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BOP Anti-vaxxers Complicate Prison Vaccine Rollout – Update for February 2, 2021

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

MOST BOP STAFF ARE REFUSING COVID-19 VACCINES

vax210202You’d think that with all of the Federal Bureau of Prisons employees union belly-aching (just about all of art justified) over management fumbles in protecting staff and inmates from COVID-19, correctional officers would be jumping line to get inoculated. But in a nation where people are clamoring for a shot in the arm, at many facilities more than half of the BOP’s employees are turning down the vaccine. (Guess they don’t want Bill Gates’ microchip in their arm, but given how well Windows works on computers, what do they have to fear?)

The BOP has used up 97% of its initial allotment of vaccine, and the results cannot be what the agency hoped for. Most facilities are reporting that not more than half of BOP staff offered the vaccine has agreed to take the vaccine. As a result, inmates have been getting inoculated with vaccines being turned down by staff, reportedly about 4% of the inmate population and 21% of the staff have been vaccinated, leading to journalistic screeds such as this one decrying vaccinated those low-down convicts before honest citizens.

FCI Hazelton’s experience is typical. The facility got 660 doses of vaccine three weeks ago. Only 35% of the prison’s 800 employees agreed to receive the vaccine, with the rest of the doses – which had to be used within a short period of time – distributed to about 10% of the 3,134-inmate population.

punch210202The BOP previously planned that inmates would be offered vaccines according to their risk factors in the next distribution of the vaccine. No change to that plan has been announced, but in the last 10 days, the availability of vaccine has become problematical. Politico reported a day ago that “Biden’s team is still trying to locate upwards of 20 million vaccine doses that have been sent to states — a mystery that has hampered plans to speed up the national vaccination effort. They’re searching for new ways to boost production of a vaccine stockpile that they’ve discovered is mostly empty. And they’re nervously eyeing a series of new Covid-19 strains that threaten to derail the response… ‘It’s the Mike Tyson quote: ‘Everybody’s got a plan until they get punched in the mouth,’ said one person with knowledge of the vaccine effort.”

As of yesterday, the BOP reported 2,939 inmate COVID cases (down 18% from the week before) and 1,802 sick staff (down 11%). COVID is still present in 126 facilities. Six more inmates were reported, raising the total to 228. Incidentally, the BOP is now reporting on the number of vaccine doses it has delivered, including the number at each facility.

Vice, COVID-19 Devastated Prisons. Now Some Inside Don’t Want the Vaccine (January 29, 2021)

WLS-TV, Inmates getting COVID-19 vaccine while millions struggle to get appointment for shot (January 22, 2021)

WV News, Hazelton warden says employees, inmates vaccinated (January 30, 2021)

Politico, ‘It’s a mess’: Biden’s first 10 days dominated by vaccine mysteries (January 30, 2021)

– Thomas L. Root

Reading the Tea Leaves on Biden’s Criminal Justice Reform – Update for February 1, 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.

CHANGE IS GONNA COME… SLOWLY BUT SURELY

bidensuperman210201Biden ain’t Superman. For that reason, people who have been lighting up my inbox with emails asking whether Biden has done away with mandatory minimums should take a deep breath. A President cannot abolish mandatory minimums. Only Congress can do that.

But there’s a lot of early indication that Biden is going to be active in criminal justice reform. Last week, the acting attorney general pulled the Trump administration’s May 10, 2017, charging and sentencing memo, which required US Attorneys to pursue the harshest charges and stiffest penalties. The new policy, a rollback to the Obama era, “ensures that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts.”

Last week, I reported that Trump’s DOJ issued a legal opinion that CARES Act inmates on home confinement would have to return to prison after the pandemic ends. Writing in USA Today, three criminal justice advocates argued that Biden “should immediately rescind the Trump administration’s legal opinion, and should identify more people who could be safely released early back to society, with priority “ given to those who are most vulnerable to COVID-19.

The ACLU announced the launching of an ad campaign calling on Biden to carry out his campaign promise to cut the number of incarcerated persons in the country. The campaign calls for clemency using set criteria, such as focusing on people who, if they were sentenced today, would not receive the same sentence, and releasing the elderly, the medically vulnerable and people locked up for technical probation or supervised release violations.

crackpowder191216

Not to be outdone, FAMM and the Prison Fellowship last week announced the “End the Disparity” campaign, to urge Congress to eliminate the 18:1 ratio between crack and powder cocaine-related offenses, making them one-to-one. Senators Cory Booker (D-New Jersey) and Richard Durbin (D-Illinois), both members of the Senate Judiciary Committee, announced legislation that will do so, eliminating the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced.

