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Hobbs Is Violent, Hobbs Is Not Violent – Update for May 3, 2021

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

THE TWO FACES OF HOBBS

Two cases decided in the past few weeks illustrate the strange world of Hobbs Act robbery.

janus210502The Hobbs Act, a post-war legacy of Congressman Sam Hobbs (D-Alabama) federalized robbery of the corner candy store. Sam was a man of his time, close friends of J. Edgar Hoover (and sponsor of a bill that would have let the FBI wiretap anyone suspected of a felony, which ultimately did not pass).

The Hobbs Anti-Racketeering Act of 1946 amended the Anti-Racketeering Act of 1934 after the Supreme Court held in United States v. Teamsters Local 807 that Congress meant to exempt union extortion from criminal liability.  Congress did not so intend, and Sam Hobbs sponsored a bill that made sure the Court got the message.

Like its predecessor, the Hobbs Act prescribes heavy criminal penalties for acts of robbery or extortion that affect interstate commerce. The courts have interpreted the Hobbs Act broadly, requiring only a minimal effect on interstate commerce to justify the exercise of federal jurisdiction. That Clark bar you stole at gunpoint?  It was made over in Altoona, Pennsylvania, by the Boyer Candy Co. Inasmuch as you robbed it from a confectioner in Podunk Center,  Iowa, your robbery affected interstate commerce. Presto – a Hobbs Act robbery.

clark2120503The Hobbs Act has been used as the basis for federal prosecutions in situations not apparently contemplated by Congress in 1946. Just ask Earl McCoy.

Earl rode around in the car while his brothers committed armed home invasions, stealing TVs and the such from Harry and Harriet Homeowner at gunpoint. Convicted of Hobbs Act robbery, Hobbs Act conspiracy, attempted Hobbs Act robbery and of four counts of using a gun in the commission of the crimes, Earl got sentenced to 135 years.

That’s only 15 years less than Bernie Madoff got for a $65 billion swindle, proving Earl was probably in the wrong business. Of course, Bernie didn’t use a gun. It was the gun that got Earl, five stacked 18 USC § 924(c) counts that added 107 years to his sentence. The First Step Act changed the stacking law, so the same offense would net Earl only 35 years today, still substantial time but at least servable in a normal lifetime.

Ernie appealed his conviction, arguing that the attempted robberies, the conspiracy, and aiding and abetting could not support 18 USC 924(c) convictions. Ten days ago, the 2nd Circuit gave him a split decision.

violence181008The 2nd agreed that after United States v. Davis, Hobbs Act conspiracy no longer supports a § 924(c) conviction. No surprise there. But the Circuit held that attempted Hobbs Act robbery and, for that matter, aiding and abetting a Hobbs Act robbery, was a crime of violence that supports a § 924(c) conviction.

Earl argued that one could attempt a Hobbs Act robbery without ever using force. After all, scoping out a store to rob while carrying a gun is enough to constitute an attempt, and no violence was ever used. Doesn’t matter, the 2nd said. To be guilty of Hobbs Act attempted robbery, a defendant necessarily must intend to commit all of the elements of robbery and must take a substantial step towards committing the crime. Even if a defendant’s substantial step didn’t itself involve the use of physical force, he or she must necessarily have intended to use physical force and have taken a substantial step towards using physical force. That constitutes “attempted use of physical force” within the meaning of § 924(c)(3)(A).

For aiding-and-abetting to be enough to convict someone of a crime, the underlying offense must have been committed by someone other than the defendant, and the defendant must have acted with the intent of aiding the commission of that underlying crime. An aider and abetter is as guilty of the underlying crime as the person who committed it.

Because an aider and abettor is responsible for the acts of the person who committed the crime, the Circuit held, “an aider and abettor of a Hobbs Act robbery necessarily commits all the elements of a principal Hobbs Act robbery.”

lock200601Earl will get 25 years knocked off his sentence, leaving him with a mere 110 years to do. As for whether “attempts” to commit a crime of violence is itself a crime of violence, that question may not be settled short of the Supreme Court.

But the Hobbs Act has a split personality: it is not a crime of violence for all purposes. In the 4th Circuit, Rick Green pled to Hobbs Act robbery, with an agreed sentence of 120 months. But the presentence report used the Hobbs Act robbery as a crime of violence to make him a Guidelines career offender, with an elevated 151-188 month sentencing range. At sentencing, Rick argued Hobbs Act robbery was not a crime of violence under the Guidelines “career offender” definition. His sentencing judge disagreed.

