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Congress Passes on Pot Reform in NDAA Bill – Update for December 10, 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.

SENATE MANEUVERS COULD JEOPARDIZE DRUG LAW REFORM

marijuana160818With only a handful of legislative days left this year, Senate Majority Leader Chuck Schumer (D-NY) is demanding that the chamber pass the National Defense Authorization Act (NDAA), a federal budget, a debt-ceiling increase, and the Build Back Better Act before Christmas. There’s no room in Santa’s bag for any criminal justice reform with that very ambitious agenda.

Last September, the House of Representatives attached the Secure and Fair Enforcement (SAFE) Banking Act to its version of the NDAA. The SAFE Act would shield national banks from federal criminal prosecution when working with state-licensed marijuana businesses — a potentially significant achievement for the industry. That wasn’t enough to secure its inclusion in the final NDAA, which was intensely negotiated between the two Congressional chambers. But on Tuesday, the final NDAA bill text was released without SAFE Banking Act language.

(The House passed the SAFE Banking Act this past April, as it did in 2019, but it again stalled before making headway in the Senate.)

marijuanahell190918Schumer and Booker had already said they want to hold off on the banking measure until Congress passes the more comprehensive reform. Wyden said last week the trio hasn’t shifted from their position. “We’re going to keep talking, but Sen. Schumer, Sen. Booker, and I have agreed that we’ll stay this course,” Wyden said last Monday. “The federal government has got to end this era of reefer madness.”

The split over marijuana policy raises the genuine possibility that Congress could again fail to pass any meaningful changes to marijuana law, despite polls showing large majorities of Americans support at least partial legalization of the drug. While the SAFE Banking Act did not directly address the Controlled Substance Act penalty statutes, its passage would have paved the way for sentence reform.

Meanwhile, the EQUAL Act – which would retroactively reduce penalties for crack cocaine – isn’t yet on life support, but it’s not healthy, either. A coalition of Iowa advocacy groups last week urged. Sen Charles Grassley (R-Iowa) and other lawmakers to pass the bill, already overwhelmingly approved by the House.

The ranking Republican on the Senate Judiciary Committee, Grassley has been pushing the First Step Implementation Act and COVID-19 Safer Detention Act. He co-sponsored the 2010 Fair Sentencing Act that reduced the crack-cocaine ratio from 100:1 to 18:1.

crack-coke200804In September, Grassley told reporters he was doubtful eliminating the sentencing disparity would fly in the Senate. “I think there’s a possibility of reducing the 18 to 1 differential we have now,” he said, “but I don’t think one-to-one can pass.”

Grassley said he was unwilling to push the EQUAL Act if it would sink the criminal justice reform package he and Durbin have been working to pass.

Cannabis Wire, SAFE Banking Scrapped from NDAA Despite Major Push (December 8, 2021)

Wall Street Journal, Will Santa Claus Visit Chuck Schumer? (December 1, 2021)

The Intercept, Marijuana Banking Reform in Defense Bill on the Brink of Collapse as Democrats Split (December 2, 2021)

Quad City Times, Iowans urge Grassley, Senate to pass bill closing drug sentencing disparity (December 3, 2021)

– Thomas L. Root

BOP COVID Number Climb Again – Update for December 9, 2021

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

COVID’S BACK… REALLY, IT NEVER LEFT

coviddelta210730Not quite 6 months ago, the CDC director predicted that COVID-19 Delta – which had just been identified – was likely to become the dominant strain in the US. As of two weeks ago, Delta accounts for 99% of COVID worldwide.

Now, the first cases of COVID Omicron have made US landfall. The New York Times reported last Friday that new research indicates that the Omicron “variant can spread more easily than Delta, which was previously the fastest-moving version of the virus.” Omicron’s rapid spread results from a combination of contagiousness and an ability to dodge the body’s immune defenses, the researchers said. South African scientists reported on Thursday that having had COVID-19 previously appears “to offer little to no protection against the Omicron variant.”

Even without Omicron, the BOP is experiencing a post-Thanksgiving COVID surge. Yesterday, 254 inmates systemwide had COVID, up 49% from a week before, primarily due to 132 new cases at FCI Waseca. Staff cases fell from 231 to 220, and the number of affected prisons held at 99. The BOP has logged four more COVID deaths, three of whom have been identified, at FCI Hazelton, FCI Seagoville, and FCI Terminal Island. One of the announced deaths is of someone who had had COVID-19 before but had recovered.

deadcovid210914BOP vaccinations slowed last week. Vaccinated staff numbers rose about 8/10ths of a point to 67.35%. Inmate vaccinations ended the week up 6/10ths of a point to 71.55%.

