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Some Short Notes From the News – Update for July 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.

THE SHORT ROCKET

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A couple of short takes from last week’s news (and one update to yesterday:

Pardon Me: The June 2021 Federal Sentencing Reporter was devoted entirely to the presidential pardon power. In one essay, the authors found that of President Trump’s 238 clemency grants, only 25 (11%) were recommended by the DOJ Pardon Attorney.

New York magazine reported last week that Trump’s 238 clemency grants was a 50-year low. While Biden has hinted he’ll started granting clemency next year (before the midterm elections), the magazine was skeptical:

“The appearance of being “soft on crime,” and the possibility that someone you free re-offends in some politically inopportune way, makes it hard for presidents to rationalize pardoning people or commuting sentences with any regularity… The effect is that clemency has become really unusual. And when something is unusual, each decision becomes freighted with dramatic significance and scrutinized to the nth degree.”

Meanwhile, law professors Rachel Barkow (New York University) and Mark Osler (University of St. Thomas School of Law) sounded the alarm this week that contrary to its campaign pledges, the Biden Administration is poised to resume the errors of the past.

Inexplicably, however, the Biden administration… wants to leave clemency under the control of the Justice Department. Doing so will undermine the administration’s stated hope of achieving criminal justice reform and reducing racial bias in the federal system….

In conversations with activists, the administration has, at most, expressed some desire to use the pardon power before the 2022 midterm elections. That tells us two things, both dispiriting: that this is a low priority for the president, and that the administration does not yet have a handle on how this all could work. That’s far too long for reforms that don’t need congressional approval and when there is a backlog of petitioners who have waited too long for justice.

Federal Sentencing Reporter, Vol 33, Issue 5, After Trump: The Future of the President’s Pardon Power

Lawfare, Trump and the Pardon Power (July 6, 2021)

New York Magazine, When Will Joe Biden Start Using His Clemency Powers? (July 5, 2021)

The New York Times, We Know How to Fix the Clemency Process. So Why Don’t We? (July 13, 2021)

DOJ Inspector General Calls Out BOP on Faith-Based Support: A report issued last week by the DOJ Office of Inspector General found that a 30% shortage in BOP chaplains as well as “a lack of faith diversity” among the chaplaincy staff “leaves some inmate faith groups significantly underrepresented,” causing “many institutions to rely on alternative religious services options, such as inmate-led services.”

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The IG said “One particular concern was the potential for an inmate to use a religious leadership role to engage in prohibited activities or as a method to obtain power and influence among the inmate population.” The report concluded that “in the absence of a fully staffed and diverse chaplaincy, BOP institutions are unable to adequately administer their religious programs, prompting many BOP institutions to turn to alternatives that pose enhanced risks, such as inmate-led services and reliance on minimally vetted volunteers.”

DOJ, Audit of the Federal Bureau of Prisons’ Management and Oversight of its Chaplaincy Services Program (July 7, 2021)

readup210715Read Up on EBRRs: The BOP has issued a Program Statement on how staff is to determine inmate programming needs. This is important, because – contrary to the rumor mill, so-called inmate.com – earned time credits (ETCs) are only awarded for completion of approved programs that address needs previously identified by BOP staff. The new program statement guides you on how to get needs identified that will lead to ETCs.

PS 5400.01, First Step Act Needs Assessment (June 25, 2021)

– Thomas L. Root

A Little Bias Never Hurt Anyone – Update for July 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.

HIT THE ROAD, JUDGE


I would retire today if I only had a dime for every defendant who ever asked how to get his or her judge thrown off the case for bias. Or even just a nickel for everyone who has filed an unsuccessful motion to do just that.

Dick and Judy Brocato owned a lawn care company. Over a three-year period, they concealed about $1.7 million of business income from the IRS.

Oh, the calumny! Working hard, earning an honest buck, and then not telling your Uncle Sam so that he can lop off his share! Well, whatever… they were charged with tax fraud.

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At trial, Judy tried to explain where she had come up with a $9,000 down payment for a Maserati. She said she had gotten it from her dead mother’s estate. The government did not pursue the explanation, but the judge did. During a sidebar before closing arguments, the judge told the Brocatos’ attorney not to argue in closing that the $9,000 came from Judy’s mom, because the judge’s staff had conducted an “Internet search” and found mom’s obituary. “The transaction with the Maserati occurred in 2013 and it appears from the obituary of her mother that she died in 2015,” the judge said, “so, I don’t think she would have gotten money in 2013 from her mother’s estate. The Court takes a very dim view of perjury in proceedings; so, you need to keep that in mind.”

