inmates, and the highest since April 20. COVID is present at 112 of 122 institutions, and the death toll notched up to at least 267 inmates.

deadcovid210914What remains puzzling is the BOP’s testing. The agency said it tested 127 people last week, a very low number of tests for the number of inmate cases the BOP is reporting.

Meanwhile, the number of vaccinated inmates hit the 60% mark, while the staff percentage barely moved, from 53.39% to 53.62%.

The staff number should change. On Thursday, Biden signed an Executive Order that, among other things, “require[s] COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.” The exceptions are for medical and religious reasons only, and (I already received one email asking this) the Order does not exempt BOP employees. Biden ordered each Federal agency to implement a program to require COVID-19 vaccination for all Federal employees and directed the Safer Federal Workforce Task Force to issue guidance within 7 days of the date of this order on agency implementation of this requirement for all agencies covered by this order.

The BOP announced two more COVID-19 deaths, one on September 4th at FCI Bennettsville and another from last November at FCI Talladega. The Talladega death was of a 29-year old who had contracted COVID on August 5, 2020, but who was declared “recovered” 12 days later.

At the 43-minute mark of last Friday morning’s White House press briefing, Press Secretary Jen Psaki had an exchange with an unidentified reporter:

Q: Jen, I’m hearing that the Bureau of Prisons issued a memo today telling approximately about 1,000 drug offenders how to apply for clemency. Have you — do you have anything on that?

MS. PSAKI: I would certainly point you to the Department of Justice. I would say that the President has been clear about his openness to using clemency powers, but I don’t — I wouldn’t say that’s an assessment of decisions made — and certainly targeting those toward nonviolent drug offenders. But I’d point you to the Department of Justice for any further details.

The riddle was solved yesterday when POLITICO reported that the Biden administration has begun asking people on CARES Act home confinement inmates to “formally submit commutation applications, criminal justice reform advocates and one inmate herself tell POLITICO.”

clemencyjack161229“Those who have been asked for the applications fall into a specific category,’ POLITICO reported, “drug offenders released to home under the pandemic relief bill known as the CARES Act with four years or less on their sentences. Neither the White House nor the Department of Justice clarified how many individuals have been asked for commutation applications or whether it would be expanding the universe of those it reached out to beyond that subset. But it did confirm that the president was beginning to take action.”

Business Insider published a piece on Saturday noting that “the Biden administration is considering granting commutations to those under home confinement who have federal drug charges and have less than four years left in their sentences. If enacted, that decision would only affect about 2,000 out of the 4,000 people currently under home confinement. To those that don’t fit the criteria, the administration will force them back to federal prison. For these individuals, the decision could be devastating to the progress they’ve made since emerging from behind bars. Sending [inmates] back to prison and hampering [their] progress would have the opposite effect of what our justice system purports to achieve.”

White House, Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees (September 9, 2021)

BOP, Inmate Death at FCI Talladega (September 10, 2021)

White House, Press Briefing by Press Secretary Jen Psaki (September 10, 2021)

Politico, Biden starts clemency process for inmates released due to Covid conditions (September 13, 2021)

Business Insider, Thousands of people who were released from prison due to the pandemic are now thriving with their families. But if Biden doesn’t act now, they will be cruelly sent back. (September 11, 2021)

– Thomas L. Root

Nothing Extraordinary about a 312-Year Robbery Sentence, 3rd Circuit Says – Update for September 8, 2021

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

A LARGELY UGLY COMPASSIONATE RELEASE DECISION FROM THE THIRD CIRCUIT

guns200304The 3rd Circuit last week joined eight other federal circuits in holding that an inmate-filed compassionate release motion is not limited by the Sentencing Guidelines § 1B1.13 policy statement. That was the good news, the only good news.

Eric Andrews is serving a 312-year sentence for a string of armed robberies, with almost all of that time due to stacked 18 USC § 924(c) convictions. If he had been sentenced after passage of the First Step Act, his § 924(c) sentences would have amounted to 91 years, still impressive but possibly a survivable sentence. But because the First Step changes were not retroactive, Rick’s only course was to file a compassionate release motion under 18 USC § 3582(c)(1)(A)(i) arguing that his excessive sentence length and the First Step Act changes were the “extraordinary and compelling reasons” supporting grant of the motion.

