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‘SORT’ of a FUBAR – Update for September 13, 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.

BOP EMPLOYEES FEEL OUT OF ‘SORTS’

From the 10th Circuit this week comes a fascinating case – not so much for the dry-as-toast legal issue – whether under the Westfall Act, 28 USC § 2679, government employees were acting outside the scope of their employment when they assaulted fellow employees, but for the juicy facts, a Bureau of Prisons training exercise gone bad, punching them and (for good measure) administering a bit of tear gas.

policeraid170824BOP employees at FCC Florence were practicing how to respond to a hostage situation. The setting was a BOP office that, for the exercise, was assumed to be under the control of rioting inmates. BOP policy directs that in such a case, employees are to find a safe space in which to shelter, and to not let anyone in under any circumstances. For example, a fellow employee at the door begging for admission should be denied, because he or she might be under the control of a bad guy and being forced to try to get the shelterers to open the door.

In a hostage situation, the BOP first employs a team of people trained to negotiate a peaceful settlement. Only when that fails does the Bureau send in its Special Operations Response Team – the SORT Team – the agency’s own version of a SWAT Team, which is charged with using force to bring an end to the standoff.

In the Florence exercise, several employees hid in a cashier’s cage to which only one of the people taking refuge there had a key, a decision consistent with their training. However, during the drill, the BOP staff barricaded in the cashier’s cage overheard a radio call that they reasonably interpreted as meaning that rioters had taken control of the SORT Team by compromising one of the SORT squad members.

The negotiating team failed to bring the play-acting hostage situation to a peaceful conclusion (obviously, because had it done so, the SORT guys would not have had a chance to do their stuff). SORT crashed the practice and took down the pretend hostage-takers. It was then that everything went off the rails.

firecrackerB240913The SORT Team stood outside the cashier’s office door and instructed those inside to open it. The barricaded employees refused to answer, believing the claims that the inmates had been subdued to be a ruse. The SORT squad members became more strident in their demands, but the sheltering employees remained mute. Frustrated by this SORT member Chad Weise threatened to throw a flash strip – a kind of explosive charge – under the door.

At that point, one of the employees broke the silence and told SORT that there were people inside the cage. As the Circuit described it, the SORT squad

then repeatedly slammed their bodies against the cage door, demanding that plaintiffs open it, and threatened to deploy oleoresin-capsicum spray (OC spray) if plaintiffs did not comply… Next, Weise used a tool to pry open the steel shutters of the cashier’s window. At that point, one of the non-plaintiff individuals sheltering in the cashier’s cage demanded that defendants stop destroying government property and shouted ‘out of role’—a phrase that any BOP employee can use during a mock exercise to immediately end the exercise for safety reasons, and a phrase that no defendant ever used throughout the entire incident. Plaintiffs also repeatedly explained to defendants that they would not open the door because they believed that SORT was compromised. Even so, [one] SORT member… fired Simunition rounds at or into the cashier’s cage; five such rounds were recovered from inside the cage.

Meanwhile, the SORT squad continued to threaten to use OC spray, “and plaintiffs repeatedly responded by shouting that it was against BOP policy to use OC spray on staff.” The SORT squad radioed for permission to use the OC spray. “Authorization was never received. Undeterred, Weise notified the command center by radio that he was going to use the OC spray and then sprayed two bursts—one at the cashier’s window and one underneath the door of the cashier’s cage. Plaintiffs’ eyes began to burn, they began to cough and have difficulty breathing, and they shouted ‘out of role’ continuously.”

Three SORT officers finally pushed their way into the cashier’s cage in full tactical gear. “They told plaintiffs to get on the ground, which was not possible given the size of the room, the furniture, and the number of people in it,” the 10th said. Then, the three “repeatedly started punching and hitting the individuals inside the cashier’s cage, even though plaintiffs and the other individuals in the cage continued to shout ‘out of role…’ All three officers began punching the sheltering employees, and one shot an employee” in the chest at point [b]lank with a Simunition round, which burned through [his] shirt and left a bleeding laceration on his chest.”

musicstops220623The district court found that “BOP policy prohibits the use of OC spray and Simunition rounds in the absence of any threat, and the BOP’s employee-conduct standards state that ‘[a]n employee may not use physical violence, threats, or intimidation . . . toward fellow employees…’ At no point during these events did defendants report a real emergency to the prison’s command center. Thus, the district court concluded that defendants had violated BOP policy and had ‘no legitimate belief of a real threat or emergency situation to justify the incidents that occurred’.”

Four of the sheltering BOP employees sued six of the SORT team officers for state-law assault claims, but the government stepped in. Under the Westfall Act, 28 USC § 2679, federal employees are absolutely immune from state-law tort claims that arise out of acts they undertake in the course of their official duties. In a civil action raising state-law tort claims against a federal employee, Westfall lets the government certify that the employee was acting within the scope of his or her employment at the time of the incident.

That’s what the government did here. However, the district court rejected the Westfall certification. The government appealed. Last week, the 10th Circuit agreed with the district court.

In assessing the scope of employment, courts apply the respondeat superior law of the state where the incident occurred. Colorado’s two-pronged test for determining whether an employee’s alleged intentional tort is within the scope of employment requires that the employee must (1) be doing the work assigned by the employer, or what is necessarily incidental to that work, or customary in the employer’s business and (2) have the intent in committing the tortious act to further the employer’s business.

punch160328The Circuit found that the SORT defendants had abandoned their legitimate work of clearing the business office by making no effort to communicate to plaintiffs that the exercise was over, using OC spray and Simunition in violation of BOP policy, and “essentially engaging in combat with staff members.” The 10th agreed with the district court that the SORT team’s “conduct was not intended to further the BOP’s business. Instead, the district court concluded that defendants acted out of frustration in response to plaintiffs’ justified refusal to respond to defendants’ questions and demands to exit the cashier’s cage.”