But last week, the 4th Circuit sided with Rick. Applying the categorical approach, the Circuit observed that Hobbs Act robbery can be committed “by means of actual or threatened force, or violence, or fear of injury, immediate or future,” to a victim’s person or property.” The 4th said, “this definition, by express terms, goes beyond the use of force or threats of force against a person and reaches the use of force or threats of force against property, as well… So to the extent the Guidelines definition of “crime of violence” requires the use of force or threats of force against persons, there can be no categorical match.”

Thus, Rick was not a “career offender,” and will get resentenced to his agreed-upon 120 months.

United States v. McCoy, Case No 17-3515(L), 2021 US App. LEXIS 11873 (2nd Cir Apr 22, 2021)

United States v. Green, Case No 19-4703, 2021 US App. LEXIS 12844 (4th Cir Apr 29, 2021)

– Thomas L. Root

We’ve Got The Shorts – Update for April 30, 2021

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

Today, this being the end of the month, we’re cleaning off our desktop…

SOME ODDS AND ENDS FROM LAST WEEK

Banned in Moscow: In response to President Biden’s expulsion of Russian diplomats because of the massive Solar Winds computer hack discovered last December, Vladimir Putin last week banned eight US officials from entering Russia.

The excluded government honcho include current top intelligence officials, former National Security Advisor John Bolton, FBI Director Christopher Wray, and… BOP Director Michael Carvajal.

carvajal210430Huh? The media covering the story have explained the reasons for all of the expulsions except for Carvajal’s, which is usually noted as an afterthought.

Putin knows why Carvajal is on the list. Carvajal maybe knows. But no one else seems to have any idea.

The Hill, Russia blocks key Biden Cabinet officials from entering in retaliation for sanctions (April 16, 2021)


FMC Carswell Catching Heat for Inmate Death: The Ft Worth, Texas Star-Telegram reported last week on the death of Martha Evanoff at FMC Carswell.  The paper said that Evanoff “begged for medical attention for months, fellow inmates say, but was denied help until she died” on April 12.

Evanoff had surgery last November, but, according to a fellow inmate as well as Evanoff’s own emails to me, her intestines protruded through the surgical incision into her abdominal wall that had opened up. Ultimately the protrusion pinched the intestines shut, blocking them completely.

medmal170127“It was totally unnecessary. They could have done something to help her,” an inmate told the paper. “She is not the first person to die here from intestinal blockage.”

Another inmate reportedly said that Evanoff begged for help about the pain she was in, and “this place did nothing. Medical indifference = murder,” the inmate wrote. “And it is just as bad as having a knee on your neck…”

In an email Evanoff wrote to me in early February, she said, “I have been extremely ill — mainly bedridden with only bathroom trips. Visibly, I have these ENORMOUS, HARD TO MISS – Incision hernias all over my abdominal area… makes it impossible for me to do anything… One in particular sticks way out like I am pregnant with 8 children… Please help me out of here BEFORE I die here…”

A suit against FMC Carswell brought by over 70 named inmates alleging negligent medical care is pending in the US District Court for the Northern District of Texas.

Ft Worth Star-Telegram: Woman at Fort Worth medical prison died after staff ignored cries for help, women say (April 20, 2021)

Blake v. Carr, Case No 4:20cv807 (N.D. Texas)
Cohen Court Nixes Earned Time Credits: Former Trump lawyer Michael Cohen, on CARES Act home confinement until his sentence ends in November, brought a habeas corpus action to win earned time credits for programs he took while still locked up.

cohen200730Last week, Mike’s judge turned him down. “The statute clearly envisions that the program will be gradually implemented during the phase-in period. During this period, the [First Step] Act requires the BOP to provide evidence-based recidivism reduction activities for all prisoners before the two-year anniversary of the date that the BOP completes a risk and needs assessment for each prisoner, namely by January 15, 2022. The statute also requires the BOP during the phase-in period to develop and validate the risk and needs assessment to be used in the reassessments of risk of recidivism, while prisoners are participating in and completing evidence-based recidivism programs. But the statute does not require the BOP to begin awarding Earned Time Credits during the phase-in period. Indeed, the statute specifically leaves to the discretion of the BOP whether to expand existing programs and whether to offer to prisoners who successfully participate in such programs incentives and rewards.”

Cohen v. United States, Case No 20-CV-10833, 2021 US Dist LEXIS 75852 (S.D.N.Y. April 20, 2021)

Law and Crime, Federal Judge Denies Michael Cohen’s Petition to Cut His Sentence Under Trump’s First Step Act (April 20, 2021)

I’ll Be Watching You: In a report released last week, the Treasury Inspector General for Tax Administration said the IRS identified more than 4,500 fraudulent tax returns using a prisoner’s social security number in 2019, claiming refunds totaling over $14 million.

watching210430The amounts could have been higher, but since 2017, the IRS has set up processes to stop tax refunds from being issued to prisoners and people who steal prisoners’ SSNs. One of them involves the BOP and state departments of corrections complying with a requirement to provide the IRS with an annual list of all prisoners incarcerated within their prison system. Another program, which the Inspector General said should be expanded, is the Blue Bag Program, in which the IRS partners with the BOP and state corrections departments to identify potentially fraudulent tax returns and refunds. The IRS program automatically pulls prisoner tax returns for fraud analysis.