The district court denied Rick, and last week, the 3rd Circuit agreed.

The appeals court held that “the duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance… Considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties.”

41475-Forever-Is-A-Long-TimeLikewise, the 3rd ruled, a nonretroactive change to mandatory minimums “cannot be a basis for compassionate release. In passing the First Step Act, Congress specifically decided that the changes to the 924(c) mandatory minimums would not apply to people who had already been sentenced.” Applying rules of statutory construction to the First Step Act, the Circuit said, “we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release. Such an interpretation would sow conflict within the statute… We join the 6th and 7th Circuits in reaching this conclusion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, makes a telling point:

The very first sentence of the Andrews ruling has a Kafka-esque “only in America” quality to it: “Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen.” That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way. Specifically, as described by the panel opinion, the district court decided that “the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law.” Of course, there is no statutory text enacted by Congress that sets forth this “as a matter of law.” But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorical exclusions “as a matter of law” regarding what might qualify as extraordinary and compelling.

noquorum191016The Second, Fourth, Fifth, Ninth and Tenth Circuits have held the contrary to this opinion, which perhaps puts some wind in Thomas Bryant’s pending petition to the Supreme Court for review of the 11th Circuit’s denial of his compassionate release motion. That petition is ripe for decision at the end of this month at the Supreme Court’s “long conference.” Of course, a reconstituted Sentencing Commission could solve this circuit split by rewriting USSG § 1B1.13, but that would require that the Sentencing Commission first be repopulated with new members. President Biden has thus far shown no more interest than did his predecessor in appointing new members. By December, the Commission will have been without a quorum for three years.

United States v. Andrews, Case No 20-2768, 2021 US App LEXIS 26089 (3d Cir. August 30, 2021)

Sentencing Law and Policy, Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A) (August 30, 2021)

– Thomas L. Root

President Said to be Considering CARES Act Partial Clemency – Update for September 7, 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 MAY (FINALLY) BE TAKING BABY STEPS ON CLEMENCY

The New York Times reported last week that President Biden is considering using his clemency powers – which he has not exercised in his first seven months in office – to commute the sentences of nonviolent drug offenders with fewer than four years left to serve. The contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes, Biden administration sources told the Times.

The notion of clemency for some inmates is just one of several ideas being examined in the executive branch and Congress, the Times said. Others include a broader use of 18 USC § 3582(c)(1)(A)(i) “compassionate release” or 34 USC § 60541, the elderly offender home detention program, or even a law – such as the Safer Detention Act (S.312) – to allow some inmates to stay in home confinement after the pandemic.

The CARES Act permits inmates who are sent to home confinement under Section 12003(b) to remain at home until the pandemic public health emergency ends. The Times says, “That will not be soon: With the Delta variant spurring a surge in cases, the public health emergency is not expected to end before next year at the earliest.”

clemencyjack161229On August 10, Biden Press Secretary Jen Psaki said Biden was “exploring multiple avenues to provide relief to nonviolent drug offenders, including through the use of his clemency power.” The Times reported officials have confirmed that the Justice Department “will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office.” The officials said a focus on nonviolent drug offenders “dovetail[s] with Mr. Biden’s area of comfort on matters of criminal justice reform.”

Whether Biden is leaning toward commuting the sentences of drug offenders to home confinement, reducing sentence length to bring them down to the normal window 10%-or-six-month window for 18 USC 3624(c)(2) end-of-sentence home confinement, or some mix of the two, is not yet clear.

The Times reported that DOJ is still studying options that could keep non-drug offenders from being forced back into prison.

Meanwhile, criminal justice reform groups are keeping up pressure on the President. FAMM and the American Civil Liberties Union are mounting a six-figure ad campaign to pressure Biden to keep the CARES Act prisoners at home. The TV ads feature Juan Rodriguez, a federal prisoner sent home in July after doing eight of 14 years for a drug conviction. “I’m going to try to make the best out of every day I have out here,” Mr. Rodriguez says in the ad featuring him with his family and working a new job. “President Biden, please don’t separate me from my family.”

angel210907The ACLU has argued that fewer than 1% of prisoners put on home confinement had violated the terms of their release, and it was time for Biden to follow through on lowering the incarceration rate and size of the federal prison population that he campaigned on as a presidential candidate. So far, only five people sent home during the pandemic have been returned to prison for new criminal conduct.

