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The Delta on Delta – Update for August 27, 2021

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

RELENTLESS

COVID’s back… and we’ve got it.

Really, COVID never really left. But seven weeks ago, the BOP reported only 29 inmates and 132 staff with COVID, with the virus present in 70 facilities. As of yesterday, 532 inmates and 414 staff had tested positive for the virus at 106 institutions. Four more inmates had died, two last week.

delta210827In public health, of course, “delta” has lately referred to the novel coronavirus delta variant. In math, “delta” refers to the change in a variable (such as “∆x” meaning the change in the value of x). Why this high school math reminder? Because in the BOP, the ∆Covid∆ – that is the change in COVID-19 delta variant infection – is accelerating for both inmates and staff.

Last week, I heard from an inmate who said his institution was offering a special meal and a movie to inmates who agreed to get vaccinated. That was indirectly confirmed by Government Executive magazine, which reported last week that the BOP has “provided guidance about vaccine incentives for inmates to all of the agency’s chief executive officers in an effort to improve institution inmate vaccination rates.”

Currently, the BOP reports that 56.8% of inmates and 52.9% of staff are vaccinated. Despite the President’s announcement that unvaccinated federal employees generally will be treated like Typhoid Mary, the BOP staff rate has not budged a full percentage point in six weeks, while the inmate number has increased by over three. And as Salon reported last week, researchers found that BOP data show that “the infection rate among correctional officers [drives] the infection rate among incarcerated individuals.” The research shows “a three-way relationship between the infection rate of officers, incarcerated individuals and the communities around prisons.

Things are likely to get worse before they get better. Scientists are still unsure how many new infections are “breakthrough” cases in which vaccinated people are catching COVID anyway. Last week, the Administration announced that some people with a two-shot vaccination should get a booster. And while COVID-19 Delta is six times as virulent as old-fashioned COVID-19, yet another variant – COVID-19 Lambda – has just been identified.

coviddelta210827

Of course, continuing COVID also means continuing opportunities for compassionate release, despite the fact that vaccinations may make proving susceptibility to COVID more difficult. One thing is sure, for all the people who have been asking: Judges may consider that having the vaccine makes one less likely to get COVID, but to a judge, they consider someone who turned down the vaccine to be unworthy of a compassionate release.

Government Executive, Coronavirus Roundup: Booster Shot News; GSA Rethinks the Future of Work (August 17, 2021)

Salon.com, Correctional officers are driving the pandemic in prisons (August 19, 2021)

Bloomberg, The Vaccinated Are Worried and Scientists Don’t Have Answers (August 22, 2021)

– Thomas L. Root

Two Circuits Liberalize Fair Sentencing Act Reductions – Update for August 24, 2021

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

TWO FAIR SENTENCING ACT CASES GO FOR THE PRISONERS

Last week saw two unsurprising but welcome Fair Sentencing Act decisions.

In the 11th Circuit, Tony Gonzalez was serving a 51-month supervised release sentence. Originally convicted in 2005, Tony served 76 months for a crack cocaine conviction. Released in 2015, he got tripped up on substance abuse during his supervised release term and was sent back to prison.

addiction210825Tony filed for a Fair Sentencing Act retroactive sentence reduction based on § 404 of the First Step Act. His district court denied him for a couple of reasons, one of which was that he wasn’t currently serving a sentence for crack cocaine, but instead for violating his supervised release.

Last week, the 11th joined the 4th and 6th Circuits “in holding that a sentence imposed upon revocation of supervised release is eligible for a sentence reduction under § 404(b) of the First Step Act when the underlying crime is a covered offense within the meaning of the Act… Thus, the district court had the authority to consider his motion for a sentence reduction just as if he were serving the original custodial sentence. So Mr. Gonzalez is eligible for a sentence reduction under the First Step Act.”

Meanwhile, in the 8th Circuit, Jack Robinson – who was doing life for a crack offense in which he had been tagged for over 2 kilos of crack – had been denied a Fair Sentencing Act reduction by his district court. The district judge ruled that “Robinson would have been subject to the same mandatory life sentence had the Fair Sentencing Act been in effect at the time he committed the covered offense… because the revised version of § 841(b)(1)(A)(iii) provided for a mandatory life sentence if the defendant was convicted for 280 grams or more of crack cocaine and had two or more prior felony drug offense convictions,” and thus reasoned that the court was deprived “of the discretion to reduce Robinson’s sentence under the First Step Act.”