Before the 2010 Fair Sentencing Act, the penalties for one gram of crack was the same as for 100 grams of powder cocaine, resulting in horrific sentences for people with small quantities of crack.  Those people were mostly black, crack being a drug of choice for poorer urban communities (which also were mostly black). In 2010, the Fair Sentencing Act introduced a bit of sanity, but the ratio didn’t drop to 1:1 (a concession to some Jefferson Beauregard Sessions III-type senators to get them to vote for the measure).

So, now, a gram of crack is equal to 18 grams of powder, fairer than before but still a differentiation that is untethered to common sense. The Booker-Durbin bill would drop the ratio to 1:1, if it passes. The fact that both sponsors are on the Judiciary Committee (and Durbin will probably be running the Committee) greatly increases those odds.

HEROES210201Two questions loom large for federal inmates. First, will Biden’s proposed stimulus bill, many elements of which are expected to be drawn from House Democrats’ $3.4 trillion HEROES Act (passed in May but blocked by the GOP-controlled Senate), include breaks for compassionate release, CARES Act releases and elderly offenders? Second, when will Congress see a sweeping criminal justice reform bill?

The details of the stimulus bill have not yet been released. Just like with the HEROES Act, which we didn’t get to read until almost the day it was passed, we will have to wait. As for criminal justice reform, no one knows when legislation will be filed or how long it will take to past.

HuffPost, DOJ Pulls Trump Administration’s Harsh Charging And Sentencing Policy (January 29, 2021)

Courthouse News Service, Biden Moves to End Federal Private Prisons as Part of Racial Equity Plan (January 26, 2021)

Bloomberg, Biden’s Go-Big Stimulus Plans Set Up Fresh Fight in Senate (January 11, 2021)

USA Today, Biden’s executive orders on criminal justice should extend to inmates sent home by COVID (January 28, 2021)

The Hill, ACLU pressing Biden to stick to promise of decarceration with new ad buy (January 28, 2021)

EIN Presswire, FAMM and Prison Fellowship Launch #EndTheDisparity Campaign (January 28, 2021)

Office of Sen. Cory Booker, Booker and Durbin Announce Legislation To Eliminate Federal Crack and Powder Cocaine Sentencing Disparity (January 28, 2021)

Bloomberg Law, Criminal Justice Changes Need Harris to Lead, Advocates Say (January 26, 2021)

– Thomas L. Root

WE AIN’T TELLIN’ – UPDATE FOR JANUARY 28, 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.

DOUBLE SECRET PROBATION

doublesecret210128From the Second Circuit comes a remarkable decision, one that should cause any number of Second Circuit defendants to wonder whether as well might have been victims of a Star Chamber process that brings to mind Dean Wormer’s “double secret probation.”

Three defendants were convicted of murder-for-hire and related drug crimes in the Southern District of New York. Long after they filed their appeals, the Narcotic and Dangerous Drug Section (“NDDS”) of the US Dept of Justice filed a notice with the 2nd Circuit advising it that the District Court had entered a sealed protective order – based upon the NDDS’s secret request that it do so – which barred both the US Attorney’s Office and the defendants from reviewing documents containing some pretty juicy but super-secret stuff. Exactly what it was we don’t know, because it was (did I tell you this?) it was super-secret.

The District Court had issued the sealed protective order pursuant to the Classified Information Procedures Act (18 USC Appx. 3 §§ 1 et seq. and F.R.Crim.P. 16(d), granting an ex parte motion by an NDDS attorney (which means that no notice was given to the US Attorney or defense counsel).

secret210128After the Court of Appeals panel learned of the sealed document, it ordered NDDS to demonstrate why at least the motion and memorandum of law, the exhibits that support the motion, and the protective order should not be disclosed to the US Attorney for his review. NDDS predictably told the Court the US Attorney should not be trusted to even know the legal basis for the sealing, let alone with what it was that was sealed. That did not go over well with the 2nd Circuit, which vacated the District Court’s protective order, not only telling the NDDS to turn everything over to the US Attorney, but ordering the US Attorney to justify not turning it over to the defense.

The US Attorney claimed for several reasons that the protected material and the sealed proceedings should not be disclosed to the defense. The Circuit nevertheless ordered the US Attorney to turn over any Brady material to the defense while the panel considered arguments on whether the rest should be disclosed as well.