USA Today has reported that over two dozen small business owners who have CARES Act home confinees are also asking Biden to grant clemency to prisoners. Some say losing employees to prison during a national labor shortage would not only be detrimental to their businesses, but would also keep their companies from growing.

Ohio State law professor Doug Berman complained in his Sentencing Law and Policy blog that when Biden was campaigning, he promised to “’take bold action to reduce our prison population’. But the federal prison population… has grown by over 4000 persons according to BOP numbers, from 151,646 total inmates on January 21, 2021, to 155,730 total inmates on August 26, 2021. To date, I cannot really think of any actions (let alone bold ones) that Prez Biden has taken to reduce the federal prison population. Talk of some clemency action is heartening, but just a start. And whatever clemency efforts are made, they should extend beyond just a limited group who are already home.”

The New York Times, White House Weighs Clemency to Keep Some Drug Offenders Confined at Home (August 30, 2021)

Washington Times, ACLU pressures Biden to keep convicts on home confinement out of prison due to pandemic (August 27, 2021)

USA Today, Businesses that hired inmates who were allowed to serve time at home during COVID push for clemency (August 26, 2021)

CBS News, Inmates on home confinement could be sent back to prison after the pandemic: “Why make us go back and do it again?” (September 3, 2021)

Sentencing Law and Policy, Prez Biden reportedly considering, for home confinement cohort, clemency only for “nonviolent drug offenders with less than four years” left on sentence (August 30, 2021)

– Thomas L. Root

Compassionate Release Gets Uglier – Update for September 3, 2021

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

THE UNSTRUCTURED AND ARBITRARY WORLD OF COMPASSIONATE RELEASE, IN WHICH DISCRETION ONLY WORKS ONE WAY…

Someday, legal scholars may look back on COVID-era compassionate releases granted under 18 USC § 3582(c)(1)(A)(i) as having introduced more disparity and inconsistency in sentencing than any event in federal criminal law.

chaos210903A Sentencing Commission study last month tallied compassionate releases by district, released last month, reported that 22.3% of the 12,885 compassionate release motions filed in 2020 were granted. But if you filed one, your chances were not one out of 4.5, Instead, if your case came from the District of Oregon, your chances of a grant were 69.8%. If, however, your case came from the Western District of North Carolina, your chances were a lousy 1.5%.

There is no federal court district in the country with a poorer track record for compassionate release than Western District of North Carolina. During 2020, Western District judges heard 337 compassionate release motions. The judges denied all but five. By comparison, the Eastern District of North Carolina approved release in 25% of its 224 compassionate-release requests. The Middle District of North Carolina had an approval rate of 6.2%, granting 10 of 162 requests.

(The U.S. Virgin Islands had a 0% approval rate, but that court heard just six requests, the report says. By contrast, the Western District of North Carolina handled the sixth-highest number of compassionate release cases in the country last year.)

“The numbers are jarring,” one defense attorney said. “Your geography remains one of the most relevant factors in determining the sentence you receive or the severity of the punishment. In a country that guarantees equal protection under the law, I think that should raise some constitutional questions.”

That’s because appellate courts afford district judges a lot of discretion in deciding compassionate release motions, and – from time to time – confound things by issuing questionable decisions that tie up their district courts in procedural knots.

Case in Point #1: Take Jessica Ward, for example. She is around a third of a way through a 200-month drug sentence, and sought compassionate release in the Northern District of Texas due to chronic kidney failure. The government’s opposition argued that she did not meet Section 1B1.13 of the Sentencing Guidelines, in that the BOP was adequately managing COVID, but neither mentioned her kidney disease nor argued that 18 USC § 3553(a) sentencing factors should be relied on to deny her compassionate release motion.

The district court denied her motion because she did not meet USSG 1B1.13 and because § 3553(a) factors did not support a reduction. Jenny appealed.

crystalball210903Last week, the 5th Circuit denied her appeal. It agreed that the district court was wrong to rely on USSG 1B1.13, because that Guideline does not apply when a prisoner files a compassionate release motion herself. But while the Government made no mention of the § 3553(a) factors, the Circuit “gives deference to the district court’s determination… We see no reason to hold that the Government’s failure to make arguments about the factors cancels the court’s statutory obligation to consider them.”

