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Local Lawyer Makes Bad – Update for December 10, 2024

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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.

PLEA AGREEMENT BY COMMITTEE

pleadeal161116Elvin Torres-Estrada hired a pair of New York City lawyers to represent him in a Puerto Rican drug conspiracy case. When out-of-district laws come to town in a case like this, they have a local lawyer sponsor them to appear pro haec vice, literally “for this event,” without having to get admitted to practice before the district court. Elvin hired a local lawyer, Garcia, to do so and to act as local counsel to his out-of-town hired guns.

Early on, Elvin’s lawyers concluded that he might benefit from a joint plea deal with one of his co-defendants. With Elvin’s OK, the two attorneys began coordinating with the co-D’s attorneys and learned the government had refused a proposed 11-year term of imprisonment for the co-defendant and would be seeking a sentencing recommendation for Elvin roughly two years longer than whatever the co-D ultimately got. Local lawyer Garcia did not attend most of their meetings with the co-D’s people, consistent with his limited role as local counsel.

The government offered Elvin 188 months. Elvin’s NYC lawyers got the co-D’s lawyers to agree that the defendants would jointly counteroffer with 144 for the co-D and 168 for Elvin. Elvin reluctantly OK’d the deal. But before the scheduled meeting with the government, Garcia met with his client and talked him into authorizing a 156-month counter instead of the previously agreed-to 168. When the New York lawyers found out, they convinced Elvin to raise it to 164.

Garcia then blindsided the NYC lawyers by throwing the 156-month counteroffer out in the middle of the meeting anyway, and then upping it to 162 when the government rejected the 156 months out of hand. The government said it would “think about” it.

Plea negotiations broke down, the government obtained a second indictment against Elvin for a separate conspiracy, and he ended up with a 288-month sentence. Elvin filed a 28 USC § 2255 petition arguing that Garcia rendered ineffective assistance by undercutting the New York lawyers’ careful plea negotiations.

Last week, the 1st Circuit upheld the denial of Elvin’s 2255.

chinashop241210The Circuit seemed to acknowledge that Garcia was a bull in a china shop but said that he had compromised with a counteroffer that was only two months lower than what Elvin had authorized and that the government “still responded by saying he would think about it.” The 1st said, “The circumstances surrounding the meeting thus diminish the force of Elvin’s claim that Garcia’s disruptive actions were incompatible with an attempt by competent counsel to secure the best possible deal for his client. Given the government’s stated willingness at the meeting to consider the rogue 162-month proposal, one could reasonably say that Garcia’s aggressive (though discourteous) tactics had advanced the plea negotiations and, accordingly, were within the range of competence demanded of attorneys in criminal cases.”

reallawyer170216Even if Garcia’s performance had been deficient, the Circuit said, Elvin had not been prejudiced. The record “makes plain that Garcia’s conduct did not result in termination of the plea-bargaining process. Rather… after [the government] was told that Garcia “spoke out of turn and inconsistent with Elvin’s instructions,” it “agreed to revisit” the possibility of lowering the offers to both defendants. And more than two weeks after Garcia’s hijacking of the negotiation session, the original offer of fifteen years/eight months (188 months) remained on the table.”

“In sum,” the Circuit held, “we need not view Garcia’s disruptive performance in advance of, and during, the meeting as entirely defensible to conclude that Elvin has failed to establish a violation of his 6th Amendment right to the effective assistance of counsel…

Torres-Estrada v. United States, Case No. 19-1485, 2024 U.S. App.  LEXIS 30919 (1st Cir., December 6, 2024)

– Thomas L. Root

Post-Conviction Amendments Taken Up by Supreme Court – Update for December 9, 2024

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

SCOTUS GRANTS REVIEW ON 2255 AMENDMENT QUESTION

The law is clear that a prisoner can amend a pending 28 USC § 2255 motion while it is pending in front of the district court. But if the district judge has already denied the § 2255 motion, whether an amendment is allowed while the inmate is appealing the denial is in doubt.

Amending a denied § 2255 motion – second bite of the apple?
Amending a denied § 2255 motion – second bite of the apple?

Last Friday, the Supreme Court granted certiorari to decide whether a prisoner has to make the 28 USC § 2244 “second-or-successive” showing to amend a § 2255 motion while on appeal—which six circuits require—or whether such an amendment is allowed in some cases (as two circuits hold) or any time (allowed by the 2nd Circuit).

