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

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

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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.

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

Three First Step Reform Retread Bills Introduced – Update for April 24, 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.

DÉJÀ VU ALL OVER AGAIN

deja171017Senate Majority Whip Richard Durbin (D-IL), chairman of the Judiciary Committee, and Sen. Charles Grassley (R-IA) last Wednesday reintroduced three of the biggest criminal justice of the last Congress, reform bills that made it out of Senate committee but never got voted on in 2021-2022.

Yogi Berra might say, “It’s déjà vu all over again.”

Durbin and Grassley sponsored First Step five years ago. Now, they have reintroduced the First Step Implementation Act (FSIA) (S. 1251) and Safer Detention Act (S.1248) – both of which were approved by the Committee in 2021 but did not pass the Senate the last Congress – as well as rolled out the Terry Technical Correction Act (S. 1247).

The FSIA would allow courts to apply First Step sentencing reform provisions to reduce sentences imposed prior to First Step’s December 2018 enactment and broaden the drug safety valve (18 USC § 3553(f)) to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses, if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism.

The Safer Detention Act of 2023 would reform the Elderly Home Detention Pilot Program (34 USC § 60541(g)(5)) by clarifying that the time served required for the Program should be calculated based on an inmate’s net sentence – including reductions for good conduct time credits; lowering eligibility to include nonviolent offenders who have served at least 50% (instead of 66.7%) of their terms; and making D.C. Code offenders in BOP custody eligible for the Elderly Home Detention Pilot Program. The bill would also make federal prisoners sentenced before November 1, 1987 eligible for compassionate release.

jordan230425The Terry Technical Corrections Act (S. 1247) broadens the scope of crack cocaine offenders who are eligible for a retroactive sentencing reduction under the First Step Act of 2018. The First Step Act authorized sentencing reductions for crack cocaine offenders convicted and sentenced before the Fair Sentencing Act became effective, as long as their conduct triggered a mandatory minimum sentence. This bill extends eligibility for the retroactive sentencing reduction to all crack cocaine offenders sentenced before the Fair Sentencing Act became effective, including low-level offenders whose conduct did not trigger a mandatory minimum sentence.

Remember that this same trio of modest proposals did not pass even when the Democrats ran the House, the Senate and the White House. Now, the Republicans run the House, with Rep. Jim Jordan (R-OH) chairing a House Judiciary Committee more interested in attacking Democrats for being soft on crime and hard on former President Trump than it is in addressing criminal justice reform.

Writing in his Sentencing Law and Policy blog last Thursday, Ohio State University law prof Doug Berman said, “For a wide variety of reasons, I am not at all hopeful that any form of federal sentencing reform will be enacted in the current Congress. But I was still pleased to learn… that a pair of notable Senators are still seeking to advance some notable (previously stalled) sentencing bills.”

underthesun230424

Kohelet was an old and wise guy when he reputedly wrote the Book of Ecclesiastes. If he were still writing, it would be about these three bills.  Nothing new under the sun, indeed, as will probably be the fate of these three – demise in December 2024, just as the last three died at the end of 2022. At that time, we will be writing of the FSIA, Safer Detention Act and Terry Technical Correction Act, “Vanity of vanities! All is futile! What profit hath a man for all his toil, in which he toils under the sun?”

Reintroduction of the three measures last week came as The Crime Report complained that “after four years, the impact of the First Step Act has been mixed… In March 2022 that there were 208,000 inmates in federal prisons and jails. But only 5,000 inmates… have been released through one or more provisions of the FSA.”

The Crime Report concluded

The sheer number of reforms in the FSA that are the antithesis to the Nixon-era ‘lock-‘em-up-and-throw-away-the-key’ penal philosophy of both the Bureau of Prisons and the US Sentencing Commission make it exceedingly difficult to have the promise of the FSA fulfilled. The very magnitude of the law and its stated objectives, which include reducing recidivism and improving conditions in federal prisons, has resulted in less than what was initially promised by the supporters of FSA.