Accounting Today, IRS cracks down on prisoner tax fraud and identity theft (April 19, 2021)

– Thomas L. Root

Buyer’s Remorse At SCOTUS Over Rehaif? – Update for April 29, 2021

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

YOU’LL NEVER FORGET YOUR FIRST FELONY

Robber160229The Supreme Court heard oral arguments last week in United States v. Gary and Greer v. United States, two cases that would dramatically increase the benefits to defendants flowing from Rehaif v. United States.

But the devil’s in the details, and the prospects for neither one looks good. While it’s dangerous to predict the outcome of a case based on what you hear at oral argument, the Supremes seemed skeptical of the relief the defendants were urging and perhaps just a little uneasy over the genie that Rehaif let out of the bottle.

Mike Gary pled guilty to an 18 USC 922(g)(1) felon-in-possession charge. After Rehaif held that a defendant had to actually know that he or she fell within a class that was prohibited from having a gun, the 4th Circuit held that the district court’s failure to tell Mike that the government had to prove he knew he was a felon at the time he possessed the weapon was a “structural” error, and therefore his conviction had to be vacated whether or not the error made any difference in the proceeding’s outcome.

In the second case, Greg Greer was convicted by a jury of being a felon in possession. After Rehaif, the 11th Circuit reaffirmed his conviction on the ground that, according to his presentence report (which was not part of the evidence at trial), Greg had previously been convicted of five felonies and had served more than a year in prison. Therefore, the court reasoned, it wouldn’t have made any difference if his jury had been properly instructed about the government’s obligations, because if Rehaif had been the law, the government would easily have shown that Greg knew he was a prohibited felon. At the Supreme Court, Greg was arguing that the appellate court should have limited itself to the evidence in front of the jury (which of course contained nothing about Greg’s checkered past).

The justices were overtly skeptical of Greg’s argument. Justice Thomas asked, “Do you have any doubt in this case that the government would have preferred to introduce the evidence that you say is lacking here?… Your approach would put someone who stipulates in a better position than someone who actually went to trial.”

breyeradrift210429Justice Breyer, who wrote Rehaif, seemed to be looking for a way to limit any further fallout from the decision. “Why only look at the trial record?” he asked, before posing a number of hypotheticals. “There could have been something that happened before the trial [that is] an error,” the justice noted. “There could be something on the list of witnesses, there could be a limitation on what’s asked,” Breyer continued. “The possibilities are endless. So where does this idea come from you can only look at certain things?” he asked. “I’m totally at sea as to why or how to draw some line.”

The justices seemed similarly skeptical of Mike Gary’s case, with many noting that it could have widespread effects on existing convictions. Speaking about the proposition that an individual’s felony status “is not the kind of thing that one forgets,” Justice Kavanaugh said, “from that premise it seems odd to throw out all of the convictions” and asked Mike’s lawyer if he believed that premise to be true.

judgedefendant210429“The question shouldn’t be whether defendants are typically aware of the element or the element is typically satisfied,” Gary’s counsel replied. “The question should be whether the defendant when he pleads guilty understood that that was part of the charge and therefore was given an opportunity to exercise his own free will.”

Both cases will be decided by the end of June.

SCOTUSBlog, Justices wrestle with procedural issues stemming from their own federal criminal-law decision (April 21, 2021)

Law & Crime, SCOTUS Seems to Have Heeded Justice Alito’s Warning, Appears Unlikely to Reverse Gun Convictions (April 20, 2021)

– Thomas L. Root

Lousy Lawyering and Other Stories – Update for April 27, 2021

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

“DID I SAY FIVE YEARS? I MEANT FIVE DECADES…”

Four decisions of note last week:

stupidlawyr191202Oops, My Bad: Dave Mayhew was charged with white-collar fraud. The government offered him a plea deal that promised a maximum sentence of five years.

“C’mon, man,” his lawyer said. “That’s no deal. If we go to trial, five years is the worst we can do.” Dave, who paid big bucks for this professional advice, followed his attorney’s guidance and went to trial.

You can guess what happened. Dave lost, and he was sentenced to 27 years.