The suit can now continue against the six SORT officers in district court.

Arroyo v. Hall, Case No. 22-1307, 2024 U.S. App. LEXIS 22928 (10th Cir. Sep. 10, 2024)

– Thomas L. Root

Bad Cases Make Hard Law – LISA Newsletter for September 12, 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.

WHEN ‘SHALL’ CAN MEAN ‘MAY’

Last week, I referenced Booker v. Bayless, a strange case from the Northern District of West Virginia that found the Federal Bureau of Prison’s duty to place people with sufficient First Step Act credits in halfway house or home confinement was not subject to judicial review.

holmes240912Civil War combat vet and Supreme Court Justice Oliver Wendell Holmes, Jr., once wrote that “hard cases make bad law.” A fair obverse of that aphorism applies to Bayless: Bad cases make hard law.

In Bayless, the prisoner filed a messy habeas petition arguing that the BOP should be ordered to give him the 12 months halfway house he was entitled to under the Second Chance Act. As I noted last week, prisoners are not ‘entitled’ to even one day of halfway house under the SCA. The Magistrate Judge said as much in his Report and Recommendation.

The petitioner filed objections to the Report and Recommendation with the District Court, asking the Judge (as the Court described it) “to take ‘judicial notice’ of… Woodley v. Warden… [P]etitioner cites [18 USC] §§ 3624(g) and 3632(d)(4)… [and] goes on to quote directly from Woodley.” Rather than declining to consider arguments on those sections that hadn’t been raised in front of the Magistrate Judge, the District Court addressed them, relying on Murray Energy Corp v. Environmental Protection Agency, a 4th Circuit decision that ruled an EPA decision was not subject to court review because the statute in question did not impose on the EPA a duty “amenable” to 42 USC § 7604(a)(2) review.

The District Court ruled,

Section 3632 — when read as a whole — imposes on the BOP a broad, open-ended statutory mandate to do many things for inmates. The BOP is thus left with considerable discretion in managing its § 3632 duty. The BOP gets to, among other items, assess an inmate’s risk of recidivism and needs, develop individualized reentry plans for inmates, determine the appropriate classification and placement of inmates within the prison system, manage and facilitate inmates’ participation in programs designed to address their specific needs, provide incentives for inmates who engage in positive behavior or successfully complete programs, [and] make recommendations regarding sentence adjustments based on inmates’ participation in programs and overall conduct… By statute, it has already been found that “a designation of a place of imprisonment under this subsection is not reviewable by any court”… Thus, this Court finds that § 3632 does not impose on the BOP a specific and discrete duty amenable to review by this Court. By rejecting the analysis in Woodley, this Court is keeping in line with what other courts have been doing regarding placement.

The other cases cited by the Court as supporting its holding all predate the application of FSA credits and provide dubious support.

wrong160620The Bayless decision is patently wrong. First, the issue is much narrower than reading § 3632 “as a whole.” Rather, it is whether – once an inmate meets all of the eligibility requirements – the BOP has a mandatory duty to place the prisoner in halfway house or home confinement. That does not ask the Court to review any discretionary eligibility requirement listed in § 3632, but rather only asks whether – once a prisoner is found to be eligible – what a single sentence in § 3632(d)(4)(C) means.  That sentence is “[t]he Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under § 3624(g), into prerelease custody or supervised release.” (Emphasis mine).

Pretty simple question… Does “shall” mean “shall” or does it just mean “may?” But the Bayless court says the answer is not for the courts to say.

Second, the EPA decision interprets a statute – 42 USC § 7604(a)(2) – that is particular only to the EPA. That statute authorizes a private citizen to sue the EPA “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator…”  There is no adjunct to this in the First Step Act.  Instead, the operative statute for a prisoner would be 28 USC § 2241, the writ of habeas corpus, a very different animal indeed.

Under the Bayless reasoning, the FSA credit statute becomes toothless, leaving the BOP free to do anything it wants to do with the credits a prisoner has earned.

incompetent220215The Bayless decision is error-ridden, but it is largely the result of a petitioner who didn’t know what he was doing and made a mess of his ill-advised 28 USC § 2241 petition. Unfortunately, he has now appealed the denial to the 4th Circuit. Unless he gets competent legal help pretty fast, he is likely to turn a bad district court decision into a disastrous Circuit precedent.

Bad case. Hard law.

Booker v. Bayless, Case No. 5:24-CV-43, 2024 U.S. Dist. LEXIS 149061 (N.D. W.Va., August 20, 2024)

Booker v. Bayless, Case No. 24-6844 (4th Cir, docketed August 28, 2024)

Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Holmes, Jr, J., dissenting)

Murray Energy Corp v. Environmental Protection Agency, 861 F3d 529 (4th Cir. 2017)

– Thomas L. Root

Two Years Into New BOP Director, Seems Like the Same Ol’ Same Ol’ – Update for September 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.

THEY EXPECT SOME RESULTS

Sometime in the next few months, we should see Bureau of Prisons Director Colette S. Peters make the 10-minute walk from her office to Capitol Hill for an oversight hearing.

honeymoon220224When she first appeared in front of the Senate Committee on the Judiciary two years ago, it was a love-fest. Last September, after she had been at the helm for a year, she received a decidedly cooler reception, with Senator Jon Ossoff (D-GA) warning her that “you’ve now been in the post for about a year and Congress expects results.”

We now have results. And they’re not all that good. The next oversight hearing ought to be a doozy.

In the FCI Dublin class action lawsuit last Thursday, US District Court Judge Yvonne Gonzalez Rogers (N.D. CA) denied a BOP motion to dismiss the case, saying she doesn’t believe Bureau platitudes that that it is now providing former Dublin prisoners with “adequate care” at prisons across the country.

“The Court is not so easily persuaded,” a skeptical Judge Gonzalez Rogers wrote. “The notion that the constitutional injuries alleged by FCI Dublin’s AICs (adults in custody) were comprehensively remedied by the facility’s closure strains credulity.”