First Step Implementation Act (S.1251)

Safer Detention Act of 2023 (S.1248)

Terry Technical Corrections Act (S.1247)

Sentencing Law and Policy, Senators Durbin and Grassley introduce again set of First Step follow-up bills (April 20, 2023)

The Crime Report, The Promises Of Federal Criminal Justice Reform: Shortcomings of the First Step Act (April 17, 2023)

– Thomas L. Root

Guidelines Criminal History Changes To Benefit Some – Update for April 21, 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.

EXPLAINER: CRIMINAL HISTORY RETROACTIVITY

explain230420I don’t usually write this kind of thing, but I am getting a lot of questions about the possibly retroactive changes in the criminal history Guidelines.

Earlier this month, the United States Sentencing Commission proposed two Sentencing Guidelines changes benefitting people at both ends of the criminal history spectrum.  Because these changes might become retroactive, many prisoners wonder what might be in it for them.  So here goes:

A sentencing range for a Federal defendant is determined on a table found in Section 5 of the Sentencing Guidelines. A defendant’s offense level – specific to the offense of conviction and usually fortified with several enhancements for leadership, weapon, sophisticated planning and the like – is calculated.  Then, the court takes a dive into the defendant’s criminal history, assigning points to prior offenses depending on severity, status at the time of the offense, and the like.

Those two rankings are applied to the Sentencing Table, with the Total Offense Level being the ordinant and the Criminal History Category (from I to VI) being the abscissa.

zeropoints230420When Zero is Hero: Anyone with zero or one criminal history points falls in Criminal History I. But believing someone who absolutely no prior criminal history points is a special breed of virgin, the Commission has proposed USSG § 4C1.1. This Guideline would provide a 2-level decrease in the Total Offense Level for people with zero points.

Caution: the draft has more holes than a prairie dog village. The two-level decrease would only apply when the defendant did

(1) not receive any criminal history points;

(2) not receive a terrorism adjustment under 3A1.4;

(3) not use violence or threats of violence in the offense;

(4) not commit an offense resulting in death or serious bodily injury, or a sex offense;

(5) not personally cause substantial financial hardship;

(6) not possess of a gun or other dangerous weapon, or get someone else to do so);

(7) not commit an offense involving individual rights, a hate crime, or serious human rights offense); or

(8) not receive a USSG § 3B1.1 role adjustment and was not engaged in a 21 USC § 848 continuing criminal enterprise.

As an example, a defendant with no criminal history points who was convicted of selling a pound of cocaine might have a Total Offense Level of 22.  As a Criminal History Category I, she would have an advisory sentencing range of 41-51 months.  But if she had been a cheerleader and churchgoer before her unfortunate descent into drug-dealing – with zero prior criminal history points – her Total Offense Level would fall by two.  Her sentencing range would then be 33-41 months, not exactly probation, but eight months less is eight months less.

lesson230420Status Seekers:  The status point change is easier. Currently, § 4A1.1(d) of the Guidelines currently adds two criminal history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.”

Makes sense. Prison is supposed to teach inmates a lesson, which is (among othert things) ‘don’t break the law‘. Hitting recently-released people with extra status points because they didn’t read the memo (the one that said ‘go forth and break the law no more’). Nevertheless, the Commission has found that its research showed the status points have no effect

Now, the Guidelines will only add a single point if a defendant committed the instant offense while under any criminal justice sentence – including probation, parole, supervised release, imprisonment, work release, or escape status – and already has seven criminal history points before the status point is added.

retro160110Going Retro: The USSC has sought comment on whether it should make the key parts of its new criminal history amendment “available for retroactive application.” If it becomes retroactive and Congress does not veto the change, people who were “crim zeros” or who had status points could file for benefit probably starting in early 2024.

Just note that unless application of the Guidelines change reduces a defendant;s Guidelines sentencing range, he or she can get no benefit from it. Read up on Guideline § 1B1.10 for how this works.

USSC, Amendments to the Sentencing Guidelines (Preliminary) (April 5, 2023)

Sentencing Law and Policy, Highlighting US Sentencing Commission’s significant amendments to federal guidelines’ criminal history rules (April 9, 2023)

– Thomas L. Root

Prisoners Not Alone in Hating BOP – Update for April 20, 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.