The precise issue raised is “[w]hether [28 USC] § 2244(b)(2) applies (i) only to habeas filings made after a prisoner has exhausted appellate review of his first petition, (ii) to all second-in-time habeas filings after final judgment, or (iii) to some second-in-time filings, depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.”

A decision will be made by the end of June 2025.

Rivers v. Lumpkin, Case No. 23-1345 (certiorari granted December 6, 2024)

– Thomas L. Root

Addition By Subtraction At The BOP – Update for December 6, 2024

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

THAT’S ONE WAY TO DO IT, I GUESS

additionbysubtraction241206Federal Bureau of Prisons Director Colette S. Peters announced yesterday that the agency will not reopen FCI Dublin – no surprise there – but additionally will close six other minimum-security facilities in Colorado, Minnesota, Wisconsin, Pennsylvania, West Virginia, and Florida.

Associated Press obtained a letter to Congress in which Peters said the agency was taking “decisive and strategic action” to address “significant challenges, including a critical staffing shortage, crumbling infrastructure and limited budgetary resources.”

Addition by subtraction… but that doesn’t make the decision wrong.

Three of the closures are satellite prison camps to low-security prisons: FCI Oxford, Wisconsin, camp; FCI Englewood, Colorado, camp (72 inmates); and FCI Loretto, Pennsylvania, camp (76 inmates). FCI Oxford has already been emptied, having relocated its camp-eligible inmates last June.

The Oxford, Englewood and Loretto closures will free up BOP staff for assignment to the low-security facilities on site. The Duluth, Morgantown and Pensacola stand-alone camp closures, which will affect 1,647 prisoners, will let the BOP reassign staff who want to remain with the BOP to prisons in other parts of the country where staffing levels are low.

About 400 employees will be freed up for assignment elsewhere. A BOP statement said, “Many employees affected by this decision will move from one part of a facility to another part of the same facility. The remaining employees will have the opportunity to move to different FBOP facilities. The FBOP is not downsizing and we are committed to finding positions for every employee who wants to remain with the agency.”

The BOP anticipates the process will begin now at all the facilities (except Dublin and Oxford, which are already empty) and be concluded in about nine months.

paniccrowd240625As for FCI Dublin, AP said the permanent shutdown “seven months after a temporary closure in the wake of staff-on-inmate abuse” – that led to the widespread reporting of the abusive staff members’ nickname for the prison as the “Rape Club” – “is the clearest sign yet that the agency — which has more than 30,000 employees, 158,000 inmates and an annual budget of about $8 billion — is unable or unwilling to rehabilitate its most problematic institutions.”

All of the prisoners at the notorious female prison, located not far from the San Francisco Bay area, were hustled out of town on BOP buses last April in a BOP attempt to torpedo continued federal court litigation over sexual abuse of a yet-undetermined number of inmates (although the plaintiff class numbers in the hundreds). Alas, the Court was not fooled. Walter Pavlo wrote in Forbes yesterday that while there have been no prisoners at the facility since the last one left in early May, “one insider told me they had hoped it would reopen. That will not happen.”

Making the Dublin closure permanent surprises no one except perhaps that one insider, for the same reason that schools are demolished after mass shootings: the optics.

The BOP said that FPC Pensacola, which is owned by the Navy, is in “significant disrepair” and will be demolished. FPC Duluth camp has “aging and dilapidated infrastructure,” including several condemned buildings contaminated with asbestos and lead paint, the agency said.

The Morgantown camp inmates and about 150 employees will be relocated to “maximize existing resources” at the federal prison complex in Hazelton (known as “Misery Mountain”) about 23 miles to the east. The BOP expected to save the $26 million needed for repair at FCI Englewood by closing its camp.

hitroad240314American Federation of Government Employees National President Everett Kelley predictably whined about the closures: “This announcement jeopardizes the continued employment of 400 federal employees just weeks before the holidays. While the agency says it will attempt to place employees in other jobs, the reality is that most Bureau of Prisons facilities are in isolated locations far from each other, so many – if not most – employees affected will face disruptive relocations to remain employed.”

God forbid that government employees might face the same dilemma that private sector workers suffer on a regular basis.