Last week, the 8th Circuit reversed. “This reasoning is contrary to the principle that the First Step Act applies to offenses, not conduct,” the Circuit said, meaning that Jack’s statutory “sentencing range under the First Step Act is dictated by the movant’s offense of conviction, not his relevant underlying conduct… Therefore, Jack’s offense of conviction — not the underlying drug quantity — determines his applicable statutory sentencing range.

life161207At his initial sentencing, Jack faced a mandatory term of life imprisonment because he was convicted and sentenced for conspiracy to distribute at least 50 grams of crack and because he had two prior drug felonies. “Under the Fair Sentencing Act,” the Circuit said, “the statutory sentencing range for his conspiracy to distribute 28 grams or more of crack cocaine, including his prior convictions, is now not less than 10 years and not more than life. Thus, the district court erred as a matter of law when it relied on the sentencing court’s drug quantity finding of 2.35 kilograms of crack cocaine to determine Jack’s applicable statutory sentencing range under the Fair Sentencing Act and the First Step Act.

United States v. Gonzalez, Case No 19-14381, 2021 U.S.App. LEXIS 24765 (11th Cir., August 19, 2021)

United States v. Robinson, Case No 20-1947, 2021 U.S.App. LEXIS 24603 (8th Cir., August 18, 2021)

– Thomas L. Root

Prosecutor Made Example Of For Making Example of Defendant – Update for August 20, 2021

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

4TH CIRCUIT SENDS PROSECUTOR MESSAGE ABOUT SEX CRIMES AND HYPERBOLE

Charles Plymail was convicted of sexual assault in 1993 by a West Virginia state court. As the 4th Circuit put it last week, “The details of his conviction are disturbing. What is also disturbing is how long it took for him to receive a decision on his direct appeal: over twenty years.”

After his appeal was finally denied, Chuck filed a habeas corpus that eventually became a 28 USC § 2254 (which is the statute that permits state prisoners to go to federal court over unconstitutional state convictions). The federal district court rejected his claims. But last week, the 4th granted Chuck relief based on the prosecutor’s improper statements.

false210820

The trial evidence was mostly “he said, she said,” although the victims’ testimony was compelling. During closing arguments, Chuck’s attorney discussed the difficulty of disproving rape charges, focusing on how easy it was for an “angry, offensive” woman to harm “innocent… males.” He warned the men in the jury: “This is dangerous, gentlemen… it’s dangerous to even look at a woman today because she can shout ‘rape’ under any condition… and you have to disprove it and it’s tough because there are only two people there and society tends to believe the woman.”

girls210820Rather than object to this pathetic defense argument, the prosecutor countered defense counsel’s moral shaming with his own. The prosecutor warned the jury of the existence of “trickster lovers” who disguise themselves to “your sons and daughters” as well-intentioned individuals, but have a “sweet tooth… for masochistic, sadomasochistic horror.” He exhorted the jury to send a message to these “trickster lovers” with a guilty verdict: “Think of the community,” he exhorted them, and deliver a verdict “for womankind, for all of us.”

The Circuit was unamused. It ruled that the prosecutor’s closing violated Chuck’s right to due process. “Prosecutors must seek convictions based on the evidence as it applies to the elements of the offense. While we do not expect emotionless prosecutors to present antiseptic arguments, they may not seek a conviction based on prejudice or passions. Prosecutors violate this edict when they stray beyond the defendant’s crimes and ask the jury to convict in order to ‘send a message to the community’.”

wrongright210820The prosecutor argued he was just responding to the improper arguments made by defense counsel. The 4th wasn’t buying it. “[T]wo wrongs do not make a right,” the 4th wrote. “Defense counsel’s misconduct does not grant the prosecutor a license to make otherwise improper arguments. A prosecutor must object to improper arguments, not merely respond in kind.”