In light of the materials disclosed pursuant to the Brady order, the Defendants raised an additional Brady challenge to their convictions, specifically, that the prosecution withheld exculpatory information in violation of Brady v. Maryland.

On Wednesday, the Circuit declined to consider the Brady argument, sending the whole mess back to the district court. First, the 2nd held, there was no record below on the Brady claims. True, the Circuit said, the defendants could not have raised it before because it was kept secret, but still, an appellate court is a court of review, and it needs a record to review.

There was a second, practical reason, the Court said. Under F.R.Crim.P. 33(b), a defendant has three years from the verdict to file a motion for a new trial. That deadline is only three months away. It makes more sense to send it back to the trial court, where the “Defendants’ allegations concerning the previously undisclosed material, if true, are relevant to the establishment of cause for a new trial.”

topsecret210128Ominously, the 2nd Circuit suggested in a footnote that this may not be NDDS’s first rodeo. “To the extent the NDDS or similar entities may have obtained similar ex parte sealed protective orders against all parties in other criminal cases in this Circuit, district courts may wish to consider whether such orders should be maintained in light of this decision. In order to permit effective review, any decision to enter or maintain such an ex parte sealed protective order against all parties should be supported by a clear statement of reasons, including specific reasons why disclosure cannot be permitted even as to the pertinent U.S. Attorney in the first instance.”

United States v. Stillwell, Case Nos. 18-3074-cr et al., 2021 U.S. App. LEXIS 2206 (2d Cir. Jan. 27, 2021)

– Thomas L. Root

I Trust You, Madam Prosecutor – Update for January 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.

THE DILIGENCE THAT IS DUE

Anyone familiar with post-conviction motions knows that “due diligence” is demanded of prisoners who seek equitable tolling (forgiveness for late filing), make a showing to justify the filing of a second-or-successive motion, or even calculate a deadline for filing a motion under 28 USC § 2255(f)(4) (which permits filing a § 2255 addressing newly-discovered evidence).

diligence170608The 3rd Circuit last week handed down a very detailed and thoughtful analysis of exactly what constitutes due diligence where a defendant is claiming a Brady violation in a post-conviction context (such as a § 2255 motion). Defendant Bill Bracey had been convicted by testimony from two cooperating witnesses. The prosecution disclosed the witnesses had gotten favorable plea agreements on certain charges in exchange for their testimony, but Bill found out a number of years later that the witnesses got breaks on other charges, too, that the prosecution has not disclosed. He could have found out about the other charges much earlier if he had checked the public record, but he instead trusted that the prosecutor had complied with Brady.

The Circuit held that a defendant had a right to presume the government had complied with its Brady obligations, and only when a person in the defendant’s position “would reasonably expect” that independent investigation would yield evidence of a Brady violation, was due diligence implicated. “Once Brady is understood to impose an affirmative disclosure obligation on the government, one in which criminal defendants are entitled to place their faith,” the 3rd held, “a defendant’s lack of independent investigation does not equate to a lack of due diligence, at least not without facts giving him a reasonable basis to suspect a Brady violation… We hold, therefore, that a habeas petitioner’s Brady claim is timely… so long as it is filed within one year of the date on which the petitioner has reason to believe that the prosecution may have violated its duty of disclosure.”

Bracey v. Superintendent, Rockview SCI, Case No 17-1064, 2021 U.S. App. LEXIS 1623 (3rd Cir Jan 21, 2021)

– Thomas L. Root

Is BOP Cooking the Books on COVID Numbers? – Update for January 25, 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 NUMBERS ARE DOWN, BUT ARE THEY RELIABLE?

COVID numbers are down 26% from a week ago, with 3,738 federal inmates in BOP and private prisons sick. The BOP staff numbers remain stubbornly high at 2,005, down only 1% from last week. Deaths are spiking, with 12 more between Jan 15 and last Friday, for a total of 220. The BOP has tested two-thirds of its inmates, with an overall positivity rate of 44%.

BOPCOVID210125The BOP continues to report that large numbers of inmates are “recovered” according to Centers for Disease Control and Prevention Guidelines, despite the fact that the number of “recovered” inmates who subsequently die of COVID keeps increasing. On Thursday, the BOP reported that Shauntae Hill, an FCI Terre Haute inmate whom it had declared “recovered” last September, tested positive for COVID December 12 – 79 days later – and died two weeks ago. Last Friday, the BOP reported that Spencer Sarver, a USP Atlanta inmate who tested positive for COVID last March – but was declared “recovered” on April 23 – never left the hospital, and died ten days ago.

