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President Said to be Considering CARES Act Partial Clemency – Update for September 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.

BIDEN MAY (FINALLY) BE TAKING BABY STEPS ON CLEMENCY

The New York Times reported last week that President Biden is considering using his clemency powers – which he has not exercised in his first seven months in office – to commute the sentences of nonviolent drug offenders with fewer than four years left to serve. The contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes, Biden administration sources told the Times.

The notion of clemency for some inmates is just one of several ideas being examined in the executive branch and Congress, the Times said. Others include a broader use of 18 USC § 3582(c)(1)(A)(i) “compassionate release” or 34 USC § 60541, the elderly offender home detention program, or even a law – such as the Safer Detention Act (S.312) – to allow some inmates to stay in home confinement after the pandemic.

The CARES Act permits inmates who are sent to home confinement under Section 12003(b) to remain at home until the pandemic public health emergency ends. The Times says, “That will not be soon: With the Delta variant spurring a surge in cases, the public health emergency is not expected to end before next year at the earliest.”

clemencyjack161229On August 10, Biden Press Secretary Jen Psaki said Biden was “exploring multiple avenues to provide relief to nonviolent drug offenders, including through the use of his clemency power.” The Times reported officials have confirmed that the Justice Department “will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office.” The officials said a focus on nonviolent drug offenders “dovetail[s] with Mr. Biden’s area of comfort on matters of criminal justice reform.”

Whether Biden is leaning toward commuting the sentences of drug offenders to home confinement, reducing sentence length to bring them down to the normal window 10%-or-six-month window for 18 USC 3624(c)(2) end-of-sentence home confinement, or some mix of the two, is not yet clear.

The Times reported that DOJ is still studying options that could keep non-drug offenders from being forced back into prison.

Meanwhile, criminal justice reform groups are keeping up pressure on the President. FAMM and the American Civil Liberties Union are mounting a six-figure ad campaign to pressure Biden to keep the CARES Act prisoners at home. The TV ads feature Juan Rodriguez, a federal prisoner sent home in July after doing eight of 14 years for a drug conviction. “I’m going to try to make the best out of every day I have out here,” Mr. Rodriguez says in the ad featuring him with his family and working a new job. “President Biden, please don’t separate me from my family.”

angel210907The ACLU has argued that fewer than 1% of prisoners put on home confinement had violated the terms of their release, and it was time for Biden to follow through on lowering the incarceration rate and size of the federal prison population that he campaigned on as a presidential candidate. So far, only five people sent home during the pandemic have been returned to prison for new criminal conduct.

USA Today has reported that over two dozen small business owners who have CARES Act home confinees are also asking Biden to grant clemency to prisoners. Some say losing employees to prison during a national labor shortage would not only be detrimental to their businesses, but would also keep their companies from growing.

Ohio State law professor Doug Berman complained in his Sentencing Law and Policy blog that when Biden was campaigning, he promised to “’take bold action to reduce our prison population’. But the federal prison population… has grown by over 4000 persons according to BOP numbers, from 151,646 total inmates on January 21, 2021, to 155,730 total inmates on August 26, 2021. To date, I cannot really think of any actions (let alone bold ones) that Prez Biden has taken to reduce the federal prison population. Talk of some clemency action is heartening, but just a start. And whatever clemency efforts are made, they should extend beyond just a limited group who are already home.”

The New York Times, White House Weighs Clemency to Keep Some Drug Offenders Confined at Home (August 30, 2021)

Washington Times, ACLU pressures Biden to keep convicts on home confinement out of prison due to pandemic (August 27, 2021)

USA Today, Businesses that hired inmates who were allowed to serve time at home during COVID push for clemency (August 26, 2021)

CBS News, Inmates on home confinement could be sent back to prison after the pandemic: “Why make us go back and do it again?” (September 3, 2021)

Sentencing Law and Policy, Prez Biden reportedly considering, for home confinement cohort, clemency only for “nonviolent drug offenders with less than four years” left on sentence (August 30, 2021)

– Thomas L. Root

Compassionate Release Gets Uglier – Update for September 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 UNSTRUCTURED AND ARBITRARY WORLD OF COMPASSIONATE RELEASE, IN WHICH DISCRETION ONLY WORKS ONE WAY…

Someday, legal scholars may look back on COVID-era compassionate releases granted under 18 USC § 3582(c)(1)(A)(i) as having introduced more disparity and inconsistency in sentencing than any event in federal criminal law.

chaos210903A Sentencing Commission study last month tallied compassionate releases by district, released last month, reported that 22.3% of the 12,885 compassionate release motions filed in 2020 were granted. But if you filed one, your chances were not one out of 4.5, Instead, if your case came from the District of Oregon, your chances of a grant were 69.8%. If, however, your case came from the Western District of North Carolina, your chances were a lousy 1.5%.

