All posts by lisa-legalinfo

‘Hey, Abuse Victims, We Didn’t Really Mean It’ – Update for May 11, 2023

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

SERIOUS STEPS TAKEN TO ADDRESS FEMALE PRISONER ABUSE

justkidding230511Just kidding. Last week, a BOP contractor employee monitoring home confinement inmates who sexually abused a Miami woman on house arrest got a prison sentence one month shorter than his victim’s time on house arrest.

Miami-Dade resident Benito Montes de Oca Cruz, 60, got a 4-month prison sentence for one count of abusive sexual contact, followed by a year of supervised release, four months of which will be on home confinement. His victim was on five months of house arrest at the end of her 51-month sentence when he committed “abusive sexual contact” on her.

Remember when DOJ official Lisa Monaco said that women prisoners who suffered sexual abuse at the hands of BOP employees would be recommended for compassionate release due to their treatment? She was kidding, too. One FCI Dublin victim was denied a compassionate release recommendation last fall, the BOP telling her “that the officers’ cases have not yet been ‘adjudicated…’ [Her attorney] said that prison officials told her to refile her motion, most likely once all the officers are charged or sentenced.”

The inmate has under a third of her sentence to serve – under three years – so the BOP’s “come back next week” directive should run out the clock on her request right smartly.

Sadly, this would be true even if she were doing a life term. One of the abusive COs, aptly if disgustedly known as ‘Dirty Dick,” committed suicide after he learned that he was under investigation for abusing women, according to the woman’s lawyer. “So unless they are planning to do a final adjudication… there will never she will never be able to meet the Bureau of Prisons’ standard.”

Maybe Satan can convene a grand jury somewhere in the fires of hell… 

beatings230511Of course, this begs the question of why the BOP and DOJ themselves cannot turn their considerable investigative powers to determine whether the abuse happened.  The BOP has its own investigative office, the SIS (which stands for “Special Investigative Supervisor”). The DOJ has an inspector general office. To be sure, the BOP doesn’t need to get a criminal conviction against a BOP employee to recommend compassionate release for an inmate victim, either.  But showing any initiative might hurt BOP employee morale by suggesting that abusing inmates was not a perk of working at the BOP.

And after all, how many other sordid tales about ‘Dirty Dick’ would be enough to corroborate that he was a s abuser? E. Jean Carroll only required two

Last week, the female prisoner filed for compassionate release with her sentencing judge, seeking a sentencing reduction of about 34 and a half months of her 120-month sentence.

Miami Herald, A Bureau of Prisons monitor gets his sentence. He raped a Miami woman on house arrest (April 30, 2023)

KTVU, Dublin prison sex assault survivor seeks compassionate release after BOP denies (May 5, 2023)

– Thomas L. Root

DOJ Issues ‘Speedo’ First Step Act Report – Update for May 9, 2023

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

DOJ ISSUES FIRST STEP ANNUAL REPORT

The First Step Act required the Dept. of Justice to issue five annual reports describing the implementation of various First Step programs. Last week, the DOJ released its third of the five reports required by law.

skimpysuit230509It reminds me of the old joke about skimpy bathing suits: What they reveal is interesting, but what they conceal is vital. With the end of CARES Act home confinement tomorrow at midnight, perhaps the biggest issues I see arising – judging from the email I get – are FSA credit eligibility, timely posting of FSA credits by the BOP, and the definition of “unstructured productive activities.” The Report is chock-a-block with stats and dense prose, but it falls pretty short in providing much useful information about these three areas.

Eligibility: The Report says that 53% of prisoners have minimum or low recidivism risk. Another 20% are medium risk while 27% are high risk. When the 63-category exclusions from FSA credit listed in 18 USC § 3632(d)(4)(D) are factored in, only 57% of all BOP inmates are eligible for FSA credits. 

For much of that the under-subscription, you can blame Congress, which in its zeal to pass First Step confused the goal of putting prisoners in programs to reduce recidivism  – which is to reduce recidivism – with a reward that should be withheld from some people because of their offenses of conviction. What this means, of course, is that some of the inmates whom society most needs to have rehabilitated – like people who run around with guns committing drug crimes or bank robberies – are the ones being denied incentives for changing their evil ways.

evilways230509Timely FSA Credit Update: Monthly updating of FSA credits for inmates is important for release planning as well as psychologically (it’s easier to be enthusiastic about a program when you can see regular progress: that’s why the airlines keep sending you emails telling you how many frequent flier miles you have amassed). The BOP’s history in tabulating FSA credits and reporting accurate numbers to prisoners is littered with failure.  