The good news for the BOP is that the closures should cut costs slightly, reducing the number of facilities from about 121 to about 114 locations and reducing its staff shortage very slightly. Given that the BOP already ranks dead last in employee satisfaction among federal agencies, employee disappointment isn’t going to affect its status as a desirable place to work.

Associated Press, The US government is closing a women’s prison and other facilities after years of abuse and decay (December 5, 2024)

Forbes, Federal Bureau of Prisons Closing Prisons Ahead Of Trump Presidency (December 5, 2024)

KBJR-TV, Duluth, Federal Bureau of Prisons plans to ‘deactivate’ Duluth prison camp (December 5, 2024)

– Thomas L. Root

10th Circuit Deliberately Indifferent to Bivens – Update for December 5, 2024

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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.

10TH CIRCUIT KILLS BIVENS ‘DELIBERATE INDIFFERENCE’ CLAIM

The 10th Circuit minced no words: “The Supreme Court’s “abrogative process of Bivens has been ‘gradual, but relentless, such that the “‘right answer’ to whether to recognize a Bivens cause of action will always be no… Bivens is now all but dead.”

BivensdeadDustin Rowland’s lawsuit was pretty plain vanilla. He sued various BOP officials, claiming they were deliberately indifferent to his serious medical needs by repeatedly denying his requests for hernia surgery and post-operative treatment, seeking damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. It is the kind of medical indifference suit that inmates file across the country all the time.

Or used to.

On November 19th, the 10th Circuit held that under the 2022 Supreme Court decision in Egbert v Boule, John’s case presented an application of Bivens that was different from the situations recognized as raising a valid Bivens claim. Given the “expressed caution about extending the Bivens remedy, even significant parallels to one of the Court’s previous Bivens cases” may not be enough to show that a case arises in the same context,” the 10th said Dustin could not seek damages for any 8th Amendment violations he had suffered.

Dustin’s case was materially different from the one prior case that SCOTUS – back in its salad days – had held raised a valid Bivens claim. In the decision in Carlson v. Green, the record showed that the inmate victim had died because of deliberate indifference. “Small differences can easily satisfy the new-context inquiry,” the 10th said.

He was dead, Dustin. You’re not. Viva la difference.

bivensalive241205The 10th’s holding drives a stake through virtually any Circuit Bivens 8th Amendment claim and probably will embolden the Government (like it needs any such encouragement to stretch precedent enough to deny an aggrieved prisoner a remedy for legitimate constitutional claims) to make similar arguments in other Circuits. If any circuit split results, the Supremes would settle it (and probably not in favor of the prisoner).

Rowland v. Matevousian, Case No. 23-1343, 2024 U.S.App. LEXIS 29406 (10th Cir., November 19, 2024)

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971)

Egbert v. Boule, 596 U.S. 482 (2022)

Carlson v. Green, 446 U.S. 14 (1980)

– Thomas L. Root

Government Tries to Cabin 5th Circuit on Felon-In-Possession Ruling – Update for December 3, 2024

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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.

5TH CIRCUIT REVERSES DISTRICT COURT ON 922(g) DISMISSAL

mustread241203Just last week, I had someone send me a forgettable decision by a backwater Federal district court in a circuit a thousand miles away from where the prisoner had been convicted. Suggesting that the case made his pending motion a dead-bang winner, he demanded, “You have to read this case!”

No, I don’t. The only court whose opinions are binding everywhere is the Supreme Court. A court of appeals decision is binding only in its own circuit and then only when the court publishes the decision. A district court’s opinion binds no one outside of the case it was issued in (called the law of the case doctrine, something we’ll take up at another time).

That doesn’t keep people from touting the latest LEXIS case from the Jerkwater, Kansas, federal district court as though Moses had carried it down the slopes of Mt. Sinai. Judges themselves don’t help: a district court especially is all too glad to cite some nonbinding case in support of its own conclusion without taking care to note that the other opinion is what lawyers call “persuasive authority.”

peppermintmocha24120A good “persuasive authority” decision and $6.25 will get you a Peppermint Mocha at Starbucks for a limited time. In fact, a Court of Appeals decision – if it is not “published” – is nonbinding on other panels of the same court. A “published” decision, on the other hand, cannot be reversed unless the court does it on an en banc rehearing (or it’s nullified by a Supreme Court case).