A UK study last week reported that in late autumn 2020 in the U.K., COVID-19 became more lethal—meaning that the probability that an infected person would die from the disease increased. Scientists are trying to determine the reason for the deadlier results. And yesterday, Dr. Rochelle Walensky, director of the CDC, told the Associated Press that of the 40-plus people known to be infected by omicron so far in the United States, more than 75% were vaccinated, and one third had received a booster shot. She said that almost all the cases resulted in mild illness, with only one case requiring hospitalization.

Wall Street Journal, Delta Covid-19 Variant Likely to Become Dominant in U.S., CDC Director Says (June 18, 2021)

SciTechDaily, New Statistical Analysis Shows COVID-19 Became Much More Lethal in Late 2020 (December 1, 2021)

CNBC, WHO says delta variant accounts for 99% of Covid cases around the world (November 16, 2021)

USA Today, Delta drives surge in US cases before omicron gains foothold; 75% of US infections by new variant among vaccinated: Latest COVID-19 updates (December 10, 2021)

– Thomas L. Root

Is Trying To Be Violent All It Takes? – Update for December 8, 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.

AIDING, ABETTING, ATTEMPTING, AND GUNNING

drugripoff211208Gary D. Harris got convicted of aiding and abetting 2nd-degree murder, aiding and abetting attempted robbery, and aiding and abetting using or carrying a firearm during and in relation to a crime of violence. He got hammered: 420 months for the aiding and abetting murder, and an extra 60 months for the 18 USC § 924(c) charge.

Gary filed a post-conviction habeas corpus motion under 28 USC § 2255, but it failed like most of them do. After United States v. Davis changed the landscape on what crimes were and were not crimes of violence, Gary filed a second 28 USC § 2255 motion.

A second § 2255 is not easy to file. A prisoner must get permission from the Court of Appeals to file one, and the standards are tough: you’ve got to have newly-discovered evidence that pretty much exonerates you or be the beneficiary of a new Supreme Court constitutional decision that is retroactive.

Gary asked the 6th Circuit for permission. Last week the 6th Circuit turned him down.

aidabett211208Gary argued his consecutive 60-month sentence had to be vacated because the district court might have imposed that sentence under the unconstitutionally vague “residual clause.” What’s more, Gary argued, his § 924(c) sentence couldn’t fall under the “elements clause” either, because neither his conviction for aiding and abetting second-degree murder nor his conviction for aiding and abetting attempted robbery could have constituted  a “crime of violence.”

It’s an appealing argument. It seems like you could aid or abet a violent crime without committing an act of violence yourself, like loaning your car to someone who uses it to rob a bank. But the Circuit didn’t buy it. “To justify relief under § 2255,” the 6th said, Gary had to not only show “constitutional error but also harm that he suffered from that error.” He had to “establish that he could not have been sentenced to the consecutive 60-month prison term under § 924(c)(3)’s elements clause. Because the 18 USC § 2113 crime of aiding and abetting attempted robbery necessarily constitutes a crime of violence,” the Court said, Gary cannot do that.

So aiding and abetting and attempted crimes of violence are themselves violent. And the Garys of the world lose. Right?

corso170112As Lee Corso might say, “Not so fast, my friend.” Yesterday, the Supreme Court heard argument in United States v. Taylor, where the issue is whether an attempt to commit a Hobbs Act robbery is a crime of violence. The outcome of that case could reopen the aiding and abetting/attempt issue for hundreds, if not thousands, of inmates.

Justin Taylor was a Richmond, Virginia, pot dealer who robbed his buyers. This was a business model with great short-term results, but lousy for building customer loyalty. In August 2003, Justin and his sidekick planned just such a robbery. Justin sat in the getaway car while his partner pulled off the heist. The buyer was unwilling to turn over his money, so Justin’s buddy shot him dead. Justin and his partner fled without the money.

Justin was convicted of Hobbs Act conspiracy and a crime of violence under § 924(c). He got 20 years for the conspiracy and another ten for using a gun during a crime of violence.

violent160620After Davis, Justin filed a § 2255 motion, arguing that his crime – because it was a mere attempt – was not a crime of violence. That meant that the 10-year sentence for using the gun would have to be thrown out. The U.S. Court of Appeals agreed, vacating Justin’s § 924(c) conviction. “Because the elements of attempted Hobbs Act robbery do not invariably require ‘the use, attempted use, or threatened use of physical force,’ the offense does not qualify as a ‘crime of violence’ under § 924(c),” the appeals court said.

At yesterday’s argument, the Government complained that the Fourth Circuit “has excised from § 924(c) a core violent federal crime, based on the imaginary supposition that someone might commit it with a purely non-threatening attempted threat and yet somehow still come to the attention of law enforcement and be prosecuted.”

But just how imaginary would such a supposition? That question consumed the argument session.