Not that you can tell that from the ReportBreezing past history, the Report says that “in August 2022, the Bureau began automatically calculating credits for individuals, which promotes consistency, allows the BOP to provide accurate calculations on a routine basis, and allows individuals in custody to track their time credits and prepare for prerelease from custody.” In fact, the August auto-calc launch was a disaster. The BOP successively promised at the end of September, in October, in mid-November, and at least twice in January 2023 that auto-calc was finally working. I still get emails weekly from different institutions asking me when FSA credits will update for the preceding month.

No Structure to ‘Unstructured Productive Activities’:  The FSA credit program not only awards credits for completing programs. It also rewards participation in “productive activities.”  The BOP has defined what some of those are but also includes a catch-all for ‘unstructured productive activities’, which might include work, adult education classes, independent study or leading an inmate recreation group.

unstructuredanimals230509It might include a lot, sort of like defining mammals as elephants, giraffes, and ‘perhaps all other non-elephants and non-giraffes with mammary glands.  We get the elephants and giraffes part of it, but exactly what else might there be?

The Report does not contribute at all to answering the question of just what an “unstructured productive activity” might be. One line of the Report says, “Moreover, while structured [evidence-based recidivism reduction] programs and [productive activities] with a facilitator-led curriculum are listed in the FSA Programs Guide, other activities, such as work assignments may also be recommended by staff to address individual needs as well as qualify for time credits for eligible individuals in custody.”

“Recommended by staff” without any central guidance seems like a recipe for inconsistency among different facilities, let alone possible favoritism among individual staff and inmates. In other words, it seems that the method of defining what an unstructured PA might be is itself just a little too unstructured.

Just a week ago, a Government Accountability Office manager noted the “BOP remains unable to provide a simple list of ‘unstructured activities’” that qualify for FSA credits… And in terms of what programs that might be made available, like, there are a lot of recidivism reduction programs that just haven’t been evaluated, that haven’t been monitored. So BOP doesn’t really have a good sense for how effective they are.”

Nothing in last week’s Report even acknowledges any of these problems, let alone suggests that it is being addressed.

DOJ, First Step Annual Report – April 2023 (issued May 2, 2023)

Federal News Network, How Bureau of Prisons can escape its own cage (April 25, 2023)

– Thomas L. Root

SCOTUS ‘Chevron Deference’ Case May Hobble BOP – Update for May 8, 2023

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

SCOTUS TAKES AIM AT CHEVRON DEFERENCE, AND WHY YOU SHOULD CARE

chevron230508Nearly 40 years ago, the Supreme Court ruled in Chevron USA, Inc., v. Natural Resources Defense Council that courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. Last Monday, the Supreme Court agreed to reconsider its ruling in Chevron.

Chevron deference” – as the doctrine is known – has been applied in well over a thousand cases involving the Federal Bureau of Prisons over the past four decades. In Yi v. Federal Bureau of Prisons, for instance, the 4th Circuit ruled that “rather than apply a presumption of lenity to resolve the ambiguity, Chevron requires that we defer to the agency’s reasonable construction of the statute. Chevron deference is a tool of statutory construction whereby courts are instructed to defer to the reasonable interpretations of expert agencies charged by Congress to fill any gap left, implicitly or explicitly, in the statutes they administer.”

In Lopez v. Davis, for instance, the Supreme Court upheld the BOP’s denial of RDAP credit to people with drug convictions if they had a 2-level gun enhancement (USSG § 2D1.1(b)(1)). The Court focused on the statutory text (18 USC § 3621(e)(2)(B)), which instructs that the BOP ‘may’ reduce the sentence of a nonviolent offender who has successfully completed a drug treatment program, The Court found that Congress’s use of the permissive “may” meant that the BOP had the authority but not the duty to reduce the terms of imprisonment of people in RDAP, and, applying Chevron deference, “the Bureau, the agency empowered to administer the early release program, has filled the statutory gap in a way that is reasonable in light of the legislature’s revealed design.”