BOPDeaths210125The CDC Guidelines say that “available data indicate that persons with mild to moderate COVID-19 remain infectious no longer than 10 days after symptom onset. Persons with more severe to critical illness or severe immunocompromise likely remain infectious no longer than 20 days after symptom onset.” But nowhere does the CDC say recovered people are cured, but rather only that any virus they are shedding is at a concentration at which “infectiousness is unlikely.”

James Weldon, president of the union local representing BOP employees at FCI Raybrook, last week accused the BOP of not reporting inmate and staff COVID cases after it brought in around 100 new inmates without testing them first. Weldon said the BOP never reported on the 130 inmates and 25 staff who tested positive during the peak of the outbreak two weeks ago.

The BOP reportedly failed to response to the newspaper with a comment.

judge160229The Denver Gazette reported last week that out of two dozen responses to compassionate release motions based on COVID-19 from September through December, federal judges in Colorado only approved three. Besides finding that an inmate’s health condition or COVID at the particular facility was not severe, judges commonly denied requests to those who were not over 65 or had not served at least 75% of their sentences.

In two denials filed by Senior Judge Marcia S. Krieger, she found inmates may be safer from COVID-19 in prison than outside of it, despite the fact that the BZOP infection rate is five times that in the general population. “Release from custody would not ensure that he would not contract COVID-19,” Krieger wrote in one case. “Indeed, his release into the community – to socialize, to work, to shop, etc. – could increase, rather than decrease his risk of contracting the disease.”

BOP, Inmate Death at FCI Terre Haute (January 21, 2021)

BOP, Inmate Death at USP Atlanta (January 22, 2021)

CDC, Duration of Isolation and Precautions for Adults with COVID-19 (October 19, 2020)

Adirondack Daily Enterprise, Union: Prison apathetic about COVID (January 19, 2021)

Denver Gazette, Federal judges in Colorado denied overwhelming majority of requests to release inmates for COVID-19 (January 20, 2021)

– Thomas L. Root

CARES Act Home Confinees Must Return to Prison, Trump’s DOJ Says in Parting Shot – Update for January 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.

A FINAL STEAMING PILE OF LEGAL EXCREMENT AS THE TRUMP ADMINISTRATION LEAVES THE BUILDING

DOJOLC210122Under the March 2020 CARES Act, Congress gave the Director of the Federal Bureau of Prisons the authority to send inmates to home confinement at any time, despite the 6-month/10% limitation on home confinement set by 18 USC § 3624(c). The conditions set by the legislation were only two: (1) the national emergency declared because of COVID-19 had to be in effect, and (2) the Attorney General had to determine that COVID-19 was materially affecting BOP operations.

Attorney General William Barr concluded in short order that BOP operations were being affected, and that nonviolent inmates with good prison records (and US citizenship and a few other requirements) should be sent to home confinement. The BOP added its own gloss, that the inmate must have completed 50% of his or her sentence (or, for short-timers, 25% of the sentence with 18 months or less to go). By mid-April 2020, the prison-to-parlor pipeline was flowing.

snakeoil170911Since then, the BOP has trumpeted that it has sent over 18,000 inmates to home confinement. It turns out, however, that – like most BOP claims – this one is misleading, if not downright dishonest. The BOP has sent 18,112 people to home confinement in the last 10 months, but 60% of those were eligible for home confinement under 18 U.S.C. § 3624(c)(2) anyway, because they were within their last six months of their sentences (or 10%, if they were sentenced to under five years).

But this leaves about 7,245 people who were sent home who could not have been sent if not for the CARES Act. I know at least two sent home with more than 10 years of sentence left to serve. While that’s a long time to spend in a Barcalounger, nevertheless, there is no doubt that an inmate’s worst day on home confinement is better that his or her best day in prison.

There was a kerfuffle last fall, when a DOJ Attorney said in open court, almost as an aside, that once the pandemic ended, all of the federal inmates sent to home confinement would have to come back to prison.

At the time, FAMM president Kevin Ring said that he had communicated his concern that CARES Act inmates might be recalled to the White House. He said the Trump Administration assured him it would never happen.