So what? The 5th Circuit, which has become notorious at the Dept of Justice for anti-922(g) decisions, last week reversed a decision by US District Court Judge Carlton Reeves – whose opinions on federal criminal law are especially important because his side gig is serving as chairman of the U.S. Sentencing Commission – that defendant Jesse Bullock’s 18 USC § 922(g) felon-in-possession indictment should be dismissed because of the Supreme Court’s 2022 New York State Rifle & Piston Association v. Bruen decision. Judge Reeves found that in the wake of Bruen, prohibiting felons from having guns violated the 2nd Amendment.

guns200304The 5th held that Jesse’s many prior felony convictions, which included aggravated assault and manslaughter (for shooting an unarmed bar bouncer and “firing a ‘barrage of bullets’ into a nearby crowd,” killing a 19-year-old passerby) meant that he could be banned from possessing guns in light of last summer’s SCOTUS opinion in United States v. Rahimi (an appeal from this Circuit’s holding that the defendant could have a gun despite a domestic protection order and a violent history). The 5th found that “a ban on Bullock’s ability to possess a firearm ‘fits neatly’ within our Nation’s historical tradition of firearm regulation.”

Last week’s decision was unpublished, meaning that it would not bind another Circuit panel considering the same issue (or even the same person if he possessed a gun on another occasion). However, the day after the unpublished opinion was issued, the Dept. of Justice filed a motion asking the 5th to publish the case, arguing that an opinion identifying “aggravated assault and manslaughter as among the predicate offenses that district courts may look to in assessing whether a defendant’s use of a firearm may be prohibited… has potential significance in other cases for which these previous offenses serve as § 922(g)(1) predicates.”

Jesse has opposed the motion, contending that the opinion is a ho-hum application of Rahimi, not worth the ink figuratively needed to publish. “This Court addressed the merits of the district court decision without requesting supplemental briefing” after Rahimi was decided. “No oral argument was held. If published, the panel’s decision would preclude other panels from considering the issue with the benefit of more robust briefing and argument.”

boxedin241203Jesse’s last argument is most to the point. The government fears the 5th, with the benefit of a lot of briefing and focus, might issue another Rahimi-type decision. Getting a summary holding that violent prior convictions disqualify someone from gun possession would box in the Circuit, requiring another Rahimi-type decision to be en banc.

United States v. Bullock, Case No. 23-60408, 2024 U.S. App. LEXIS 29938 (5th Cir., November 25, 2024)

– Thomas L. Root

Joe Biden Does a Father’s Duty… Now Who Might Be Next? – Update for December 2, 2024

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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 PARDONS HUNTER… WHO MIGHT BE NEXT?

President Joe Biden pardoned his son, Hunter, last night, saving him prison time for gun possession offenses and tax crimes.

pardonme190123I will not listen to criticism for his action, regardless of the fact that the President recklessly claimed last summer he would never do such a thing. What father would not spare his son’s conviction and prison if it was in his power to do so? Even if Joe’s rationale – that no one is ever prosecuted for the 18 USC § 922(g)(3) and 18 USC § 922(a)(6) offenses that Hunter faced, and for his son to be indicted was raw political theater – is bullshit on stilts.

And it is. Somehow Joe omitted mention of Hunter’s tax convictions, those being of a nature and severity that are brought every day. As for the gun offenses, look at United States v. Daniels at Note 6, where a concurring judge chronicles other cases in that Circuit alone where (g)(3) offenses were brought against people who blew a little dope but were not intoxicated when they bought their guns.

Yes, Hunter’s gun offense was pretty pedestrian (but the (g)(3) conviction was probably unconstitutional, as Daniels explains). Still, if I were elected president (an event unlikely to happen), I would pardon any of my kids or siblings or parents or cousins in a heartbeat. It’s family.

In a statement released Sunday, Biden said, “I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice.”

No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son,” Biden said. “I hope Americans will understand why a father and a President would come to this decision.