Currently, district courts have applied Chevron deference to the BOP’s interpretation of the First Step Act alone in over 150 reported cases. Chevron deference has permitted agencies to be nearly immune to judicial second-guessing on both major and minor questions. The case coming to SCOTUS raises Chevron in a rather prosaic circumstance.

A group of commercial fishing companies challenged a National Maritime Fisheries Service rule that requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans.

Relying on Chevron, a divided US Court of Appeals for the DC Circuit rejected the companies’ challenge, holding that the law says the government can require fishing boats to carry monitors, it does not specifically address who must pay for the monitors. Because the NMFS’s interpretation of federal fishery law as authorizing industry-funded monitors was a reasonable one, the DC Circuit said, the court should defer to that interpretation.

Some members of the Supreme Court’s conservative majority have roundly criticized Chevron deference. Justice Thomas argued in 2015 that Chevron deference “wrests from Courts the ultimate interpretative authority to say what the law is, and hands it over to” the executive branch. He has been joined by Justice Gorsuch, who last fall argued in a dissent that the court “should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”

fishaday230508The Washington Post said, “The dryness of the [Chevron] doctrine masks the enormity of what is at stake. Chevron holds that a federal court must defer to an agency’s interpretation of a statute when issuing a rule, provided the interpretation is “reasonable…” This might seem like a straightforward ruling; in fact, it authorized a massive shift in power from Congress and the courts to the president. Most of the administrative agencies subject to Chevron are run by presidential appointments. These officials might have subject matter expertise, but their knowledge does not negate the fact that they make inherently political judgments, which the Constitution envisioned would be made by elected legislators.”

The case will be argued and decided next year.

Loper Bright Enterprises v. Raimondo, Case No 22-451 (certiorari granted May 1, 2023)

SCOTUSBlog, Supreme Court will consider major case on power of federal regulatory agencies (May 1, 2023)

Chevron, USA Inc v. Natural Resources Defense Council, 467 US 837 (1984)

Yi v. Federal Bureau of Prisons, 412 F.3d 526 (4th Cir. 2005)

Lopez v. Davis, 531 U.S. 230 (2001)

Washington Post, The demise of the Chevron doctrine is nigh (May 4)

– Thomas L. Root

BOP Oversight Bill Resurrected – Update for May 4, 2023

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

BILL TO ESTABLISH BOP OVERSIGHT RE-INTRODUCED

A bipartisan group of congressional lawmakers introduced legislation last week to establish a new oversight system for the BOP.

adult220225The Federal Prison Oversight Act (no bill number yet) is sponsored by Senators Jon Ossoff (D-GA), Mike Braun (R-IN), and Richard Durbin (D-IL), in the Senate and Representatives Lucy McBath (D-GA) and Kelly Armstrong (R-ND) in the House. The same legislators sponsored the same legislation when it was introduced last fall, but the measures died at the end of the 117th Congress.

The bills are a response to press reports that exposed systemic corruption in the BOP, several sex abuse scandals involving male BOP staff and female inmates, and increased congressional scrutiny. Ossoff, Braun and Durbin are founding members of the Senate Bipartisan Prison Policy Working Group.

“It’s no secret that BOP has been plagued by misconduct,” Durbin said. “One investigation after another has revealed a culture of abuse, mismanagement, corruption, torture, and death that reaches to the highest levels. And yet it still operates without any meaningful independent oversight.”

investigate170724FOPA would require DOJ to create a prisons ombudsman to field complaints about prison conditions and compel the Department’s Inspector General to evaluate risks and abuses at all 122 BOP facilities. Under the bill, the DOJ Inspector General would conduct risk-based inspections of all federal prison facilities, provide recommendations to address deficiencies and assign each facility a risk score. Higher-risk facilities would then receive more frequent inspections.

The IG would report findings and recommendations to Congress and the public, and the BOP would be required to respond with a corrective action plan within 60 days.

