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

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

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

Four decisions of note last week:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

DUELING HOME CONFINEMENT MEMOS DRAW CRITICISM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

BIDEN FACES EARLY TEST ON COMMITMENT TO MANDATORY MINIMUMS

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

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

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

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

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

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

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

– Thomas L. Root

The Week in COVID – Update for April 22, 2021

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

COVID BY THE (DIMINISHING) NUMBERS

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

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

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

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

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

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

– Thomas L. Root

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

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

LET ME HELP YOU OUT A LITTLE…

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

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

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

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

Last week, the 11th Circuit reversed.

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

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

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

– Thomas L. Root

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

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SENATORS UNHAPPY OVER FIRST STEP IMPLEMENTATIONS

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

DOJ RELAXES PATTERN SCORE LIMITATION FOR CARES ACT HOME CONFINEMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Judiciary Committee Exercised Over Home Confinees Returning to Prison – Update for April 16, 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.

LOBBYING EFFORT ON CARES ACT HOME CONFINEMENT MAY BE BEARING FRUIT

FAMM started to turn up the heat last week on an effort to get President Joe Biden and Attorney General Merrick Garland to rescind the January 15 memo from DOJ’s Office of Legal Counsel that would lead to the return of people now on home confinement under CARES Act placement to federal prison when the pandemic ends.

The memo was a prime topic yesterday when Bureau of Prisons Director Michael Carvajal testified before the Senate Judiciary Committee. Judging from the questions coming from both Republicans and Democrats on the Senate Judiciary Committee (with the exception of the execrable Sen. Tom Cotton [R-Klingon Empire] and Sen. Josh Hawley [R-Mongol Horde]), the FAMM campaign is bearing fruit.

hawley2100416

The OLC memo, issued in the final days of the Trump administration, would force the BOP to send several thousand people currently on home confinement. Carvajal said it would probably affect somewhere around 2,500 people now on home confinement with a year or more to go on their sentences. A few more than 300 have lengthy sentences left. Of the group, he said 21 have been returned to BOP custody, but only two of those were because of new criminal conduct.

The memo is incorrect as a matter of law and would impose devastating human costs, as well as a negative impact on public safety. Sen. Richard Durbin (D-Illinois), chair of the Committee, said yesterday he was writing to Garland to urge him to reconsider his predecessor’s opinion.

FAMM and 28 other advocacy groups sent a letter to Biden and Garland on April 1st. FAMM has launched the “Keep Them Home” campaign, and is both collecting signatures on a petition and calling on people to call Garland’s office in order to get the Administration to rescind the memo.

home190109FAMM president Kevin Ring told The Appeal that those who were released did not expect to have to return to prison. “These folks came home and were told, ‘You’re not going to have to come back,’” Ring said. “They reunited with their families. Some of them have kids who they said, ‘I’m home.’ They said, ‘Do you have to go back, Dad?’ ‘No.’ So this changes everything.”

Earlier, the BOP declined to answer reporters’ questions about the memo, but Joe Rojas, Southeast Regional Vice President of the union representing BOP employees, said sending everyone back to prison would be logistically impossible. “We have no staff,” he told The Sentinel, “We are already in chaos as it is.”

But yesterday, Carvajal said that the BOP has ample space to absorb the home confinees if they were to return. Nevertheless, he expressed no opinion on whether they should come back. The Director noted that the issue is not immediate, because the pandemic emergency has been extended by the President.

home210218My take on Carvajal’s position (for what it’s worth) is that his bias leans toward leaving people who have complied with their home confinement terms at home. He said repeatedly that the BOP’s mission was to successfully return people to the committee, and as long as home confinees are successful at home, there was nothing wrong with leaving them there.

However, Carvajal said that the BOP’s primary interest was to follow the law, and he urged lawmakers to amend the home confinement statute to make clear what should be done.

The Appeal, Unless The Biden Administration Acts, Thousands Could Go Back To Federal Prison (April 5, 2021)

FAMM Petition

KSU The Sentinel, Inmates under house arrest in the event of a pandemic could return to prisons in the United States (April 11, 2021)

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

– Thomas L. Root

Who Ya Gonna Believe, Science or the US Attorney? – Update for April 15, 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 IS LOVELIER, THE SECOND TIME AROUND…

ipsedix210415The value of government blandishments has dropped substantially over the past few days, as prior assurances about the safety of the Johnson & Johnson vaccine morphed into a “pause” because some recipients were in the ICU with clotting blood. As one inmate, who watched a third of his unit get the J&J shot the day before the “pause,” told me, “I think this is the nail in the coffin for J&J, not many inmates will take it anymore here from the sound of it.”

I’m not judging J&J, which may or may not have triggered a severe reaction in two out of a million users. But the government’s willingness to speak with authority when it has no basis for the assertion is not an uncommon phenomenon. Take the U.S. Attorney in any of the 94-odd federal districts making up this great nation.

