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Government Fraud Theories Take It On The Chin – Update for May 15, 2023

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

SUPREME COURT NIXES FEDERAL POLITICAL FRAUD CASES

Fraud170406Nobody likes fraud. Prior to the 1987 decision in McNally v. United States, everyone agreed that federal wire fraud and mail fraud statutes prohibited all kinds of it, including any number of intangible frauds that the Government argued were crimes even if the object of the fraud was not to deprive the government or taxpayers of money.

Honest Services Fraud:  “Honest-services” fraud is fascinating stuff. Most cases prosecuted under federal mail fraud and wire fraud statutes for honest-services fraud involve public employees accepting a bribe or kickback that did not necessarily result in a financial loss for the government or taxpayer but did deprive the government of the right to receive the “honest services” of a government official or employee. In some cases, courts have ruled that the employee did not even have to hold a public position. 

The whole idea of “honest services fraud” that didn’t cost the public a dime was rejected in McNally. But Congress quickly plugged the hole with 18 USC § 1346, which defined mail and wire fraud as “include[ing] a scheme or artifice to deprive another of the intangible right of honest services.” Decades later in Skilling v US, fallout from the Enron scandal, the Supreme Court clarified that “the intangible right of honest services” in § 1346 relates to “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived.” 

money170419Joe Percoco had managed former New York Gov. Andrew Cuomo’s re-election campaign, but he was a private citizen (about to return to the governor’s office) when he called the head of a state development agency and urged him to let a real estate development go forward without the developer having to buy a “labor peace” agreement with the local unions. A day after Joe made the call, state officials reversed their decision that the developer needed to such an agreement, saving  the developer a lot more money than the $30,000 he had paid Joe. 

Joe was convicted of fraud for taking money in exchange for helping to facilitate the real estate construction project. The fraud was “depriving members of the public of the intangible right to ‘honest services’.”

In a unanimous ruling, the Supreme Court threw out Joe’s conviction, holding that the jury instructions used to convict him were too vague. 

The Supreme Court rejected the argument that a person nominally outside public employment could never have a fiduciary duty to the public to provide honest services, but it held that a jury instruction that Joe had such a duty ‘if he dominated and controlled any governmental business and people working in the government actually relied on him because of his special relationship with the government” were too vague. The justices said the instruction did not define “’the intangible right of honest services’ with sufficient definiteness that ordinary people could understand what conduct was prohibited.”

moneyhum170419The Court held that by “rejecting the Government’s argument that § 1346 should apply to cases involving ‘undisclosed self-dealing by a public official or private employee,’ the Skilling Court made clear that “the intangible right of honest services” must be defined with the clarity typical of criminal statutes and should not be held to reach an ill-defined category of circumstances simply because of a few pre-McNally decisions. The fact that Joe was influential was simply not enough to put him on notice that being hired to make a persuasive phone call was a federal crime.

Right to Control:   In the other Supreme Court criminal-law decision last week, Louis Ciminelli had steered the terms of a $750 million development project so that his company’s bid would be successful. The government could not prove that the state lost a dime over what other contractors would have bid but argued Lou had deprived the state of its “right to control” the bid process.

The Supreme Court rejected any notion that any “right to control” theory resided in the wire fraud statute. The Court expressed federalism and overcriminalization concerns in narrowing the scope of § 1343, holding that “the fraud statutes do not vest a general power in the Federal Government to enforce (its view of) integrity in broad swaths of state and local policymaking. Instead, these statutes protect property rights only. Accordingly, the Government must prove not only that wire fraud defendants engaged in deception, but also that money or property was an object of their fraud.”