Press Release, Sens. Ossoff, Braun, Durbin Introduce Bipartisan Legislation to Overhaul Federal Prison Oversight (April 26, 2023)

The Appeal, Congress Seeks to Create New Independent Federal Prison Oversight Body (April 26, 2023)

ABC News, After investigating abuse in prison system, senators propose new oversight law (April 26, 2023)

– Thomas L. Root

8th Circuit Gets It Wrong – Update for May 3, 2023

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

8th CIRCUIT STILL DOESN’T GET COMPASSIONATE RELEASE

fail200526By now, everyone knows that last month a divided Sentencing Commission adopted a revised USSG § 1B1.13 that, as of November 1, will govern 18 USC § 3582(c)(1)(A) sentence reduction (compassionate release) motions. The USSC was unanimous on everything except the new § 1B1.13(b)(6), which directs that – in certain circumstances – “changes in the law… may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed…”

It’s not that hard to understand, even if it is controversial. But last week, the 8th Circuit misread the amendment like a first-year law student on his way to an ‘F’. (I employ the male gender here, because as I recall law school – admittedly a long time ago – the women law students never got ‘F’s).

Rodolfo Ramirez-Menendez is doing mandatory life for an § 851-enhanced drug conviction. He filed for compassionate release, arguing that although the 8th has previously held that “a non-retroactive change in law regarding sentencing… cannot contribute to a finding of ‘extraordinary and compelling reasons’ for grant of a compassionate release motion,” that holding had been overruled by Supreme Court in last year’s Concepcion v. United States decision.

The Circuit rejected Rodolfo’s argument but then notes the pending amendment to § 1B1.13. But after quoting key provisions of § 1B1.13(b)(6), the 8th mangles it badly, saying that “[i]t thus appears that the Commission proposes to adopt (or to express more clearly) that nonretroactive changes in sentencing law may not establish eligibility for a § 3582(c)(1)(A) sentence reduction… but may be considered in exercising a court’s discretion whether to grant compassionate release relief to an eligible defendant, consistent with the Supreme Court’s decision in Concepcion.”

Not quite. Proposed § 1B1.13(b)(6) plainly states that, in certain circumstances, “changes in the law… may be considered in determining whether the defendant presents an extraordinary and compelling reason.”

ownfacts230503Sorry, 8th Circuit. To paraphrase the late Daniel Patrick Moynihan, you’re entitled to your own opinion, but not your own facts. As Ohio State University law professor Douglas Berman wrote last week, “[T[he Commission in this new guideline is providing that nonretroactive changes in sentencing law CAN establish eligibility for a § 3582(c)(1)(A) sentence reduction in some circumstances.”

United States v. Rodriguez-Mendez, Case No. 22-2399, 2023 U.S.App. LEXIS 9909 (8th Cir., April 25, 2023)

Concepcion v. United States, 142 S. Ct. 2389 (Supreme Court, 2022)

Sentencing Policy and the Law, Eighth Circuit panel seemingly misreads the US Sentencing Commission’s sentence reduction guideline amendment (April 26, 2023)

Sentencing Guidelines for United States Courts, 88 FR 28254 (May 3, 2023)

– Thomas L. Root

Biden Commutes Sentences of 31 People Who Are Already At Home – Update for May 1, 2023

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

BIDEN COMMUTATIONS UNDERWHELM OVER 17,400 PEOPLE

obtaining-clemencyPresident Biden commuted the sentences of 31 federal prisoners last Friday, all of whom are currently on CARES Act home confinement. In each of the cases – involving sentences from 84 to 360 months – the commutation cut their imprisonment-at-home terms to end on June 30, 2023.

The 31 people whose sentences were commuted were doing time for nonviolent drug offenses, but none was in a secure facility. Instead, they were already living at home, working or going to school, attending religious services, shopping, but being confined to their homes otherwise, a White House official said. Nevertheless, the people whose sentences were committed, according to the Biden Administration, “have demonstrated rehabilitation and have made contributions to their community.”

Many of those receiving commutations would have received a lower sentence if they had been convicted of the same offense after passage of the First Step Act.

I don’t doubt that the 31 deserved commutations. My complaint is that addressing overly-long sentences that could no longer be imposed and mass incarceration by commuting 31 sentences is like bailing the ocean with a spoon.oceanclemency230501

The 31 commutations appeared to be window dressing to last Friday’s announcement of the White House’s broader initiative that aims to bolster the “redemption and rehabilitation” of people previously incarcerated through greater access to housing, jobs, food and other assistance. The announcement came at the end of Biden’s proclaimed “Second Chance Month,” which the White House says is an attempt to put a greater focus on helping those with criminal records rebuild their lives.