More than one federal prisoner who has already had COVID (and there are a lot of them) has moved for 18 USC § 3582(c)(1)(A)(i) compassionate release. In many cases, prisoners have filed for compassionate release and then gotten COVID while waiting for the judge to act.  For inmates whose compassionate release motions were not decided at the time they got sick, the government likes to argue that they are immune, or at least that if they get it again, their case would be no worse than the first time around.

ipsed210415Last week, a district court rejected the government’s evidence-free ipse dixit (a gift to posterity from Marcus Tullius Cicero which means, essentially, that “it’s so because I said it’s so”), and accepted an inmate’s expert opinion to the contrary.

Justin Groat filed for compassionate release. He had already had COVID-19, but he had a laundry list of comorbidities that could have made things worse, and would not help matters if he caught it again. The government argued he was immune, and he would be fine (without, of course, citing any basis for its claim, a classic ipse dixit.

But Justin responded that a number of district court decisions had held  a previous positive Covid-19 diagnosis does not block grant of a compassionate release motion  “if compelling and extraordinary reasons justify a reduced sentence.” He also a medical school professor’s opinion that “immunity seems to last approximately 90 days and that ‘reinfection with Covid-19 has been documented, with some individuals presenting with more severe disease than the first infection.”

AUSAignorance210415

The district court granted compassionate release, finding Justin’s evidence “persuasive” that COVID immunity only lasted about 90 days. “The Government has only offered the opinion of its counsel that Mr. Groat’s prior infection suggested he was safe as “amount[ing] to nothing more than impermissible ipse dixit… Because Mr. Groat is currently unvaccinated, exposed to many other inmates who are similarly unvaccinated, being guarded by substantial percentage of staff who (according to defense counsel) have also not been vaccinated, and because it is likely that he is capable of being reinfected, the court finds that Mr. Groat is at risk of being infected with Covid-19.”

Incidentally, over half of the BOP’s workforce has refused vaccination.

United States v. Groat, Case No 2:17cr104, 2021 U.S. Dist. LEXIS 65194 (D.Utah Apr 2, 2021)

– Thomas L. Root

Groundswell for Judicial Discretion in Compassionate Release Cases – Update for April 13, 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 MORE CIRCUITS REJECT GUIDELINES § 1B1.13 AS GOVERNING COMPASSIONATE RELEASE

stampede210413Since United States v. Brooker last fall, four other circuits had held that USSG § 1B1.13, the Guidelines policy statement that severely restricts qualification for 18 USC § 3582(c)(1)(A)(i) compassionate release, did not apply to motions brought by inmates.

Last week, the 5th and 9th Circuits joined the stampede, bringing the total to seven.

The Guideline, among other terms, requires movants to show that they will not be a danger to the community or others (applying the standards of 18 USC § 3142(g), the statute governing pretrial release), and limits compassionate release for inmate medical conditions, sick partners, unparented kids. Other reasons may be used as well, but only those approved by the BOP.

It is hard to overstate the importance of the tsunami of holdings invalidating the use of §1B1.13 in compassionate release cases. District courts have cited § 1B1.13 in over 7,200 decisions in the last year. The government continues to argue in pleading that courts should reject compassionate release motions as inconsistent with  § 1B1.13, even where the circuit has held otherwise. Just last week, I read a compassionate release response in which the government reluctantly acknowledged – almost as an afterthought – that the Circuit had held that nothing “in the now-outdated version of Guideline § 1B1.13 limits the court’s discretion,” but only after a full page of arguing the court should apply it anyway.

Francesk Shkambi’s compassionate release was thrown out by a district court for lack of jurisdiction, because Frank didn’t fit into any of the four grounds listed in § 1B1.13. But last week, the 5th Circuit reversed, finding § 1B1.13 inapplicable:

§ 1B1.13 says it only applies to ‘motion[s] of the Director of the Bureau of Prisons’. That makes sense because in 2006 (when the Sentencing Commission issued the policy statement) and in November of 2018 (when the Commission last amended it), the BOP had exclusive authority to move for a sentence reduction. When Congress enacted the First Step Act in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates. So the policy statement continues to govern where it says it governs — on the ‘motion of the Director of the Bureau of Prisons.’ But it does not govern here — on the newly authorized motion of a prisoner… Just as the district court cannot rely on a money-laundering guideline in a murder case, it cannot rely on the BOP-specific policy statement when considering a non-BOP § 3582 motion.

compassion160208Meanwhile, in California, a district court denied Pat Aruda’s compassionate release motion because it was inconsistent with § 1B1.13. Last week, the 9th Circuit reversed.

We agree with the persuasive decisions of our sister circuits and also hold that the current version of USSG § 1B1.13 is not an ‘applicable policy statement’ for 18 USC § 3582(c)(1)(A) motions filed by a defendant,” the Circuit wrote. “In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to § 3582(c)(1)(A) motions filed by a defendant. The Sentencing Commission’s statements in USSG § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.

So far, the 2nd, 4th, 5th, 6th, 7th, 9th and 10th have ruled that § 1B1.13 does not control inmate-filed compassionate release motions. No circuit has held otherwise.

United States v. Shkambi, Case No 20-40543, 2021 US App. LEXIS 10053 (5th Cir. Apr 7, 2021)

United States v. Aruda, Case No 20-10245, 2021 US App. LEXIS 10119 (9th Cir. Apr 8, 2021)

– Thomas L. Root