After appeals were over, Dave filed a habeas corpus motion under 28 USC § 2255, arguing that his lawyer was ineffective for giving him such bad advice. The district court denied the petition, pointing out that Dave was told at his re-arraignment that he could get up to 55 years on all of the charges and the court – no one else – would decide the sentence. So Dave knew what he was getting into, the judge claimed, and that cured any prejudice he would have suffered from his lawyer’s idiocy.

Last week, the 4th Circuit reversed. The re-arraignment came only after Dave had rejected the plea deal. The Circuit admitted that in the usual lousy-advice-on-sentence-exposure case, the law is clear that if the defendant pleads guilty after a Rule 11 change-of-plea hearing, the court’s warning that only it would determine the sentence and that the maximum the defendant faces, “taken together, may well have been enough to cure… counsel’s misadvice. But there is a fundamental problem,” the 4th held, “with applying that principle here, and it has to do with timing: The court’s admonitions in this case came only after Dave already had rejected the government’s plea offer, and there is no indication — in the record or from the government on appeal — that the offer remained open at that point.”

Bait and Switch: Rebecca Stampe made a deal on her drug case, agreeing to a Rule 11(c)(1)(C) plea locking her sentence at 168 months. An 11(c)(1)(C) plea sets a particular sentence or sentence range, with the court’s role limited to honoring the sentence deal or rejecting the guilty plea.

Deal170216Becky’s deal came with a government promise that if she testified against her co-defendant, she might get a substantial-cooperation sentence reduction under USSG § 5K1.1. But after she made the plea deal, the government dismissed the case against her co-defendant because of some unspecified misconduct by the informant (which presumedly made the informant’s testimony worthless).

Becky demanded information about the misconduct under Brady v Maryland, arguing that it was material to her guilt as well. She also moved to withdraw from her plea agreement (but not her guilty plea), figuring she’d do better with an open plea that let the court sentence her than she would with a Rule 11(c)(1)(C) plea.

Last week, the 6th Circuit shot her down. The Circuit ruled that the evidence could not possibly be material to Becky’s defense, because she had already pled guilty, so there was no defense left to make. As for the plea agreement, the Circuit said, “While we do not doubt that Stampe sincerely believed that she might avoid some prison time because of her putative cooperation in her co-defendant’s case, the plea agreement contemplated but did not require that possibility. So contrary to her assertion on appeal, it was not the ‘principal purpose’ of the agreement. The main purpose was the exchange of her plea for the government dropping the other charge against her and agreeing to a 168-month sentence.”

mathisEnd Run: John Ham filed a 28 USC § 2241 habeas petition claiming that Mathis v United States – a Supreme court decision that dictated how a sentencing court should apply the “categorical approach” in deciding whether a prior crime was a “crime of violence” under the Armed Career Criminal Act – required that he be resentenced to a lot less time.

John figured that the 4th Circuit’s United States v. Wheeler decision authorized the district court to address his § 2241 petition on the merits. The district court disagreed, and Jim appealed.

Wheeler adopted a four-part test for using § 2241 petitions to attack a defective sentence where a § 2255 motion would be “inadequate or ineffective.” One of those tests is that a petitioner must show a retroactive change in substantive law that happened after the direct appeal and first § 2255 motion.

John claimed that Mathis satisfies that requirement, changing “well-settled substantive law” about how a sentencing court should apply the categorical approach. Last week, the 4th Circuit disagreed.

“Mathis itself made clear that it was not changing, but rather clarifying, the law,” the 4th held. “The categorical approach has always required a look at the elements of an offense, not the facts underlying it… Indeed, Mathis merely repeated the ‘simple point’ that served as ‘a mantra’ in its ACCA decisions: ‘a sentencing judge may look only to the elements of the offense, not to the facts of the defendant’s conduct’.”

abandoned210427jpgSee You Around, Chump: Finally, in the 8th Circuit, Charles Ahumada filed a § 2255 motion arguing his attorney abandoned him by failing to file a petition for rehearing on his direct appeal. Not so, the Circuit said. In order to make a 6th Amendment ineffective assistance, a defendant first has to have a constitutional right to counsel. There is no constitutional right to counsel on a discretionary appeal, and a petition for rehearing is exactly that.

Chuck admitted as much, but argued that the Circuit’s Criminal Justice Act plan requiring counsel to file non-frivolous appeals gave him a due process right to effective counsel. “Even assuming there was a breach of the statute, the CJA,” the 8th said, “it does not give rise to a claim for ineffective representation of counsel.”