TAKE THIS JOB AND SHOVE IT

Last year, the Partnership for Public Service ranked the Federal Bureau of Prisons as 431st out of 432 federal agency subcomponents in its 2021 Best Places to Work in the Federal Government Rankings survey.

BOPBestplace230420This year, things got worse. In the Partnership’s 17th annual rankings, the BOP ranked dead last out of the 432 agency subcomponents for calendar year 2022.

The 2022 rankings include 506 federal agencies and agency subcomponents. Rating categories are broken into 17 large agencies, 27 midsize agencies, 30 small agencies and 432 subcomponents.

The BOP’s rankings fell in subcategories for effective leadership, teamwork, pay, recognition, and performance both of agency and work unit.

Federal Times, Social Security Administration ranks as worst federal workplace (April 12, 2023)

Partnership for Public Service, 2022 Best Places to Work in the Federal Rankings (April 11, 2023)

– Thomas L. Root

Rely on USSC Guidance… Or Not, 7th Circuit Says – Update for April 18, 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.

THAT WAS THEN, THIS IS NOW

Remember when the 7th Circuit ruled that old Guideline 1B1.13 – that rather rigidly defined what constituted an “extraordinary and compelling” reason for sentence reduction under 18 USC § 3582(c)(1)(A) – did not apply to inmate-filed compassionate release  motions?

The Circuit ruled in the 2020 United States v. Gunn decision that while 1B1.13 did not apply, the result was not a “sort of Wild West in court, with every district judge having an idiosyncratic release policy.” This was because “the substantive aspects of the Sentencing Commission’s analysis in 1B1.13 and its Application Notes provide a working definition of ‘extraordinary and compelling reasons’… the Commission’s analysis can guide discretion without being conclusive.”

wildwest230418Well, apparently, it guides until it doesn’t guide. And “doesn’t” happened last week, when the 7th ruled that a prisoner’s “unconstitutionally-imposed mandatory life sentence” from a 2001 case cannot be a part of the “extraordinary and compelling” reasons for a compassionate release despite the fact that a week before the opinion was issued, the Commission formally proposed amending 1B1.13 to include harsh sentences that no longer could be imposed due to a change in the law.

Suddenly, the Commission’s analysis provides no meaningful guidance to the Circuit at all:

The USSC is in the process of studying the issue, and recently it has proposed defining ‘extraordinary and compelling reasons’ to include circumstances in which ‘[t]he defendant is serving a sentence that is inequitable in light of changes in the law.’ But this effort is still at an early stage—so early that we see no value in speculating on what such a change would mean. Until the Commission definitively says otherwise, we will not deviate from our current understanding. We therefore affirm the judgment of the district court.

The opinion cited the draft USSC proposal from January and not the Commission’s April 5th action released eight days before the Circuit’s opinion was handed down. A reasonable observer could conclude that “the Commission [has] definitively [said] otherwise” at this point:

[T]he proposed amendment would add a new category (“Unusually Long Sentences”) providing that if a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) 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, and after full consideration of the defendant’s individualized circumstances.

One can only hope that the prisoner’s attorney seeks rehearing of a decision that reflects much more sloppiness than one should expect from an appellate court.

United States v. Williams, Case No. 22-1212, 2023 U.S. App. LEXIS 8826 (7th Cir., April 13, 2023)

United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020)

U.S. Sentencing Commission, Amendments to the Sentencing Guidelines (Preliminary) (April 5, 2023)

– Thomas L. Root

Too Good To Be True? It’s Probably AI – Update for April 17, 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.

A CAUTIONARY TALE

You’ve probably heard of artificial intelligence programs – such as ChatGPT – doing all sorts of great things. While inmates can’t get it on their Bureau of Prisons-sold tablets, they might decide to have friends on the street use it for some high-powered legal research.

Last week, I was wrestling with a tough habeas corpus issue. Even with a LEXIS subscription, I wasn’t finding much on the topic. A friend interested in the issue sent me an email with two Federal Reporter 3d case citations that were exactly on point.