Plymail v. Mirandy, Case No 19-6412, 2021 US App LEXIS 23722 (4th Cir. Aug 10, 2021)

– Thomas L. Root

Watching You Watch Them – Update for August 19, 2021

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

QUIS CUSTODIET IPSOS CUSTODES?

emily210819I owe a debt of gratitude to my sainted Latin teacher, Emily Bernges, late of Sturgis, Michigan. One of the best teachers I ever had, Mrs. Bernges instilled a love of the great dead language in me… so much so that decades later, when I read that the Dept. of Justice Office of Inspector General caught some BOP corrections officers sneaking past the metal detector, I immediately thought of the Roman poet Juvenal’s lament.

Quis custodiet ipsos custodes? As Emily taught me to translate it, “Who shall guard the guards themselves?”

The Inspector General issued an urgent advisory a week ago, reporting that a “review of an unidentified BOP facility’s video monitoring system revealed that staff were able to enter the facility during the night shift and walk around the metal detector without being screened. After discussing the matter with BOP personnel at the facility, we are concerned that this presents systemic concerns.”

Fox News reported that the IG’s recommendation came in connection with an investigation of the presence of contraband at the unnamed federal prison. (I might add that since I mentioned this in last week’s newsletter, I have inmates at a dozen or better places email me to volunteer that the unnamed institution had to be their facility. How far matters have devolved!

The advisory, which had been delivered to the BOP a week before, recommended that BOP staff members not be allowed to enter an institution without being screened by other personnel, and the BOP should ensure that its facilities are properly staffed to ensure that all staff and their belongings are properly searched before staff enters BOP facilities.

Carvajal said the BOP was immediately adopting the recommendations.

Other bad news for the BOP last week: ABC News reported last week that while it’s customary for the BOP to carry out an after-action review of a major incident that occurred inside a federal prison within months of an incident, the report on how Jeffrey Epstein killed himself at MCC New York has yet to be released, two years after the suicide. Former Attorney General William Barr, just days after the death in 2019, said, “We will get to the bottom of it, and there will be accountability.”

whitewash210819Tyrone Covington, the MCC union local president, said he’s hoping it comes out so the public can see “what took place, and end some of the skepticism out there about the Bureau of Prisons, and what happened to Jeffery Epstein.”

Finally, USA Today and The Marshall Project reported last week that despite the First Step Act’s requirement that the federal prison system expand access to medications for prisoners addicted to opioids (and the millions appropriated to fund the program), as of July, the BOP had managed to put only 268 people on medications to treat opioid dependence. This is less than 2% of the more than 15,000 people the BOP itself estimates are eligible. Even while the DOJ investigates other prisons and jails for not providing these medications, the Bureau “lacks key planning elements to ensure this significant expansion is completed in a timely and effective manner,” the GAO said in a report last May.

DOJ Inspector General, Notification of Urgent Security Concerns Involving Staff Entering BOP Facilities (August 12, 2021)

Fox News, Department of Justice urges Bureau of Prisons to tighten security around searching staff (August 12, 2021)

ABC News, More questions than answers 2 years after Epstein’s suicide (August 11, 2021)

USA Today, Drugs that treat opioid addiction and overdoses not widely available in federal prisons (August 10, 2021)

GAO, Improved Planning Would Help BOP Evaluate and Manage Its Portfolio of Drug Education and Treatment Programs (May 2021)

– Thomas L. Root

Who Knows What Joe’s Thinking? – Update for August 17, 2021

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

ADMINISTRATION HINTS AT DRUG CLEMENCY (MAYBE)

Biden Press Secretary Jen Psaki started hearts and tongues fluttering last week when she said the Administration was looking at clemency for federal drug offenders.

clemencypitch180716“The president is deeply committed to reducing incarceration and helping people successfully reenter society,” Psaki said in a press briefing. “And he said too many people are incarcerated — too many are black and brown — and he’s therefore exploring multiple avenues to provide relief to certain nonviolent drug offenders, including through the use of his clemency power.”

As a candidate, Biden said in 2019 that he wanted to release “everyone” in prison for marijuana, but Psaki has referred questions on whether he will do so to the Justice Department, saying last April it was “a legal question.”