Chief Justice John Roberts asked at one point just what charges Woody Allen’s character in “Take the Money and Run” would have faced for handing the note “I have a gub” to the teller. Justin’s lawyer, Michael Dreeben, said the Woody Allen character’s actions would violate the Hobbs Act. “An attempt that fails is still prosecutable as an attempt,” Dreeben said.

Jail151220As always, the Government predicted the collapse of the judicial system and wholesale release of inmates if Justin Taylor’s view prevailed. Justice Sonia Sotomayor was justifiably skeptical, pointed out that whether an attempt could support a § 924(c) was a question of enhancement, not convictability (my word, not the Justice’s). She said the government made it sound like a win for the defense would mean letting out “all of these horrible criminals,” but she emphasized that defendants still face substantial sentences on other charges, like Justin’s 20-year conspiracy term that isn’t at issue here.

Justice Brett Kavanaugh worried about a ruling for the defense. “Congress obviously… imposed this because there’s a huge problem with violent crime committed with firearms and thought that the sentences were not sufficient to protect the public,” he said.

Harris v. United States, Case No. 21-5040, 2021 U.S. App. LEXIS 35494 (6th Cir., December 1, 2021)

United States v. Taylor, Case No. 20-1459 (Supreme Court, oral argument December 7, 2021)

Bloomberg Law, Violent-Crime Definition Gets High-Court Hearing in Gun Case (December 7, 2021)

– Thomas L. Root

Durbin Doubles Down on Dumping Director – Update for December 7, 2021

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

DURBIN AGAIN CALLS FOR BOP DIRECTOR’S FIRING

fired171218Arguing that Bureau of Prisons Director Michael Carvajal “has shown no intention of reforming the institution,” Senator Richard Durbin (D-Illinois) repeated his call that demanded his firing in a speech last Thursday on the floor of the Senate.

Durbin, the second-ranking member of the Senate (and chairman of the Senate Judiciary Committee), cited a recent Associated Press investigation that revealed over 100 BOP officers and employees had been criminally charged in the past two years – a rate more than double the Dept of Justice average – for crimes ranging from smuggling contraband into facilities to sexual abuse of prisoners. “For years,” Durbin said, “the Bureau of Prisons has been plagued by corruption, chronic understaffing, and misconduct by high-ranking officials.” He also cited the 2019 suicide of sex criminal Jeffrey Epstein at MCC New York, which closed earlier this year.

AP reported last Thursday that “under Carvajal’s leadership, the agency has experienced a multitude of crises, from the rampant spread of coronavirus inside prisons and a failed response to the pandemic to dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies.”

DruckDurbin, whose Judiciary Committee exercises oversight of the BOP, first called for Carvajal’s firing on November 16, after the release of the AP’s investigation. The AP found what it called “rampant criminal activity” by BOP employees and alleged the “agency has turned a blind eye to employees accused of misconduct.”

In his speech, Durbin cited the BOP’s appointment of Lamine N’Diaye as warden at FCI Fort Dix. N’Diaye was warden at MCC New York when celebrity child molester Jeffrey Epstein died, allegedly as a suicide. The AP reported that the BOP previously tried to place N’Diaye in the Fort Dix job, “but the move was stopped by then-Attorney General William Barr after the AP reported the transfer.” In January 2020, the BOP said it would defer the N’Diaye’s transfer to the FCI Fort Dix position until the Epstein investigation was completed but later made the switch anyway.”

“In the nearly two years since Director Carvajal took control of the Bureau, he has failed to address the mounting crises in our nation’s federal prison system,” Durbin said Thursday. “It is far past time for new, reform-minded leadership in the Bureau of Prisons.”

Trump Administration Attorney General William Barr appointed Carvajal. However, current Deputy Attorney General Lisa Monaco said recently that she still had confidence in his leadership.

The AP reported last June that the Biden administration was considering replacing Carvajal, one of the few remaining Trump administration holdovers at DOJ.

bureaucracy180122Many think it’s time to do so. BOP is “an agency that is largely unaccountable to the public,” the “people that it purports to protect” and even its staff, Amy Fettig, executive director of the Sentencing Project told the Washington Post last week. “We should never have a government agency that operates with so little public accountability,” Fettig said about the BOP. When we do, she said, “bad things happen.”

As if to put an exclamation point to that, the US Attorney for Northern California announced last Friday that John Bellhouse has been charged with several counts of sexual abuse of a woman prisoner at FCI Dublin.