AIphony230417I was excited and at the same time embarrassed I had not found those cases in my research. I looked up both cases to read the whole opinions, but the citations led nowhere. So I searched the respective circuits by case name but could find nothing.

I contacted my friend for help. He checked the citations himself, and then sheepishly reported to me that they indeed did not exist. He had used Chat GPT to research the issue but had not independently verified the results.

crazy200306Computer scientists call it ‘hallucinating’. Apparently, when an AI program cannot find the answer someone is seeking, it can make things up. That’s what happened here.

So, a caution: If you run some AI legal research, you may find some really good information. But check every case citation to be sure the case exists and says what the AI is telling you it says.

– Thomas L. Root

Maybe Guns and Drugs Do Mix – Update for April 14, 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.

GUNS, DRUGS AND ROCK AND ROLL

Last summer’s Supreme Court decision in New York State Rifle & Pistol Ass’n v. Bruen continues to reverberate.

Last week, a second federal district court ruled that 18 USC § 922(g)(3) – which bans people who consume unlawful controlled substances from possessing guns or ammo – is unconstitutional. The court held that the same legal principle also applies to the sale and transfer of guns to such people.

Smoke enough, and you might see this... but it wouldn't violate § 922(g)
Smoke enough, and you might see this… but it wouldn’t violate § 922(g)

Bruen held that a court must “determine whether ‘the Second Amendment’s plain text covers an individual’s conduct,’” If it does, Constitution “presumptively protects that conduct.” Then, in order to regulate the conduct, the Government “must justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation,” pointing to “historical precedent from before, during, and even after the founding” of the country that “evinces a comparable tradition of regulation.”

Applying Bruen, courts have found that § 922(g) bans on possession of guns by people subject to domestic protection orders and by people unlawfully using controlled substances violate the Second Amendment. Currently, a Third Circuit en banc court is wrestling with whether the Second Amendment bars the Government from prohibiting the possession of firearms by an individual convicted of the felony of submitting a false application for food stamps over 25 years ago. The Dept of Justice has appealed decisions that the § 922(g)(3) ban on drug users possessing guns is unconstitutional in the 10th Circuit. A group of marijuana users seeking the right to possess guns have appealed an adverse ruling in the 11th Circuit.

In last week’s decision, the U.S. District Court for the Western District of Texas threw out charges that Paola Connelly had violated both 18 USC § 922(g)(3) by possessing a gun as an admitted pot smoker and 18 USC § 922(d)(3) by transferring a gun to her husband, an alleged cokehead.

potscooby180713Neither Paola nor her hubby had been proven to be unlawful drug users. But in the pretrial motion decision, Judge Kathleen Cardone said it didn’t matter if they had been: “[E]ven if Connelly and her husband used controlled substances to the extent alleged by the Government, the Court would find § 922(g)(3) and (d)(3) unconstitutional… Connelly’s alleged drug use more resembles private drinking than public drunkenness, casting doubt on the idea that history supports criminalizing or disarming her for this behavior,” Cardone writes. “And more generally, nothing in § 922(g)(3) limits its applicability to public dangers or active intoxication, putting it out of step with colonial-era attitudes.”

The Judge was clearly troubled that unlike prohibitions on felons possessing guns, § 922(g)(3) does not provide for any pre-deprivation process. The Government need not conduct a hearing or make any offer of proof before it deems someone an “unlawful user” of controlled substances and proceeds to bludgeon the unfortunate stoner with a § 922(g)(3) felony. Citing a prior Western District of Oklahoma case, Judge Cardone complained that “this lack of process makes § 922(g)(3) an ‘outlier in our legal tradition.’”

For “the millions of individuals who use marijuana in states that have legalized the practice,” the Judge observed, “§ 922(g)(3) categorically prevents them from owning a firearm without a hearing or any preliminary showing from the Government. They must choose to either stop their marijuana use, forgo possession of a firearm, or continue both practices and face up to fifteen years in federal prison.”

America’s historical tradition of disarming “unlawful” individuals, the Court held, “appears to mainly involve disarming those convicted of serious crimes after they have been afforded criminal process.” This tradition makes § 922(g)(3) unconstitutional.