The “second chance” effort, described in a Dept of Justice 66-page Strategic Plan Pursuant to Section 15(f) of Executive Order 14074 issued last Friday, is an ambitious plan to provide rehabilitation services to federal and state prisoners, including programs for education, addiction treatment, services to female inmates, reduction of the use of SHUs and the now-obligatory plans to address LGBTQI+ prisoners, especially transgender ones. It promises changes to provide immediate Medicaid healthcare coverage to people being released, access to housing, enhance educational opportunities; expand access to food and subsistence benefits, and provide access to job opportunities and access to business capital.

As part of the push, the Dept of Education will make 760,000 federal and state prisoners eligible for Pell Grants through prison education programs and the Centers for Medicare & Medicaid Services will make some prisoners eligible for limited Medicaid coverage shortly before their expected release.

bureaucracybopspeed230501The plan begs the question of why, with First Step now over five years old, DOJ is only now providing its hagiographic description of what it intends to do. For example, the Dept of Education announced that it would renew the availability of Pell grants for prisoners – once common in the BOP but discontinued as part of the Violent Crime Control and Law Enforcement Act of 1994 – 20 months ago. But so far the BOP has only made access to Pell Grants “currently available through a pilot program to seven sites within BOP, where 300 incarcerated students are enrolled in college courses with two additional sites beginning implementation.”

Thus, with a head start beginning in August 2021, the BOP has signed up only 0.2% of its population for college course (which, incidentally, count for FSA credits).

clemency170206As for the clemency, the President’s commutation action brings the total number of federal prisoners whose sentences he has reduced over more than two years to 111, according to DOJ data. With 17,145 clemency petitions on file, this means that in Biden’s presidency thus far, he has acted on about 0.6% of petitions on file.

Biden’s promise early in his presidency to set up a White House commission to efficiently and fairly assess clemency petitions has never come to pass, just as his two large commutation announcements – 75 commuted in April 2022 and 31 now – appear to have just been a gimmick: heavy with women last year and all on home confinement with nonviolent drug convictions this year. One can only hope the DOJ’s ambitious “strategic plan” is more substantive than the President’s other criminal justice reform initiatives.

The White House, Clemency Recipient List (April 28, 2023)

DOJ, Rehabilitation, Reentry, and Reaffirming Trust: The Department of Justice Strategic Plan Pursuant to Section 15(f) of Executive Order 14074 (April 28, 2023)

Washington Post, Biden grants clemency to 31 drug offenders, rolls out rehabilitation plan (April 28, 2023)

Washington Times, Biden reduces sentences for 31 drug offenders (April 28, 2023)

The Hill, Biden to commute sentences of 31 nonviolent drug offenders, releases new rehabilitation plan (April 28, 2023)

– Thomas L. Root

“Code Blue” At BOP, GAO Says – Update for April 28, 2023

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

GAO PUTS BOP ON CRITICAL LIST

The Government Accountability Office last week added the BOP to its “high risk” list of “government operations with vulnerabilities to fraud, waste, abuse, and mismanagement, or in need of transformation.”

criticalcondition230428Federal prisons were the only program added to the 2023 list, which is updated every two years. The GAO has seen “good progress in certain areas due to congressional and executive branch actions, but there are still serious, very consequential problems that need to be addressed,” GAO head Gene Dodaro recently told the Senate Homeland Security and Governmental Affairs Committee. “We’re adding management of the Bureau of Prisons, there’s been problems with staffing, which has led to some concerns about inmate and staff safety and also their efforts to evaluate programs that are intended to help deal with the recidivism issue.”

GAO first identified BOP management as an “emerging high-risk issue” in March 2021. Since then, GAO reports, the BOP has addressed 22 GAO recommendations, leaving 28 recommendations still on the table. What’s more, Charles Johnson, managing director of GAO’s homeland security and justice team, told Congress the BOP’s staffing level remains down 15%.