The New York Post reported that “Psaki’s remark thrilled clemency advocates who have been pushing for Biden to commute prison sentences and issue pardons early in his term, which is uncommon for presidents. Clemency advocate Amy Povah said, “We are elated that President Biden has expressed an interest in using his executive clemency power with an emphasis upon drug cases.”

caresbear210104Meanwhile, other advocates feel frustrated that Biden has done nothing on a matter as small as addressing the status of people on CARES Act home confinement. Last Wednesday, Senators Richard Durbin (D-Illinois) and Cory Booker (D-New Jersey) wrote to President Biden, urging him to act on keeping CARES Act home confinees at home. They suggested, in part, that the Bureau of Prisons could “provide relief for certain individuals through prerelease home confinement, under 18 USC § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 USC 6054l(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 USC § 3582(c)(l)(A). Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.”

Reuters last week reported that the Justice Department had asked an Oregon federal judge on Tuesday to deny a bid by federal inmates to qualify for early release through First Step earned time credits. Prosecutors argued that no programs or activities completed by the inmates qualified for earned time credits.

Reuters said, “The rift could increase pressure on the Justice Department, which is under fire from civil rights advocates for its inaction to prevent BOP from sending thousands of federal inmates back to prison once the pandemic emergency is lifted.”

At issue is a provision from the 2018 First Step Act, which aims to ease harsh sentencing for non-violent offenders and reduce recidivism. The BOP may award 10 or 15 days’ credit for every 30 days of participation in recidivism-reduction or activities such as academic classes or certain prison jobs.

In a November 2020 proposed rule, the BOP defined a day of participation as eight hours and limited the menu of qualifying programs.

recid160321One issue is the BOP’s definition of a day of participation as 8 hours. “The math speaks for itself,” federal defenders wrote in a January 2021 letter to BOP. “It would take 219 weeks, or over 4 years to earn a full year of credit under the BOP’s proposed rule.”

In Tuesday’s case, the lead plaintiff has held prison jobs such as a painter and an HVAC worker and completed courses such as anger management, entrepreneurship, and a residential drug abuse program. But the government argued that none of those programs is on the BOP’s EBRR program list.

“If HVAC work doesn’t qualify, what kinds of jobs do?” asked Magistrate Judge John Acosta, noting the program’s goal of reducing recidivism and facilitating reintegration into society.

“The ones that are identified by the Bureau of Prisons,” AUSA Jared Hager replied, noting the inmates have “not shown entitlement to any credit.” The list of qualifying programs and activities will be updated by Attorney General Merrick Garland, he added.

Similar suits are on file in federal courts throughout the country.

Finally, JDSupra.com reported last week that Senate Majority Leader Chuck Schumer (D-New York) has partnered with Senate Finance Committee Chairman Ron Wyden (D-Oregon) and Sen Booker to draft comprehensive federal cannabis reform legislation, which the sponsors plan to introduce this fall.

marijuanahell190918The measure, called the Cannabis Administration and Opportunity Act (the CAOA), would – among other matters – would require the federal government to expunge any arrest or conviction for a non-violent federal cannabis offense, and allow any person serving a criminal justice sentence for a non-violent federal cannabis offense to move for sentence reduction. After the hearing, the court would be required to expunge each arrest, conviction, or adjudication for a non-violent federal cannabis offense.

The drafting of the bill is in its early stages. The sponsors are actively soliciting comments prior to CAOA’s introduction. Comments may be submitted through September 1, 2021, at Cannabis_Reform@finance.senate.gov.

New York Post, Biden ‘exploring’ clemency for federal drug crimes, Psaki says (August 11, 2021)

Letter from Senators Durbin and Booker to President Biden (August 12, 2021)

Reuters, U.S. Justice Dept clashes with inmates over credits to shave prison time (August 10, 2021)

JDSupra.com, US Senators Seeking Input on Comprehensive Federal Cannabis Reform Legislation (August 11, 2021)

 

– Thomas L. Root

What Part of a Gun is a Gun, 8th Circuit Ponders – Update for August 16, 2021

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

PARTS IS PARTS

I waste a lot of brain space recalling TV ads. Wendy’s had one in the 1980s belittling places that sold processed chicken. “Parts is parts,” the bored counterman told the skeptical customer.

parts210816That tagline rings true with a vengeance for firearms. A conviction under 18 USC § 922 requires proof that the firearm in question must have traveled in interstate commerce. Congress had to include the provision in order to be able to pass enforceable legislation. Yet the interstate commerce requirement can lead to some strange results.