On Twitter (now inexplicably called “X”) last night, New York University law professor and clemency expert Rachel Barkow said, “This pardon of Hunter Biden better be the first of a huge flurry of commutations. There are so many cases even more deserving than this one that the Pardon Attorney has recommended granting, and they’re just waiting for Biden’s signature.”

pardonturkey231121There were others just earlier last week. On Monday, Peaches and Blossom became the 7th and 8th turkeys to be pardoned by Joe Biden in his presidential career. Law professor and clemency expert Mark Osler has noted that presidents could apply lessons from the annual Thanksgiving week event to their clemency practices:

First, it occurs regularly. Turkeys are pardoned every year, not just in the waning days of an administration. Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation… responsible for managing a thorough selection process… Third, there are defined criteria. The finalists are selected based on their willingness to be handled, their health and their natural good looks. Fourth, attention is paid to making sure they thrive after their grant of clemency. After the ceremony, they are sent to Virginia Tech’s “Gobbler’s Rest” exhibit, where they are well cared for… This contrasts sharply with the process of giving clemency to humans… [The] procedure through which clemency is granted is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release.

That does not lessen the optimism that in the next 49 days, Biden will hit a home run, pardoning or commuting sentences for everyone from Jack Smith and Merrick Garland to people on death row, CARES Act prisoners and those left behind by the First Step Act’s nonretroactivity.

Democrats and criminal justice reform advocates continue to pressure Biden to use his presidential authority to pardon those currently in federal prison fng from drugs to tax evasion—particularly those awaiting execution for more serious charges. Last week, 54 people who received clemency over the past five presidential administrations asked Biden to be “bold and compassionate during your remaining time in office and grant clemency to the deserving applicants referred to you by the Office of the Pardon Attorney.”

The clemency recipients wrote that they each had received long, unjust sentences before they finally regained their freedom.

death200330Prior to last Monday’s turkey pardoning, the group Prison Policy Initiative blasted Biden for reneging on his campaign promise to end the federal death penalty. “More turkeys have been pardoned from dinner plates in the US than people have been granted clemency from death row,” PPI said in an Instagram post. “Biden’s days left in office are limited, but it’s not too late for him to spare everyone from federal death row (and cement his legacy for the better).”

The Quaker organization Friends Committee on National Legislation said last week that “since 1973 there have been 200 exonerations from death row and over 1,600 people killed, with 50 executions at the federal level.” The group is not asking Biden to pardon all 40 people awaiting capital punishment but instead to commute their sentences to life in prison.

Writing in The Hill last week, former Bureau of Prisons Director Hugh Hurwitz urged Biden to commute the sentences of people currently on CARES Act home confinement. “Now that President-elect Donald Trump is returning to the White House,” Hurwitz wrote, “those remaining in home confinement are again concerned that his administration will reverse course and send them back to prison. Only this time, they have been quietly living at home and working in our communities for almost five years. This uncertainty is creating a lot of anxiety among these people and their families… We do not know what a new Trump administration will do, but there is no reason for us to wait and see. Until Jan 20, Biden has the unique power to grant clemency. This group of people has proven to be trustworthy and safe in our society. If ever there was a case for clemency, this is it.”

compassion160124Whether any of these pressure tactics will be enough to motivate Biden to move on clemency is not clear. But with less than two months left in his presidency, the only real strategy clemency advocates have is to stress how history will view him if he does nothing at all. And that will be effective only to the extent that he cares at all about that.

Associated Press, Biden pardons his son Hunter despite previous pledges not to (December 1, 2024)

United States v. Daniels, 77 F.4th 337 (5th Cir. 2023)

White House, Statement from President Joe Biden (December 1, 2024)

TwitterX, @RachelBarkow (December 1, 2024)

CNN, The process to pardon turkeys is more rational than the one used for humans (November 19, 2018)

Natl Criminal Justice Assn, Hunter Biden Defense Hints That President Should Pardon Him (November 30, 2024)

Tag24, Biden Urged to Take “Last Opportunity” for Positive Legacy in Letter from Over 50 Clemency Recipients (November 26, 2024)

Politico. Biden pardoned turkeys. Will he pardon more people? (November 26, 2024)

Prison Policy Initiative, More turkeys have been pardoned from dinner plates in the US than people have been granted clemency from death row (November 26, 2024)

The Hill, Biden’s easy case for clemency: prisoners in home confinement (November 26, 2024)

NCJA.Org, Death Penalty Opponents Seeking Commutations From Biden (November 26, 2024)

Friends Committee on National Legislation, Recommendations for Executive Action for the Remainder of President Biden’s Term (November 26, 2024)

– Thomas L. Root

Thanksgiving Week: What to Have for Dessert? – Update for November 29, 2024

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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.

