All posts by lisa-legalinfo

It’s Not a Sentence Until It Is, 6th Circuit Says – Update for December 22, 2020

Leave a comment

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

DOING IT OVER UNTIL YOU GET IT RIGHT

mulligan190430Mike Henry and an accomplice robbed three banks. In each robbery, Mike’s co-conspirator used a gun. A jury convicted Mike of the three robberies and three counts of using a gun in a crime of violence under 18 USC § 924(c). A § 924(c), you may recall, carries a mandatory sentence of at least five years (more if you brandish it or, God forbid, actually fire it).

In 2013, Mike got 70 months concurrent for the three robberies and 60 months for the first § 924(c) conviction. Because back then, a second or subsequent § 924(c) conviction carried a mandatory sentence of 300 extra months got a total of 600 months (50 years, that is),  for each of the next two § 924(c)s. Mike ended up with a sentence of  730 months (about 61 years in prison).

Mikes’s conviction was reversed because of the intervening Supreme Court decision in Rosemond v United States, which held that an accomplice had to have some level of knowledge that is co-conspirator had a gun. But after retrial, Mike’s sentence got marginally worse, increasing by eight months to 738 months. But while Mike was on appeal the second time, the Supreme Court’s Dean v. United States decision was handed down (holding that judges could adjust the underlying sentence to account for the mandatory § 924(c) sentence), and Mike’s sentence got reversed again in 2018.

By the time Mike was resentenced a second time, the calendar had flipped to 2019, and the First Step Act had passed. First Step Act § 403 amended 18 USC § 924(c) so that subsequent convictions of the statute carried a 300-month mandatory minimum only if the defendant had been previously been convicted of a § 924(c) offense. Which, of course, Mike had not.

Robber160229But First Step was not retroactive. Instead, § 403 applied only to an “offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” On his latest appeal, Mike argued that First Step § 403 applied to his case, and his sentences for the second and third § 924(c) offenses should have only been 60 months apiece, not 300 months apiece.

Last week, the 6th Circuit agreed. The Court said the plain language of § 403(b) supported its conclusion that the First Step Act applies to defendants whose cases were remanded prior to the First Step Act’s enactment but who were resentenced only after its enactment.  At the time of the First Step Act’s enactment, the Circuit ruled, Mike “did not have ‘a sentence” for the purposes of § 403(b), because his case had been remanded case to the district court for resentencing. “Only when the district court ‘imposed’ Henry’s sentence for his various convictions at his 2019 resentencing did he have a sentence for the purposes of § 403“, the 6th said. “The better reading of ‘a sentence’ requires the defendant to have a valid sentence at the time of the First Step Act’s enactment, not a sentence at some point… Therefore, Henry is eligible for sentencing under First Step Act § 403.”

oldmangrandkids201222This time, some 480 months should come off the sentence, leaving him with a still hefty 250 months (about 21 years). But it leaves Mike with a chance of hugging his grandkids someday.

United States v. Henry, Case 19-2445, 2020 U.S. App. LEXIS 39799 (6 Cir Dec 18, 2020)

– Thomas L. Root

Inmate Vaccine Not In The Near Term? – LISA Newsletter for December 21, 2020

Leave a comment

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

INMATES NO PRIORITY FOR VACCINE, ADVISORY PANEL RECOMMENDS

COVIDvaccine201221The Federal Bureau of Prisons received its first shipment of COVID-19 vaccines last Wednesday, and began administering the drug to its correctional officers and health care staffers. The agency said inmates will follow “when additional doses are available.”

And that’s not going to be anytime soon. Earlier this month, the Advisory Committee on Immunization Practices said health care workers and nursing home residents — about 24 million people — should be at the very front of the line for the vaccines. Sunday afternoon, the panel voted 13-1 that next in line should be people 75 and older, who number about 20 million, as well as certain front-line workers, who total about 30 million. Those essential workers include firefighters and police; teachers and school staff; those working in food, agricultural and manufacturing sectors; corrections workers; U.S. Postal Service employees; public transit workers; and grocery store workers.

The committee also voted that behind those groups should be people aged 65 to 74, numbering about 30 million; those aged 16 to 64 with certain medical conditions such as obesity and cancer, that are at higher risk if they get infected with COVID-19, numbering as many as 110 million; and a tier of other essential workers. This group of as many as 57 million includes a wide category of food service and utility workers but also those in legal and financial jobs and the media.