The 5th said the burden falls on the defendant to convince the court to grant compassionate release after considering the § 3553(a) factors. If the defendant fails to convince the district court to exercise its discretion, then the court may deny the motion, assuming it considers the § 3553(a) factors, for reasons the government may have never argued. 

Lesson: Not only does a compassionate release movant have to address the arguments raised by the government, but he or she should address arguments that the court might raise on its own in the ultimate denial. The prudent defense attorney should thus have both a LEXIS/Westlaw account and a crystal ball.

Case in Point #2: Consider Ron Hunter, a one-time drug trafficking organization hitman convicted 21 years ago of murdering a 23-year-old woman outside a nightclub. As we like to say, Ron has kind of a tough fact pattern to argue… So tough that his sentencing judge sentenced him to life in prison.

Twenty-one years later, a different judge granted Ron’s motion for compassionate release. Based upon the fact that Ron did not get the benefit of the non-retroactive United States v. Booker ruling that Guidelines are not mandatory, on certain facts that existed at sentencing, and Ron’s rehabilitation efforts (which were far from perfect), the district court held the factors amounted to the “extraordinary and compelling reasons” required by 18 USC § 3582(c)(1)(A)(i).

compassion210903Should be no problem. right? After all, don’t circuits “give[] deference to the district court’s determination,” like the 5th Circuit said in Jessica Ward’s case? Makes sense, doesn’t it? But it turns out that it’s not necessarily so.

Last Monday, the Sixth Circuit reversed Ron’s compassionate release, holding that his new district judge abused his discretion.

The Sixth Circuit had already ruled last June in United States v. Jarvis that a “non-retroactive changes in the law [can]not serve as the ‘extraordinary and compelling reason’ required for a sentence reduction,” a holding at odds with most other circuits that have considered the issue. That meant that going in to oral argument, Ron was in trouble, because one of the grounds relied on his district court was that Booker would permit a sentence imposed today to vary from the Guidelines.

Now, the Sixth has built on the Jarvis blunder, ruling that “facts that existed when the defendant was sentenced cannot later be construed as “extraordinary and compelling” justifications for a sentence reduction.”

As Ohio State University law prof Doug Berman observed in his Sentencing Law and Policy blog, this holding “seems especially problematic and an especially misguided policy invention.” After all, the Sentencing Commission – which was given the duty by Congress to “describe what should be considered extraordinary and compelling reasons for sentence reduction” – held in Note 2 to Guideline 1B1.13, that

For purposes of this policy statement, an extraordinary and compelling reason extraordinary and compelling reasons need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

So while the Sentencing Commission has said facts known at sentencing can nevertheless be “extraordinary and compelling,” the Sixth Circuit says they cannot. It may well be that the Circuit was just put off at the idea of a hitman doing life going home after serving less time than a porn downloader. But there are ways to force the conclusion the judges wanted to see without pronouncing such a transparently wrong interpretation of the statute.

Lesson: Discretion is a rachet, in which the district court has free rein to deny but substantial restraint to grant, compassionate release.

Raleigh, North Carolina, News & Observer, Inmates seeking release from COVID-hit prisons have next to no chance in this NC district (August 27, 2021)

Ward v. United States, Case No 20-10836, 2021 U.S.App. LEXIS 25808 (5th Cir. Aug. 26, 2021)

United States v. Hunter, Case No. 21-1275, 2021 U.S. App. LEXIS 26115 (6th Cir. Aug. 30, 2021)

Sentencing Law and Policy, Sixth Circuit invents another extra-textual limit on what can permit a sentence reduction under 3582(c)(1)(A), including one in contradiction of USSC guidelines (August 30, 2021)

– Thomas L. Root

EVEN THE SUSPECT COVID NUMBERS ARE HIGH – UPDATE FOR SEPTEMBER 2, 2021

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

YOU CAN’T FIND WHAT YOU DON’T LOOK FOR

The BOP’s official COVID numbers as of last night stood at 512 sick inmates (up 7% from a week before) and 490 staff (up 24%). COVID is present at 110 out of 122 facilities.

cantfind210902The BOP’s official count is not without controversy. Joe Gulley, union president at USP Leavenworth, told Business Insider the number of staff who had had COVID was at least 20 times higher than officially reported. “The Warden lied because he wanted his bosses and the public to think he was doing a good job,” Gulley said in a statement. “His only concern was that everyone outside of USP Leavenworth believed he was controlling Covid and keeping everyone safe so he could get his next promotion.”