The jury found them guilty.

bias210714That was in February. Months later, as sentencing approached, the sleuthy district judge acted on her own to order up a certified copy of mom’s death certificate. At that point, the Brocatos had had enough of a courtroom that seemed to have two prosecutors but zero judges. They filed a motion to recuse the judge.

The judge, of course, denied the motion, determining that detailing her staff to help the prosecutor attack the Brocatos’ case was perfectly fine. She later sentenced both Dick and Judy to 33 months, the low end of their Guidelines sentencing range.

A recusal motion is a tough sell. Remember, defendants may come and go, but the judges all belong to the same club, and have long-standing professional and personal relationships. It is simply an acknowledgment of reality to recognize that there is a strong judicial predisposition against recusing a colleague.

So it was here. Last week, the 5th Circuit agreed the judge’s actions were improper, but that she had not shown bias.

Not everything can be described as bias or partiality within the meaning of the recusal statutes, 28 USC § 144 and § 455(a), the 5th said. “Rather, the concept of bias connotes a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate… because it rests upon knowledge that the subject ought not to possess…” A judge is not generally required to recuse herself for bias – even if the judge may think the defendant is pond scum – when the judge’s “knowledge and the opinion it produced were properly and necessarily acquired in the course of the trial.”

nancydrew210714Of course, the bias in this case, such as it might be, came from information acquired outside of the trial. “We do not in any way condone Internet searches concerning a witness’s credibility, or any type of similar investigation by court staff into factual matters.” the Circuit said. “This sort of ex parte fact-gathering is improper. Such activity has the potential to raise reasonable questions concerning impartiality, and it should not occur. We also find the district judge’s use of the term ‘perjury’ regrettable in light of the context in which the inconsistent testimony was identified.”

So was the 5th about to lay out Judge Nancy Drew? Hardly. “With that said, however, we think that a review of all of the facts and circumstances in this case dispels any reasonable doubts created by staff’s improper Internet search or the judge’s use of the word ‘perjury’.”

The Circuit found it significant that the Brocatos did not move to recuse the Judge until six months after she first raised the perjury matter, and that they both got 33 months, the bottom of the Guidelines advisory 33-41 sentencing range, with no obstruction-of-justice enhancement. The defendants’ only argument was that they might have gotten a below-Guidelines sentence but for the bias, and the 5th said that reason wasn’t enough to show they had been prejudiced.

Both of these excuses are perilously close to make-weight arguments. Make no mistake: filing a motion to recuse is a nuclear option. The Brocatos showed commendable discretion in letting the judge’s charge conference “perjury” revelation slide, and only decided that they had to push the button when the judge started assembling her own sentencing evidence. And as for the bottom of the Guidelines sentences without any enhancement for perjury, Judy hardly got any break.

taxreturn200401Unfair or not, there is often a sentencing discount for the wife, if for no other reason than she’s a girl, and old habits die hard. Likewise, for tax offenses, the likelihood that a defendant will get a sentence below the Guidelines range is more than a mere hope: the Sentencing Commission’s 2020 Sourcebook reports that over 70% of tax fraud sentences (Guideline § 2T1.1) vary downward from the sentencing range, making it more likely than not that the Brocatos would have gotten a break but for the judge’s bias.

That she stayed within the Guidelines is hardly surprising: the Judge knew by sentencing that her investigative frolic was bound to be raised on appeal, and that within-Guidelines sentences and no whisper of the “p” word at sentencing were all that might save her decision on recusal.  But it is utterly disingenuous for the appellate court to dismiss the likelihood of a downward variance as not a significant reason for recusal.

United States v. Brocato, Case No 20-40624, 2021 U.S. App. LEXIS 20449 (5th Cir., July 9, 2021) (per curiam)

– Thomas L. Root

Sure You’re Innocent, But WHY Are You Innocent? – Update for July 12, 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.

JUST SAYING IT DOESN’T MAKE IT SO

smile210712Sam Abram had a brief but prolific career as a bank robber, an occupation that Sam found to be more rewarding if he employed a smile and a gun rather than a smile alone. When the FBI nabbed him, Sam was convicted of the robberies and – for good measure – as a convicted felon in possession of a gun, a violation of 18 USC § 922(g).

Sam was convicted, lost on appeal, and then lost again on a post-conviction 28 USC § 2255 motion. Several years later, the Supreme Court held in Rehaif v. United States that to be convicted of being a felon-in-possession, the defendant had to actually know he was a member of a class of people prohibited from possessing a gun. In Sam’s case, Rehaif said he had to know he was a convicted felon at the time he possessed the gun.