How about vaccine for inmates? The BOP told CBS last week that it is up to Operations Warp Speed to decide when inmates will receive the vaccine. CBS reported, however, that a spokesperson for Operation Warp Speed said the BOP would decide about the timeline.

The National Commission on Covid-19 and Criminal Justice last week recommended that inmates receive priority consideration for Covid-19 vaccines equal to that for police and correctional officers. That recommendation, however, appears to be one of many rejected by the Advisory Committee.

inoculation201221And yet… I received several inmate emails last week (and this is totally unconfirmed) that a handful of BOP inmates at two facilities received vaccine last week. The emails gave no indication of how the inmates were selected for the vaccine. One – from a Texas BOP facility written two days ago – said

well the good news and vibes ran out on the [institution] compound. we ran out of vaccines before we completed even one building. of course the fact that no one was planned to receive it inmate wise. what we did get is hopefully helpful. my building has about 40% done on the first dose.

Another inmate email, received early this morning, independently reported that some inmates at the same institution (“at least a couple hundred,” the report stated) received vaccine.

An inmate in a separate Texas facility reported Friday night:

I thought you’d be interested in reports that 100 inmates received their first dose of the vaccine today. Some of these are known personally to me, so I can confirm that they were sent to the clinic and given a shot. They were told that they would be called back to the clinic in 21 days for their second dose. Reportedly, all staff who wanted the vaccine have received their first dose.

One can reasonably infer from the emails that perhaps the vaccine being administered was left over after staff inoculations had been completed, and – having been thawed – had to be used within five days.

[Later note: An inmate from a North Carolina facility reported by email on Monday, December 21, that he had gotten the vaccine: “Once the staff here at the [institution] received their vaccinations if they chose, there were doses left over. Instead of letting those doses go to waste, the staff chose to offer them to some of the inmates based on their medical conditions.  There were probably around 30 or so in my housing unit, including myself, that were offered the vaccine.  Most of us chose to take it.  I, myself, am thankful to the staff for making that decision and offering them to us and I felt that I needed to let you know that some of us are getting it.” ]

More than two dozen members of House of Representatives last Wednesday demanded details about how inmates will be vaccinated for COVID-19, questioning whether the most vulnerable prisoners will have priority access.

In a letter to BOP director Michael Carvajal and Centers for Disease Control and Prevention chief Dr. Robert Redfield, the 26 lawmakers, led by Rep. Bobby Scott (D-Virginia), wrote,

The BOP has provided informal information regarding the vaccine distribution plan. We are deeply concerned that the current plan places the most vulnerable incarcerated individuals who have a cancer diagnosis, chronic kidney disease, chronic obstructive pulmonary disease, heart conditions, compromised immune systems, sickle cell, diabetes, and individuals 65 years or older in priority level 3 behind incarcerated individuals in minimum security facilities who are in open bay housing and are currently listed in priority group 2. Incarcerated individuals with these types of medical conditions are at a high risk of complications if they contract COVID-19 as it spreads through federal prisons yet are slated to receive the vaccine after prison staffers in phase 1 and other incarcerated individuals listed in phase 2.

Despite reporting that over 1,500 inmates “recovered” from COVID-19 within just a few days of each other, the BOP still reported having 5,881 active inmate cases,1,694 sick staff, COVID in 126 BOP facilities and 180 dead inmates (up 13 in one week). The BOP has tested 62% of all inmates at least once, with the positivity rate continuing to ratchet up. As of last Friday, 36% of all inmate tests are positive for COVID.

Still, the trend apparently suggests that the latest BOP outbreak has peaked.

BOPCOVID201218

As of last Friday, Sandstone, Florence, Loretto and Pekin all reported over 200 inmate COVID-19 cases, another 12 facilities had more than 100 cases, and another 20 joints had 50 or more. Loretto had been written down from over 600 cases earlier in the week as inmates are declared to be recovered.

A cautionary note about those “recovered” inmates. Of the 13 inmates who died last week, two – a 64-year old man at FCI Victorville I and a 72-year old man at FCI Lompoc – had contracted COVID-19 months ago, and were considered “recovered” before getting much sicker and dying. In fact, the State of Michigan Dept of Health said last week that it is currently investigating 115 of “recovered” state inmates testing positive for COVID-19 three months after they were believed to be COVID-free.