Back then I said

but White House assertions (remember President Trump’s promised 3,000 clemencies?) have a way of being wrong. The risk of reincarceration seemed real enough that the House of Representatives included a provision in last May’s HEROES Act that no one “granted placement in community supervision, termination of supervision, placement on administrative supervision, or pre-trial release shall be re-incarcerated, placed on supervision or active supervision, or ordered detained pre-trial only as a result of the expiration of the national emergency relating to a communicable disease.

I generally like being right, but not this time…

Although the end of the pandemic appears to be months away (former basketball point guard and rockstar doctor Anthony Fauci said yesterday that “if the country can get over the hurdle of vaccine hesitancy and reach a 70% to 85% uptake, Americans can expect normalcy in the fall”), the Trump Administration was seemingly unable to resist breaking one final promise.

Last week, the DOJ Office of Legal Counsel issued an opinion entitled “Home Confinement of Federal Prisoners After the COVID-19 Emergency,” concluding that

the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning. Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2). We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

kick210122Ohio State University law professor Doug Berman said yesterday in his Sentencing Law and Policy blog that “this opinion is certain contestable, the new Biden Justice Department could reconsider it and a court might reject it, and we are surely a long ways from reaching a post-pandemic world.” Kevin Ring denounced the opinion as “one last kick in the groin from the Trump Justice Department,” calling it “is a poorly reasoned piece of cruelty that could make families worry unnecessarily.”

I consider it very unlikely that Biden’s new Attorney General, Merrick Garland, is going to rescind Barr’s finding “that the emergency conditions are materially affecting BOP’s functioning” any time soon. Although the pandemic emergency declaration expires in March, I suspect Joe is more likely to invite Donald Trump over to the White House for a drink than he is to end the emergency. There’s plenty of precedent. At the time the COVID emergency was declared, 60 national emergencies had been declared since the National Emergencies Act was enacted 45 years ago, and 31 of them (including the emergency are still in effect, having been renewed repeatedly. I figure the pandemic emergency to last for another nine months at least.

As I noted above, the House HEROES Act last May sought to plug the CARES Act hole that left home confinees in a non-permanent status. HEROES died a lonely death on January 2nd, but the new 117th Congress can fix the home confinement problem simply enough. Even if Congress does not, the President could grant conditional clemency or district courts could grant compassionate release to keep these folks on home confinement.

Even if it doesn’t, the Biden DOJ can walk back the OLC opinion (and the reasoning is shaky enough that there is plenty of room for reinterpretation) without much difficulty.

timecover2310122There is scant policy justification for returning people on home confinement to prison, unless sheer meanness is now an Administration goal. (Sheer meanness is a criterion more at home in the last Administration, the one that issued the OLC opinion, than with the new people in charge). The BOP has first determined that inmates it proposes sending to home confinement pose little risk to public safety but high risk of COVID, meaning that the CARES Act cohort includes a lot of older and sicker folk. They’re the ones, unsurprisingly who cost the BOP the most to care for. And the lower BOP prisoner population (a drop of 12.5% in a year) has eased the burden the BOP faces from staff shortages. Because the BOP has always had the discretion to return these persons to prison for misconduct, there’s no compelling public safety or cost justification for sending everyone back to prison after the pandemic is over.

In fact, there was probably no compelling need for the outgoing Administration to drop this opinion on the way out the door, unless of course the Trump appointees wanted to create as much legal vandalism for the Biden DOJ to clean up as possible.

Dept. of Justice, Memorandum Opinion for the General Counsel of the Federal Bureau of Prisons (January 15, 2021)

Sentencing Law and Policy, Notable OLC opinion on “Home Confinement of Federal Prisoners After the COVID-19 Emergency” (January 21, 2021)

Forbes, Department Of Justice Lays Plans For Federal Inmates On Home Confinement To Return To Prison (January 21, 2021)

– Thomas L. Root

After All of the Drama… Trump’s Clemency – Update for January 20, 2021

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

TRUMP DOES SOMETHING RIGHT(?)

obtaining-clemencyAfter all of the angst since November about a flurry of pardons and commutations to be issued by President Donald John Trump (and you cannot imagine my relief at knowing I will never have to type those words again) – including speculation that he would pardon his family, all of his close friends, the Capitol rioters and even himself – Trump issued the final long-awaited clemency list in the wee hours on his last day in office (and you cannot imagine my relief at typing those words).

The media predictably fixated on the of handful of longtime allies and well-connected celebrities, including his former chief strategist, Steve Bannon, and onetime fundraiser Elliott Broidy, on the list. But that should not obscure the fact that, in virtually his last exercise of Presidential power, Trump pretty much got it right.