There is no federal court district in the country with a poorer track record for compassionate release than Western District of North Carolina. During 2020, Western District judges heard 337 compassionate release motions. The judges denied all but five. By comparison, the Eastern District of North Carolina approved release in 25% of its 224 compassionate-release requests. The Middle District of North Carolina had an approval rate of 6.2%, granting 10 of 162 requests.

(The U.S. Virgin Islands had a 0% approval rate, but that court heard just six requests, the report says. By contrast, the Western District of North Carolina handled the sixth-highest number of compassionate release cases in the country last year.)

“The numbers are jarring,” one defense attorney said. “Your geography remains one of the most relevant factors in determining the sentence you receive or the severity of the punishment. In a country that guarantees equal protection under the law, I think that should raise some constitutional questions.”

That’s because appellate courts afford district judges a lot of discretion in deciding compassionate release motions, and – from time to time – confound things by issuing questionable decisions that tie up their district courts in procedural knots.

Case in Point #1: Take Jessica Ward, for example. She is around a third of a way through a 200-month drug sentence, and sought compassionate release in the Northern District of Texas due to chronic kidney failure. The government’s opposition argued that she did not meet Section 1B1.13 of the Sentencing Guidelines, in that the BOP was adequately managing COVID, but neither mentioned her kidney disease nor argued that 18 USC § 3553(a) sentencing factors should be relied on to deny her compassionate release motion.

The district court denied her motion because she did not meet USSG 1B1.13 and because § 3553(a) factors did not support a reduction. Jenny appealed.

crystalball210903Last week, the 5th Circuit denied her appeal. It agreed that the district court was wrong to rely on USSG 1B1.13, because that Guideline does not apply when a prisoner files a compassionate release motion herself. But while the Government made no mention of the § 3553(a) factors, the Circuit “gives deference to the district court’s determination… We see no reason to hold that the Government’s failure to make arguments about the factors cancels the court’s statutory obligation to consider them.”

The 5th said the burden falls on the defendant to convince the court to grant compassionate release after considering the § 3553(a) factors. If the defendant fails to convince the district court to exercise its discretion, then the court may deny the motion, assuming it considers the § 3553(a) factors, for reasons the government may have never argued. 

Lesson: Not only does a compassionate release movant have to address the arguments raised by the government, but he or she should address arguments that the court might raise on its own in the ultimate denial. The prudent defense attorney should thus have both a LEXIS/Westlaw account and a crystal ball.

Case in Point #2: Consider Ron Hunter, a one-time drug trafficking organization hitman convicted 21 years ago of murdering a 23-year-old woman outside a nightclub. As we like to say, Ron has kind of a tough fact pattern to argue… So tough that his sentencing judge sentenced him to life in prison.

Twenty-one years later, a different judge granted Ron’s motion for compassionate release. Based upon the fact that Ron did not get the benefit of the non-retroactive United States v. Booker ruling that Guidelines are not mandatory, on certain facts that existed at sentencing, and Ron’s rehabilitation efforts (which were far from perfect), the district court held the factors amounted to the “extraordinary and compelling reasons” required by 18 USC § 3582(c)(1)(A)(i).

compassion210903Should be no problem. right? After all, don’t circuits “give[] deference to the district court’s determination,” like the 5th Circuit said in Jessica Ward’s case? Makes sense, doesn’t it? But it turns out that it’s not necessarily so.

Last Monday, the Sixth Circuit reversed Ron’s compassionate release, holding that his new district judge abused his discretion.

The Sixth Circuit had already ruled last June in United States v. Jarvis that a “non-retroactive changes in the law [can]not serve as the ‘extraordinary and compelling reason’ required for a sentence reduction,” a holding at odds with most other circuits that have considered the issue. That meant that going in to oral argument, Ron was in trouble, because one of the grounds relied on his district court was that Booker would permit a sentence imposed today to vary from the Guidelines.