Business Insider, Top Democrat calls on Biden administration to fire the Trump-era head of federal prisons, citing inmate abuse and the death of Jeffrey Epstein (December 2, 2021)

AP, Durbin: Prisons chief has ‘no intention of reforming’ system (December 2, 2021)

AP, AP Exclusive: Feds backtrack on transfer of Epstein warden (January 28, 2020)

Washington Post, Lawbreakers in federal prisons include prison staff, report finds; senators demand accountability (December 1, 2021)

Press Release, US Attorney for Northern California, Federal Correctional Officer Charged With Sexual Abuse of an Inmate (December 3, 2021)

– Thomas L. Root

Acquitted Conduct Bill Advances in House – Update for December 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.

HOUSE COMMITTEE REPORTS ACQUITTED CONDUCT BILL; LEGISLATORS PRESS BIDEN ON SENTENCING COMMISSION

innocent161024Bipartisan legislation introduced by Rep. Kelly Armstrong (R-ND) that would restrict a federal court from considering a defendant’s acquitted conduct at sentencing was approved by the House Judiciary Committee on November 17th, and now moves to the full chamber for consideration.

“The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution,” Armstrong said. “The current practice of allowing federal judges to sentence defendants based on conduct for which a jury acquitted them is not right and is not fair.”

The Prohibiting Punishment for Acquitted Conduct Act of 2021, H.R. 1621, is a companion bill to the same legislation, S.601, awaiting a vote in the Senate.

Meanwhile, Armstrong joined Rep. Jamie Raskin (D-Maryland) last week in urging President Joe Biden to prioritize filling vacancies that have left the Sentencing Commission without a quorum, saying the situation has stalled criminal justice reform.

noquorum191016Armstrong and Raskin said in a letter that the vacancies have “forestalled the important work of updating and establishing new sentencing guidelines.” The Commission’s last meeting was in December 2018, a week before passage of the First Step Act. The lack of a quorum also meant the commission could not update the sentencing guidelines needed to help implement the law, potentially resulting in its uneven application by judges across the country (such as in compassionate releases).

Ripon Advance, House Judiciary Committee advances Armstrong’s bipartisan acquitted-conduct bill (November 22, 2021)

Reuters, Bipartisan lawmakers urge Biden to prioritize sentencing panel nominees (November 22)

Letter to President Biden on USSC Vacancies (November 22, 2021)

– Thomas L. Root

Making a Lawyer Look Slimy is Interesting, But Not Material – Update for December 2, 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.

3rd CIRCUIT THROWS OUT § 1001 FALSE STATEMENT CONVICTION
Don't sell this guy anything with pseudoephedrine in it.
Don’t sell this guy anything with pseudoephedrine in it.

Last week, I was picking up some prescriptions when I recalled I needed a new box of allergy pills (Claritan® knockoffs). Say what you will about voter suppression, it takes considerably less ID to vote than it does to buy these over-the-counter pills. After presenting my driver’s license (which the clerk scanned into some government meth-head database), I had to read and sign a notice that warned me darkly that if I really to use these pills in my methamphetamine lab, I would be violating 18 USC § 1001 if I represented otherwise by signing the form.

A utility infielder of a statute if ever there was one, § 1001 seems to me to be the mattress tag of federal criminal statutes. Every government form you will ever sign warns that false statements are punishable under 18 USC § 1001.  The statute is often used to nail people who federal law enforcement wants to get but have no other grounds on which to proceed. A Catholic priest named in dozens of abuse complaints over the years, but whose conduct is beyond the statute of limitations? Nail him on a 1001 beef.  A national security adviser who talked to the Russian ambassador before taking office (something which is hardly uncommon)? Get a couple of FBI agents to badger him until he lies about the calls, and then charge him.

Don’t get me wrong. The retired priest occupies a station in this world somewhere below what my dog deposits on the lawn every morning. And as for the former national security advisor? He’s a whack-a-doodle of the first order.

But while you can choose your friends, the U.S. Attorney gives you your defendants. And they are often scummy or whacky. One who might fit both bills was a guy named Joe Johnson. Joe was a Bill Cosby fan. Maybe too much of one. When women began suing Cosby for sexual improprieties, Joe fiercely defended his idol.

At first, the defense was all online. Finally, he inserted himself into a civil case brought against Cosby by one of the women in U.S. District Court for the Eastern District of Pennsylvania.

lawyerguilty160901Trying to discredit the woman accuser’s legal counsel, Joe filed a phony praecipe in the lawyer’s name which had attached to it what was purported to be an IRS accusing the lawyer of tax evasion. The reports of the case don’t indicate whether the IRS document was real or fake, which doesn’t really matter, because the fake part was the praecipe, which represented that the attorney himself had filed it.

As soon as the praecipe was put on the electronic docket, the lawyer whose name appeared as the filer saw the filing. Upon reading it, counsel told the court that – while the praecipe had his name on it – he had never filed it.