Notably, Judge Cardone quoted a 2019 dissent that Supreme Court Justice Amy Coney Barrett wrote as a judge on the U.S. Court of Appeals for the 7th Circuit. Barrett argued that the federal ban on gun possession by people with nonviolent felony records sweeps too broadly. In making that case, she took it for granted that a nonviolent misdemeanor is not enough to justify depriving someone of his Second Amendment rights.

marijuana160818Reason observed, “The Biden administration continues to argue that forbidding cannabis consumers to own guns is like telling people not to carry guns when they’re drunk. The Justice Department, meanwhile, is appealing Wyrick’s decision, and it can be expected to appeal Cardone’s as well… For those keeping partisan score, it is notable that all three of these judges were appointed by Republican presidents: Cardone by George W. Bush, Wyrick and Winsor by Donald Trump. Their disagreement seems to reflect evolving conservative views of marijuana as well as the impact of Bruen.

Look for plenty more judicial rock-and-roll on gun issues.

United States v. Connelly, Case No EP-22-CR-229(2)-KC, 2023 U.S. Dist. LEXIS 62495 (W.D. Tex. Apr. 6, 2023)

United States v. Harrison, Case No CR-22-00328-PRW, 2023 U.S. Dist. LEXIS 18397, (W.D. Okla. Feb. 3, 2023)

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting)

Reason, Another Federal Judge Rejects the DOJ’s Argument That Cannabis Consumers Have No Second Amendment Rights (April 11, 2023)

– Thomas L. Root

If You Like Your Home Confinement, You Can Keep Your Home Confinement – Update for April 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.

CARES ACT UPDATE

Last Friday, I reported on the Dept of Justice’s final rule delegating to the Bureau of Prisons the authority to determine whichtprisoners on home confinement under the CARES Act will remain there and which prisoners will return to a secure facility.

dontcomeback230411A few updates: First, BOP Director Colette Peters has instructed Residential Reentry Managers “that any individual placed on home confinement under the CARES Act will remain on home confinement under the CARES Act for the remainder of their sentence, provided that they are compliant with the rules and regulations of community placement.” A BOP press release said, “While individuals who have successfully adjusted to home confinement should not be returned to secure custody, the Bureau, and its Residential Reentry Centers, will move swiftly in response to any individual on home confinement who poses a public-safety threat to the community.”

The problem with such BOP memos – as those familiar with the Bureau’s moving-target CARES Act eligibility memos know – is they are subject to change without notice. Still, its a bit heartening.

Speaking of the CARES Act, I reported last week that both the House and Senate had passed H.J.Res. 7, bringing an immediate end to the national COVID emergency, and thus moving the end of BOP CARES Act home confinement up from June 10th to early May.

President Joe Biden, while not happy with the Congressional action, said he would not veto it.

time161229The clock is now ticking. The measure got to the President’s desk last Wednesday. He signed it last night (Monday, April 10th).

Thus, the BOP’s CARES Act placement authority will end on May 10th..

Office of the Attorney General, Department of Justice, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (88 FR 19830, April 4, 2023)

BOP, Home Confinement Under the CARES Act (April 5, 2023)

H.J.Res. 7, Congress.gov (April 11, 2023)

Politico, Biden signs bill ending Covid-19 national emergency (April 10, 2023)

– Thomas L. Root

DOJ Kicks Post-CARES Act Can Down the Road (A Little) – Update for April 7, 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.

BOP FOX SHOULD GUARD HOME CONFINEMENT HENHOUSE, DOJ SAYS

fox230131Remember when the Trump Administration made that minute-to-midnight announcement that the end of CARES Act home confinement would mean that all those prisoners placed at home would have to return to prison?

Thankfully, the flawed Dept of Justice Office of Legal Counsel opinion was later withdrawn by the Biden Administration. But when a new OLC opinion supplanted the old, the reversal wasn’t total. Rather, DOJ said that some might return, but that would be governed by rules yet to be promulgated.