The BOP said it tested an average of 33 inmates a day for COVID over the last 10 days. That’s only 64% of the number of COVID-positive inmates the BOP reports. In fact, it is only 10% of the testing the BOP was doing in a similar period last December. You have to wonder how the BOP found 512 COVID-infected inmates when only ran 328 tests during the 10-day period it typically carries an inmate as being sick. (The BOP habitually declares everyone as “recovered” after 10 days – including a number of them who subsequently die of the COVID from which they’ve “recovered,” but that’s a story for another day).

One cannot find what one does not look for.

As of last Friday, 58.2% of inmates were vaccinated, up 1.4 points from last week. Staff still lags at 53.1%, up only 0.2 points from the week before. The Food and Drug Administration gave regular approval to the Pfizer vaccine last week, and the military has already ordered its personnel to be vaccinated. BOP staff may soon lack the right to refuse the vaccine.

coviddelta210730Government Executive reported that “a chapter of the American Federation of Government Employees representing BOP staff at FDC Miami picketed last week to protest “unsafe working conditions stemming from an outbreak of COVID-19 infections among inmates, a rise in inmate assaults on employees, and chronic understaffing of the administrative security facility.” A union press release alleged, “These conditions endanger the lives of inmates, prison employees and the general community.”

Government Executive, Coronavirus Roundup: FDA Grants First Full Approval for COVID-19 Vaccine; Pentagon Announces Vaccine Mandate (August 23, 2021)

Business Insider, Unrest at the big house: federal prison workers are fed up, burned out, and heading for the exits (August 25, 2021)

– Thomas L. Root

Government Proves How Serious It Is About Prison Rape – Update for August 31, 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.

THE COST OF PRISON RAPE

We got a glimpse last week at how serious the Dept of Justice is about enforcing the Prison Rape Elimination Act. The answer, as though anyone is surprised, is “not much.”

PREA requires that federal, state, and local correctional facilities maintain and enforce a zero-tolerance policy toward sexual assault for both inmate-on-inmate and staff-on-inmate misconduct. Unsurprisingly, while the DOJ talks a good game, it seems much more interested in inmate-on-inmate than it is in staff-in-inmate sexual abuse.  Four cases in point:

(1) Phillip Golightly, a former BOP correctional officer at FCI Marianna and FCI Tallahassee, was sentenced to 24 months last week for “sexually assaulting female inmates who were then under his custodial, supervisory and disciplinary authority” (as the DOJ drily put it).

What did he really do? The lurid statement of facts in the case states that Golightly did not go lightly on female inmates. Instead,  he forced female inmates to perform oral sex on him, and to endure him forcing it on them, on multiple occasions. Read the statement (just not immediately before dinner).

rape190412For this – in a sentencing regime in which a poor black drug peddler gets a mandatory 10 years for possessing with intent to sell crack that weighs no more than a Big Mac (including bun) – the former corrections officer will serve 20 months and a couple weeks (after factoring in good-conduct time). Golightly isn’t just his name… it’s how the Court sentenced him.

That’s the cost of rape if you’re a BOP perp (that is, if you are prosecuted at all, as noted below).

(2)  Carleane Berman, a former FCI Coleman inmate who was one of 15 women to share a $2 million settlement with the BOP over their abuse at the hands of a group of FCI Coleman camp COs, died of a drug overdose last month.

carleane210831The Miami Herald reported last week that “Carleane returned from the Federal Correctional Complex Coleman in Sumter County a shattered woman.” Her father, Ron Berman, who had fought to keep her drug-free since her release, said he “could do little to help her quell her nerves, ease her insomnia, or stop recoiling at the sound of voices in hallways. The voices, Carleane said, reminded her of being behind bars with the prison officers who raped her.

Miranda Flowers, another victim, told the Herald she and Berman were raped together at least 11 times in various parts of the facility. “We’d walk back to the units and grab our stuff and go straight to the showers and not talk about it,” she recalled.