The BOP offered a one-page declaration from Deputy Director William Lothrop that asserted, among other things, that “the BOP is able to presently care for its female AIC population and anticipates the ability to meet their future needs without requiring the use of the FCI Dublin facility.” But when the Court ordered Lothrop to testify, it turned out that he did not know “the details of this case… He was not aware, for instance, of the many outstanding issues… includ[ing] but… not limited to (i) 126 medical alerts; (ii) 63 Medication Assisted Treatment alerts; (iii) 30 mental health alerts; and (iv) 137 unprocessed property claims. This lack of awareness directly undermines his statement that ‘[t]he BOP is able to presently care for its female AIC population.’”

liar160103What’s more, the Judge wrote, “the BOP has not memorialized its alleged decision not to re-open FCI Dublin to house women AICs anywhere outside of Lothrop’s declaration… Thus nothing stops BOP from reversing course in the future, should this case be dismissed as moot.” Also, the Deputy Director admitted that all other BOP facilities are understaffed, “yet the decision was made not to increase staffing prior to the transfer” of the FCI Dublin prisoners.

“This directly undermines Deputy Director’s statement that ‘the BOP is able to presently care for its female AIC population and anticipates the ability to meet their future needs without requiring the use of the FCI Dublin facility,’” the Court observed. “It cannot simultaneously be true that (i) no BOP facility is fully staffed, and (ii) the BOP is aware of no barriers to providing the IACs in their custody with appropriate care.”

NPR reported last week that despite the Dept of Justice Inspector General’s and media reports on inadequate medical care at FCI Sheridan, the BOP is still failing to treat inmates for months on end and making a hash of recordkeeping, according to inmates. The BOP has responded that it “takes pride in protecting and securing individuals entrusted in our custody” and makes “every effort to ensure the physical, medical, and mental safety” of those individuals.”

On September 6th, Reason reported that “last week, at least seven women at [FCI Waseca] were sent to a local hospital for suspected drug overdoses, and incarcerated women and attorneys say the conditions inside are chaotic, filthy, and violent because of rampant abuse of the dangerous drug.”

The BOP confirmed that “[l]ast week, out of an abundance of caution, [FCI] Waseca sent seven incarcerated individuals exhibiting signs of drug use to a local hospital for additional evaluation. All were evaluated and returned the same day.”

“The [BOP] takes seriously our duty to protect the individuals entrusted in our custody,” a BOP spokesperson said, “as well as to keep correctional employees and the community safe, by maintaining a controlled environment that is secure and humane.”

Reason reported that 7 months ago, Catherine Sevcenko, senior counsel with the National Council for Incarcerated and Formerly Incarcerated Women and Girls, wrote to FCI Waseca administration “detailing accounts from inside the prison about women smoking K2 and vomiting, having diarrhea, seizures, and hallucinations. Users became aggressive and paranoid. Addiction and drug debts were leading to violence and theft.”

“Everyone who has reached out to us believes that someone will die, whether from overdose or being attacked, if things do not change quickly,” Sevcenko reportedly said.

The Waseca warden replied,

I would like to assure you that the Bureau of Prisons is committed to providing a safe and healthful environment for individuals in our custody, as well as our staff… The introduction and use of illicit substances within our facilities is prohibited and the prevention of such remains a priority to all Bureau staff. At FCI Waseca, procedures exist to prevent and detect the introduction of contraband into the facility, as well as to prevent and detect the use of illicit substances inside the facility.

Well, that’s a relief! Everything’s under control.

Spice_drugLast week, a union representing FCI Thomson employees issued a press release reporting that a correctional officer had been exposed to what was believed to be amphetamines, and was revived with Narcan and hospitalized. Two weeks before, another Thomson CO reportedly was also exposed to drugs and had to be given Narcan and hospitalized.

The press release cited the death of a USP Atwater BOP officer last month from exposure to fentanyl, but authorities have not announced whether fentanyl was the cause of death, and as of Sep 6, the three defendants have not been charged with drug distribution leading to death.

KTVU, FCI Dublin women transfers continue to complain; judge denies BOP (September 6, 2024)

Order, California Coalition of Women Prisoners v BOP, ECF 385, Case No 4:23-cv-4155 (N.D. Cal., September 5, 2024)

NPR, 2 years and counting. Inmate says medical delays still plague federal prison in Oregon (September 1, 2024)

Reason, A Federal Prison Was Warned About Synthetic Marijuana. Then Inmates Started Overdosing (September 6, 2024)

AFGE 4070 Press Release, A Correctional Officer was exposed to what was believed to be amphetamines. The staff member was given Narcan before being transported to a local hospital. (September 2, 2024)

– Thomas L. Root

Assault With a Deadly Weapon Is Not Violent under Guidelines, 9th Holds – Update for September 9, 2024

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9TH HOLDS CALIFORNIA ASSAULT WITH DEADLY WEAPON IS NOT A GUIDELINES VIOLENT CRIME

The Sentencing Commission is required by 28 USC § 994(h) to include provisions in the Guidelines to ensure that people with more than one prior conviction for crimes of violence or drug trafficking are sentenced “at or near the maximum term authorized” by statute. To carry out that mandate, the Commission created the career offender provision in Chapter 4B of the Guidelines.

Jesus Gomez was sentenced to 188 months for a drug distribution offense, being found to be a Guidelines career offender because of a prior conviction for assault with a deadly weapon (ADW) under California Penal Code § 245(a)(1).

Last week, the 9th Circuit vacated his sentence, holding that its prior decisions that California ADW was a crime of violence “are clearly irreconcilable with the Supreme Court’s ruling in Borden v. United States.

violence181008In Borden, the Supreme Court held that the mens rea requirement of USSG § 4B1.1 stems from the language requiring that force be used “against the person… of another.” A defendant acts recklessly when he “consciously disregards a substantial and unjustifiable risk.” But the phrase “against another” demands that the defendant “direct his action… at another individual.” Because reckless conduct is not aimed “in that prescribed manner,” the Borden court ruled, it does not satisfy the elements clause of 4B1.1.