United States v. Mayhew, Case No 19-6560, 2021 U.S.App. LEXIS 11248 (4th Cir., April 19, 2021)

United States v. Stampe, Case No 19-6293, 2021 U.S.App. LEXIS 11459 (6th Cir., April 20, 2021)

Ham v. Breckon, Case No 20-6972, 2021 U.S.App. LEXIS 11493 (4th Cir., April 20, 2021)

Ahumada v. United States, Case No 19-3632, 2021 U.S.App. LEXIS 11861 (8th Cir., April 22, 2021)

– Thomas L. Root

BOP’s Secret Home Confinement Memo Sows Confusion – Update for April 26, 2021

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

DUELING HOME CONFINEMENT MEMOS DRAW CRITICISM

A week ago, I wrote about a new Bureau of Prisons memo (which some said was really a Dept of Justice memo) expanding eligibility for CARES Act home confinement. I admitted that despite my efforts, I could not obtain a copy of it.

secret210426I’m not alone. FAMM was scrambling, inmates were scrambling, and even Ohio State University law professor Doug Berman, the dean of federal sentencing law if there ever was one, complained in his Sentencing Law and Policy blog last Tuesday that the memo has still not been released. That same day, Keri Blakinger of The Marshall Project released what purported to be the text of the memo, a well-meant but ultimately unhelpful post.

Meanwhile, my email was smoking. Inmates heard that the BOP had been told to send minimum-security inmates home even if they had not served half of their sentence, the standard that people with prior offenses of violence were excluded had been dropped… the institutions were rife with rumors. People complained that their case managers were stubbornly ignoring the new standards, that wardens were releasing internal memos that underpromised.

You remember the game “post office.” The message was whispered around the circle of kids until it returned to the source mangled beyond recognition. That’s what we had. And the blame can be laid at the bureaucratic feet of the Bureau of Prisons, which would classify road signs as “sensitive” and “FOIA exempt” if the agency could get away with it.

Thankfully, Washington, D.C., leaks like a screen door on a submarine. By Then, on Thursday, both FAMM and the Defenders Services Office of the Administrative Office of U.S. Court (the support agency for Federal Public Defenders nationwide) had obtained bootlegged copies of the memo – an April 13 release from Andre Mateviousian, Assistant Director of the Correctional Services Division, BOP – and posted them on the Internet. These posts, which are identical, appear to be the real deal.

So what changed? A couple of things. First, inmates with -300 and -400 series disciplinary reports shots in the last 12 months are not automatically disqualified. Second, inmates with “low” PATTERN scores are now eligible for CARES Act home confinement.

violence151213What didn’t change? At least a couple of things. First, if you have a prior conviction for a crime of violence (let’s say a bar fight back in 1985, when you were 21 years old and possessed a testosterone-addled brain), you are still disqualified from CARES Act home confinement (no matter that you’re doing 24 months for tearing the label off your mattress). Second, the BOP is adhering to its self-imposed standard that you have to have completed 50% of your sentence (or 25% of your sentence with less than 18 months to go).

So the Marshall Project text was wrong: prior violence still counts. The versions of the memo posted by FAMM and fd.org continue to say that “the inmate’s current or a prior offense” cannot be “violent, a sex offense, or terrorism-related.”

At the end of last week. FAMM President Kevin Ring wrote to the BOP complaining about its failure to officially release the memo. “I am writing to ask that you publish on the Bureau of Prisons’ (BOP) website any and all memos sent to wardens about the eligibility criteria for CARES Act home confinement,” Ring wrote. “The BOP’s failure to do so has created unnecessary confusion and frustration for incarcerated people and their families…”

There is not a bureaucratic reason on God’s green earth why the BOP could not have released the memorandum on April 13, 2021. Instead, the agency’s obsession with secrecy (or at least playing its cards close to the vest) generated a week’s worth of heat without light. In fact, if the memo had not been leaked to outside organizations, inmates would still be in a tizzy and families still confused.

winnie210426While I am on a rant, I should note the moment in BOP Director Michael Carvajal’s testimony two weeks ago before the Senate Judiciary Committee that made me shout “liar!” at my computer screen. That in turn caused my faithful and efficient office dog Winnie to cower under a table until I calmed down.

As I note, the new memorandum retains the 50%-of-sentence requirement. This is a standard that Attorney General William Barr never imposed. Instead, as you may remember, it was the BOP’s own fiat, added in the agency’s all-too-typical ham-handed way (with inmates who were literally walking out the door to return home being called back because of the new requirement).

When I heard Carvajal assure the Senators that all the BOP had done was to apply the AG’s home confinement criteria, I was disgusted at his prevarication and furious that the Senators were so ill-prepared by their staffs that no one called Carvajal out on the fib.