Generally, a § 2255 motion is the only way to mount a post-conviction challenge to an unlawful conviction or sentence, but 2255 motions are pretty much one-to-a-customer. If you have already filed one § 2255 motion, you must get permission from the Court of Appeals to file a second one, and getting permission is tough. Under 28 USC § 2244, you must either show you have discovered new evidence you couldn’t have feasibly found before – evidence that would have been a home run with the jury – or that the Supreme Court had handed down a constitutional ruling made retroactive on appellate review.

Rehaif was a reinterpretation of a statute that virtually all of the Federal circuits had gotten wrong, but because it was a decision of statutory construction rather than a decision that 18 USC § 922(g) was unconstitutional, Sam couldn’t get leave to file a new § 2255 motion.

savings180618But § 2255 has a “savings clause,” § 2255(e), which lets people in Sam’s position file a traditional 28 USC § 2241 habeas corpus petition when a § 2255 motion “is inadequate or ineffective to test the legality of his detention.” And a § 2255 motion is “inadequate or ineffective” if “(1) the § 2241 petition raises a claim that is based on a retroactively applicable decision; (2) the claim was previously foreclosed by circuit law; and (3) that retroactively applicable decision establishes that the petitioner may have been convicted of a nonexistent offense.”

Sam filed a § 2241 petition, arguing that his § 922(g) conviction should be thrown out because his indictment never alleged he knew he had been convicted of a prior felony, and, by the way, he was actually innocent in that he didn’t know about his convicted-felon status. The district court shot down his § 2241 petition, and last week, the 5th Circuit agreed.

The Circuit said that Sam had to provide some evidence or argument supporting that he may have been convicted of a nonexistent offense. That requirement is “particularly important in the Rehaif context,” the 5th said, because “[c]onvicted felons typically know they’re convicted felons” (a Kavanaugh quip from last month’s Supreme Court decision, Greer v. United States). The Circuit said, “if a defendant was in fact a felon, it will be difficult for him to carry the burden… of showing a reasonable probability that, but for the Rehaif error, the outcome of the district court proceedings would have been different.”

innocent210712All Sam did was assert he was actually innocent, which was nothing more than parroting the standard for a “savings clause” § 2241 petition. Where a prisoner just does that – without providing some evidence or argument supporting his claim that he was unaware of his relevant status – then, the Circuit ruled, “he has failed to demonstrate that he is entitled to proceed under § 2255(e)’s savings clause.” And thus, a substantive defect in the prisoner’s showing becomes a procedural defect as well.

Abram v. McConnell, Case No. 20-30199, 2021 US App. LEXIS 20174 (5th Cir. July 7, 2021)

– Thomas L. Root

A Couple of ‘Shorts’ – Update for July 9, 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.

GRANDMA GOES HOME AS ADVOCATES BEAT UP BIDEN ON HOME CONFINEMENT

short210709FAMM, the American Civil Liberties Union, and the Justice Action Network last week called on President Biden to use his clemency authority to prevent about 4,000 people now on CARES Act home confinement from being sent back to prison when the pandemic ends.  Nothing new there. But then, into the middle of this brouhaha stepped the Bureau of Prisons.

A month ago, Gwen Levi, a Baltimore grandmother who had been sent to home confinement under the CARES Act, was returned to prison by the BOP.  Her offense was “escape.” In the BOP, that means that she was taking a computer class, and during class, she turned off her phone. The halfway house called to check on her whereabouts, but she did not call back until after class. For that, she went back to prison for another eight years.

The BOP didn’t reckon on the media outcry. After all, who doesn’t like grandmas? The Washington Post trumpeted, “A grandmother didn’t answer her phone during a class. She was sent back to prison.” USA Today blared, “‘Scared and confused’: Elderly inmate sent home during COVID is back in prison after going to computer class.” A grandmother didn’t answer her phone during a class in Baltimore. The Mayor of Baltimore issued a statement complaining that

Following Gwen’s early release from prison last year, the 76-year-old chose to rewrite her story by volunteering for advocacy organizations around Baltimore. But while grace is a rare occurrence, judgment in America flows abundantly. Gwen recently made national headlines after being sent back to prison for failing to answer her phone during a computer class. This lack of patience and empathy was wrong…

Last Tuesday, Gwen’s district court judge granted her compassionate release.
levi210709

However, the media hue-and-cry may be having an effect. Every movement needs an icon, and Gwen may be it. For months advocacy groups have been asking Biden to address the issue, resulting from a Trump DOJ Office of Legal Counsel memo holding that CARES Act home confinees should be sent back to prison once the COVID-19 emergency ended. Biden has not withdrawn the memo, despite bipartisan calls for the Administration to do so.