California state courts have previously recognized that the ADW statute does not require an intent to cause harm but instead only requires an intent to do the act that results in harm. The Gomez court ruled that the ADW’s “intentional act” requirement does not equate to the “intent to harm” or “purpose” mens rea required for a Guidelines crime of violence.

Jesus, whose non-career offender Guidelines are 130-162 months, will go back for resentencing.

United States v. Gomez, Case No. 23-435, 2024 U.S.App. LEXIS 22457 (9th Cir. Sep 4, 2024)

Borden v. United States, 593 US 420 (2021)

– Thomas L. Root

Bursting Bubbles, Destroying Fantasies – Update for September 6, 2024

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MORE MYTHBUSTERS

mythbusters240816A few weeks ago, I wrote about some of the current popular myths being shared on what federal prisoners wryly refer to as “inmate.com” (which has nothing to do with that actual and rather strange website inmate.com).

Today, I collect a few more myths that deserve busting:

(1) Why is the BOP denying high and medium-recidivism inmates the use of their FSA credits?

Under 18 USC § 3624(g)(1), in order to use FSA credits, a prisoner must have a “minimum” or “low” recidivism risk or have “shown through the periodic risk reassessments a demonstrated recidivism risk reduction.” It is possible for a medium or high recidivism inmate to earn the right to spend FSA credits, but the statute [18 USC 3624(g)(1)(D)(ii)] is very specific about how difficult earning such a right would be.

recidivism240408The important point is that any changes to the FSA credit program —which lets prisoners earn credits to shorten sentences and permit more halfway house/home confinement—that would permit people with high and medium recidivism scores to use their credits would require both the House and the Senate to pass an amended First Step Act law, and the President would have to sign it. It simply is not going to happen this year.

And while we’re on it, why won’t those hidebound Federal Bureau of Prisons managers let prisoners with 18 USC § 924(c) gun charges have FSA credits? Simply enough, it’s because Congress deliberately excluded § 924(c) convictions from eligibility. The BOP’s got no power to change that.

One reader asked, “What about that change in the law that lets all § 924(c) convictions be changed into § 922(g) convictions?”

There is no such change either proposed or enacted, and no one (outside of my reader) has ever suggested such a thing. The public dislike of the concept of people using guns during drug or violent crimes would never permit such a change.

(2) Does H.R. 3019 expand FSA credit eligibility?

hr3019oversight240528Another reader asked whether more people would get FSA credits because of the passage of H.R. 3019. That bill is the Federal Prison Oversight Act, signed by the president last month. The FPOA is legislation that holds great promise for increasing BOP accountability, but it has nothing to do with FSA credits.

Congress seems content with the current situation: 63 different categories of offenses (comprising about half of all federal inmates) are ineligible for FSA credits.

(3)  How do I get home confinement at two-thirds of my sentence?

I still get complaints that the BOP is denying people who are 60 years old home confinement at their two-thirds date.

The two-thirds home confinement for 60+ people was the Elderly Offender Home Detention Program, authorized by the First Step Act. It was a pilot program and was authorized to run until September 30, 2023.

Congress set the expiration date in the First Step Act. The BOP has no right to waive or extend the expiration date. It’s up to Congress, and Congress hasn’t done a thing about it.

(4)  When does the new methamphetamine law go into effect?

There is no new meth law.

reeves230706About 18 months ago, a single district court in Mississippi ruled that the Guidelines enhancement for methamphetamine purity should not be applied because these days, just about all meth is high purity. The judge in question, however, was Carleton Reeves, who happens to be chairman of the Sentencing Commission, making the holding kind of a big deal.

The Guidelines enhancement is based on 21 USC § 841(b)(1)(A)(viii), which sets differing levels for pure meth and a “mixture… containing a detectable amount” of meth. Last June, the Commission released a study showing that meth purity is no longer a reasonable metric for enhancement.

The Commission may yet take up the enhancement, although it has not yet committed to do so. However, no real change can be effected until Congress changes the law. Congress has given no indication it is interested in doing so.

(5)  Why won’t the BOP give me all of the halfway house I’m entitled to under the Second Chance Act?

second170119I will be charging a nickel for each email I receive complaining that the BOP is denying someone all of the halfway house the prisoner is entitled to under the Second Chance Act. I will be able to retire as a millionaire sometime next week. On some nice Caribbean island that I bought out of petty cash.

The SCA guarantees you from zero to 12 months halfway house. That’s right. The BOP is not legally obligated to give you even one day of halfway house. Instead, 18 USC § 3624(c)(1) – which is where the SCA halfway house provision is found in the statute – requires the BOP only “to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a community correctional facility.”

Notice the words “may include a community correctional facility.” Those words suggest that the conditions also may not include a community correctional facility. The “conditions” may be nothing more than prerelease classes. Nothing in § 3624(c)(1) requires that you get any halfway house.

If you have FSA credits that can be used for halfway house or home confinement, your right to such placement may be fixed by 18 USC § 3624(g)(2)(A) and (B), and § 3632(d)(4)(C). At least that’s what Woodley v. Warden held. Booker v. Bayless, a Northern District of West Virginia case decided two weeks ago, held that the BOP’s refusal to let an inmate spend FSA credits was part of a “broad statutory mandate not reviewable by a district court.”

fishaday230508(6)  Doesn’t Loper Bright mean that the BOP has to let people with § 924(c) charges use their FSA credits?

In June, SCOTUS ruled in Loper Bright Enterprises v. Raimondo that the 40-year-old Chevron deference doctrine would be no more. The Chevron doctrine holds that where a statute that governs a federal agency is ambiguous, a court must defer to any reasonable agency interpretation of the statute.