Now, the Sixth has built on the Jarvis blunder, ruling that “facts that existed when the defendant was sentenced cannot later be construed as “extraordinary and compelling” justifications for a sentence reduction.”

As Ohio State University law prof Doug Berman observed in his Sentencing Law and Policy blog, this holding “seems especially problematic and an especially misguided policy invention.” After all, the Sentencing Commission – which was given the duty by Congress to “describe what should be considered extraordinary and compelling reasons for sentence reduction” – held in Note 2 to Guideline 1B1.13, that

For purposes of this policy statement, an extraordinary and compelling reason extraordinary and compelling reasons need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

So while the Sentencing Commission has said facts known at sentencing can nevertheless be “extraordinary and compelling,” the Sixth Circuit says they cannot. It may well be that the Circuit was just put off at the idea of a hitman doing life going home after serving less time than a porn downloader. But there are ways to force the conclusion the judges wanted to see without pronouncing such a transparently wrong interpretation of the statute.

Lesson: Discretion is a rachet, in which the district court has free rein to deny but substantial restraint to grant, compassionate release.

Raleigh, North Carolina, News & Observer, Inmates seeking release from COVID-hit prisons have next to no chance in this NC district (August 27, 2021)

Ward v. United States, Case No 20-10836, 2021 U.S.App. LEXIS 25808 (5th Cir. Aug. 26, 2021)

United States v. Hunter, Case No. 21-1275, 2021 U.S. App. LEXIS 26115 (6th Cir. Aug. 30, 2021)

Sentencing Law and Policy, Sixth Circuit invents another extra-textual limit on what can permit a sentence reduction under 3582(c)(1)(A), including one in contradiction of USSC guidelines (August 30, 2021)

– Thomas L. Root

EVEN THE SUSPECT COVID NUMBERS ARE HIGH – UPDATE FOR SEPTEMBER 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.

YOU CAN’T FIND WHAT YOU DON’T LOOK FOR

The BOP’s official COVID numbers as of last night stood at 512 sick inmates (up 7% from a week before) and 490 staff (up 24%). COVID is present at 110 out of 122 facilities.

cantfind210902The BOP’s official count is not without controversy. Joe Gulley, union president at USP Leavenworth, told Business Insider the number of staff who had had COVID was at least 20 times higher than officially reported. “The Warden lied because he wanted his bosses and the public to think he was doing a good job,” Gulley said in a statement. “His only concern was that everyone outside of USP Leavenworth believed he was controlling Covid and keeping everyone safe so he could get his next promotion.”

The BOP said it tested an average of 33 inmates a day for COVID over the last 10 days. That’s only 64% of the number of COVID-positive inmates the BOP reports. In fact, it is only 10% of the testing the BOP was doing in a similar period last December. You have to wonder how the BOP found 512 COVID-infected inmates when only ran 328 tests during the 10-day period it typically carries an inmate as being sick. (The BOP habitually declares everyone as “recovered” after 10 days – including a number of them who subsequently die of the COVID from which they’ve “recovered,” but that’s a story for another day).

One cannot find what one does not look for.

As of last Friday, 58.2% of inmates were vaccinated, up 1.4 points from last week. Staff still lags at 53.1%, up only 0.2 points from the week before. The Food and Drug Administration gave regular approval to the Pfizer vaccine last week, and the military has already ordered its personnel to be vaccinated. BOP staff may soon lack the right to refuse the vaccine.

coviddelta210730Government Executive reported that “a chapter of the American Federation of Government Employees representing BOP staff at FDC Miami picketed last week to protest “unsafe working conditions stemming from an outbreak of COVID-19 infections among inmates, a rise in inmate assaults on employees, and chronic understaffing of the administrative security facility.” A union press release alleged, “These conditions endanger the lives of inmates, prison employees and the general community.”

Government Executive, Coronavirus Roundup: FDA Grants First Full Approval for COVID-19 Vaccine; Pentagon Announces Vaccine Mandate (August 23, 2021)

Business Insider, Unrest at the big house: federal prison workers are fed up, burned out, and heading for the exits (August 25, 2021)

– Thomas L. Root

Government Proves How Serious It Is About Prison Rape – Update for August 31, 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 COST OF PRISON RAPE

We got a glimpse last week at how serious the Dept of Justice is about enforcing the Prison Rape Elimination Act. The answer, as though anyone is surprised, is “not much.”