The praecipe was promptly stricken from the docket, and the judge asked the FBI to look into it. It did not take long for the trail to lead back to Joe, who was convicted under 18 USC § 1001 of “knowingly and willfully… mak[ing] any materially false, fictitious, or fraudulent statement or representation” in a matter within the jurisdiction of the federal government.

Establishing a § 1001 violation requires that a defendant make a false representation knowingly and willfully, that the representation was “material,” and that the representation was made relating to a matter within the jurisdiction of the federal government. Joe’s phony praecipe rang all of those bells.  Save one.

Last week, the 3rd Circuit reversed Joe’s conviction, sending him home in time to eat Thanksgiving dinner and watch some Cosby Show reruns. What Joe filed, the Circuit said, was false and intentional, but it was not material.

materiality211202To be material, a false statement must have “a natural tendency to influence, or be capable of influencing, the decision of the decision-making body to which it was addressed.” The issue is whether the false statement had a “natural tendency to influence” or was “capable of influencing” the governmental decision-making body at issue. “Put differently,” the Circuit said, “materiality requires evidence showing that the false statements were of a type capable of influencing a reasonable decisionmaker.”

The Government presented general testimony from the Judge that he usually looks to the civil docket in making decisions, and of course that Joe stuck a false praecipe into it. But, the Circuit said, “this established only relevance, not materiality. The Government did not present evidence connecting Joe’s filing to a specific decision by the Judge that might have been affected by Joe’s false statement. And to form the basis of a jury’s conclusion, the Government’s evidence cannot be purely theoretical, and evidence of such a capability to influence must exceed mere metaphysical possibility.” The 3rd held that “the Government needed proof of an actual decision that could have been affected by the false praecipe.” And that proof was lacking.

United States v. Johnson, Case No. 20-1449, 2021 U.S.App. LEXIS 34920 (3d Cir., November 23, 2021)

– Thomas L. Root

Omicron! More COVID in BOP’s Future? – Update for November 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.

SOMETHING NEW ABOUT COVID – AND IT’S NOT GOOD

Last week, I suggested COVID might not be over, but may just be in a “lull.” Sadly (and unusual for me, according to my wife), I may be right.

coviddelta210827

First, how’re things in the Bureau of Prisons? After hitting a low of 95 inmates and 258 staff with COVID on November 19, the BOP numbers started climbing again. As of last night, inmate cases had increased by 41% since then, and staff cases remained at 258. Facilities reporting COVID jumped from 92 to 102 in a week (constituting 83% of all BOP installations) reported inmate or staff COVID.

The White House said last week that 92% of federal employees got the vaccine by President Biden’s November 22 deadline. But the BOP reported as of last Friday that only 66.5% of its estimated 37,000 employees had been jabbed. That number still trails the 70.9% of inmates who have been vaccinated, and is way off the government average. BOP staffers, however, can remain pretty confident – given the agency’s serious staffing shortage – that no one’s going to be fired for refusing a dangerous and untested vaccine that only a handful of Americans, say 225 million or so, have received without serious adverse effects.

(Americans like me: I’ve had three doses of Pfizer, and the only side effect I have suffered is weight gain… or maybe that’s from doughnuts).

A Times of India story last week reported that the FCI Texarkana study done by the Centers for Disease Control last August confirmed that “there is no statistically significant difference in the transmission of coronavirus between fully vaccinated and non-vaccinated.” That is, being around fully vaccinated people does not protect an unvaccinated person from contracting the virus.

Bloomberg reported yesterday that the predicted winter surge may have already begun. The city’s positive test rate rose to a two-month high as hospitals admitted more than 100 new virus patients last Friday, contributing to a 25% jump in hospitalizations in just two weeks.

xi211130News broke last Thursday of a new, potentially fearsome COVID threat, variant B.1.1.529. The variant is called “Omicron,” which was not the next letter in the Greek alphabet but was the next letter in the Greek alphabet beyond “xi,” a letter that sounded a lot like the leader of a large country in which COVID may have first escaped from a lab. Maybe.

At any rate, COVID Omicron is already spreading, the Biden administration was told. And, before long, evidence emerged that the variant carried worrisome mutations. When it first appeared on a global database of coronavirus genomic sequences, scientists were surprised. “This was the weirdest creature they’d seen to date,” The Washington Post reported. It had an unruly swarm of mutations. Many were known to be problematic, impeding the ability of antibodies to neutralize the virus. But there had never been a variant with so many of these mutations gathered in a package.”

“We have seen these mutations in other strains, in twos and threes, and each time they were a little harder to neutralize, but didn’t spread particularly well. Now, all together? It’s a complete black box,” Benjamin Neuman, a virologist at Texas A&M University, said in an email to the Post.