DESSERT

pumpkinpie241129It can be hard to pick which traditional Thanksgiving pie – pumpkin or apple – to eat as a finish to the feast. But a tough choice like this one usually ends with eating both, not a decision to just forget dessert altogether and go home.

The 7th Circuit had a problem last week deciding whether a prisoner appealing the denial of his 18 USC § 3582(c)(1)(A) compassionate release motion should be given a court-appointed attorney. Ultimately, the Circuit decided not to decide.

The 7th took only three pages to deny the appeal but needed another 43 pages to express the differing views of the three-judge panel.

The inmate had an appointed attorney in district court, but when the lawyer withdrew, the Circuit provisionally appointed a replacement to argue whether the appeals court had the authority under 18 USC § 3006A “to appoint counsel at public expense—whether in an individual case or through a general order—for defendants… seeking a reduction of their sentences under 18 USC 3582.”

The 7th has previously held that district courts are not required to appoint counsel in compassionate release proceedings, “but it does not prohibit them from doing so.”

The panel found that the district judge did not abuse his discretion in denying the compassionate release motion, so it did not reach the issue of whether it had the power to appoint counsel: “In Judge Lee’s view… the principle of judicial restraint counsels that we not reach the issue, because we can affirm the district court’s denial… on narrower grounds… Judge Hamilton has doubts about whether the panel should address the merits, but explains why he believes the language of the Criminal Justice Act gives federal courts discretion to make such appointments… Judge Scudder believes it appropriate to resolve the merits question, and he would hold that the plain language of § 3006A does not authorize appointments of counsel in § 3582(c) proceedings.”

applepie241129One judge wanted pumpkin pie, one wanted apple pie, and one wanted both. So the panel decided on no dessert at all. However, with inmates frequently asking courts to appoint counsel, it is worthwhile noting that serious legal questions may make appointment impossible.

United States v. Bonds, Case No. 24-1576, 2024 U.S.App. LEXIS 29690 (7th Cir., November 21, 2024)

– Thomas L. Root

Thanksgiving Week: A Heaping Serving of Yams – Update for Thanksgivng Day 2024

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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.

YAMS

A true yam (as opposed to a sweet potato) is a monocot, a vigorous herbaceous, perennially growing vine related to lilies and grasses.

yams241128Speaking of “grass,” the marijuana kind, reports last week suggest that Biden’s promise to reclassify marijuana as a Schedule III drug – his latest promise to undo the war on drugs – might be in trouble .

Marijuana reform advocates last week asked an Administrative Law Judge (ALJ) to remove the DEA from its own hearing. They argue the agency has improperly communicated with antimarijuana groups in a bid to torpedo the Biden administration’s proposal. The advocates contended that “prominent doctors, researchers and state regulation experts are not being allowed to testify in a hearing” that will enable the ALJ to recommend whether rescheduling is appropriate.

Last week, the Washington Post reported, ALJ “signaled he will side with the DEA, writing the advocates’ request “adds nothing” and “presents little more than an ad hominem distraction.”

Under the reclassification proposal, marijuana would not be legalized federally like alcohol or tobacco, but would move to Schedule III, a category including prescription drugs such as ketamine, anabolic steroids and testosterone. That could lead to a lessening of Guidelines sentencing ranges, but even if that happens, it won’t happen immediately.

The ALJ pushed back the hearing from December 2nd to some time in January or February because it was unclear whether the 25 witnesses submitted by the DEA favored or opposed reclassification, or even why they should be allowed to testify, according to the ruling.

fail200526Reason magazine last week chronicled Biden’s criminal justice failures: “His voluminous 2020 criminal justice platform (now scrubbed from his website) advocated eliminating mandatory minimum sentences, cash bail, and the federal death penalty.” Another article noted that besides the death penalty, Biden “promised to “eliminate mandatory minimums”; “end, once and for all, the federal crack and powder cocaine disparity”; “decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions”; and “use the president’s clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.”

So far, Joe’s 0 for 5, and number 6 – use of clemency – hangs in the balance, with 54 days left.

Washington Post, DEA faces legal challenge as uncertainty clouds plan to reclassify marijuana (November 19, 2024)

Reason, Biden Failed To Deescalate the Drug War (November 22, 2024)

– Thomas L. Root

Thanksgiving Week: Please Pass the Gravy – Update for November 27, 2024

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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.