In Forbes last week, Walter Pavlo noted it as well. He too observed that the time-served requirement was not dictated by the Attorney General, but rather was

based on an internal BOP memorandum that stated it was screening inmates based on whether they had served 25% of their sentence with less than 18 months remaining or have served more than 50% of their sentence. The directive had little logic behind it because COVID-19 did not discriminate between those who had been in prison years or those who had just arrived. The result of the memorandum was devastating, leading to deaths and infections at everyone of the BOP facilities nationwide.

liar151213Testifying before the Senate Judiciary Committee two weeks ago, BOP Director Michael Carvajal said that “…any inmate that is eligible under the criteria presented to me by the Attorney General is on home confinement as we speak.” Pavlo called that misleading, noting that “what Carvajal failed to add were details of the internal memos that mandated that priority for a person’s transfer to home confinement be measured against the amount of time they had served…”

Carvajal’s statement was false then, and it is false now.

Sentencing Law and Policy, Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement? (April 20, 2021)

The Marshall Project, Document Cloud, Home Confinement Memo (April 20, 2021)

FAMM, BOP Home Confinement Memorandum of April 13, 2021 (posted April 21, 2021)

Federal Public Defender, BOP Home Confinement Memorandum of April 13, 2021 (posted April 21, 2021)

Sentencing Law and Policy, FAMM urges federal BOP to publish memos with home confinement criteria (April 23, 2021)

Forbes, Bureau of Prisons Director Testimony To Senate Judiciary Leaves Unanswered Questions (April 20, 2021)

– Thomas L. Root

Pressure on Biden Builds On Fentanyl Analog Ban – Update for April 23, 2021

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

BIDEN FACES EARLY TEST ON COMMITMENT TO MANDATORY MINIMUMS

fentanyl210422In 2018, the Drug Enforcement Agency temporarily placed an entire class of compounds with chemical structures similar to fentanyl on the Schedule 1 list of drugs prohibited by federal law. Fentanyl analogs vary in potency, but even a trace of any of these compounds in a batch of drugs can trigger a lengthy mandatory minimum prison sentence.

Last week, the Government Accountability Office raised concerns that the fentanyl ban could result in people getting long sentences for compounds that are not even harmful or contain trace amounts of fentanyl-related substances. The ban has also made it harder for researchers to study thousands of fentanyl-like compounds, including to make treatments and antidotes for people living with opioid addiction, according to public health groups.

President Biden’s Office of National Drug Control Policy said the administration will work to extend the ban for seven months. Biden likely wants to avoid attacks from conservatives claiming he is “legalizing” a drug that has been so heavily demonized in the media, although allowing the Schedule 1 ban to expire is not really legislation.

Over a hundred justice and public health groups last week urged the White House to let the listing – which enhanced criminal penalties for people involved with the analogS –  expire. Instead, the coalition asked Biden to embrace a public health and harm reduction approach to fentanyl and other opioids, rather than repeating past mistakes of the war on drugs.

warondrug210423“The Biden administration and leaders of Congress are faced with their first major test of criminal justice reform… if they choose to extend this Trump-era policy, it will increase mass incarceration and the over-policing and incarceration of people of color,” said Hilary Shelton, a policy director at the NAACP, during a call with reporters on Monday.

Truthout, Biden Poised to Break a Promise on Mandatory Minimum Sentencing (April 13, 2021)

The Intercept, Biden Looks to Extend Trump’s Bolstered Mandatory Minimum Drug Sentencing (April 12, 2021)

– Thomas L. Root

The Week in COVID – Update for April 22, 2021

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

COVID BY THE (DIMINISHING) NUMBERS

The number of BOP staff with COVID fell dramatically last week from 1,254 to 252, but the spike now sweeping the country showed up among BOP prisoners, with the numbers increasing from 208 a week ago Monday to 408 two days ago,  only to drop back to 336 as of today. The BOP says that COVID is still present in 82 facilities, but that is down from 115 a week before.

COVIDvaccine201221BOP Director Michael Carvajal told the Senate Judiciary Committee that all BOP staff had been offered the vaccine, and 51% had taken it. He said 66% of inmates offered the vaccine had taken it. The BOP reported 40,808 inmates have been vaccinated as of last Friday (26.8%), up from 23.04% a week ago, The number suggests that the vaccine has been offered to about 61,800 inmates so far. Carvajal said all inmates would be offered the vaccine by the end of May.

The “pause” in administering the Johnson & Johnson vaccine last week because of two reports of a rare blood disorder is expected to be lifted in the next few days. While Dr. Anthony Fauci has said that the pause should be viewed as a “testimony to how seriously we take safety,” some experts are worried that the pause could lead to increased vaccine hesitancy, particularly in vulnerable populations that might be less likely to trust medical institutions in the first place, such as prisons.