Maybe now, the issue will get traction.

Rep. Bonnie Watson Coleman (D-N.J.), who led a letter of 28 House Democrats in April calling for the policy to be rescinded, “is disappointed he hasn’t officially extended the home confinement program,” a spokesperson said. Other advocates are considering it a misstep for Biden to not discuss the program as part of the administration’s crime portfolio.

A BOP spokeswoman said, “This will be an issue only after the pandemic is over. The president recently extended the national emergency and the Department of Health and Human Services has said the public health crisis is likely to last for the rest of the year.” The White House revisits the emergency declaration every three months, leaving the former prisoners in a constant state of limbo. The next deadline is later this month.

“This is not a heavy lift for the Biden administration. All these people were moved out of prison because Trump officials felt it was safe enough for them to go home, said Holly Harris, president and executive director of Justice Action Network. “What more political cover does President Biden possibly need? Lawmakers and advocates from both sides of the aisle agree: it’s time for President Biden to grant clemency to these men and women so they can fully connect with their families, secure jobs, and move on with their lives. Anything less is unconscionable.”

ABA Journal, Judge rules for grandma on home confinement after arrest for not answering calls during computer class (July 7, 2021)

ACLU, Bipartisan Organizations Call on President Biden to Immediately Prevent Thousands on Home Confinement From Being Sent Back to Federal Prison (June 28, 2021)

The Hill, Biden faces criticism for not extending home confinement for prisoners (June 26, 2021)

New York Times, Thousands of Prisoners Were Sent Home Because of Covid. They Don’t Want to Go Back (June 27, 2021)

BORDEN NOTCHES ITS FIRST COLLATERAL WIN

Kristen Brenner was convicted of being a felon in possession of a gun in violation of 18 USC § 922(g)(1). Because of her prior convictions, the government sought to get Krissy a minimum 15-year Armed Career Criminal Act sentence. Her district court refused the government, however, agreeing with Krissy that her Tennessee reckless aggravated assault conviction (related to impaired driving) was not a crime of violence.

Reckless, maybe... but not c a crime of violence,
Reckless, maybe… but not a crime of violence,

The government appealed, but the case was held in abeyance pending the Supreme Court decision in Borden v. United States. After that June 10 decision held that crimes that could be committed with a “reckless” intent did not fit the “crime-of-violence elements” definition, the government moved to dismiss its appeal in Krissy’s case.

Last week, the 6th Circuit dismissed the government appeal. “Because we apply the law as it currently stands, Borden controls Brenner’s case. Borden analyzed the very statute under which she was convicted, which refers to a person ‘recklessly committing an assault’… Under Borden, that mens rea is insufficient.”

United States v. Brenner, Case No 19-5647, 2021 US App LEXIS 19657 (6th Cir. July 1, 2021)

– Thomas L. Root

BOP Healthcare: No Experience Required – Update for July 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.

BOP HEALTHCARE TAKES IT ON THE CHIN

The Bureau of Prisons’ healthcare system took some hits last week.

BOPkickme210707First, from the “Crime Pays – If The Victim is the BOP” department: NaphCare – a private company that boasts it offers “proactive, preventative medical and mental health care providing community-standard of care in jails and prisons” – demonstrated how to defraud the BOP without consequence. NaphCare overbilled the BOP by “submit[ing] inflated claims for evaluation and management services.” And, after stealing at least $690,000 from the BOP, not only are there no criminal prosecutions, but NaphCare’s contract continues without interruption. All it has to do is pay it back.

Try that one with the judge on your next fraud indictment.

The Dept. of Justice announced last week that it had settled a False Claims Act proceeding against NaphCare by agreeing that the company could pay back $694,000 without admitting that it had done anything wrong. The “anything wrong” was a scheme whereby its employee physicians occasionally did not indicate the type of service performed on an inmate when they completed onsite visit sheets. When that happened, a NaphCare employee would fill in a code for a more expensive medical service and bill the BOP accordingly.

The scam went something like this: the NaphCare doc treats Ira Inmate for an ingrown toenail but fails to code it on his report turned into the home office. A NaphCare staffer sees the blank, and inserts the code for “heart transplant.” NaphCare charges a bit more for heart transplants.

The government caught NaphCare pulling the grift at USP Terre Haute and USP Victorville. The settlement agreement suggests NaphCare did it elsewhere, too, and has to report other improperly-billed costs within 90 days. In other words, the $694,000 at two facilities may just be the tip of the iceberg.