Speaking of management failings, the Associated Press reported last week that an inmate whose death sentence was commuted in 2019 remains housed on death row at USP Terre Haute.

deathrow230428Four years later, AP reported, the BOP has not moved him to a less restrictive unit. Asked about the prisoner’s continued placement on death row, a Dept of Justice official told AP that “the Bureau of Prisons is considering [the inmate’s] designation determination.”  At least the BOP is taking the time to carefully consider whether someone without a death sentence should be housed somewhere other than death row.

AP said that the case “illustrates chronic bureaucracy in the prisons system and the difficulties in getting anyone off death row.”

“How can I not get this guy off death row?” federal defender Monica Foster said in a recent interview. “Well, I did get him off death row. But why can’t I physically get him off death row?”

Meanwhile, after a recent disturbance at FCI Miami, a BOP low-security facility, Miami TV station WTVJ reported, “multiple sources from inside the facility [said] that more than 100 weapons were found…” A prison security expert told the station, “Discovering a hundred weapons in a search following something like this would signal the administration. It would signal me, if I were the administrator, to look into my search processes.”

The station said that a 2019 Occupational Safety and Health Administration report likewise recommended that the BOP “increase number of searches for weapons, cellphones and contraband.”

cellphones230428Last week, the BOP fired a shot across the bow at illegal cellphones, as ubiquitous in prisons as spring flowers in the garden. The U.S. Attorney for the Eastern District of North Carolina said that six inmates housed at three different facilities at the FCC Butner complex have been criminally charged with possession of contraband cell phones.

If convicted, each inmate faces up to an extra year of prison for possessing a cellphone and disqualification for First Step Act credits and the 365 days sentence credit for eligible programming participation.

U.S. Attorney Michael Easley said, “By indicting these six inmates at FCC Butner, we hope to send a clear message to the inmate population that the possession of cellphones will never be tolerated at FCC Butner.”

Govt Executive, Management of the Federal Prisons System Is Added to GAO’s High-Risk List (April 20, 2023)

GAO, Efforts Made to Achieve Progress Need to Be Maintained and Expanded to Fully Address All Areas (April 20, 2023)

AP, Inmate stuck on US death row despite vacated death sentence (April 16, 2023)

WTVJ, Video Shows Disturbance That Led to Lockdown at Federal Correctional Institution in Miami (April 21, 2023)

DOJ, Six Federal Inmates Indicted for Contraband Cell Phones (April 20, 2023)

– Thomas L. Root

‘Phoning It In’ On Review of Magistrate’s Decision Not Good Enough – Update for April 27, 2023

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

DO YOUR JOB, JUDGE

While Larone Elijah was serving a second federal sentence for drug distribution, the First Step Act was passed in 2018, increasing the maximum good time available to prisoners from 47 to 54 days annually. The BOP gave Larone an additional seven additional days of good time for his second possession sentence towards his release date, but Larone wanted  extra good time for his prior sentence, too, the one he had already served.

The BOP declined (which was the correct response, but the merits of Larone’s claim are irrelevant to this case).

brownsdumpster230427After exhausting his administrative remedies with the BOP (an exercise in futility akin to a Cleveland Browns fan picking out Super Bowl seats for next February’s game in Las Vegas), Larone filed a 28 USC § 2241 petition for writ of habeas corpus, arguing that the BOP erred by not retroactively applying the First Step Act to his original already-completed drug sentence. In the summer of 2021, a magistrate judge issued a Report and Recommendation (R&R) concluding that Larone’s petition should be summarily dismissed.

Magistrate judges are assistants to U.S. district court judges, authorized by statute to undertake a variety of preliminary tasks (subject to supervision) that are necessary to adjudication but serious time-wasters for a district court judge.  Magistrate judges may perform arraignments, hear evidentiary admission motions, or even decide what we call “dispositive motions,” motions that may terminate a case.

When a magistrate judge rules on a matter, the losing party has the right to object to the decision, triggering an independent review by the U.S. district judge.  District judges are known as “Article III judges,” because they are appointed by the president and approved by the Senate as required by Article III of the Constitution. Because only an Article III judge may make a final disposition on any issue before the district court, the magistrates’ decisions are considered recommendations.  Hence the term “Report and Recommendation.”