If you’re a convicted felon, you can legally own a Smith and Wesson revolver. Just live in Massachusetts. Want a TEC-9, maybe for duck hunting? Move to Miami. If you live in the same state in which the firearm was made and sold, possession is not prohibited by 18 USC 922(g).

Cautionary note: Just don’t ever buy any ammo. That’s a different story.

Notguns170330Not so with the gun itself. The statute (18 USC 921(a)(3)) defines a “firearm” as “(A) any weapon… which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; [or] (B) the frame or receiver of any such weapon.” The frame or receiver is defined by regulation as the “part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” 27 CFR 478.11. Which brings us to the strange world of the AR-15.

One of the worst kept secrets in America is that anyone with a drill press or router and a few hundred bucks in parts can build an AR-15 lower receiver at home in a few hours. The chunk of aluminum or plastic that gets milled into a lower receiver can be bought online, and because it’s only 80% complete, it is not a firearm under the law (for now, but new rules are coming). Once the home hobbyist completes the lower receiver and mates it with an upper receiver (many versions of which are available online and which in and of themselves are not defined as “firearms” either), he has a completed firearm. Because the part the ATF considers to be the “firearm” – the lower receiver – was just a block of metal when it crossed state lines, no firearm had crossed state lines, and a former felon who possessed one is not violating § 922(g).

gunar15lower210816By a weird twist, the ATF defines the frame or receiver of a firearm to include trigger parts, the bolt, and possibly the threads for mounting the barrel. This definition makes great sense for a revolver, semi-automatic pistol, and most rifles. But the AR-15 has two separate parts, a lower receiver that has the trigger parts and magazine well, and an upper receiver holding the bolt, bolt carrier, and barrel threads. At least one federal district court has thrown out a felon-in-possession case where the defendant had a box full of AR-15 lower receivers, holding that – no matter what the ATF tried to argue in court – its own definition held that an AR-15 lower receiver is not a firearm.

gunar15upper210816(Yet another cautionary note: President Biden has ordered the ATF to redefine various other parts of the guns as firearms that require serial numbers, so this loophole may be closing. But millions of AR-15 upper receivers, barrels, magazines, and the such without serial number will remain in circulation.)

Which brings us to a decision last week in the 8th Circuit. Luke Burning Breast had a prior felony conviction. After local police confiscated an AR-15 style rifle from him, the Feds brought an 18 USC 922(g) felon-in-possession case against him.

Luke argued that the lower receiver was not a firearm under the ATF’s own definition. While there was no question the lower – which had a serial number – had been made in another state, Luke argued that only the lower and upper receivers together make a firearm, and because the government did not prove the upper receiver traveled in interstate commerce, the evidence was insufficient to convict him of being a felon in possession of a firearm.

guns170111Last week, the 8th Circuit shot Luke down in a 2-1 decision remarkable for its circular reasoning. The majority argued that the ATF’s definition of a frame or receiver is only one way to define a firearm. “Another way is if the weapon will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. Notwithstanding the lack of evidence establishing the upper receiver had, in fact, been swapped out, there was no evidence that at any point the firearm was anything but a weapon that could, or was designed to, or may readily be converted to expel a projectile by the action of an explosive. Here, it is immaterial whether there was proof that the upper receiver traveled in interstate commerce when the evidence established a completed rifle capable of being shot traveled in interstate commerce prior to Burning Breast’s possession of it.”carriefgun170807

In other words, because the lower receiver was once part of an entire AR-15 that traveled in interstate commerce, the jury could infer that it had always been a firearm.

The dissent observed, “I grant that Burning Breast possessed a functional rifle. But it is not so clear that a jury could reasonably infer that it traveled in interstate commerce. In order for an inference to be reasonable, there must be some evidence to support it. But there is no evidence that anything other than the lower receiver moved in interstate commerce. The ATF agent admitted as much.”