The Loper Bright is a fishing boat, the owners of which sued the Dept of Commerce for interpreting a statute to require the company to pay the salary of a DOC employee stationed on the boat to ensure the fishermen were taking an illegal catch. Loper Bright argued the DOC’s interpretation of the statute to permit DOC to charge them for monitoring exceeded agency authority.

Lower courts applied the Chevron doctrine, ruling that DOC’s interpretation of the ambiguous might not be right but was reasonable. SCOTUS, however, held that the Administrative Procedure Act (5 USC § 551 et seq) directs courts to “decide legal questions by applying their own judgment” and, therefore, “makes clear that agency interpretations of statutes — like agency interpretations of the Constitution — are not entitled to deference. Under the APA, it remains the responsibility of the court to decide whether the law means what the agency says.”

Loper Bright might be used against BOP interpretation of some of the statutes governing it. However, the current rumor that Loper Bright will force the BOP to give FSA credits to people with 18 USC § 924(c) convictions is utter nonsense. Convictions under § 924(c) are prohibited from getting credits by the First Step Act. That was Congress’s doing back in December 2018. Only an amendment to First Step passed by Congress and signed by the president, will fix that.

That’s all the cherished fantasies that just aren’t so for now. But new ones stack up in my inbox almost daily, so I know I will be writing one of these columns again soon.

– Thomas L. Root

PATTERN System is Close Enough for Government Work – Update for September 5, 2024

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PATTERN AIN’T PERFECT, BUT IT’S GOOD ENOUGH

closeenough240905The National Institute of Justice released its 2023 Review and Revalidation of the First Step Act Risk Assessment Tool last week, suggesting that while there remains fine-tuning to be done, no one should expect any changes in how PATTERN is scored or, for that matter, calculated in next year or two.

NIJ said that the PATTERN recidivism risk tool

remains a strong and valid predictor of general and violent recidivism at the one-, two-, and three-year follow-up periods,” measuring changes in PATTERN scores. The study concluded that “comparisons of recidivism rates by risk level category (RLC) and predictive value analyses by risk level grouping also continue to indicate that such risk level designations provide meaningful distinctions of recidivism risk.

The PATTERN scoring matrix assigns points to prisoner age: the older the prisoner, the lower the points. Lower points lead to lower risk categories. Like golf, the lower the score, the better.

PATTERNsheet220131NIJ conceded that while substantial criticism exists that rigid age brackets make it hard for prisoners to make meaningful changes in PATTERN risk categories, “individuals can change their risk scores and levels during confinement beyond mere age effects. Those who reduced their RLC from first to last assessment were shown to have the lowest recidivism rates, followed by those who maintained the same risk level and those with a higher risk level, respectively.”

Likewise, it conceded that “there remains evidence that [PATTERN] predicts differently across [racial] groups, including overprediction of risk of Black, Hispanic, and Asian males and females, relative to White individuals, on the general recidivism tools.”

Writing in Forbes, Walter Pavlo noted that the NIJ study “confirmed that those with minimum PATTERN scores had a recidivism rate after 3 years of 9.2% for men and 7.4% for women. According to the Government Accountability Office, the overall recidivism average for all prisoners released from BOP is 45%, with men with high PATTERN scores having a recidivism rate of 77.5%, according to GAO. That data shows one of the complicated issues about the First Step Act… those who really need to program to turn their lives around have no incentive to participate in needed programming.”

Pavlo wrote that currently, First Step forces the Bureau of Prisons to “spend hundreds of millions of dollars in programming on those prisoners who are less likely to return to prison anyway. Make no mistake, PATTERN is proving to be a good measure of future success or failure after prison. However, most prisoners in the federal system are going to return to society at some point, dollars may be better spent on a population that needs the programming.”

Pavlo also noted last week in another post that the BOP’s Office of Public Affairs recently reported that the average cost of housing minimum security prisoners “approaches the average cost of housing someone at a US penitentiary.”

money160118“Of the BOP’s nearly 160,000 prisoners,” Pavlo wrote, “24,000 of them are minimum security. The BOP’s statement was that the average cost of housing a minimum security prisoner in 2024 is $151.02. The cost of housing someone in a US penitentiary is $164.87 (Lows were $129.72 and Mediums are $122.50). Since there are more minimum security prisoners than high, the total costs of housing minimum security prisoners far exceeds the costs of housing those in high security….”

NIJ, 2023 Review and Revalidation of the First Step Act Risk Assessment Tool (August 25, 2024)

Forbes, Bureau of Prisons PATTERN Score Reveals Lower Recidivism For Campers (August 27, 2024)

Forbes, The High Price of Minimum Security Federal Prisoners (August 25, 2024)

– Thomas L. Root

A Spate of 2nd Amendment Decisions – Update for September 3, 2024

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GUNNING FOR THE 2ND AMENDMENT

iloveguns221018A Quick and Categorical Denial: While the 6th Circuit took a deep dive into post-Rahimi 2nd Amendment law last week – holding that an ex-felon convicted of a nonviolent offense may not be subject to 18 USC § 922(g)(1)’s limitation on possessing a gun or ammo – the 8th Circuit swatted away any argument that 18 USC § 922(g)(1) was unconstitutional as applied to Darris Mull, a defendant with prior nonviolent drug felony convictions.

“Mull’s argument is foreclosed by 8th Circuit precedent,” the appellate court said, citing United States v. Jackson, a decision holding that even after United States v. Rahimi, 18 USC 922(g)(1) does “not violate the 2nd Amendment as applied to defendant whose predicate offenses were non-violent drug offenses.”

The Circuit also noted its decision two weeks ago in United States v. Cunningham that Jackson forecloses any argument that there must be a “felony-by-felony determinations regarding the constitutionality of § 922(g)(1) as applied to a particular defendant”), the opposite of what the 6th Circuit held in its Williams holding.