Of course, district judges – who almost always work with the same magistrate judges – generally are loathe to crush the spirits and work products of their assistants by declining to adopt the MJs’ “recommendations.”  That disinclination is on full-throated display in Larone’s case.

Larone filed a timely objection to the R&R, again advancing his claims but developing his arguments with new case law and discussion. The district judge, however,  found that because Larone was attempting to “reargue his case,” his objection was nonspecific. Applying a “clear error” standard, the district judge concluded that the magistrate wasn’t clearly wrong and adopted her R&R.

Last week, the 4th Circuit reversed the decision. The Circuit observed that “the authority of magistrate judges is narrowly limited by Article III… Magistrate judges were not intended to replace Article III judges, but to increase the efficiency of the court by providing a neutral ‘preliminary evaluation’ for the judge’s consideration.”

To trigger mandatory de novo review of objections, the Circuit held, an objecting party must object to the magistrate’s finding “with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.”

magistrate230427Here, the 4th said, Larone’s objections easily exceeded the sufficiency standard, setting out enumerated, detailed legal claims disagreeing with the magistrate’s recommendation. The district court concluded that because Larone repeated his previous arguments, he did not object with sufficient specificity to warrant de novo review. However, the Circuit said, Larone’s objection was enough to “alert the district court that he believed the magistrate judge erred in recommending dismissal of those claims… At bottom, we must recognize that the pro se construction owed to Larone makes his grounds even clearer.”

Because Larone alerted the district court to the grounds on which he objected, the court was obligated to review his objections de novo. “By adopting the recommendation after only clear error review,” the 4th held, “the district court improperly elevated the magistrate’s opinion and failed to satisfy its obligations under 28 USC § 636(b) and Article III.”

Elijah v. Dunbar, Case No 21-7352, 2023 U.S. App. LEXIS 9592 (4th Cir. April 21, 2023)

– Thomas L. Root

‘Nothing’ Really IS Sacred – Update for April 25, 2023

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

DEPT. OF MEANINGLESS CELEBRATIONS

partytime230425In honor of President Biden’s March 31 proclamation marking April as Second Chance Month, the Dept. of Justice’s Office of Pardon Attorney hosted “A Celebration of Second Chances” last Friday.

The event featured opening remarks by Deputy Attorneys General Lisa Monaco and Kristen Clarke and a panel of DOJ speakers and prior clemency or compassionate release recipients. who will discuss the impact of second chances through clemency. OPA said in a press release that it “is dedicated to supporting the President’s work to provide second chances to individuals who are currently or previously were incarcerated by the federal justice system.”

The event featured a panel of DOJ speakers and prior clemency or compassionate release recipients, who discussed “the impact of second chances through clemency.” OPA said in a press release that it “is dedicated to supporting the President’s work to provide second chances to individuals who are currently… incarcerated by the federal justice system.”

nothing230425Horror-and-fantasy cartoonist Gahan Wilson, whose work fueled my adolescent sense of irony way too many years ago, once drew a cartoon of strangely-clad cultists worshiping an altar festooned with the word “NOTHING” and a large “N.” One skeptic at the side of the crowd is asking another, “Is ‘nothing’ sacred?” Second Chance Month has succeeded in making life intimate art: Biden’s clemency initiative (as was Trump’s) is a ‘nothing,’ and Second Chance Month is worshiping it.

clemency220418Rarely has dedication been accompanied by such institutional failure. About 18,000 clemency petitions languish on file at DOJ, many dating from the Obama era. When elected, Biden promised a restructuring of the clemency process to expand its use and remove what he saw as excesses of the Trump era. That never happened. Biden granted clemency to 81 people last year (as well as people with federal marijuana possession, none of whom was in prison for the offense, had filed for clemency, or – for that matter – has even been publicly identified).

On an ACLU podcast last week, Cynthia Roseberry, Acting Director of the ACLU’s Justice Division, called on Biden “to retrospectively give clemency to people who have been charged previously and are sentenced disparately because they were charged with crack cocaine” during Second Chance Month.

DOJ Office of Pardon Attorney, Second Chance Month 2023 (April 12, 2023)

ACLU, Clemency Is One Answer to the War On Drugs (April 20, 2023)

– Thomas L. Root