The decision is interesting for what it implies. Had Luke made his own lower receiver – without a serial number – the government would have been unable to prove the firearm had ever crossed state lines, and Luke could not have been convicted.

United States v. Burning Breast, Case No 20-1450, 2021 U.S.App. LEXIS 23778 (8th Cir., August 11, 2021)

– Thomas L. Root

SIZZLE BUT NO STEAK YET IN WASHINGTON – UPDATE FOR AUGUST 13, 2021

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

LAST WEEK IN WASHINGTON

oddcouple210219The news website Axios reported last week that Sens. Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa) – the Senate’s criminal-justice reform “odd couple” – “are working to win Senate passage of a big criminal justice reform package this Congress.”

Axios cited approval of three bills by the Senate Judiciary Committee, the COVID-19 Safer Detention Act, the First Step Implementation Act, and the Prohibiting Use of Acquitted Conduct Act as being “three measures, Grassley told Axios, they ‘hope to package along with potentially other proposals to pass the Senate sometime this Congress’.” Durbin separately told Axios in his own statement that he’s “committed to bringing these bills to the Senate floor this Congress.”

Axios predicts the final package also may include a measure for CARES Act confinees who otherwise may be forced to return to prison, a Republican Senate staffer told Axios, as well as the EQUAL Act. One challenge will be the crime spike, Axios said, which has the potential of sapping support from senators afraid of being branded soft on crime.

I like Axios, which is a pretty even-handed service, albeit more of a news aggregator than a news reporter. (Nothing wrong with news aggregators – LISA is largely one itself). But because it’s an aggregator, I am not sure whether Axios’s report represents something new, or is just a survey of what we already know.

caresbear210104In other developments, a coalition of five civil rights groups last week urged the Dept of Justice to reconsider its position on sending back to prison thousands of federal inmates transferred to home confinement during the pandemic, offering a legal analysis they believe would justify keeping them out from behind bars.

They argued that the Trump-era legal memo that concluded BOP is required by law to revoke home confinement for those transferred during the pandemic as soon as the emergency period is over, contending the Office of Legal Counsel memo is based on a flawed interpretation of the CARES Act.

Update: Yesterday, Senators Richard Durbin (D-Illinois) and Cory Booker (D-New Jersey) wrote to President Biden, urging him to act on keeping CARES Act home confinees at home. They suggested, in part, that the Bureau of Prisons could “provide relief for certain individuals through prerelease home confinement, under 18 USC § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 USC § 6054l(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 USC 3582(c)(l)(A). Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.”

So far, the President has resisted by inaction such calls to address the looming home confinement crisis.

Axios, Senate plans barrage on crime (August 1, 2021)

The Hill, Civil rights groups offer DOJ legal strategy on keeping inmates home after pandemic (August 4, 2021)

Letter to Dawn E. Johnsen, Acting Asst Attorney General (August 4, 2021)

The Hill, Top Senate Democrats urge Biden to take immediate action on home confinement program (August 12, 2021)

Letter to President Biden from Sens. Durbin and Booker (August 12, 2021)

– Thomas L. Root

10th CIRCUIT DISRESPECTS ITS PRECEDENT ON COMPAssionate release – Update for August 12, 2021

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

10TH CIRCUIT FLIPS UP ITS OWN 4-MONTH OLD COMPASSIONATE RELEASE PRECEDENT

flipflop170920It seems like only four months ago that the 10th Circuit ruled in United States v. Maumau and United States v. McGee that the plain language of the compassionate release statute (18 USC 3582(c)(1)(A)(i)) creates a three-step test: ”At step one . . . a district court must find whether extraordinary and compelling reasons warrant a sentence reduction… At step two . . . a district court must find whether such reduction is consistent with applicable policy statements issued by the Sentencing Commission… At step three, § 3582(c)(1)(A) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by steps one and two is warranted in whole or in part under the particular circumstances of the case…”

Pretty straightforward, isn’t it? Maybe not. Last week, the 10th ruled in a case deciding three compassionate release cases that despite what Maumau and McGee said, “district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others.”