COVIDvaccine201221On Saturday, COVID-19 cases caused by the Omicron variant were confirmed or suspected in a widening circle of nations, including Britain and Germany. The pharmaceutical companies whose vaccines had appeared to chart a path out of the pandemic are expediting development of new formulations targeting the variant.

For now, despite the courts and government arguing that COVID is over, it seems that more ugly may be on the way.

Washington Post, More than 9 in 10 federal workers and military personnel are vaccinated, with only a small percentage seeking exemptions, White House says (November 24, 2021)

Bloomberg, New York City May Be at Start of Winter Surge of Covid-19 (November 28, 2021)

Times of India, Scientists have figured out how vaccinated people spread COVID-19 (November 26, 2021)

Washington Post, ‘You’ve got to prepare for the worst’: World responds to new variant’s arrival (November 27, 2021)

Washington Post, Omicron mutations alarm scientists, but new variant first must prove it can outcompete delta (November 29, 2021)

– Thomas L. Root

Will Biden and the Easter Bunny Let Everyone Go Home? – Update for November 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.

MYTHBUSTERS

Cake201130Today, the LISA Newsletter began its 7th year of weekly publishing for federal inmates. Our first newsletter – sent on Sunday, November 29, 2015 – went to 13 inmates. Readership has grown a little since then: this week’s newsletter was sent last night to over 8,000 subscribers, both in and out of prison.

At the same time, we have made over 1,125 posts, all of which – thanks to the miracle of the Internet – are available on this site.

To celebrate, I’m going to take today to bust some of the best inmate myths coming into my e-mailbag:

questionmark211129

Question: Have you heard this 65% rumor that’s going around that Biden has supposedly signed into law and goes into effect at the beginning of next year? ~ JH

Answer: No, JH, not true. The “65% law” rumor has been around for as long as there have been sentencing guidelines. Before 1988, courts sentenced defendants to very general terms of years, often five years or 10 years. How long you actually served was up to the parole board. Under the parole board guidelines, you would do at least 1/3 but not more than 2/3 of your sentence. The exact point at which you would be paroled depended on the parole board guidelines, which were sort of like the current sentencing guidelines, although not nearly as detailed.

easterbunny210916The 65% rumor may be based on the maximum amount of time (2/3) one would serve under an “old law” sentence. Starting in 2003, Congresswoman Sheila Jackson Lee (D-Texas) introduced a bill at the beginning of each Congress to release certain federal inmates at 2/3 of their sentence. The bill would always be referred to the House Judiciary Committee, where it would die without ever being considered.

People who talk about how Congress should “bring back parole” suffer from a dangerous form of amnesia. The parole board was arbitrary and mean-spirited, providing minimal due process protections that make Guidelines sentencing look fair and loving by comparison. Currently, there is no “65% law” bill pending in Congress. Such a bill is unlikely ever to get serious consideration unless the guidelines are abandoned, and parole is reinstituted.

questionmark211129

Question: We have heard the Federal Bureau of Prison Nonviolence Reform Act of 2021 passed both House and Senate about 5 days ago; is this true? This says you must have attained age 45, no violent charges, and no discipline at the institution. I hope it has passed both as my Mother said but nobody else’s family can find where it has passed. Did Mother “jump the gun”? ~ NP

Answer: Sorry, NP, Mom “jumped the gun.” This rumor blends some provisions of a couple of old bills introduced five years ago that never went anywhere and died at the end of the two-year Congress in which they were proposed. There are no such bills pending now, let alone being reported by House or Senate committees. And nothing is named the “Federal Bureau of Prison Nonviolence Reform Act of 2021″ or anything close to it.

questionmark211129

Question: I heard that an inmate was granted compassionate release but the prison somehow canceled it. I do not have the case number, however, I can give you the particulars of the case. The case was in 2003, in Central Islip, New York, and the defendant, Samuel Torres, was sentenced to 30 years in prison for drugs, weapons, and arson. If you could see why the motion was granted but then from what I hear, canceled… ~ RM

compassionaterelease190517Answer: “Compassionate release” is the popular but misleading term for a sentence reduction under 18 USC § 3582(c)(1)(A)(i). It is a resentencing by the court. The BOP has no authority to “cancel” a sentence reduction by the court. The sentence is what the court says it is – not what the BOP may want it to be.