PREA requires that federal, state, and local correctional facilities maintain and enforce a zero-tolerance policy toward sexual assault for both inmate-on-inmate and staff-on-inmate misconduct. Unsurprisingly, while the DOJ talks a good game, it seems much more interested in inmate-on-inmate than it is in staff-in-inmate sexual abuse.  Four cases in point:

(1) Phillip Golightly, a former BOP correctional officer at FCI Marianna and FCI Tallahassee, was sentenced to 24 months last week for “sexually assaulting female inmates who were then under his custodial, supervisory and disciplinary authority” (as the DOJ drily put it).

What did he really do? The lurid statement of facts in the case states that Golightly did not go lightly on female inmates. Instead,  he forced female inmates to perform oral sex on him, and to endure him forcing it on them, on multiple occasions. Read the statement (just not immediately before dinner).

rape190412For this – in a sentencing regime in which a poor black drug peddler gets a mandatory 10 years for possessing with intent to sell crack that weighs no more than a Big Mac (including bun) – the former corrections officer will serve 20 months and a couple weeks (after factoring in good-conduct time). Golightly isn’t just his name… it’s how the Court sentenced him.

That’s the cost of rape if you’re a BOP perp (that is, if you are prosecuted at all, as noted below).

(2)  Carleane Berman, a former FCI Coleman inmate who was one of 15 women to share a $2 million settlement with the BOP over their abuse at the hands of a group of FCI Coleman camp COs, died of a drug overdose last month.

carleane210831The Miami Herald reported last week that “Carleane returned from the Federal Correctional Complex Coleman in Sumter County a shattered woman.” Her father, Ron Berman, who had fought to keep her drug-free since her release, said he “could do little to help her quell her nerves, ease her insomnia, or stop recoiling at the sound of voices in hallways. The voices, Carleane said, reminded her of being behind bars with the prison officers who raped her.

Miranda Flowers, another victim, told the Herald she and Berman were raped together at least 11 times in various parts of the facility. “We’d walk back to the units and grab our stuff and go straight to the showers and not talk about it,” she recalled.

“The people that were supposed to be in charge were not doing what they were supposed to do,” former inmate Andrea DiMuro said. “Coleman was hell on earth.”

“I blame everything on Coleman. I want them held accountable,” Ron Berman said. “She was never the same after Coleman.”

(3)  Miranda Flowers said a prison investigator told her the officers had been allowed to resign in exchange for their admissions and no charges.  As it stands today, none of the rapes occurring prior to August 31, 2016, is prosecutable, falling as they do beyond the statute of limitations.

Joe Rojas, the southeast regional vice president for the workers union, AFGE Council of Prisons, said the Coleman case was a black eye for the BOP. “I’m just sad because honestly those officers got away with a crime,” Rojas told the Tampa Bay Times last May.

PREA210831(4) Want to read about the PREA violations at Coleman? Don’t bother going to the FCI Coleman Low PREA Audit results (last updated April 2018).  The report, but for the boilerplate, is significantly redacted, but it maintained that “There were no substantiated sexual abuse or harassment allegations at FCC Coleman over the period…” studied by the audit. According to the Report,  “[f]acility staff conducted 36 investigations into sexual abuse/harassment allegations. There were 34 unsubstantiated cases, and two cases were deemed unfounded.”

Yet the wholesale abuse of inmates dated from 2012, “in some cases, spanning five to six years,” the Times said, with specific allegations dating from as late as December 31, 2017.

With such detailed and unstinting investigation, it’s little wonder that so little staff-to-inmate rape is detected, and that so little is done about it.

DOJ Press Release, Former Bureau of Prisons Correctional Officer Sentenced to 24 Months In Federal Prison For Sexually Abusing Inmates (August 27, 2021)

Statement of Facts, R.23, United States v. Golightly, Case No 4:20cr32 (N.D. Florida, October 16, 2020)

Miami Herald, She was raped by Florida prison officers. After her drug death, supporters want justice (August 24, 2021)

– Thomas L. Root

Notorious MCC Closing ‘Temporarily’… And Other BOP Follies of the Week – Update for August 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.

BOP HAS ANOTHER TOUGH NEWS WEEK

I Love New York:  The Dept. of Justice announced last Thursday that the Bureau of Prisons will “temporarily” close the Metropolitan Correctional Center in New York, the high-rise jail near the Federal Courthouse in lower Manhattan.