As an old law partner of mine liked to say, “no thief steals only once.” Or twice, in this case.

quackdoc210707So how do you run a billing scam on the nation’s chief law enforcer? Well, when the BOP’s healthcare system run by a former correctional officer without healthcare credentials, it is apparently not that hard. The Marshall Project reported Thursday that the senior official responsible for overseeing health care, safety, and food service in all of the BOP’s 122 facilities is Michael Smith. Mr. Smith (don’t call him “Dr.”) is a community college dropout who started his career as a CO in 1997. Smith directs three national program areas: medical, environmental and safety compliance/occupational health, and food service.

“I would seriously question his understanding of science, but he was a nice guy,” said Bill Axford, union president at FMC Rochester, where Smith previously worked as an associate warden, told The Marshall Project. Axford said when he once raised concerns with Smith that radon, an odorless radioactive gas that can cause lung cancer, could pose a danger to parts of the prison, Smith initially dismissed the potential threat, telling Axford that “radon’s not real.” Axford said that on another occasion, Smith told him that sunscreen, not the sun, caused skin cancer.

Junk Science210707Union leaders, prison health care workers, and advocates for prisoners’ rights said it is troubling that the people leading the BOP Health Services Division during the COVID-19 crisis lacked medical licenses. Nearly 50,000 federal prisoners tested positive for COVID-19 as of last week, and at least 258 have died. The BOP came under fire last year from politicians and union leaders for pressuring guards to come to work sick, failing to follow its own pandemic plan, and buying knock-off N-95 masks. “They spent $3 million buying UV portals,” one official added. “They said these killed the coronavirus — but they weren’t FDA-approved.”

“This is why our agency is broken,” said Joe Rojas, a national union leader who works at FCC Coleman. “You have people who are unqualified and you have a medical pandemic, but the leadership has zero medical background.”

“A great many of the people who ever had COVID, they were never tested,” complained Dr. Homer Venters, a former chief medical officer of the New York City jail system who inspected health conditions in prisons around the country over the past year, some as a court-appointed expert. “In most prisons, it ran through these places like wildfire.”

One man housed at a low-security federal prison compared the BOP’s public data to what he was seeing inside. At least half of his unit fell ill, he said, but the Bureau’s data didn’t reflect that.

“For the first year of the COVID, they never tested anybody in my institution unless they had a fever,” an unidentified BOP prisoner told the Associated Press. “The easiest way to not have a positive at your institution is to not test anybody.”

Sitdown210707In the pandemic’s early days, the AP said last week, testing within the BOP was limited, and staff members at some prisons were told there was no need to test inmates. The DOJ Inspector General found that, at some facilities, inmates who tested positive were left in their housing units for days without being isolated.

The concern is not just academic. The highly transmissible COVID-19 Delta variant is now in every state, and is set to cause another COVID-19 surge. The Atlantic last week said, “Vaccinated people are safer than ever despite the variants. But unvaccinated people are in more danger than ever because of the variants. Even though they’ll gain some protection from the immunity of others, they also tend to cluster socially and geographically, seeding outbreaks even within highly vaccinated communities.”

COVIDvaccine201221As of last Friday, 53.5% of inmates and 52.0% of staff were vaccinated. One BOP union official, who has not taken the vaccine yet, said, “I don’t trust the agency. I’m not putting my health and safety in the hands of the BOP.” As for the unvaccinated inmates, Dr. Venters told the district court hearing litigation over FCC Lompoc that many inmates who had refused the vaccine “reported that despite having questions about the vaccine and their own health issues, these questions were not addressed during the vaccine offer or afterward… The CDC has entire toolkits and guidance documents designed to increase vaccine update, but the basic foundation of these efforts is engaging with patients… Many of these high-risk patients were initially offered the vaccine 3 or 4 months ago, and the insistence by BOP leadership that their very valid and predictable questions and concerns go unaddressed during this time significantly increases the risk of preventable death from COVID-19.”

Dept. of Justice, Prison Health Care Provider Naphcare Agrees to Settle False Claims Act Allegations (June 25, 2021)

Settlement Agreement between DOJ and NaphCare (June 25, 2021)

The Marshall Project & NBC News, Prisons Have a Health Care Issue — And It Starts at the Top, Critics Say (July 1, 2021)

Chicago Sun-Times, Despite COVID’s spread in prisons, there’s little to suggest they’ll do better next time (June 30, 2021)

The Atlantic, The 3 Simple Rules That Underscore the Danger of Delta (July 1, 2021)

Second Report of Dr. Homer Venters, Docket 239, Torres v. Milusnic, Case No 20-cv-4450 (C.D.Cal.), filed May 12, 2021