respect210812The Circuit now thinks that Maumau’s and McGee’s detailed discussion of a three-step test – “although we have no doubt that the statements in those opinions were carefully considered by the panels (and are therefore entitled to our respect)” – are nothing more than dicta. Some respect “The language of § 3582(c)(1)(A) certainly requires that relief be granted only if all three prerequisites are satisfied,” the 10th now thinks, “but it does not mandate a particular ordering of the three steps (much less the ordering Hald and Sands urge). Since it mentions step three first, the natural meaning could well be that the court is to first determine whether relief would be authorized by that step and then consider whether the other two steps are satisfied. We think it persuasive, if not binding, that our well-considered reading of the statutory language in McGee declared that the three steps could be considered in any order.”

To make matters more chaotic? The decision drops a footnote noting that “as of oral argument in May 2021, all three men had either been vaccinated or been offered the opportunity to be vaccinated against COVID-19. Although we do not consider this development in resolving their appeals, there is certainly room for doubt that Defendants’ present circumstances would support a finding of ‘extraordinary and compelling reasons’.”

United States v. Hald, Case No 20-3195, 2021 U.S.App. LEXIS 23451 (10th Cir. August 6, 2021)

– Thomas L. Root

BOP COVID Report – Update for August 10, 2021

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 ABOUT THAT COVID VARIANT?

The Bureau of Prison’s own sometimes-controversial numbers suggest the agency is holding the COVID-19 Delta line for inmates, with 310 reported ill as of last night, up only 5.4% since a week before. The BOP has complete control over that number. But it has less control over the number of ill BOP employees – up 48% from a week before, from 157 to 233 – and the number of facilities with COVID-19 present. That number jumped from 80 to 96 joints, the highest level in four months.

Raisedead210208According to data published Sunday by the U.S. Centers for Disease Control and Prevention, 50.1% of the total U.S. population is now fully vaccinated – more than 166 million people. The US now is averaging more than 100,000 new COVID-19 cases every day, the highest in almost six months. The BOP reports 55.7% of inmates and 52.5% of staff have been vaccinated.

Two more inmate deaths were reported last week, one July 17th at Texarkana and a second, on July 28th at FMC Ft Worth. Roy Berry, who died at Ft Worth, had COVID in March but had been declared recovered by the BOP. At least 257 federal inmates have died of COVID. Due to squirrely reporting from private prisons (where reports of deceased prisoners magically disappeared from time to time), the number is certainly higher than that.

USP McCreary reported 56 sick inmates, Miami FDC 25, FCI Texarkana 25, FCI Phoenix 24, USP Yazoo City 14, FMC Butner 13; and FCI Terminal Island with 11.

NPR reported last Friday on the COVID-19 Safer Detention Act, noting that the bill – sponsored by Sens Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa) – would extend compassionate release to the ever-decreasing numbers of “old law” inmates (those sentenced before 1988) still in the system.

The bill, which has passed out of the Senate Judiciary Committee and is also pending in the House, would ease COVID-19 compassionate release procedures, make permanent CARES Act home confinement, and benefit Elderly Offender Home Detention  inmates.

home190109Meanwhile, Reason magazine argued last week that the CARES Act home confinees have proven that home detention is a viable imprisonment alternative. “The overwhelming majority of those released on home detention have not reoffended. Of the 28,881 prisoners allowed on home detention last year, only 151 individuals, less than 1%, violated the terms of their confinement. Only one person has committed a new crime… In short, home detention seems to be largely successful. Most prisoners under the program have stayed out of trouble and are working to become law-abiding citizens. In doing so, they are saving taxpayers the exorbitant price of incarceration—which, on average, costs over $37,500 per year versus $13,000 per year for home confinement and monitoring.”

BOP, COVID-19 resource page (August 9, 2021)

CDC, COVID Tracker (August 8, 2021)

BOP, Inmate Death at FCI Texarkana (August 2, 2021)

BOP, Inmate Death at FMC Ft Worth (August 3, 2021)

NPR, Some Older Prisoners Aren’t Eligible For Compassionate Release. Lawmakers Want Change (August 6, 2021)

Reason, The Pandemic Showed Home Detention Works (August 6, 2021)

– Thomas L. Root