New York Post, Federal prison workers to start getting vaccinated Wednesday (December 14, 2020)

Chicago Tribune, Federal panel says people over 75, essential workers should be next in line for COVID-19 vaccine as Moderna shots begin shipping out (December 20, 2020)

CBS News, Federal prisons to prioritize staffers for COVID-19 vaccine and give to inmates when more doses are available (December 18, 2020)

National Commission on Covid-19 and Criminal Justice, Experience to Action: Reshaping Criminal Justice After COVID-19 (December 14, 2020)

Letter to BOP from Rep. Robert C. Scott (D-Virginia) (December 15, 2020)

Reuters, U.S. lawmakers press prison authorities on inmate COVID-19 vaccination plans (December 16, 2020)

Detroit Free Press, State reviewing possible COVID-19 reinfections after 115 prisoners test positive twice (December 12, 2020)

– Thomas L. Root

Will Inmates Get on Board the Trump Pardon Train? – Update for December 17, 2020

Leave a comment

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

TRUMP REPORTEDLY MULLING PARDON FRENZY

trumptrain201218Since President Trump won the election in a landslide… er, make that “lost the election,” six weeks ago, requests for clemency have been flooding the White House from people looking to benefit from the presidential pardon power. CNN reported on Wednesday that the Administration staff have been “so inundated with requests for pardons or commutations that a spreadsheet has been created to keep track of the requests directed to Trump’s close aides.”

Trump is reportedly eager to engage on the subject – unlike his lack of interest in doing anything else, some report – and has been both reviewing case summaries  and soliciting advice from his network of associates about whom he should pardon. CNN said, “Unlike practically any other matter related to the end of his presidency, his clemency powers are a topic Trump actually seems to enjoy discussing, one person in communication with the President said, even though it amounts to another tacit reminder that his tenure at the White House is nearly over.”

Trump is reportedly considering or being asked to pardon Edward Snowden, Joe Exotic, Ross Ulbrecht, Duncan Hunter and even his own organization’s chief financial officer. The New York Times reported that Rudy Gulliani has discussed a pardon for himself with the President, a report Gulliani vehemently denies. Other reports predict pardons for Trump’s family.

pardonme190123Meanwhile, judging from my own email on the subject, large numbers of federal inmates – whose clemency requests have languished in line with the 13,000 others at the Department of Justice Pardon Attorney’s office – are sending copies of their petitions directly to the White House, in a desperate bid to jump on board the Clemency Express. If there is an Express to begin with.

Axios reported last week that President Trump isn’t just accepting pardon requests “but blindly discussing them ‘like Christmas gifts’ to people who haven’t even asked, sources with direct knowledge of the conversations” have said. Trump reportedly told “one adviser he was going to pardon ‘every person who ever talked to me,’ suggesting an even larger pardon blitz to come.”

Axios said the president “been soliciting recipients, asking friends and advisers who they think he should pardon.” White House attorneys are said to be “working through a more traditional process, even if it doesn’t cover every person Trump has discussed, a source familiar with the process said.”

“We’ve been flooded with requests,” said a senior White House official, who admitted a lot of the appeals have been nakedly political and partisan, as is expected at the end of a presidency.

90-150cm-Trump-2020-Flag-Double-Sided-Printed-Donald-Trump-Flag-Keep-America-Great-Donald-for

One Trump supporter lobbying on behalf of a prisoner said he realizes that Trump has his hands full and may not be receptive to this or other cases. “I’m a little worried that it might get crowded out,” he conceded.

The Daily Beast said, “It is unclear how much the outgoing president will end up delivering on these kinds of commutations and pardons, in large part because Trump is still consumed by pet grievances and his hopeless Rudy Giuliani-led legal effort to nullify Biden’s 2020 win.”

Walter Pavlo, writing in Forbes, put Trump’s wielding of the pardon power in perspective:

Pardons are all the rage these days but the system has been broken for years. President Trump, even if he pardons everyone in his administration, is still way behind other presidents who exercised their broad but constitutional power to pardon someone of a federal crime. Here are the facts, Trump has granted clemency/pardons to 44 people during the past four years… compare that to his predecessors;

Barack Obama: 1,927

George W. Bush:  200

Bill Clinton:  459

clemency170206Pavlo notes that “What is most interesting about Trump’s pardons/clemencies are that they are highly political and they are motivated by emotion to right something that he views as a personal wrong that has been done.”  