GRAVY

gravy241127Many see supervised release as gravy on the mashed potatoes of incarceration. While it may not be very good, it sure beats more potatoes without gravy. What courts don’t agree on is whether supervised release is intended to be for rehabilitation, extra punishment, or both.

Last week, the 4th Circuit came down on the punishment side of the equation, ruling that after a prisoner got his sentence vacated on appeal, being resentenced from 72 months down to 69 months but with an increase in supervised release from 4 years to 10 years, the new sentence was presumptively and unconstitutionally vindictive.

Years ago, the Supreme Court ruled in North Carolina v. Pearce that resentencing after a successful appeal or collateral attack to a higher term is presumptively vindictive and a violation of the 5th Amendment. Since Pearce, however, the Supreme Court has tempered the Pearce presumption, noting in Alabama v. Smith that it was not designed to prevent an increased sentence on retrial for some valid reason “associated with the need for flexibility and discretion in the sentencing process but was premised on the apparent need to guard against vindictiveness in the resentencing process” Smith limited the Pearce presumption to cases where there was a “reasonable likelihood that the increase was the product of actual vindictiveness.”

Last week, the 4th said, “When the same judge, in the same posture, imposes a harsher sentence following a successful appeal, the “presumption of vindictiveness applies to any unexplained increase in the sentence.”

clementines241127Comparing prison time to supervised release time, the Circuit said, “likens clementines to kumquats and likely draws on subjective choice.” Still, because the district court reduced [the] term of incarceration by only three months and increased his term of supervised release by six years, the “second sentence was indeed harsher than the first. Because the prisoner’s second sentence was harsher than his first and he was sentenced ‘by the same judge, in the same posture, following a successful appeal… a presumption of vindictiveness applies to any unexplained increase in his sentence.”

kumquats241127Because the district court considered the same factors – alcohol abuse and medical condition – in the second sentencing as it did in the first, the 4th “conclude[d] that Pearce’s presumption of vindictiveness arose and was not rebutted… In these circumstances, we vacate the sentence and remand for resentencing.

United States v. Chang, Case No. 23-4615, 2024 U.S.App. LEXIS 29484 (4th Cir. November 20, 2024)

North Carolina v. Pearce, 395 U.S. 711 (1969)

Alabama v. Smith, 490 U.S. 794 (1989)

– Thomas L. Root

Thanksgiving Week: Stuffing Goes With Turkey – Update for November 26, 2024

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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.

STUFFING

Walter Pavlo reported in Forbes last weekend that the Bureau of Prison – despite being told by Congress in the First Step Act almost six years ago to expand halfway house capacity to accommodate prisoners using FSA credits, has increased contracted-for halfway house bed space by a paltry 1% in the last 6 years.

stuffedturkey241126The BOP Office of Public Affairs reported that as of January 1, 2019, the BOP was contracting for 10,408 halfway house beds. As of two months ago, the BOP contracted for 10,553 halfway house beds. Pavlo wrote that “the BOP is now telling some halfway house providers… that they are canceling some solicitations for additional capacity because of ‘budgetary and staffing considerations.’”

Pavlo reported, “Many prisoners and their families are telling me that case managers are telling them that there is no room at halfway houses, and the result is that many minimum security prisoners spend a greater portion of their sentence in prison rather than in the community… BOP notes that ‘many of the unfilled beds in a halfway house are at locations that are hard to fill or are outside of the release residence area of individuals requesting community confinement placement’.”

So the Bureau argues to prisoners that the halfway houses are stuffed without room for people, who therefore lose the benefit of their FSA credits. Pavlo says that’s a myth. He and former BOP Director Hugh Hurwitz surveyed halfway houses and BOP usage of them, finding that only 82% of the BOP’s contracted halfway house capacity is being used. What’s more, the halfway houses have even more space open than that, space the halfway houses would like to fill but is not under BOP contract.

halfwayhouse241126“BOP could look to modify those existing contracts to increase the number of beds available,” Pavlo wrote.

For now, it appears that the halfway house shortage has less to do with stuffed beds and more to do with BOP unwillingness to fill them.

Forbes, Bureau of Prisons Halfway Houses Must Change Due to First Step Act (November 23, 2024)

– Thomas L. Root