United States v. Mull, Case No. 23-3424, 2024 U.S.App. LEXIS 21943 (8th Cir. Aug 29, 2024)

United States v. Jackson, Case No. 22-2870, 2024 U.S.App. LEXIS 19868 (8th Cir. Aug 8, 2024)

United States v. Cunningham, Case No. 22-1080, 2024 U.S.App. LEXIS 20715 (8th Cir. Aug 16, 2024)

5th Circuit Holds Alien-In-Possession is Constitutional But Sober Doper-in-Possession is Not: Last week, the 5th Circuit split on a pair of § 922(g) cases.

Jose Massina-Canto was convicted under 18 USC § 922(g)(5) of being an illegal alien in possession of a gun. He argued that § 922(g)(5) violates the 2nd Amendment under New York State Rifle & Pistol Assn v. Bruen and Rahimi.

The 5th held that because Bruen and Rahimi do not “unequivocally abrogate” Circuit precedent in United States v. Portillo-Munoz, “under this circuit’s rule of orderliness, we are bound to follow Portillo-Munoz.”

doggun240213The § 922(g)(3) prohibition on people who use illegal drugs possessing guns is a different matter. In United States v. Connelly, the Circuit held that while § 922(g)(3) is not unconstitutional in all situations (such as some on meth shooting up farmers’ mailboxes), it is unconstitutional as applied to a defendant who uses weed and coke occasionally but is a “sober citizen not presently under an impairing influence and… [not] was intoxicated when she was arrested.”

The 5th said that by regulating a defendant based on habitual or occasional drug use, § 922(g)(3) imposed a far greater burden on her 2nd Amendment rights than history and the tradition of firearms regulation can support.

United States v. Medina-Cantu, Case No. 23-40336, 2024 U.S.App. LEXIS 21730 (5th Cir. Aug 27, 2024)

United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011)

United States v. Connelly, Case No. 23-50312, 2024 U.S.App. LEXIS 21866 (5th Cir. Aug. 28, 2024)

carriefgun170807Kansas District Court Holds § 922(o) on Possessing Machine Gun is Unconstitutional ‘As Applied’: Complaining that the statutory definition of a machine gun is “extremely broad,” enough to encompass aircraft-mounted automatic cannon to a small stun gun to a BB gun that shoots multiple rounds of projectiles using compressed air,” a district court ruled that 18 USC § 922(o) – that outlaws possession of a “machinegun” (and only the U.S. Code calls a machine gun a “machinegun”) – is unconstitutional as applied to “bearable arms” such as defendant Tamori Morgan’s select-fire AR-15 and his Glock giggle switch (that makes a Glock pistol full auto).

The court rejected the Government’s attempt to show that 18th-century law provides a basis for § 922(o). Those laws banned breaching the peace with unusual or dangerous weapons, but unlike those laws, the Court ruled, § 922(o) “says nothing about the manner in which machineguns are carried or displayed. Instead, § 922(o) criminalizes the mere possession of such weapons without regard to how the possessor uses them.”

The Court also rejected the Government’s argument that the 2nd Amendment “would allow weapons to be prohibited solely on the basis that they are ‘dangerous and unusual” or ‘highly unusual in society at large.’”

The Court noted that possessing a machine gun is not illegal, but rather only possessing a machine gun that is not registered:

There are over 740,000 legally registered machineguns in the United States today,” the Court said. “Machineguns have been in existence for well over a century. While the federal government has regulated transfer and possession of such weapons since passage of the National Firearms Act in 1934,” even now, “it is perfectly legal for a person who has not been divested of his firearm rights under some other provision of law to acquire and possess a machinegun… In that sense, machineguns are not unusual. The government fails to address these facts, and thus fails to meet its burden to demonstrate that possession of the types of weapons at issue in this case are lawfully prohibited under the 2nd Amendment.

On a Reload podcast, 2nd Amendment attorney Matt Larosiere predicted the case is quite likely to be appealed and unlikely to win at the next level, but nevertheless the Morgan decision “would help him and other gun-rights activists in future cases against the ban as well as other portions of the NFA.”

United States v. Morgan, Case No. 23-10047, 2024 U.S.Dist. LEXIS 149550 (D. Kan. Aug 21, 2024)

The Reload, Podcast: Gun-Rights Lawyer Matt Larosiere on a Federal Judge Ruling Against the Machinegun Ban (September 1, 2024)

– Thomas L. Root

Government Moves Quickly on Atwater BOP Staff Death – Update for August 30, 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.

ARRESTS IN USP ATWATER STAFF DEATH CASE

I reported last week on the death of a BOP mailroom supervisor at USP Atwater, apparently from contact with a drug-laden document sent to an inmate by legal mail.

Spice_drugWhile the toxicology has not been completed, authorities last week arrested Jamar Jones, a USP Atwater inmate, Stephanie Ferreira, his girlfriend in Indiana former drug felon Jermen Rudd III.

The 30-page arrest complaint, rich with detail, recounts an investigation worthy of CSI Miami. Evidence included months of recorded phone calls and email between the inmate and the others, surveillance footage from a St Louis post office, linking the girlfriend’s Evansville, Indiana, computer to the Postal Service online tracking site, and even St. Louis police license plate reader data to place the third guy in the vicinity of the post office when the package was sent.

The trio, all of whom are being held without bond (Jones, of course, was already in custody), were indicted yesterday on conspiracy to distribute drugs (21 USC 846). Jones was also indicted on an 18 USC § 1791(a)(2) and (b)(2) charge for inmate obtaining or attempting to obtain a controlled substance, and Stephanie and Jermen were indicted on the same 1791(a)(2) and (b)(2) offenses for attempting to provide an inmate with a controlled substance.

cellblock240830Despite press speculation that the document was impregnated with fentanyl, the indictment charges only that the defendants tried to smuggle “a detectable amount of AB-6 CHMINACA and MDMB-4en-PINACA, Schedule I controlled substances, commonly referred to as ‘Spice’.”