Percoco v. United States, Case No 21-1158, 2023 US LEXIS 1889 (May 11, 2023)

Ciminelli v. United States, Case No 21-1170, 2023 US LEXIS 1888 (May 11, 2023)

– Thomas L. Root

BOP Fiddles While Prisons Crumble – Update for May 12, 2023

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

DOJ INSPECTOR GENERAL SAYS BOP FACILITIES ARE FALLING APART… AND NO ONE KNOWS WHAT TO DO

In a couple of reports issued last week that will surprise few, the Department of Justice Inspector General said the BOP is falling down, and management knows it but pretends otherwise.

nero230512In the first report, the IG said, “The BOP’s institutions are aging and deteriorating: all 123 of the BOP’s institutions require maintenance, with a large and growing list of unfunded modernization and repair needs, and three of these institutions are in such critical stages of disrepair that they are fully or partially closed.

The report found that the BOP chronically requests much less maintenance money from Congress than it needs. At the same time, Congress has set aside over $1 billion to build two new institutions, “but these funds remain largely unspent, the projects have been in the planning stages for over a decade, and the BOP’s requests each year that Congress cancel one of these projects and rescind the funds—made at the direction of the Department of Justice and the Office of Management and Budget—have not been acted on.”

The second report is more damning. Because of operational deficiencies at USP Atlanta and MCC New York (since closed), the IG set out to “assess how critical issues at BOP institutions are identified, communicated to BOP Executive Staff, and remediated.”

But the BOP Executive Staff told the IG “they had been largely aware of the long-standing operational issues at USP Atlanta and MCC New York and expressed confidence in the BOP’s existing mechanisms to communicate information about operational issues.” In light of the fact the staff knew all about the messes in New York and Atlanta but had done nothing about them, the IG “modified the scope of this review… to focus on [the] causes and the scope of the challenges, their effects on institutional operations, and the Executive Staff’s efforts to remedy them.”

dogandpony230512The IG found that BOP internal audits of facilities were not reliable because everyone knew when the audits were to happen and, predictably enough, put on a ‘dog-and-pony’ show for the inspectors. “Executive Staff members questioned whether the BOP’s overwhelmingly positive enterprise-wide audit ratings reflected actual institution conditions,” the report said. “Validating this concern, we found that the USP Atlanta internal audit conducted in January 2020 rated USP Atlanta’s inmate management efforts as Acceptable despite identifying numerous significant issues.”

Also, the report said, the BOP’s internal investigative staff has insufficient, resulting in a “substantial backlog of unresolved employee misconduct cases.” Not only does the BOP lack adequate staff the IG found, it doesn’t even know “whether the number of staff it represents as necessary to manage its institutions safely and effectively is accurate.”

Finally, the BOP’s “inability to address its aging infrastructure as a foundational, enterprise-wide challenge [limits] its ability to remedy institution operational issues.” In other words, the agency does not have a coherent maintenance plan, but rather just tries to fix problems when they get too serious, resulting in “increasing maintenance costs and, in the most extreme circumstances, having to shutter institutions and relocate inmates because needed maintenance and repairs have resulted in unsafe conditions.”

"Do you miss me yet?" No...
“Do you miss me yet?” No…

In a written response to a draft of this report, the unlamented former BOP Director Michael Carvajal said the challenges discussed in this report were “long-established” prior to his February 2020 appointment. He added that the executive staff “acknowledged and made attempts to address these issues in some fashion, although they may not have been corrected or completed for various reasons.” Conveniently omitting the fact that in his 30-year tenure with the BOP, he had been everything from a correctional officer to a lieutenant, a captain, a correctional services administrator, an associate warden, a warden, a regional director and Assistant Director in Washington, D.C., Carvajal whined that his appointment and two-year tenure coincided with the onset of COVID-19 and that “responding to the pandemic ‘required prioritization of resources behind life safety’.”

DOJ, The Federal Bureau of Prisons’ Efforts to Maintain and Construct Institutions, Rpt No 23-064 (May 3, 2023)

DOJ, Limited-Scope Review of the Federal Bureau of Prisons’ Strategies to Identify, Communicate, and Remedy Operational Issues, Rpt No 23-065 (May 4, 2023)

BOP, BOP Director Announces Plans to Retire (January 5, 2022)

– Thomas L. Root

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

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

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

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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.

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 Report. Breezing 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

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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.

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

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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.

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

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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.

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

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

BIDEN 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

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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.

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