“Vaccine confidence tends to be lower amongst people who have been disenfranchised,” Dr. Wafaa El-Sadr, a Columbia University professor of epidemiology and medicine told ABC News. “Among incarcerated people, that hesitancy may be tied to a historical legacy of doctors experimenting on people in prison.”

fearofvaccination210422At last week’s BOP oversight hearing, Judiciary Committee members expressed concern about the low vaccine acceptance rate among BOP staff. Sen Amy Klobuchar (D-Minnesota) noted that “95% of Mayo clinic doctors have been vaccinated because they don’t want to give it to their patients.” She wondered why BOP staffers were not similarly motivated to protect inmates by getting vaccinated.

ABC News, Prisons postpone vaccinations with Johnson & Johnson shots paused (April 16, 2021)

– Thomas L. Root

‘Helpful’ Judge No Help on 404 Motion, 11th Circuit Says – Update for April 21, 2021

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

LET ME HELP YOU OUT A LITTLE…

Actions have consequences, even when the action is just sending your judge a from-the-heart letter asking for a break.

lifeline210421Oniel Russell found that out. Back in 2006, he was convicted of a crack offense and sentenced to 262 months. But after the First Step Act passed, Oniel heard that maybe he was entitled to a sentence break. He didn’t really understand the effect of a newly-retroactive Fair Sentencing Act, so he wrote to his sentencing judge to ask that a lawyer be appointed to assist him.

Nothing in Oniel’s short letter discussed the merits of whether he was eligible for, or should be awarded, a sentence reduction. But the district court couldn’t see the need for Oniel to waste a second stamp on an actual motion. Instead, the court helpfully construed Oniel’s letter to be a First Step Section 404 sentence reduction motion, and directed the government to respond.

nothingcoming210420The government opposed reduction because the maximum penalty for his offense stayed the same under the Fair Sentencing Act. In a two-paragraph order, the district court agreed, and held that Oniel was ineligible for the sentence reduction he had never asked for. Even if he were, the district court said, it did “not believe that Congress intended to give Defendant and others similarly situated to get the benefit of a sentence reduction.”

Last week, the 11th Circuit reversed.

In the wake of the Circuit’s Jones decision last June, it was clear that Onielwas eligible for a Section 404 reduction. Although the district court had said it would not grant a reduction even if it could, the Circuit found

not enough here to permit meaningful appellate review of the district court’s initial order… We cannot discern from the record the basis for the district court’s decision not to exercise its discretion. When the district court issued this order, the court had before it nothing from the parties addressing whether the court should exercise its discretion. Russell had merely sent the court a one-page letter requesting appointed counsel to assist him in seeking a sentence reduction under the First Step Act when the court sua sponte converted his request into a motion for a sentence reduction. The government submitted a response to the construed motion opposing any sentence reduction, but it addressed only Russell’s eligibility for relief under the First Step Act, not whether, if Russell were eligible, the court should exercise its discretion… We cannot affirm based on the order because neither the order itself nor the record sheds any light on the district court’s reasons for declining to exercise its discretion.

United States v. Russell, Case No. 19-12717, 2021 US App LEXIS 10743, (11th Cir., April 15, 2021)

– Thomas L. Root

Odd Couple Beat Up on Prison Head – Update for April 20, 2021

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

SENATORS UNHAPPY OVER FIRST STEP IMPLEMENTATIONS

oddcouple210219Last Thursday’s Senate Judiciary Committee Oversight hearing opened with Committee chair Richard Durbin (D-Illinois) and Ranking Member Charles Grassley (R-Iowa) both blasting the BOP not just for its failures in placing inmates in home confinement, but for the PATTERN recidivism tool – which Durbin called “deeply flawed” – and for what they see as BOP slow-walking implementation of First Step Act programming.

Durbin complained that PATTERN contained “stunning racial disparity in inmate classification, and that the BOP’s proposed rule for awarding earned time credit – which requires 240 actual hours of programs for one month’s credit – “severely limits the ability to earn these credits, and that undermines participation.”

“Our prison system at the federal level is failing,” Durbin said in his opening remarks, “failing to fulfill its fundamental purpose, the rehabilitation of incarcerated individuals.”

Grassley said he was “disheartened with the lackluster implementation of the First Step Act. “The DOJ and Bureau of Prisons are implementing the First Step Act as if they want it to fail. I hope this is not true but actions speak louder than words.”

BOP Director Michael Carvajal said that COVID had hampered full rollout of the programming inmates could complete for earned credits that reduced their sentences, but Grassley responded, “I don’t think that national eFSAsabotage210420mergency can be used as a scapegoat… It seems like the Justice Department and the Bureau of Prisons have failed in this effort… Even if it isn’t so, at some point it becomes a perception, and perceptions become a reality.”