– Thomas L. Root

Supremes Leave Behind Busy Fall Docket as They Take Summer Break – Update for July 6, 2021

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

UNFINISHED BUSINESS

The Supreme Court wrapped up a fairly lackluster October Term 2020 last Thursday, having delivered little of merit in the criminal law area other than Borden v. United States. But the nine justices left a teaser or two as they headed in various directions for a three-month vacation.

hobbsact200218On Thursday, the Court granted review to United States v. Taylor, a 4th Circuit decision holding that attempted Hobbs Act robbery is not a crime of violence for purposes of 18 USC § 924(c) and the Armed Career Criminal Act. The 4th’s decision created a Circuit split – four other circuits hold that an attempted Hobbs Act robbery is a crime of violence – leading the government to seek certiorari. The split – and the fact that the government usually gets its way when it asks for discretionary review – probably convinced the Supreme Court to hear the case, which will be argued late this year.

The Supreme Court left town without deciding whether to review Bryant v. United States, the 11th Circuit holding that prohibits using the compassionate release statute to challenge excessive sentences. Seven other circuits have held that the narrow grounds for 18 USC § 3582(c)(1)(A)(i) motions listed in Guidelines policy statement § 1B1.13 do not limit compassionate release motions brought by inmates, but only when such motions are brought by the Bureau of Prisons. (Remember the last time one of those was filed by the BOP?) Only the 11th Circuit – no surprise there – holds that § 1B1.13 still governs such motions.

longconf210706

The Bryant petition is on relist, and certiorari won’t be decided until the first conference of the new court year – known as the “long conference” – set for the last week of September 2020.

United States v. Taylor, Case No 20-1459, (certiorari granted July 1, 2021)

Bryant v. United States, Case No 20-1732 (petition for cert pending)
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– Thomas L. Root

A Couple of Odds and Ends – Update for July 2, 2021

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shorts210702WE’VE GOT THE SHORTS

COVID Numbers: The BOP reported 31 inmates and 137 staff sick with COVID as of yesterday. The virus was still in 64 institutions. As of last FridaY, the agency said 51.9% of its staff and 53.1% of inmates have been vaccinated.

As I have previously reported, no one trusts the BOP numbers.

BOP, COVID-19 Coronavirus

Judge Goes After Marshals: US District Judge Charles Kornmann (DSD) levied criminal contempt charges against three senior US Marshal officials last week arising from his demand to know whether Marshals in his courtroom have been vaccinated against COVID-19.

angryjudge190822The charges stemmed from an incident last month in which the Judge asked a deputy marshal whether she had been vaccinated. When she refused to answer, Kornmann ordered her out of his courtroom. The Marshals responded by removing three defendants awaiting a hearing from the courthouse, in what Judge Kornmann described as a “kidnapping” that disrupted the court’s work.

The US Attorney for South Dakota has refused to prosecute the criminal contempt citations. As of Wednesday, Judge Kornmann had appointed a Rapid City, South Dakota, private attorney to try the case, and the Judge had recused himself. The Judge described the contretemps as follows:

The Department of Justice, acting through the Marshal Service, has apparently adopted a public policy to the effect that DOJ policies may trump lawful federal court orders. This cannot be permitted. Despite some public confusion, this case has nothing to do with requiring anyone to be fully vaccinated.

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, wrote in the Volokh Conspiracy blog that

recusal seems like an obvious move. This judge has clearly made up his mind. The case is so personal. There is no pretense of objectivity at this point. The case is styled United States of America v. John Kilhallon, et al. But the Plaintiff is not the United States. It is a single judge who abused his discretion. Judge Kornmann makes Judge Emmet Sullivan seem reasonable by comparison.

As for me, I really don’t know who to cheer against in this one. But I am pretty sure I can identify the losers: those federal pretrial defendants sitting in local jails waiting for hearings that will be delayed by this kerfuffle.

Washington Post, Federal judge accuses three senior law enforcement officials of criminal obstruction (June 14, 2021)

Jamestown Sun, South Dakota’s acting US Attorney won’t participate in contempt of court case against US marshals (June 25, 2021)

The Volokh Conspiracy, Update from South Dakota: Judge Kornmann Appoints Special Prosecutor To Try U.S. Marshals For Contempt (June 30, 2021)

– Thomas L. Root

You Can’t Imagine What Never Was in Sec. 404 Resentencing, 10th Says – Update for July 1, 2021

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

COULDA, WOULDA, SHOULDA

JCoulda210701ason Broadway got caught with 488 grams of crack in 2007. He was indicted for having more than 50 grams (which triggered a 10-year statutory minimum under 21 USC § 841(b)(1)(A)) and admitted to the full 48 grams in a plea deal. He got 262 months under the then-applicable Guidelines.