This suggests, sadly, that Ivan Inmate – unknown except to his family, the Bureau of Prisons and the court that sentenced him – can expect no more consideration from the White House than he’s gotten so far from the Pardon Attorney.

CNN, ‘It’s turned crazy’: Inside the scramble for Trump pardons (December 16, 2020)

Axios, Trump plots mass pardons, even to people not asking (December 8, 2020)

Daily Beast, Inside the Frantic Push to Get Trump to Pardon… Everyone (December 6, 2020)

Forbes, Trump And Pardons … Here’s A Case That Might Interest Him (December 11, 2020)

– Thomas L. Root

Orgeterix Mortuus Est… But I Had Help – Update for December 17, 2020

Leave a comment

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

4th CIRCUIT EXTENDS BURRAGE HOLDING TO DRUG GUIDELINES

Several years ago… OK, several decades ago, I studied Latin in high school under the watchful eye of my sainted Latin teacher, Emily Bernges. When she had us reading Caesar’s Commentaries on the Gallic War, my fellow students and I were taken by Julius’s matter-of-fact report on the denouement of Orgeterix, the Helvetian (think “Swiss”) aristocrat. Orgeterix conspired to take over France, but was hauled off to trial for his nefarious plans, only to be sprung later by 10,000 of his closest friends. After being released, he mysteriously departed this mortal coil. Suicide? Murder? Death by misadventure? No one knows.

orgeterix201217Julius Caesar covered it in the Commentaries with a terse observation: Orgeterix mortuus est. That is to say, “Orgeterix died.”

The drug penalty statute, 21 USC § 841(b), specifies a sentencing enhancement when “death or serious bodily injury results from the use of” the drugs distributed by a defendant. The enhancement is steep: subsection (1)(C), for example, contains no mandatory minimum for distributing small amounts of drug, but “if death or serious bodily injury results from the use of such substance” the minimum is 20 years.

Of course, life is seldom neat, and neither is death. If a defendant hands Abbie Abuser a gram of fentanyl, for example (500 time the lethal dose), and she promptly swallows it all, the grounds for the enhancement are pretty clear. But usually, the victim’s blood turns out to be a toxic waste dump of multiple substances, only one of which came from the defendant. In that case, did “death or serious bodily injury result” from the defendant’s drugs so as to justify the enhanced sentence?

In 2014, the Supreme Court said “no” in Burrage v. United States. Instead, the Court said, when the use of a drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, that defendant cannot be liable for penalty enhancement under 21 USC 841(b)(1) unless such use is a “but-for” cause of the death or injury. Like Orgeterix, the victim mortuus est, but if the mortuus would not have happened but for the defendant’s drugs, no enhancement is appropriate.

sauce170307Burrage settled the issue for the statute. But the sentencing guidelines contain a similar enhancement. We know from Beckles v. United States that it would be a mistake to assume that what’s sauce for the statutory goose is likewise sauce for the Guidelines gander. That is, just because a decision modifies how a statute is applied does not mean that the decision will govern how the Guidelines are interpreted.

Bill Young was convicted of a drug trafficking offense. Because someone he sold drugs to died of an overdose, he received a Guidelines 2D1.1(a)(1) enhancement because death resulted from drugs he sold, setting his Guidelines Base Offense Level at 43.

Burrage only dealt with the 841(b) statute, not the Guidelines. Nevertheless, Bill filed a 2241 habeas corpus action, arguing Burrage was retroactive and the case applied to the Guidelines as well as 21 USC 841(b)(1). He claimed the victim mortuus est, and non one could say his product was the independent cause of death. Last week, the 4th Circuit agreed that Burrage applies to the Guidelines, and ordered the 2241 petition heard.

death200330“For starters,” the Court said, “the language of USSG 2D1.1 significantly parallels the language of 841(b)(1) that Burrage interpreted and that contains the statutory penalty for Young’s charged offense… Because of that parallel language, other courts have recognized that the Guidelines and statute mirror each other in several key respects… We see no reason to treat the Guidelines differently from the statute, especially since they were mandatory when applied to Young.”

Bill was able to take advantage of the 4th Circuit’s Wheeler decision, which permitted him to use a 2241 petition to claim actual innocence of a sentence, not just of a conviction.