(Explainer: Under the March 2020 CARES Act, Congress gave the Director of the Federal Bureau of Prisons the authority to send inmates to home confinement at any time, despite the 6-month/10% limitation on home confinement set by 18 USC § 3624(c). The conditions set by the legislation were only two: (1) the national emergency declared because of COVID-19 had to be in effect, and (2) the Attorney General had to determine that COVID-19 was materially affecting BOP operations.)

As an old Administrative Procedure Act hand, I was relieved. “Rules” suggested regulations written after a classic 5 USC § 553 notice-and-comment formal rulemaking. Everyone could argue the merits and demerits of whatever standards were proposed, and the Bureau of Prisons would subsequently be compelled under the Accardi doctrine to follow the rules (something the BOP too often ignores where its own informal rules, policies and program statements are involved).

Last Tuesday, the rulemaking announced last June ended with a detailed report and a new subpart to the BOP’s delegation rule, 28 CFR §0.96.  The new rule, which will affect slightly more than 3,400 people (because the agency is still sending people to CARES Act home confinement for another month), adds a subpart (u), which, alas, contains no substantive limitation on the BOP’s discretion. That, we are promised, is to come.

can230407The can just got kicked down the road.

DOJ says the final rule, reduced to its essence, provides that “the [DOJ] and the [BOP] will work together to develop guidance to explain objective criteria the Bureau will use to make individualized determinations as to whether any inmate placed in home confinement under the CARES Act should be returned to secure custody. Providing the Bureau with discretion to determine whether any inmate placed in home confinement under the CARES Act should return to secure custody will bolster the Bureau’s ability to efficiently manage its resources and nimbly address changing circumstances in the community, in relation to the needs and profiles of individual inmates.”

The BOP? Nimble? If that’s the case, Joe Biden can compete against Simone Biles.

nimble230407Still, DOJ’s report acknowledges that “under typical circumstances, inmates who have made the transition to home confinement would not be returned to a secure facility absent a disciplinary reason. This is because the typical purpose of home confinement is to allow inmates to readjust to life in the community. Removal from the community of those already making progress in home confinement would frustrate this goal, and the widespread return of prisoners to secure custody without a disciplinary reason would be unprecedented and out of step with the reentry-specific goals of home confinement, as mentioned throughout this final rule.”

(My emphasis, not the report’s).

Reuters interpreted the report as directing that “[t]he BOP will still be able to impose ‘proportional and escalating sanctions,’ including a return to prison, on inmates who commit infractions.”  But the report does not exactly say that, and the contents of the report itself do not limit the BOP’s management of CARES Act home confinees at all.  Any such limitations are coming – if at all – in subsequent policy memos and program statements.

Two sets of fun facts are contained in the DOJ report adopting the rule. First, as Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog, between March 26, 2020, and January 23, 2023, the BOP placed 52,561 inmates in home confinement. As of January 23, there were 5,597 inmates in home confinement, and 3,434 of those were CARES Act people.

The second has to do with money. Contrary to the oft-repeated inmate trope that the BOP makes money by keeping inmates locked up (something that only be believed if you simultaneously pay your Flat Earth Society dues), keeping people in prison is expensive. The DOJ noted:

Moneyspigot200220Supervision of inmates in home confinement is also significantly less costly for the Bureau than housing inmates in secure custody. In Fiscal Year (“FY”) 2019, the cost of incarceration fee (“COIF”) for a Federal inmate in a Federal facility was $107.85 per day; in FY 2020, it was $120.59 per day. In contrast, according to the Bureau, an inmate in home confinement costs an average of $55.26 per day—less than half the cost of an inmate in secure custody in FY 2020.

Only the government could manage to spend $55.00 a day to keep someone in their own house eating their own food and paying their own bills. Anyone wonder how we have a national debt of over $31 trillion?

Office of the Attorney General, Department of Justice,
Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (88 FR 19830, April 4, 2023)

Sentencing Law and Policy, Justice Department formally gives BOP discretion to decide who moved to home confinement during pandemic will be returned to federal prison (April 4, 2023)

Reuters, US rule to allow some inmates to stay home after COVID emergency lifts (April 4, 2023)

– Thomas L. Root