The decrepit facility, described by the New York Daily News as “dysfunctional,” has been a headline-generating public relations disaster for the BOP in the past several years.

renovate210830The closure was described as being temporary, reminiscent of restaurant “closed for renovation” announcements to mask abandonment of the premises. Indeed, the Daily News said, “Sources were skeptical the jail would ever resume operations resembling previous years, when it held 700 or more inmates.”

The decision to close comes weeks after Deputy Attorney General Lisa O. Monaco inspected the facility “given ongoing concerns,” as the DOJ said at the time.

The New York Times reported that MCC has been criticized “by inmates, lawyers and even judges for the conditions in which prisoners have been held.” It’s the prison where two COs were indicted for lying after celebrity prisoner Jeffrey Epstein, who was facing sex-trafficking charges, was found dead in his cell in August 2019 in what was ruled a suicide. In early 2020, a handgun was found in the jail during a shakedown.

In January, the facility received its fourth warden in less than two years. As the coronavirus took hold, MCC employees weren’t able to get masks and staff restrooms ran out of soap because employees charged with refilling the dispensers were pressed into duty as COs due to staff shortages. In May 2020, a court-authorized inspection found that inmates with COVID symptoms were ignored and social distancing was almost nonexistent.

Earlier this year, the MCC “was rocked by allegations that an inmate whose lawyer says he has the mental capacity of an 8-year-old child was left in a holding cell for 24 hours while awaiting a competency evaluation,” Associated Press reported. “Around the same time, a correctional officer at the facility had also reported sexual misconduct by a superior, which officials at the jail delayed reporting to senior BOP officials.”

“The MCC has been a longstanding disgrace,” New York Federal Public Defender David Patton told the Times. “It’s cramped, dark and unsanitary. The building is falling apart. Chronic shortages of medical staff mean that people suffer for long periods of time when they have urgent medical issues.” But, Mr. Patton added, MDC Brooklyn (across the river from the MCC) has many of the same problems, and if the MCC prisoners are sent there without those problems being addressed, “this move will accomplish nothing.”

frying210830Most of the 263 inmates at the MCC will be moved to MDC Brooklyn, according to Courthouse News Service, which many may seem as “out of the frying pan and into the fire.” MDC Brooklyn, where a power outage and BOP management prevarications made the news in January 2020, is still embroiled in a lawsuit brought by the NY Federal Public Defender accusing the BOP of “false statements and stonewalling” by “refusing to provide detailed or accurate information about the conditions at MDC” during the power outage. The district court in which the suit is being heard has appointed former US Attorney General Loretta Lynch as mediator in the case.

You may recall that last April, US District Court Judge Colleen McMahon said that both MCC and MDC are “run by morons.” During a sentencing proceeding, McMahon castigated the BOP, saying the agency’s ineptitude and failure to “do anything meaningful” at the two facilities amounted to the “single thing in the five years that I was chief judge of this court that made me the craziest.”

Lynch said Friday her team has been conducting “stress tests” at MDC Brooklyn to better understand problems there, such as how to improve scheduling of in-person visits. She said the BOP and inmates should anticipate that moving additional prisoners to the Brooklyn facility will “create its own ‘stress test,’ separate and apart from the ones that we have been using,” she said.

horrendous210830Southern Comfort:  Meanwhile, Forbes published a piece last Monday describing the horrific conditions at what is left of FCI Estill after the prison was damaged by a tornado nearly 18 months ago. About 1,000 medium-security prisoners were relocated, but 66 minimum-security inmates remain, having been moved into the medium-security facility. “When the Campers arrived at the FCI, floors were covered in water, urine and feces,” Forbes reported. “Toilets were clogged, black mold and mildew could be seen throughout the facility. The vents were filthy and covered in black soot. Debris from the remaining infrastructure hung from the ceiling. Medications were suspended to inmates and anxiety ran high over COVID-19 outbreaks. The only hope for these remaining inmates was that these conditions would be short-lived and some normalcy to prison life would return. However, not much has changed in the 16 months since and these men still live in inhumane conditions.”

While the inmate count fell by 95%, “the staffing level of the facility has remained roughly the same as it was prior to the tornado (approximately 221).” That would seem to be 221 employees who could be used elsewhere…

Take This Job and Shove It:  Is it any wonder BOP employees are quitting in droves? That’s the question Business Insider asked last week. “About 3,700 staffers left the BOP from March 2020 to July 3, 2021, according to agency data… That translates to the equivalent of more than 8.4 employees departing every day during that period… Current departure numbers are even more striking because the overall number of BOP employees isn’t going up — it’s going down. In 2015, there were 37,258 employees, according to a Government Accountability Office analysis of the agency’s employment data. By 2017, that number dropped to 35,569. In 2019, it stood at 34,857.”