(By the way, the case you referred me to does not exist).

questionmark211129Questions: I’ve been hearing that Biden is talking about giving us inmates up to a year off for Covid. Is there any truth to that at all? ~ MS

Is there any truth to this gossip about people locked up during covid will get 10-18 months off their sentence?? ~ ML

Hello, have you heard anything about non-violent offenders getting an 18-month time cut for the pandemic? ~ AC

Answer: Biden has said nothing of the such. No one else has said anything of the such. The COVID-19 Safer Detention Act (S.312 and H.R. 3669), pending in both the House and Senate, have been favorably reported by the respective Judiciary Committees, but neither has come to a floor vote. Skopos Labs – which handicaps legislation – gives the bills only a 3% chance of passing.

elderly180517The bills change the Elderly Offender Home Detention (EOHD) program to make people 60 or older eligible when they have served 2/3 of their good-time adjusted sentence, not their total sentence. The bills also give people turned down for EOHD placement the right to ask a court for that placement instead, much like compassionate release works now, and requires during the pandemic that any inmate with a COVID risk factor be deemed to have an extraordinary and compelling reason for a sentence reduction under 18 USC 3582(c)(1)(A)(i). Finally, the bills cut the exhaustion waiting period from 30 to 10 days as long as the pandemic emergency lasts.

No one proposes cutting sentences across the board because of COVID.

questionmark211129Question: I have heard about a reform bill that is supposed to have a 2-point reduction for federal inmates and/or mandatory minimums going down. Please tell me there is truth to this.

Answer: Only sort of.  S.1014 – the First Step Implementation Act of 2021 – has been reported to the Senate floor by the Judiciary Committee. The bill would make the reductions in mandatory minimums for drug and gun offenses granted in § 401 and 403 of the First Step Act retroactive. This would let people with life or 20-year mandatory sentences under 21 USC § 841(b)(1)(A) move for a reduction of sentence, as well as people with stacked 18 USC § 924(c) sentences, seek reductions from their sentencing judges using the same mechanism as the crack defendants used under First Step Section 404.

Remember that a 2-point reduction in the Guidelines is made by the Sentencing Commission, not by statute, so such a change would come from the Sentencing Commission. The Sentencing Commission, now down to a single member, has not had a quorum to enable it to meet since First Step passed in 2018.

questionmark211129Question: When will the Senate vote on the EQUAL Act?

crackpowder160606Answer: The EQUAL Act, which reduces crack cocaine penalties to be the same as powder cocaine penalties, passed the House of Representatives on Sept 28. However, there is no requirement that the Senate act on a bill passed by the House at any certain time, or even at all.

The Senate only has 10 more work days left this year. With the battle over Biden’s $2 trillion Build Back Better bill, just passed by the House, now looming in the Senate, the chance any criminal justice bill will be voted on this year is highly remote.

S. 312 – COVID-19 Safer Detention Act
H.R. 3669 – COVID-19 Safer Detention Act
S.1014 – First Step Implementation Act of 2021
H.R. 1693 – EQUAL Act

– Thomas L. Root

The COVID Calm and BOP Staff Vax Noncompliance – Update for November 24, 2021

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

JUST A COVID LULL?

deadcovid210914The BOP’s official inmate COVID numbers continued to fall last week, ending Friday at 95 ill inmates, a 34% decrease from the week before. Ominously, however, staff cases increased by 4% to 263. COVID remains in 92 facilities, down only two from a week before.

But in the last few days, things have turned around (and not in a good way). As of last night, 107 inmates were ill, 258 staff were sick, and COVID was present in 100 facilities (82% of all BOP prisons).

The BOP reported one additional inmate death last week, but it was from last July (and apparently escaped the Bureau’s notice). Ruben Castillo, who had had COVID before he arrived at the BOP, died of what the Bureau said were “post-COVID cardiac complications.” Yet the courts and government continue to argue that inmates who have had COVID don’t face any continuing risks.

As of last Friday, 70.2% of inmates were vaccinated. But with the November 22 deadline for BOP staff vaccinations now having passed, only 65.7% have gotten the shot, according to BOP statistics, up just 1.3 points from last week. This compares to a systemwide vax rate of 90% for federal workers.

So those noncompliant BOP staffers will be fired now, right?

noodle211124Well, that was the story once. But now, the punishment has gone from 40 lashes with a cat-o’nine-tails to 30 lashes with a soggy spaghetti noodle. NBC reports that “for those who haven’t met the requirement or requested a medical or religious exemption, the federal government will continue an “education and counseling process, followed by additional enforcement steps over time if needed’,” quoting a White House official.

White House press secretary Jen Psaki said the administration doesn’t “anticipate facing any governmental operational disruptions due to [the vaccine] requirement and in fact, the requirement will avoid disruptions, in our view, in our labor force because vaccinations help avoid COVID.”

The U.S. reported a seven-day average of nearly 95,000 new COVID infections last Thursday, up 31% over the past two weeks. “I’ve been predicting a pretty bad winter wave again, and it looks like it’s starting to happen,” Peter Hotez, the dean of the National School of Tropical Medicine at Baylor College of Medicine, said last week. “There’s just too many unvaccinated and too many partially vaccinated [people].”