The White House released the list of 143 pardons and commutations at 12:50 a.m., as – according to the Wall Street Journal – Trump’s deliberations over who should receive clemency stretched late into the last full day of his term. Bannon, much like Schroedinger’s cat, flitted onto and off of the pardon list, but finally was included, short-circuiting his federal trial scheduled for May. A few rappers, politicos and Trump loyalists made the list, but the real story was that 90% of those getting pardons and commutations were rather ordinary people.

Only 18 of those on the list – 13% – were supported by the Dept of Justice Office of Pardon Attorney. The balance were by an array of political leaders, criminal justice reformers and other allies of the president.

On Tuesday, the president was still calling advisers to ask them how he should proceed on certain pardons and waffled repeatedly over whether to grant one to Mr. Bannon, a person familiar with the conversations said.

At various points on Tuesday, advisers believed Mr. Bannon—who was charged in connection to a scheme to siphon money from a crowdfunding campaign for a border wall—wouldn’t get one. The White House in a statement said Mr. Bannon “has been an important leader in the conservative movement and is known for his political acumen.”

Don’t take my word for it: here’s the list of those pardoned (their crimes forgiven) or had sentences commuted (imprisonment reduced or terminated, but the conviction remains):

White House List

trumpjohnson210120Trump has been widely criticized for using his clemency power to favor celebrities and political allies, including Michael Flynn, Paul Manafort, Roger Stone and former Maricopa County Sheriff Joe Arpaio. But he was praised for commuting the sentences of some prisoners serving long sentences for nonviolent drug offenses, like 63-year old Alice Johnson, who was doing life for a 1996 crack conspiracy. Her story (she was hardly the kingpin, but paid the price for not taking a deal) caught the attention of reality-TV star Kim Kardashian, who convinced Trump to commute her sentence. The move paid off for Trump: Johnson was a vocal supporter of the President after that (who could blame her), even speaking at the Republican convention last summer. Trump rewarded that by upgrading her commutation to a pardon. At the same time, Johnson advocated for clemency for people she knew in the system.

Before last week, Trump had pardoned or commuted the sentences of 44 people convicted of federal crimes —far fewer than any other president. To be sure, Trump isn’t the only president to pardon his friends and allies during his fpardon160321inal days in office. Former President Bill Clinton was criticized for including wealthy fugitive Marc Rich in his final batch of reprieves, after Rich’s wife donated generously to Clinton’s presidential library. An investigation later concluded that the pardon was sketchy but not quite illegal.

Experts argue that the erratic clemency process should be fundamentally reimagined, either by taking it out of the president’s hands altogether or at least by moving it out of the Department of Justice. This could speed up the review process and remove review from the people whose careers were made by convicting those seeking clemency. Advocates argues that clemency should be molded into a tool for redressing the harsh sentencing practices of the early Sentencing Guidelines days since 1989. The sentences, especially for drug offense, disproportionately sent minorities to prison for long stretches.

The New York Times reported that “advocates said they were hopeful that the Biden administration would be able to revamp the clemency process, and that the pardons approved by Mr. Trump would give the next administration some cover with conservatives in the future.”

The Biden administration said it would not comment on the Trump pardons.

The Wall Street Journal, Trump Issues 73 Pardons, Including to Ex-Aide Steve Bannon (January 20, 2021)

The New York Times, Trump’s final wave of pardons includes names pushed by criminal justice reform advocates (January 21, 2021)

The Marshall Project, Trump’s Pardons Show The Process Has Always Been Broken (January 19, 2021)

– Thomas L. Root

BOP’s Good and Bad At COVID Management – Update for January 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.

COVID – BOP GETS PAT ON BACK, KICK IN PANTS

pat-on-back210119In a self-congratulatory press release issued late last week, the BOP said it has been commended by Operation Warp Speed – the Trump COVID-19 vaccine program – for having been the most efficient agency in the entire government at administering COVID vaccine. According to the CDC, the BOP has used 97% of the doses it has received.

Of course, it helps that the BOP has a captive audience. Not among staff so much: in a troubling report, the BOP said only half of its staff offered the vaccine have taken it. But the inmates… that’s another story. Doses not used by staff at the locations receiving it – about 68 of 122 facilities so far – have been offered to inmates using CDC priorities, and there are plenty of takers. The BOP so far has administered over 17,000 doses of the vaccine, a first dose to about 7,600 staff and 5,500 inmates, and a second dose to about 1,000 staff and 1,100 inmates. In other words, only 24% of staff and 4% of inmates have been vaccinated so far.