So much for the BOP’s much-ballyhooed hiring initiative…

job210830The COVID-19 pandemic and augmentation have increasingy strained prison workers, which could cause more prison workers to quit as staffing conditions continue to erode, union representatives told Business Insider. “I was mentally stressed out and physically drained at the end of the day,” a former custody officer at the US Penitentiary, Thomson, facility in the northwestern region of Illinois, said. “I used to dread going to work. There were way too many inmates for the amount of stuff that’s there.”

New York Daily News, NYC federal jail where Jeffrey Epstein killed himself to close (August 26, 2021)

New York Times, Justice Dept. to Close Troubled Jail Where Jeffrey Epstein Died (August 26, 2021)

The Hill, DOJ to ‘at least temporarily’ close jail where Jeffrey Epstein died (August 26, 2021)

Associated Press, U.S. Is Closing The Troubled NYC Jail Where Jeffrey Epstein Killed Himself (August 26, 2021)

Courthouse News Service, Manhattan jail closure renews concerns over Brooklyn facility conditions (August 27, 2021)

Forbes, Federal Inmates Live In Deplorable Conditions A Year After Tornado Destroyed Most of FCI Estill (August 23, 2021)

Business Insider, Unrest at the big house: federal prison workers are fed up, burned out, and heading for the exits (August 25, 2021)

– Thomas L. Root

The Delta on Delta – Update for August 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.

RELENTLESS

COVID’s back… and we’ve got it.

Really, COVID never really left. But seven weeks ago, the BOP reported only 29 inmates and 132 staff with COVID, with the virus present in 70 facilities. As of yesterday, 532 inmates and 414 staff had tested positive for the virus at 106 institutions. Four more inmates had died, two last week.

delta210827In public health, of course, “delta” has lately referred to the novel coronavirus delta variant. In math, “delta” refers to the change in a variable (such as “∆x” meaning the change in the value of x). Why this high school math reminder? Because in the BOP, the ∆Covid∆ – that is the change in COVID-19 delta variant infection – is accelerating for both inmates and staff.

Last week, I heard from an inmate who said his institution was offering a special meal and a movie to inmates who agreed to get vaccinated. That was indirectly confirmed by Government Executive magazine, which reported last week that the BOP has “provided guidance about vaccine incentives for inmates to all of the agency’s chief executive officers in an effort to improve institution inmate vaccination rates.”

Currently, the BOP reports that 56.8% of inmates and 52.9% of staff are vaccinated. Despite the President’s announcement that unvaccinated federal employees generally will be treated like Typhoid Mary, the BOP staff rate has not budged a full percentage point in six weeks, while the inmate number has increased by over three. And as Salon reported last week, researchers found that BOP data show that “the infection rate among correctional officers [drives] the infection rate among incarcerated individuals.” The research shows “a three-way relationship between the infection rate of officers, incarcerated individuals and the communities around prisons.

Things are likely to get worse before they get better. Scientists are still unsure how many new infections are “breakthrough” cases in which vaccinated people are catching COVID anyway. Last week, the Administration announced that some people with a two-shot vaccination should get a booster. And while COVID-19 Delta is six times as virulent as old-fashioned COVID-19, yet another variant – COVID-19 Lambda – has just been identified.

coviddelta210827

Of course, continuing COVID also means continuing opportunities for compassionate release, despite the fact that vaccinations may make proving susceptibility to COVID more difficult. One thing is sure, for all the people who have been asking: Judges may consider that having the vaccine makes one less likely to get COVID, but to a judge, they consider someone who turned down the vaccine to be unworthy of a compassionate release.

Government Executive, Coronavirus Roundup: Booster Shot News; GSA Rethinks the Future of Work (August 17, 2021)

Salon.com, Correctional officers are driving the pandemic in prisons (August 19, 2021)

Bloomberg, The Vaccinated Are Worried and Scientists Don’t Have Answers (August 22, 2021)

– Thomas L. Root

Two Circuits Liberalize Fair Sentencing Act Reductions – Update for August 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.

TWO FAIR SENTENCING ACT CASES GO FOR THE PRISONERS

Last week saw two unsurprising but welcome Fair Sentencing Act decisions.