The indictment also does not allege that the defendants caused the death of BOP mailroom supervisor Marc Fischer, which suggests that the toxicology reports have not been completed yet.

Criminal Complaint, United States v. Jones, Case No 1:24-cr-209 (ED Cal, ECF 1, August 19, 2024)

Indictment, United States v. Jones, Case No 1:24-cr-209 (ED Cal, ECF 11, August 29, 2024)

– Thomas L. Root

Watershed Moment for Felon-in-Possession and 2nd Amendment? – Update for August 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.

DANGER IS MY BUSINESS

nickdanger220426The 6th Circuit handed down a rather inverted but consequential decision last Friday, holding that 18 USC § 922(g)(1) – the statute that prohibits people convicted of a felony from possessing guns or ammo – was consistent with the 2nd Amendment as applied to Erick Williams, a convicted felon with a colorful and rather high-octane rap sheet.

A quick word about “as applied.”

In constitutional law, a facial challenge is a challenge to a statute in which a plaintiff argues that the law is always unconstitutional no matter how it is employed. A law against criticizing the government would always violate the 1st Amendment, whether used against a Marxist firebrand on a soapbox or that nice 80-year-old lady next door tending her gladiolas who complains that Social Security should do better in sending her checks.

Facial challenges are generally hard to win because, despite Congress’s institutional incompetence, facially unconstitutional statutes rarely make it through the legislative process.

In an “as applied” challenge, on the other hand, a plaintiff argues that a statute is unconstitutional not in every sense but rather only when applied in limited cases. The claim in Batson v. Kentucky, where the prosecutor used peremptory challenges to exclude jurors on the basis of race, did not find that peremptory strikes to eliminate jurors from the pool were unconstitutional in all cases, but were unconstitutional when used to strike jurors because of their race.

Back to the live action: Erick, who had previously been convicted of armed robbery and other offenses but who had served his time, was caught in a traffic stop with a handgun. Convicted of being a felon In possession, he appealed on the ground that § 922(g)(1) was facially unconstitutional in the wake of NY State Rifle & Pistol Association v. Bruen.

Applying last June’s US v Rahimi decision (in which the Supreme Court ruled that § 922(g)(8), which denied guns to people subject to domestic protection orders), the Circuit ruled that § 922(g)(1) was not unconstitutional as applied to a guy whose “criminal record shows that he’s dangerous.”

danger210211“Through § 922(g)(1), Congress has decided to enact a class-wide disarmament of felons,” the Circuit wrote. “[T]hat statute is constitutional as it applies to dangerous individuals… Consider William’s criminal record. He has two felony counts of aggravated robbery. Robbery is a common-law crime against the person. What’s more, aggravated robbery is robbery… accomplished with a deadly weapon.” Indeed, Williams robbed two people at gunpoint, stealing cash, a watch, and clothing. That offense alone is sufficient to conclude that Williams, if armed, presents a danger to others or the public. But that’s not all. Williams has also been convicted of attempted murder. And he’s already been convicted of possessing a firearm as a felon. In that case, he agreed to stash a pistol that was used to murder a police officer. The government could’ve pointed to any one of those convictions to demonstrate his dangerousness. Thus, Williams may be constitutionally disarmed through a class-based statute like § 922(g)(1).”

The 6th had “little trouble concluding that Williams is a dangerous felon” and thus, that “the government may, consistent with the 2nd Amendment, punish him for possessing a firearm. And the government may enact this prohibition through a broad, class-wide ban like § 922(g)(1). His as-applied challenge therefore fails.”

The Circuit was rather expansive in its holding, however, providing a roadmap for other people with prior convictions who may nevertheless retain a constitutional right to firearms. The 6th limited its definition of who might be dangerous to those who had “committed a crime against the body of another human being… including (but not limited to) murder, rape, assault, and robbery, or… a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary. An individual in either of those categories will have a very difficult time, to say the least, of showing he is not dangerous.”

In Range v. Atty General, the 3rd Circuit opened the felon-in-possession door a crack. The 6th Circuit has nudged it a bit more by applying Rahimi’s dangerousness analysis to the “as applied” mix. To be sure, the 6th included some provisos.

First, it said that it did not exclude “crimes that pose no threat of physical danger, like mail fraud, tax fraud, or making false statements” from being dangerous, but rather deferred that for another day.

Second, it explained that district courts need not find a “categorical” match to a specific common-law crime to show that a person is dangerous. Instead, district courts “should make fact-specific dangerousness determinations after taking account of the unique circumstances of the individual, including details of his specific conviction” and should consider a defendant’s entire criminal record — not just the specific felony underlying his § 922(g)(1) prosecution.”

Finally, the Circuit was implicitly critical that Erick had not sought a declaratory judgment that § 922(g)(1) was unconstitutional as applied to him before being arrested, holding that “Williams availed himself of his constitutionally required opportunity to show that he is not dangerous – albeit after he violated the law, not before.” Whether a movant’s timing – attacking § 922(g)(1) before an arrest rather than as a defense after an arrest – will matter in the constitutional calculus (and it should not), remains to be seen.

Notguns170330Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said last Sunday, “By my read, this opinion means that any and every person within the Sixth Circuit criminal charged with illegal firearm possession under 922(g)(1) — and perhaps other federal and state gun control provisions? — can now seek dismissal of that charge by making ‘an individualized showing that he himself is not actually dangerous.’ In addition, I wonder if this Williams opinion might now provide a means for the millions of persons with non-violent felony convictions in the Sixth Circuit to seek a declaratory judgment that they are ‘not actually dangerous’ and thus have a Second Amendment right to possess (and purchase) firearms like all their fellow citizens.”