COVIDvaccine201221That “too many” number apparently includes inmates, too. Although a much larger percentage of federal inmates have been jabbed than staff,  a former prisoner-turned-writer for Biz News last week argued that opposition by prison staffs to “vaccine mandates highlights an illogical situation that has developed with little discussion: To date, neither the federal government nor any state or municipality has officially mandated the jab for their incarcerated populations. That doesn’t make sense: Prisoners, who are at higher risk for infection and death than corrections officers, aren’t required to get vaccinated while corrections officers, who are at lower risk, are being told they must get vaccinated.”

Expect more of those arguments. In New York City, where the mayor has ordered all city corrections staff to be vaccinated, union chief Benny Boscio complained last week that “it is extremely hypocritical to mandate our officers be vaccinated, while there is no mandate for the inmates in our custody…”

Except where the mandate neither has teeth nor much effect.

BOP, Inmate Death at FCI Stafford (November 17, 2021)

CNBC, Covid cases rise yet again in U.S. ahead of Thanksgiving holiday (November 19, 2021)

The Hill, Experts predict an alarming surge of US COVID-19 cases this winter (November 18, 2021)

NBC News, Administration expects 95% compliance with federal worker vaccine mandate (November 23, 2021)

Washington Post, Federal workers can be fired for refusing vaccination, but must show up to work until their cases are determined, new guidance says (September 17, 2021)

Stat News, Vaccine mandates should cover the incarcerated, too, not just prison guards and workers (November 18, 2021)

Corrections1, NYC correction officers refusing to get COVID shots despite looming mandate (November 17, 2021)

– Thomas L. Root

5th Circuit Parses Heck v. Humphrey – Update for November 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.

WHAT THE HECK? CIRCUIT RULES ADVERSE PRISON DISCIPLINARY DECISION DOES NOT BLOCK SUIT

heck211123State prisoner Darvin Santos sued prison officers for using excessive force against him in violation of his constitutional rights. The alleged excessive force was used during an altercation between Darvin and officers that resulted in his being found to have violated a laundry list of prison rules.

The district court granted summary judgment for the correctional officers, holding that Darvin’s claims were barred by Heck v. Humphrey.

lobster211123Heck, a 1994 Supreme Court case, holds that a defendant can’t sue officials for damages for investigative or prosecutorial violations of rights incident to a prosecution, unless he or she could prove that the conviction or sentence had been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a habeas corpus decision. This means, for example, that if the cops smash down my door without a warrant and find evidence that I have been importing under-length lobsters, which evidence is used to convict me, I cannot do my time and then sue for money damages because of the illegal search. Heck thus prevents a lot of costly and frivolous litigation.

Darvin’s district court extended Heck to a disciplinary proceeding, holding that unless he could show the disciplinary proceeding resulting from the incident where the excessive force was used had been overturned, Heck barred his lawsuit.

As a general proposition, this holding is pernicious. The standard of evidence for a criminal conviction – reasonable doubt – provides some protection against a defendant having been railroaded into a conviction that prevents a later civil action judged under the more relaxed “preponderance of the evidence” standard. But the standard of evidence for a prison disciplinary hearing is the laughably slight “some evidence” standard. That is, as the Supreme Court puts it, there only has to be “some evidence” to support the charge:

Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing. Although the evidence… might be characterized as meager, the record [only cannot be] so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.

sunwest211123I have “some evidence” that the sun’s going to rise in the west tomorrow. Holding that a prisoner’s right to vindicate a civil rights violation because of a kangaroo-court prison disciplinary hearing found him or her guilty on such a gossamer evidentiary standard is downright dangerous.

Last week, the 5th Circuit reversed Darvin’s dismissal, but not for the reasons I prefer. Rather, the 5th noted that Heck is not “implicated by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his sentence.” Instead, a claim is barred only if granting it “requires negation of an element of the criminal offense or proof of a fact that is inherently inconsistent with one underlying the criminal conviction.”

Here, the 5th said, it isn’t clear from the record whether any of Darvin’s claims were barred by Heck. Darvin was found guilty of nine rules violations, but only one – a charge of “aggravated disobedience” – might be inconsistent with his claims. As for that one, the Circuit said, the disciplinary report “does not currently permit that inference.”

Furthermore, the disciplinary sanctions imposed (except for loss of good-conduct time) only bear on the circumstances of confinement rather than on the duration. A decision that imposes such sanctions (like loss of telephone privileges, access to commissary, and the like, for a period of time) are not barred by Heck, the Circuit said.

Santos v. White, Case No. 20-30048, 2021 U.S. App. LEXIS 34120 (5th Cir., November 17, 2021)

– Thomas L. Root