In the 11th Circuit, Tony Gonzalez was serving a 51-month supervised release sentence. Originally convicted in 2005, Tony served 76 months for a crack cocaine conviction. Released in 2015, he got tripped up on substance abuse during his supervised release term and was sent back to prison.

addiction210825Tony filed for a Fair Sentencing Act retroactive sentence reduction based on § 404 of the First Step Act. His district court denied him for a couple of reasons, one of which was that he wasn’t currently serving a sentence for crack cocaine, but instead for violating his supervised release.

Last week, the 11th joined the 4th and 6th Circuits “in holding that a sentence imposed upon revocation of supervised release is eligible for a sentence reduction under § 404(b) of the First Step Act when the underlying crime is a covered offense within the meaning of the Act… Thus, the district court had the authority to consider his motion for a sentence reduction just as if he were serving the original custodial sentence. So Mr. Gonzalez is eligible for a sentence reduction under the First Step Act.”

Meanwhile, in the 8th Circuit, Jack Robinson – who was doing life for a crack offense in which he had been tagged for over 2 kilos of crack – had been denied a Fair Sentencing Act reduction by his district court. The district judge ruled that “Robinson would have been subject to the same mandatory life sentence had the Fair Sentencing Act been in effect at the time he committed the covered offense… because the revised version of § 841(b)(1)(A)(iii) provided for a mandatory life sentence if the defendant was convicted for 280 grams or more of crack cocaine and had two or more prior felony drug offense convictions,” and thus reasoned that the court was deprived “of the discretion to reduce Robinson’s sentence under the First Step Act.”

Last week, the 8th Circuit reversed. “This reasoning is contrary to the principle that the First Step Act applies to offenses, not conduct,” the Circuit said, meaning that Jack’s statutory “sentencing range under the First Step Act is dictated by the movant’s offense of conviction, not his relevant underlying conduct… Therefore, Jack’s offense of conviction — not the underlying drug quantity — determines his applicable statutory sentencing range.

life161207At his initial sentencing, Jack faced a mandatory term of life imprisonment because he was convicted and sentenced for conspiracy to distribute at least 50 grams of crack and because he had two prior drug felonies. “Under the Fair Sentencing Act,” the Circuit said, “the statutory sentencing range for his conspiracy to distribute 28 grams or more of crack cocaine, including his prior convictions, is now not less than 10 years and not more than life. Thus, the district court erred as a matter of law when it relied on the sentencing court’s drug quantity finding of 2.35 kilograms of crack cocaine to determine Jack’s applicable statutory sentencing range under the Fair Sentencing Act and the First Step Act.”

United States v. Gonzalez, Case No 19-14381, 2021 U.S.App. LEXIS 24765 (11th Cir., August 19, 2021)

United States v. Robinson, Case No 20-1947, 2021 U.S.App. LEXIS 24603 (8th Cir., August 18, 2021)

– Thomas L. Root

Prosecutor Made Example Of For Making Example of Defendant – Update for August 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.

4TH CIRCUIT SENDS PROSECUTOR MESSAGE ABOUT SEX CRIMES AND HYPERBOLE

Charles Plymail was convicted of sexual assault in 1993 by a West Virginia state court. As the 4th Circuit put it last week, “The details of his conviction are disturbing. What is also disturbing is how long it took for him to receive a decision on his direct appeal: over twenty years.”

After his appeal was finally denied, Chuck filed a habeas corpus that eventually became a 28 USC § 2254 (which is the statute that permits state prisoners to go to federal court over unconstitutional state convictions). The federal district court rejected his claims. But last week, the 4th granted Chuck relief based on the prosecutor’s improper statements.

false210820

The trial evidence was mostly “he said, she said,” although the victims’ testimony was compelling. During closing arguments, Chuck’s attorney discussed the difficulty of disproving rape charges, focusing on how easy it was for an “angry, offensive” woman to harm “innocent… males.” He warned the men in the jury: “This is dangerous, gentlemen… it’s dangerous to even look at a woman today because she can shout ‘rape’ under any condition… and you have to disprove it and it’s tough because there are only two people there and society tends to believe the woman.”

girls210820Rather than object to this pathetic defense argument, the prosecutor countered defense counsel’s moral shaming with his own. The prosecutor warned the jury of the existence of “trickster lovers” who disguise themselves to “your sons and daughters” as well-intentioned individuals, but have a “sweet tooth… for masochistic, sadomasochistic horror.” He exhorted the jury to send a message to these “trickster lovers” with a guilty verdict: “Think of the community,” he exhorted them, and deliver a verdict “for womankind, for all of us.”