Young v Antonelli, Case No 19-7176, 2020 U.S. App. LEXIS 38662 (4th Cir. Dec. 10, 2020)

– Thomas L. Root

For The Want of a Nail… – Update for December 15, 2020

Leave a comment

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

COMPASSIONATE RELEASE AIN’T JUST ANOTHER 2255

career160509Stephen Fine pled guilty in 2014 to a methamphetamine distribution conspiracy (21 USC § 846) and money laundering (18 USC § 1956). At sentencing, the district court found Steve was a Guidelines career offender (USSG § 4B1.1) based on two prior state drug convictions.

As regular readers know, being christened a “career offender” exposes a defendant to dramatically higher Guidelines sentencing ranges.

After conviction, Steve attacked his conviction in a 28 USC § 2255 habeas corpus action, alleging his lawyer had been ineffective. The motion failed. Then in July 2019, Steve filed an 18 USC § 3582(c)(1)(A)(i) sentence reduction motion, asking the court for what is generally known as “compassionate release.”

kleenix201215A momentary frolic into grammar and language: The statute calls the action of a court modifying a sentence in response to a proper motion under § 3582(c) as a “sentence reduction.” Originally, the § 3582(c)(1)(A) motion could only be brought on a prisoner’s behalf by the Bureau of Prisons, something that happened seldom enough to make a Blue Moon seem commonplace by comparison. Nevertheless, the BOP started referring to the motion it alone was authorized to bring as “compassionate release,” and the term – like a brandnomer – stuck. Think “tissue” (sentence reduction) versus “Kleenex” (compassionate release).

A § 3582(c)(1)(A)(i) compassionate release motion must show “extraordinary and compelling reasons” for a sentence reduction. Steve’s extraordinary and compelling reasons were (1) his “post-sentencing rehabilitation” and (2) that he was actually innocent of his sentence, because court decisions since his sentencing had held that the state convictions his judge relied on in declaring him a career offender should not have been counted in that calculus.

His district court turned down the compassionate release motion. Last week, the 8th Circuit agreed.

rehabilitation201215Citing Guideline § 1B1.13 (which, by the way, the 2nd, 4th, 6th and 7th have held does not apply to an inmate-filed compassionate release motion), the 8th Circuit held that rehabilitation alone was not a proper basis for a sentence reduction motion. As for Steve’s claim that he was not properly a career offender – his other extraordinary and compelling reason – the Court noted that his “challenge to the career offender determination was still a challenge to his sentence. A federal inmate generally must challenge a sentence through a § 2255 motion, and a post-judgment motion that fits the description of a motion to vacate, set aside, or correct a sentence should be treated as a § 2255 motion… Even an intervening change in the law does not take a motion outside the realm of § 2255 when it seeks to set aside a sentence… The district court was therefore correct that his challenge to the career offender determination and resulting sentence was an unauthorized successive motion to vacate, set aside, or correct a sentence.”

In a compassionate release motion, a defendant who has established an extraordinary and compelling reason must also show that grant of the motion would be reasonably consistent with the sentencing factors set out in 18 USC § 3553(a). That was where Steve’s sentence argument would have fit. Had he suggested that a sentence reduction would have been consistent with § 3553(a) factors, because the correct punishment – and thus, the punishment society suggests would be adequate but not too great – was really a lot less than what he got.

nail201215Of course, Steve still would have lost, because he was missing an “extraordinary and compelling reason.” Without one of those, none of the rest of § 3582(c)(1)(A)(i) matters at all. For the want of a nail…

United States v. Fine, Case No 19-3485, 2020 U.S. App. LEXIS 38786 (8th Cir Dec 11, 2020)

– Thomas L. Root

Director Says BOP “Has A Sound Pandemic Plan In Place…” As COVID-19 Spirals Out of Control – Update for December 14, 2020

Leave a comment

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

COURT ORDERS BOP TO HONOR SETTLEMENT, WHILE INMATE COVID CASES INCREASE 30% IN ONE WEEK

Ten days ago, the number of Bureau of Prisons inmate COVID-19 cases passed 5,000. That was a first… but it was nothing compared to last week.

As of last Friday, the BOP reported 7,278 ill inmates (a 30% from the week before),1,716 sick staff (up 9% from last week), COVID-19 in 127 BOP facilities and 167 dead inmates. The BOP has tested 58% of all inmates at least once, with the positivity rate continuing to ratchet up. As of last Friday, 34% of all inmate tests are positive for COVID.