As you recall, the Fair Sentencing Act of 2010 reduced the disparity between crack and powder from a 100:1 ratio to 18:1, making the difference in sentences imposed based on the amount of drug at issue much less. But it was not until the First Step Act passed in 2018 that the Fair Sentencing Act changes could be applied retroactively to people like Jason, who had been sentenced prior to 2010.

Jason applied for a sentence reduction under First Step Section 404, arguing that his statutory mandatory minimum sentence had been reduced by the Fair Sentencing Act. But the district court turned him down, pointing out the government could have indicted him for 488 grams but did not, and he probably would have admitted to all those drugs anyway, and a jury should have convicted him if he had gone to trial (which he did not), and because Jason was a career offender, his Guideline max of “life” would not have changed.

Jason was denied on a “coulda, woulda, shoulda” analysis.

Last week, the 10th Circuit reversed. The Circuit that for the district judge to reach his conclusion, he had to assume that if the Fair Sentencing Act had been in effect, Jason would have been indicted for more than 280 grams (the new cutoff for the 10-year minimum sentence), and if he had been indicted for more than 280 grams he would have pled to it, and if he had pled to it he would not have made a sentencing objection to the 488 grams the government said he had possessed.

lookback210701“To impose a reduced sentence as if the Fair Sentencing Act were in effect at the time the offense was committed is inherently backward-looking,” the 10th held, “but it should not require the amount of speculation necessitated by looking to a defendant’s underlying conduct, even if stipulated. Courts are not time machines which can alter the past and see how a case would have played out had the Fair Sentencing Act been in effect. We doubt Congress would have imposed such a futile role for us.”

Thus, the Circuit ruled, the District Court had to consider the statutory minimum attached to the offense of conviction (more than 50 grams) – not what could have been but never was – and should calculate Jason’s corrected Guidelines range after the passage of the Fair Sentencing Act before considering whether the sentencing factors of 18 USC § 3553(a) argued against a reduction.

United States v. Broadway, Case No. 20-1034, 2021 U.S.App. LEXIS 18506 (10th Cir., June 22, 2021)

– Thomas L. Root

Will BOP Director Carvajal Be The Next One to Be Sent Home? – Update for June 29, 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.

SOME BOP HONCHOS GET EARLY RELEASE, AND CARVAJAL MAY BE NEXT

hitroad210629The Associated Press reported last Wednesday that two Federal Bureau of Prisons Regional Directors have been relieved of their posts. Senior Biden administration officials are also considering replacing Director Michael Carvajal, whom the AP describes as being “at the center” of the “beleaguered agency’s myriad crises.”

The discussions about whether to fire Carvajal are in the preliminary stages and a final decision hasn’t yet been made, AP said it had been told by two people familiar with the matter. They were not authorized to publicly discuss the internal talks and spoke on condition of anonymity.

However, AP reported, “there’s an indication that the bureau is shaking up its senior ranks following growing criticism of chronic mismanagement, blistering reports from the Justice Department’s inspector general, and a bleak financial outlook.”

shocked191024Mismanagement at the BOP? I’m shocked.

“Since the death of Jeffrey Epstein at a federal lockup in New York in August 2019,” the AP claimed, “Associated Press has exposed one crisis after another, including rampant spread of coronavirus inside prisons and a failed response to the pandemic, escapes, deaths and critically low staffing levels that have hampered responses to emergencies.”

At least two regional directors, officials in charge of institutions in the South Central and the Southeast regions are also being replaced. BOP said the two regional directors — Juan Baltazar, Jr. and J.A. Keller — are retiring and had been planning to do so. But the sudden removal apparently was not the testimonial dinner and gold watch the two had anticipated: other people familiar with the matter said that neither had planned to leave for months and were told other officials were being appointed to their jobs.

On Wednesday, AP said, the BOP announced it was appointing wardens William Lothrop and Heriberto Tellez to the regional posts. Tellez, one of the “morons” recently referred to by Senior US District Judge Colleen McMahon, is currently in charge of MDC Brooklyn, the high-rise dungeon where a 34-year-old inmate was found dead in his cell as recently as a week ago.

Carvajal took over as director in February 2020, a month before COVID-19 began galloping through all 122 of the BOP’s facilities, infecting over 48,000 inmates and killing 255.

reel210629To be sure, the Director does not have a lot of highlights on his reel.  Nearly a third of BOP correctional officer jobs are vacant, forcing the BOP to continue to use augmentation, pressing medical, educational, office, and other staff into temporary CO duty.