The Circuit was unamused. It ruled that the prosecutor’s closing violated Chuck’s right to due process. “Prosecutors must seek convictions based on the evidence as it applies to the elements of the offense. While we do not expect emotionless prosecutors to present antiseptic arguments, they may not seek a conviction based on prejudice or passions. Prosecutors violate this edict when they stray beyond the defendant’s crimes and ask the jury to convict in order to ‘send a message to the community’.”

wrongright210820The prosecutor argued he was just responding to the improper arguments made by defense counsel. The 4th wasn’t buying it. “[T]wo wrongs do not make a right,” the 4th wrote. “Defense counsel’s misconduct does not grant the prosecutor a license to make otherwise improper arguments. A prosecutor must object to improper arguments, not merely respond in kind.”

Plymail v. Mirandy, Case No 19-6412, 2021 US App LEXIS 23722 (4th Cir. Aug 10, 2021)

– Thomas L. Root

Watching You Watch Them – Update for August 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.

QUIS CUSTODIET IPSOS CUSTODES?

emily210819I owe a debt of gratitude to my sainted Latin teacher, Emily Bernges, late of Sturgis, Michigan. One of the best teachers I ever had, Mrs. Bernges instilled a love of the great dead language in me… so much so that decades later, when I read that the Dept. of Justice Office of Inspector General caught some BOP corrections officers sneaking past the metal detector, I immediately thought of the Roman poet Juvenal’s lament.

Quis custodiet ipsos custodes? As Emily taught me to translate it, “Who shall guard the guards themselves?”

The Inspector General issued an urgent advisory a week ago, reporting that a “review of an unidentified BOP facility’s video monitoring system revealed that staff were able to enter the facility during the night shift and walk around the metal detector without being screened. After discussing the matter with BOP personnel at the facility, we are concerned that this presents systemic concerns.”

Fox News reported that the IG’s recommendation came in connection with an investigation of the presence of contraband at the unnamed federal prison. (I might add that since I mentioned this in last week’s newsletter, I have inmates at a dozen or better places email me to volunteer that the unnamed institution had to be their facility. How far matters have devolved!

The advisory, which had been delivered to the BOP a week before, recommended that BOP staff members not be allowed to enter an institution without being screened by other personnel, and the BOP should ensure that its facilities are properly staffed to ensure that all staff and their belongings are properly searched before staff enters BOP facilities.

Carvajal said the BOP was immediately adopting the recommendations.

Other bad news for the BOP last week: ABC News reported last week that while it’s customary for the BOP to carry out an after-action review of a major incident that occurred inside a federal prison within months of an incident, the report on how Jeffrey Epstein killed himself at MCC New York has yet to be released, two years after the suicide. Former Attorney General William Barr, just days after the death in 2019, said, “We will get to the bottom of it, and there will be accountability.”

whitewash210819Tyrone Covington, the MCC union local president, said he’s hoping it comes out so the public can see “what took place, and end some of the skepticism out there about the Bureau of Prisons, and what happened to Jeffery Epstein.”

Finally, USA Today and The Marshall Project reported last week that despite the First Step Act’s requirement that the federal prison system expand access to medications for prisoners addicted to opioids (and the millions appropriated to fund the program), as of July, the BOP had managed to put only 268 people on medications to treat opioid dependence. This is less than 2% of the more than 15,000 people the BOP itself estimates are eligible. Even while the DOJ investigates other prisons and jails for not providing these medications, the Bureau “lacks key planning elements to ensure this significant expansion is completed in a timely and effective manner,” the GAO said in a report last May.

DOJ Inspector General, Notification of Urgent Security Concerns Involving Staff Entering BOP Facilities (August 12, 2021)

Fox News, Department of Justice urges Bureau of Prisons to tighten security around searching staff (August 12, 2021)

ABC News, More questions than answers 2 years after Epstein’s suicide (August 11, 2021)

USA Today, Drugs that treat opioid addiction and overdoses not widely available in federal prisons (August 10, 2021)

GAO, Improved Planning Would Help BOP Evaluate and Manage Its Portfolio of Drug Education and Treatment Programs (May 2021)

– Thomas L. Root