As of last Thursday – the last day the BOP bothered to release numbers – 4807 inmates and 2049 staff were reported to be sick with COVID. The BOP has tested two out of three inmates at least once, with a positivity rate that keeps climbing. Currently, 43% of inmate tests come back positive.

Death took no holiday last week as an additional eight inmates died last week. Significantly, two of the deaths – at FCI Jesup and FCI Memphis – were of inmates the BOP has previously declared to be “recovered.”  The BOP is quite quick to declare inmates “recovered” when 10 days pass after a positive teas. The declaration is based on CDC guidance, the BOP says, but is often misapplied, with the agency ignoring any continuing symptom other than a fever. 

FCI Fort Dix, where 321 inmates are still reported to have the virus, is set to get the COVID-19 vaccine next week, according to NJ Advance Media. BOP case management coordinator James Reiser told a court on Wednesday that the prison expects to receive COVID-19 vaccine on Jan 19. It is unclear how many doses the prison will initially receive, Reiser said.

kickinpants210119New Jersey Senators Bob Menendez and Cory Booker and Congressman Andy Kim led members of the New Jersey congressional delegation last week in urging the DOJ Inspector General to expand his ongoing investigation into the BOP COVID-19 response to include its handling of the Fort Dix outbreak.

Finally, a kick in the pants: the DOJ Inspector General last week reported that last April, BOP employees at FCC Coleman were threatened with discipline if they wore personally-acquired masks , and sometimes were sent home on sick leave for wearing such coverings. One complainant reported that a supervisor had said wearing a mask would “scare the inmates,” the OIG report said.

BOP, COVID-19 Vaccination Efforts Commended (January 16, 2021)

New Jersey Advance Media, N.J. prison with worst COVID-19 outbreak in the country set to get vaccine next week (January 13, 2021)

InsiderNJ, Menendez, Booker, Kim Lead NJ Delegation Call for IG Probe into COVID-19 Outbreak at Fort Dix (January 15, 2021)

Orlando Sentinel, Federal prison in Central Florida banned masks for staff as pandemic began, report says (January 14, 2021)

– Thomas L. Root

Final Hours for Trump Clemency… and Things Are Strange – Update for January 18, 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.

THINGS ARE GETTING WEIRD

weird210118Secret commutations. A phony White House pardon website. Capitol Hill rioters complaining on TV the president sent them to the insurrection, so he owes them a pardon. A promise of hundreds of clemencies. A president wonder-ing whether he can pardon himself.

For weeks, federal inmates have hoped President Trump would grant clemency to thousands of them on his way out the door. But if things looked like they were going sideways before Jan 6, they have gotten downright screwy since then.

As of this morning, the Washington Post reported “Trump is preparing to pardon or commute the sentences of more than 100 people in his final hours in office, decisions that are expected to be announced Monday or Tuesday, according to two people familiar with the discussions, who spoke on the condition of anonymity to describe the plans.”

The Post said Trump “has been besieged by lobbyists and lawyers for well-heeled clients who are seeking to have their criminal convictions wiped from their records, as well as by advocates for criminal justice reform, who argue that their clients were wrongly convicted or were given unfair sentences and deserve to be freed from prison.” Trump’s clemency binge has been delayed by what the Post called increasing dysfunction stemming from the Capitol riot and impeachment, but he reportedly spent part of the weekend finalizing his list.

The President has always made a big deal of his clemencies, but last Tuesday, he quietly commuted the sentence of Fred Davis Clark, whose Ponzi theft of over $171 million got him a 480-month federal sentence two years ago. Fred’s docket said the 60-year old defendant had an out date beyond 2050, but the BOP released him last Tuesday. The White House has released no official statement on the clemency.

parler210118The White House did, however, release a statement declaring a pardon notice circulating on the right-wing website Parler to be fake. The phony post, which claimed to be from the Office of Pardon Attorney, said “POTUS is seriously considering PARDONING all of the patriots in the next week and a half. If you would like a pardon, please respond below.” It then asks for the rioter’s name, city and even “what crimes you think you need to be pardoned for,” asking for them by “Tuesday” so the President can get to work on them. (Some might suggest that the very notion of the President “working” should have been the tipoff that the post was a fraud).