Carvajal told the Committee that about 50% of the 125,000 inmates reviewed were eligible to take programming for earned time credits. He told the Committee that last year, “even through COVID, we had over 25,000 inmates complete a program for time credit.”

This was a surprising admission, in my view. In litigation, the BOP has argued that its obligation to implement the evidence-based reduction programs and award Earned Time credits will not take effect until January 2022. That position – already rejected by several courts – seems to be undercut by Carvajal’s statement to lawmakers that 25,000 inmates got some ETC credit during 2020.

Senate Judiciary Committee, Oversight of the Bureau of Prisons (April 15, 2021)

Goodman v. Ortiz, Case No 20-7582, 2020 US Dist LEXIS 153874 (DNJ Aug 25, 2020)

– Thomas L. Root

DOJ Eases CARES Act Home Confinement Eligibility – Update for April 19, 2021

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

DOJ RELAXES PATTERN SCORE LIMITATION FOR CARES ACT HOME CONFINEMENT

Bureau of Prisons Director Michael Carvajal last Thursday told the Senate Judiciary Committee that the Dept of Justice has modified the CARES Act home confinement criteria to qualify people whose PATTERN recidivism scores are “low” for home confinement.

release160523A memorandum apparently has been issued, because in a FAMM press release issued on Friday, FAMM president Kevin Ring said “We’re grateful that the new administration heeded the widespread calls to make more people eligible for home confinement. The original criteria were too narrow.”

Although I tried Friday and over the weekend to obtain a copy of the memo, I was not able to. The Ring statement suggests that more than one standard may have changed, but nothing else has been confirmed. I have heard a rumor as to what that change might have been, but I try not to deal in rumors, so I am awaiting confirmation.

The DOJ decision to expand CARES Act home confinement at this time suggests that the Administration does not intend to stop COVID home confinement placement anytime soon, despite the fact that all inmates will have access to vaccine within the next month. Carvajal told the Committee, “We are working to get as many people as are appropriate out within the criteria we are given.”

Sen Charles Grassley (R-Iowa) complained to Carvajal that the BOP’s use of “home confinement fails to comply with the First Step Act.”

mismanagement210419Committee Chair Richard Durbin (D-Illinois) was even blunter, asking Carvajal whether he had been directed to make eligibility for CARES Act home confinement as restrictive as possible. He said of the 230 BOP inmate COVID deaths, “These were preventable deaths. It is clear that the Bureau has been far too rigid in approving transfers to home confinement and to approve compassionate release. This is part of a broader issue of mismanagement.”

Carvajal told the Committee that the BOP, which has about 4,500 prisoners on home confinement under the CARES Act, has always followed DOJ guidance. No one asked him about the BOP’s own gloss on those criteria, which was the April 22, 2020, BOP memo requiring 50% of the sentence to be served (a standard from which the BOP said it could deviate “in its discretion,” if, for example, your name is Paul Manafort or Chaka Fattah).

Carvajal said the home confinement program has been a success. Right now, over 4,500 inmates are at home under the CARES Act, while only 151 have been returned to prison, 26 of which for escape from monitoring, and only three for new crimes (only one of which was violent).

return161227Many Committee members expressed dismay at the January 15 DOJ Office of Legal Counsel opinion that CARES Act confinees have to return to prison when the pandemic ends. Carvajal said about 2,400 of the CARES Act confinees have more than a year left on their sentences, and about 310 of those have more than five years to do. He said the BOP just wants guidance: “I ask that the statute be changed, or that we work with the DOJ… I don’t want somebody to believe that the Bureau of Prisons somehow doesn’t want to let someone out.”

But if the confinees are sent back, Carvajal said the BOP is prepared to handle the influx. Not everyone agrees. “We don’t have the staff,” Council of Prison Locals Southeast Regional Vice President Joe Rojas told Reuters. “We are already in chaos as it is, as an agency.”

Durbin and Grassley said they would ask the new Attorney General to withdraw the January OLJ memorandum, or – if that failed – they would seek to change the statute.

Courthouse News Service, Federal Prisons Flunked the Pandemic, Senators Say (April 15, 2021)

Reuters, U.S. has no plans to order inmates released in pandemic back to prison-official (April 15, 2021)

Reason, Pressure Grows on Biden To Rescind Memo That Would Send Thousands Released on Home Confinement Back to Federal Prison (April 16, 2021)

FAMM, FAMM releases statement on Department of Justice expanding home confinement (April 16, 2021)

Senate Judiciary Committee, Oversight of the Bureau of Prisons (April 15, 2021)

– Thomas L. Root