“The people that were supposed to be in charge were not doing what they were supposed to do,” former inmate Andrea DiMuro said. “Coleman was hell on earth.”

“I blame everything on Coleman. I want them held accountable,” Ron Berman said. “She was never the same after Coleman.”

(3)  Miranda Flowers said a prison investigator told her the officers had been allowed to resign in exchange for their admissions and no charges.  As it stands today, none of the rapes occurring prior to August 31, 2016, is prosecutable, falling as they do beyond the statute of limitations.

Joe Rojas, the southeast regional vice president for the workers union, AFGE Council of Prisons, said the Coleman case was a black eye for the BOP. “I’m just sad because honestly those officers got away with a crime,” Rojas told the Tampa Bay Times last May.

PREA210831(4) Want to read about the PREA violations at Coleman? Don’t bother going to the FCI Coleman Low PREA Audit results (last updated April 2018).  The report, but for the boilerplate, is significantly redacted, but it maintained that “There were no substantiated sexual abuse or harassment allegations at FCC Coleman over the period…” studied by the audit. According to the Report,  “[f]acility staff conducted 36 investigations into sexual abuse/harassment allegations. There were 34 unsubstantiated cases, and two cases were deemed unfounded.”

Yet the wholesale abuse of inmates dated from 2012, “in some cases, spanning five to six years,” the Times said, with specific allegations dating from as late as December 31, 2017.

With such detailed and unstinting investigation, it’s little wonder that so little staff-to-inmate rape is detected, and that so little is done about it.

DOJ Press Release, Former Bureau of Prisons Correctional Officer Sentenced to 24 Months In Federal Prison For Sexually Abusing Inmates (August 27, 2021)

Statement of Facts, R.23, United States v. Golightly, Case No 4:20cr32 (N.D. Florida, October 16, 2020)

Miami Herald, She was raped by Florida prison officers. After her drug death, supporters want justice (August 24, 2021)

– Thomas L. Root

Notorious MCC Closing ‘Temporarily’… And Other BOP Follies of the Week – Update for August 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.

BOP HAS ANOTHER TOUGH NEWS WEEK

I Love New York:  The Dept. of Justice announced last Thursday that the Bureau of Prisons will “temporarily” close the Metropolitan Correctional Center in New York, the high-rise jail near the Federal Courthouse in lower Manhattan.

The decrepit facility, described by the New York Daily News as “dysfunctional,” has been a headline-generating public relations disaster for the BOP in the past several years.

renovate210830The closure was described as being temporary, reminiscent of restaurant “closed for renovation” announcements to mask abandonment of the premises. Indeed, the Daily News said, “Sources were skeptical the jail would ever resume operations resembling previous years, when it held 700 or more inmates.”

The decision to close comes weeks after Deputy Attorney General Lisa O. Monaco inspected the facility “given ongoing concerns,” as the DOJ said at the time.

The New York Times reported that MCC has been criticized “by inmates, lawyers and even judges for the conditions in which prisoners have been held.” It’s the prison where two COs were indicted for lying after celebrity prisoner Jeffrey Epstein, who was facing sex-trafficking charges, was found dead in his cell in August 2019 in what was ruled a suicide. In early 2020, a handgun was found in the jail during a shakedown.

In January, the facility received its fourth warden in less than two years. As the coronavirus took hold, MCC employees weren’t able to get masks and staff restrooms ran out of soap because employees charged with refilling the dispensers were pressed into duty as COs due to staff shortages. In May 2020, a court-authorized inspection found that inmates with COVID symptoms were ignored and social distancing was almost nonexistent.

Earlier this year, the MCC “was rocked by allegations that an inmate whose lawyer says he has the mental capacity of an 8-year-old child was left in a holding cell for 24 hours while awaiting a competency evaluation,” Associated Press reported. “Around the same time, a correctional officer at the facility had also reported sexual misconduct by a superior, which officials at the jail delayed reporting to senior BOP officials.”