United States v. Williams, Case No. 23-6115, 2024 U.S. App. LEXIS 21375 (6th Cir. Aug. 23, 2024)

Sentencing Law and Policy, Sixth Circuit panel rules federal prohibition of felon gun possession is “constitutional on its face and as applied to dangerous people” (Aug 25, 2024)

– Thomas L. Root

Bivens, Uh-huh. What Is It Good For? Absolutely Nuthin’ – Update for August 23, 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.

BIVENS – KILLING IT SOFTLY

I was just graduating from high school when the Supreme Court ruled in favor of Webster Bivens, who sued federal agents after they broke into his apartment without a warrant and arrested him on a drug charge (that was promptly dismissed by a magistrate judge).

policeraid170824In the 50-year-plus interlude since I turned 18, Webb Biven’s handwritten lawsuit seeking monetary damages against the agents who kicked down his door became famous in legal circles as Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Webb has quite accidentally lent his name to all lawsuits seeking money for federal officials’ and agents’ misconduct, widely known as “Bivens actions.”

I now carry a Medicare card. The high school from which I graduated no longer exists. And when reading this week’s 3rd Circuit’s decision in Kalu v. Spaulding, I keep recalling Edwin Starr’s 1969 piece War, albeit with different lyrics:

Bivens, uh-huh, what is it good for?
Absolutely nuthin’.
Say it again, y’all.

Or maybe Roberta Flack: Bivens – Killing It Softly.

Congress has authorized federal money-damages lawsuits against state and local officials and employees for the violation of one’s constitutional rights in 42 USC § 1983. When Webb argued in 1971 that there must exist a similar right to sue federal officials and employees for damages when they run roughshod over a person’s constitutional rights, the Supreme Court obliged him, finding in the Constitution an implied right to do to federal officials what § 1983 lets one do to state and local officials.

In the decade following the Bivens decision — which authorized suits seeking damages for 4th Amendment violations — the Supreme Court approved a Bivens damage remedy for a congressional staffer’s gender discrimination claim under the 5th Amendment (Davis v. Passman) and for a federal prisoner’s inadequate-care claim under the 8th Amendment (Carlson v. Green).

However, 1980 was the high-water mark for Bivens. Since then, citing the Constitution’s separation of legislative and judicial power, SCOTUS has consistently narrowed the grounds that can support a Bivens actions.

“At bottom,” the Supremes said two years ago in Egbert v. Boule, a decision that drove a stake through the heart of Bivens, “creating a cause of action is a legislative endeavor.” Thus, litigants are denied the right to bring a Bivens action in “a new context.”

bivens240823If it ain’t a 4th Amendment “kick-down-the-door” suit, a member of Congress with wandering hands, or an 8th Amendment inadequate care claim, Bivens is good for absolutely nuthin’.

This week, the 3rd Circuit demonstrated in a lengthy opinion just how dead Bivens is, making the casual reader wonder why the Supreme Court — which is not adverse to the death penalty — didn’t simply consign Bivens to the dustbin of history the way it did Roe v. Wade (another relic of my youth).

John Kalu, who was a federal inmate at the time, brought an 8th Amendment claim against a Bureau of Prisons correctional officer for sexually assaulting him on three occasions. John has since been released and thus has no remedy for the alleged offense except money damages. However, the Circuit held, “[h]eeding the Supreme Court’s recent and repeated warning that we must exercise ‘caution”’ before implying a damages remedy under the Constitution, we decline to extend the Bivens remedy to Kalu’s claims.”

The 3rd admitted that John’s Bivens claim for sexual assault was pretty close to the Carlson situation, where the Court allowed a Bivens action for the BOP’s failure to protect a prisoner from a sexual assault by another prisoner. But while admitting that “the distinctions between Kalu’s sexual assault claim and the one recognized in Carlson are perhaps small, at least in practical terms… given the Supreme Court’s expressed caution about extending the Bivens remedy, the new-context inquiry is easily satisfied here.”

The Circuit ruled that

the availability of an alternative remedial scheme through the BOP’s administrative remedy program, Congress’s repeated omission of a cause of action against individual officials in both the Prison Litigation Reform Act and the Prison Rape Elimination Act, and separation of powers principles are special factors counseling against extending Bivens liability to Kalu’s officer-on-prisoner sexual assault claim. As Egbert cautions, whether to supplement an existing remedial scheme with a damages action is a legislative determination that we are not allowed to ‘second-guess…’ We therefore hold Kalu’s 8th Amendment sexual assault claim… is ineligible for remedies under Bivens.

In Egbert, the Supreme Court indicated that if it had to decide Bivens today, it “would decline to discover any implied causes of action in the Constitution.” One wonders why the Supreme Court didn’t simply overturn Bivens, stare decisis be damned, and spare the judicial system and plaintiffs the steady drip inevitably leading to limiting Bivens to a meaningless singularity.

forcedsex161202One of the unanimous three-judge panel in Kalu was Judge Luis Restrepo, who also serves on the US Sentencing Commission. Although Judge Restrepo felt that Egbert required that he join the majority opinion, he wrote a concurring opinion delivering a blistering criticism of “the alarming reports of pervasive staff-on-inmate sexual abuse within the Bureau of Prisons and corresponding flaws in the administrative remedy process.”

Judge Restrepo noted that while the “Federal Prison Oversight Act, which President Joe Biden recently signed into law… provides much-needed safeguards, the provision of a civil legal remedy for survivors of staff-on-inmate abuse is notably absent from the text of the statute. This absence, Egbert cautions us, may lend ‘reason to think Congress might doubt the efficacy or necessity of a damages remedy’ in cases such as the one before us’.”

Uh-huh.

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

Egbert v. Boule, 596 US 482 (2022)

Davis v. Passman, 442 US 228 (1979)

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

Kalu v. Spaulding, Case No. 23-1103, 2024 U.S. App. LEXIS 21092 (3d Cir. Aug. 21, 2024)

– Thomas L. Root