Some question whether the staffing shortage will prevent the agency from maintaining security and at the same time carrying out its First Step Act programming duties. Over the past 18 months, 30 prisoners have escaped from federal lockups across the U.S. — and nearly half still have not been caught. The AP said prisoners have broken out at lockups in nearly every region of the country.

The Bureau has said it expects to bring on 1,800 new employees, and that its recent hiring initiative has been “a huge success.” But the AP reports the BOP has been slow-walking its hiring process, pausing most new hires until at least October. Officers at several facilities have held protests calling for Carvajal to be fired.

Late last week, Shane Fausey, national president of the Council of Prison Locals, AFL-CIO (representing 30,000 BOP employees) told Politico, “A clear and dangerous staffing crisis in the Bureau of Prisons, as explicitly outlined in a number of OIG reports and a recent scathing report by the GAO, has pushed this agency beyond its limits. Our employees and officers continue to endure unrelenting overtime and reassignments as the budgetary shortfall is preventing the hiring of much needed Correctional Officers.”

Meanwhile, President Biden’s detailed 2022 BOP budget request does not throw the BOP a life preserver. It includes a reduction of $267 million to reflect decreases in the BOP’s inmate population — a decrease that is a result, in part, of the CARES Act and increased use of the Elderly Offenders Home Detention program.

Jail151220But it’s not just the staff shortage and cash crunch. The BOP continues to be plagued by embarrassing allegations of misconduct. Although this predates Carvajal’s administration, a loaded gun was found smuggled into MCC New York not long after Epstein committed suicide. In the last month, the DOJ Inspector General issued a report about security lapses at BOP minimum-security facilities. Last week, the family of Jamel Floyd – who died a year ago at MDC Brooklyn after being pepper-sprayed by guards (only a few months before scheduled release after 15 years) – sued the BOP.

The Floyd suit came only a few days after a suit filed in Denver by BOP employees alleged that USP Florence special operations (SORT) team members fired pepper spray, plastic bullets, and pepper balls at their unarmed, administrative colleagues during a training exercise, in “inappropriate and dangerous” training episodes. Those failings prompted the DOJ Inspector General to recommend that some of its special operations training be suspended until better safeguards could be put in place.

“We believe that staff members at the Bureau of Prisons abused their coworkers in a way that undermines, or should undermine, the faith of the public in the ability to do their jobs,” said attorney Ed Aro, who is representing four current and former Bureau of Prison employees who say they were injured and traumatized by the training.

Last week, Vanity Fair published a long piece chronicling pretrial detainee Ghislaine Maxwell’s complaints about inhumane treatment at MCC New York.

And we end with an Eastern District of Virginia federal judge last week angrily and publicly blaming the BOP for the suicide death of a presentence defendant.

angryjudge190822The man had been sent to FMC Butner – a BOP medical and psychiatric center – for a mental evaluation. He was declared competent to enter a plea and returned to a local jail. After the man pled guilty but before sentencing, Judge T.S. Ellis III again became concerned about the man’s mental health and ordered him back to FMC Butner for further care.  BOP officials refused him unless the defendant was deemed incompetent again or required a new psychiatric evaluation. So the defendant went to a local jail where he took his own life on May 18.

At a hearing on June 24, the judge excoriated the BOP for refusing to take the man and failing to provide his medical records to the local jail. “If I issue an order, you must obey it,” he told prison officials who participated in the hearing. “Nobody in the Bureau of Prisons should ever decide they don’t want to obey my order because they think it violates the law. I trump their view of the law.”

Welcome to the culture of the BOP, Your Honor.

Associated Press, AP sources: Officials mulling ousting US prisons director (June 23, 2021)

Newsweek, Trump-Appointed Bureau of Prisons Director Michael Carvajal Could Be Replaced Amid Crises (June 23, 2021)

Midnight Report, Federal Bureau of Prisons Oust Regional Directors in South Central and Southeast Regions (June 23, 2021)

Time, After His 2020 Death in a New York Jail Cell, Jamel Floyd’s Family File Lawsuit Against Bureau of Prisons (June 24, 2021)

Denver Post, Supermax special ops team used pepper spray, plastic bullets on unarmed colleagues during training exercise, lawsuit alleges (June 23, 2021)

Politico, Union boss: Bureau of Prisons faces dangerous cash crunch (June 25, 2021)

Vanity Fair, Inside Ghislaine Maxwell’s Battle With the Bureau of Prisons (June 24, 2021)

Washington Post, Judge faults federal prison system after suicide of Great Falls man (June 25, 2021)

– Thomas L. Root