“The MCC has been a longstanding disgrace,” New York Federal Public Defender David Patton told the Times. “It’s cramped, dark and unsanitary. The building is falling apart. Chronic shortages of medical staff mean that people suffer for long periods of time when they have urgent medical issues.” But, Mr. Patton added, MDC Brooklyn (across the river from the MCC) has many of the same problems, and if the MCC prisoners are sent there without those problems being addressed, “this move will accomplish nothing.”

frying210830Most of the 263 inmates at the MCC will be moved to MDC Brooklyn, according to Courthouse News Service, which many may seem as “out of the frying pan and into the fire.” MDC Brooklyn, where a power outage and BOP management prevarications made the news in January 2020, is still embroiled in a lawsuit brought by the NY Federal Public Defender accusing the BOP of “false statements and stonewalling” by “refusing to provide detailed or accurate information about the conditions at MDC” during the power outage. The district court in which the suit is being heard has appointed former US Attorney General Loretta Lynch as mediator in the case.

You may recall that last April, US District Court Judge Colleen McMahon said that both MCC and MDC are “run by morons.” During a sentencing proceeding, McMahon castigated the BOP, saying the agency’s ineptitude and failure to “do anything meaningful” at the two facilities amounted to the “single thing in the five years that I was chief judge of this court that made me the craziest.”

Lynch said Friday her team has been conducting “stress tests” at MDC Brooklyn to better understand problems there, such as how to improve scheduling of in-person visits. She said the BOP and inmates should anticipate that moving additional prisoners to the Brooklyn facility will “create its own ‘stress test,’ separate and apart from the ones that we have been using,” she said.

horrendous210830Southern Comfort:  Meanwhile, Forbes published a piece last Monday describing the horrific conditions at what is left of FCI Estill after the prison was damaged by a tornado nearly 18 months ago. About 1,000 medium-security prisoners were relocated, but 66 minimum-security inmates remain, having been moved into the medium-security facility. “When the Campers arrived at the FCI, floors were covered in water, urine and feces,” Forbes reported. “Toilets were clogged, black mold and mildew could be seen throughout the facility. The vents were filthy and covered in black soot. Debris from the remaining infrastructure hung from the ceiling. Medications were suspended to inmates and anxiety ran high over COVID-19 outbreaks. The only hope for these remaining inmates was that these conditions would be short-lived and some normalcy to prison life would return. However, not much has changed in the 16 months since and these men still live in inhumane conditions.”

While the inmate count fell by 95%, “the staffing level of the facility has remained roughly the same as it was prior to the tornado (approximately 221).” That would seem to be 221 employees who could be used elsewhere…

Take This Job and Shove It:  Is it any wonder BOP employees are quitting in droves? That’s the question Business Insider asked last week. “About 3,700 staffers left the BOP from March 2020 to July 3, 2021, according to agency data… That translates to the equivalent of more than 8.4 employees departing every day during that period… Current departure numbers are even more striking because the overall number of BOP employees isn’t going up — it’s going down. In 2015, there were 37,258 employees, according to a Government Accountability Office analysis of the agency’s employment data. By 2017, that number dropped to 35,569. In 2019, it stood at 34,857.”

So much for the BOP’s much-ballyhooed hiring initiative…

job210830The COVID-19 pandemic and augmentation have increasingy strained prison workers, which could cause more prison workers to quit as staffing conditions continue to erode, union representatives told Business Insider. “I was mentally stressed out and physically drained at the end of the day,” a former custody officer at the US Penitentiary, Thomson, facility in the northwestern region of Illinois, said. “I used to dread going to work. There were way too many inmates for the amount of stuff that’s there.”

New York Daily News, NYC federal jail where Jeffrey Epstein killed himself to close (August 26, 2021)

New York Times, Justice Dept. to Close Troubled Jail Where Jeffrey Epstein Died (August 26, 2021)

The Hill, DOJ to ‘at least temporarily’ close jail where Jeffrey Epstein died (August 26, 2021)

Associated Press, U.S. Is Closing The Troubled NYC Jail Where Jeffrey Epstein Killed Himself (August 26, 2021)

Courthouse News Service, Manhattan jail closure renews concerns over Brooklyn facility conditions (August 27, 2021)

Forbes, Federal Inmates Live In Deplorable Conditions A Year After Tornado Destroyed Most of FCI Estill (August 23, 2021)

Business Insider, Unrest at the big house: federal prison workers are fed up, burned out, and heading for the exits (August 25, 2021)

– Thomas L. Root