Some of the people who thought that vandalizing the Capitol was great fun are apparently have second thoughts now that their selfies and tweets are leading to criminal charges. Jenna Ryan, a Texas real estate broker who was arrested for joining the attack on the Capitol, has pleaded with Trump to pardon her. After surrendering to the FBI on Friday, Ryan said: “We all deserve a pardon. I’m facing a prison sentence. I think I do not deserve that.” Ryan said she had been “displaying my patriotism,” adding, “I listen to my president who told me to go to the Capitol.”

The Dept of Justice issued a statement last weekend that “the information circulating on social media claiming to be from Acting Pardon Attorney Rosalind Sargent-Burns is inauthentic and should not be taken seriously.”

In private, the president has continued to pursue which pardons he can grant in his final days in office, calling advisers to ask for suggestions. The White House is expected to release dozens of pardons in the days before he leaves office, aides say. Aides say they don’t know if some of the most controversial pardons—including for Rudy Giuliani, for the president’s children, and for the president himself—will be among them.

The New York Times reported last night that “a lucrative market for pardons is coming to a head, with some of his allies collecting fees from wealthy felons or their associates to push the White House for clemency, according to documents and interviews with more than three dozen lobbyists and lawyers.” People reported to be selling services include former AUSA Brett Tolman, Trump’s personal lawyer John M. Dowd, and Guliani.

pardonsale210118Politico reported last Friday that former White House advisor Steve Bannon – facing a federal fraud trial in May – is on the pardon list. Politico’s White House source said “two additional batches of pardons are expected — one on Friday night and one Wednesday morning before President-elect Joe Biden is sworn into office.” Of course, Friday has come and gone, and the first of the promised clemency lists did not happen. Last Monday, ABC reported that after some of Trump’s lawyers told him that if he pardons himself, he could be more vulnerable to civil lawsuits. “The president is angry,” ABC reporter Jonathan Karl said. “He has not taken that well, and I am told that he is now saying that he doesn’t want to see pardons for anybody. So the attitude seems to be: ‘If I can’t get a pardon, then nobody else should get one, either.'”

Washington Post, Trump prepares to offer clemency to more than 100 people in his final hours in office (January 18, 2021)

Law360.com, Trump Commutes Ex-Cay Clubs CEO’s Ponzi Sentence (January 14, 2021)

DOJ, Statement on Misinformation on Social Media Regarding the Office of the Pardon Attorney (January 9, 2021)

The Guardian, ‘I’m facing a prison sentence’: US Capitol rioters plead with Trump for pardons (January 16, 2021)

New York Times, Prospect of Pardons in Final Days Fuels Market to Buy Access to Trump (January 17, 2021)

Wall Street Journal, Trump Spends Final Days Focused on GOP Defectors, Senate Defense (January 16, 2021)

Politico, Trump weighing a pardon for Steve Bannon (January 15, 2021)

The Week, Trump is reportedly so angry aides are warning him against a self-pardon, he’s put all pardons ‘on hold’ (January 12, 2021)

– Thomas L. Root

SCOTUS Bulks Up on Criminal Cases – Update for January 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.

SUPREME COURT GRANTS CERT ON THREE FEDERAL CRIMINAL CASES

The Supreme Court last week added three federal criminal questions to its docket.

crack-coke200804In Terry v. United States, the justices agreed to hear a technical sentencing issue with significant implications for thousands of inmates: whether defendants who were sentenced for low-level crack-cocaine offenses under 21 USC § 841(b)(1)(C) before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018.

Lower courts are divided on this question; as a result, one party argued, Supreme Court review is necessary “to prevent thousands of predominately Black defendants from being forced to spend years longer in prison than identically situated defendants” elsewhere in the country “and to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized.”

In Greer v. United States, the Court will consider whether, when applying plain-error review based on an intervening decision of the Supreme Court, a court of appeals can look at matters outside the trial record to determine whether the error affected a defendant’s substantial rights or affected the trial’s fairness, integrity or public reputation.

structuralerror210115Finally, one that everyone expected: the Court granted the government certiorari in United States v. Gary, to determine whether the 4th Circuit is right that a Rehaif v. United States error is structural, meaning that a defendant does not have to prove that he or she was prejudiced by the court’s failure to instruct on all elements of the 18 USC § 922(g) felon-in-possession offense.

Terry v. United States, Case No 20-5904 (certiorari granted January 8, 2021)

Greer v. United States, Case No 19-8709 (certiorari granted January 8, 2021)

United States v. Gary, Case No 20-444 (certiorari granted January 8, 2021)

– Thomas L. Root