BOPCOVID201214

Recall that on December 2, BOP Director Michael Carvajal told a House Subcommittee that the BOP’s COVID-19 “procedures have proven effective as this is evidenced by the steep decline in our inmate hospitalizations, inmates on ventilators and deaths.” Some feel differently.

Last Friday, a Connecticut U.S. District Court found that the BOP had violated its settlement agreement in a class action of 450 medically vulnerable prisoners brought last spring over COVID-19 conditions at FCI Danbury. The unhappy judge ordered the BOP to release 17 medically vulnerable inmates by 5 p.m. the next day (a Saturday), prohibited the BOP from relying on administrative roadblocks to delay the release of those granted home confinement, and directed the BOP to report to the plaintiffs’ attorneys whenever the agency expects to fail to release inmates granted CARES Act home confinement within 14 days of grant.

The court order followed a long hearing the day before, where the court heard about a new Danbury COVID-19 outbreak and the BOP’s corresponding failure to mitigate the spread of the disease. In one week, the number of Danbury COVID-19 cases went from zero to nearly 50. The plaintiffs said despite the BOP’s promise to check daily for symptoms for the duration of the pandemic, the BOP failed to follow this pledge for two weeks during a surge of the disease around the country.

A July settlement of the lawsuit required the BOP to promptly identify prisoners who are low security risks and have a greater chance of developing serious complications from the virus and release them to home confinement. The settlement called for prisoners to be released within 14 days of being approved. But the plaintiffs’ lawyers say some of them have been waiting nearly three months to be released after being approved for home confinement.

whoyabelieve201214The BOP cited several reasons for the delays in releasing the inmates, including required 14-day quarantines due to the virus and BOP guidelines in releasing inmates to the community. The Court was not impressed.

Meanwhile, in Minnesota, the ACLU last week filed suit alleging the BOP’s FCI Waseca has “failed to respond in any meaningful way to the pandemic.” The ACLU says the prison did not release medically vulnerable people from the prison, where two out of three inmates contracted COVID-19, making social distancing impossible.

New Jersey congressional leaders last week renewed their call to end inmate transfers to FCI Fort Dix. Led by Senators Robert Menendez and Cory Booker (both D-New Jersey), the state’s congressional delegation sent a second letter to BOP Director Carvajal week calling for the end of inmate transfers and asking the BOP to outline its plan for allocating and administering the COVID vaccine.

The BOP had previously instituted a moratorium on all inmate transfers to Ft Dix through Nov. 23 as active cases hit 300. The lawmakers and BOP staff have pointed to the October transfer of inmates from FCI Elkton to Ft Dix as the cause of the outbreak. BOP officials have denied the accusation. The moratorium was not extended, the BOP said last week, despite a previous letter from the state’s lawmakers demanding the moratorium continue until there are no active cases at the prison.

“By resuming transfers of incarcerated individuals into and out of the facility in the midst of a severe outbreak, BOP is putting at risk the lives of both staff and incarcerated individuals,” the lawmakers wrote in the letter.

COVIDheart200720The BOP is seeing a resurgence of COVID at institutions where it had previously been controlled. The virus is again at FCC Lompoc, site of one of the worst prison COVID outbreaks in the country, according to the Santa Barbara Independent. An investigation last summer by the Dept. of Justice Inspector General found that the BOP’s initial response to COVID “failed on a number of fronts and likely contributed to the severity of the outbreak, including staffing shortages, inadequate screenings, and a scarcity of protective equipment.”

As of Friday, Englewood and Loretto each have more than 600 sick inmates, Texarkana and Pekin more than 300 each, five more facilities with more than 200, and 12 more BOP institutions with over 100 active COVID cases.

When a local newspaper asked the BOP about Loretto, a spokesman said the prisons are following accepted guidelines. While declining to address the Loretto situation “due to privacy, safety and security reasons,” the spokesman told the paper, “we can tell you all institutions have areas set aside for quarantine and medical isolation.”

Meanwhile, The New York Times last week criticized the BOP for its management of COVID at FDC Brooklyn. Noting that 55 inmates had tested positive for COVID-19, The Times said, “many months into this pandemic, the Federal Defenders of New York, a legal advocacy group, said officials at the jail aren’t following basic public health guidelines to prevent the spread of the virus, to care for sick inmates or to protect those who are most vulnerable. The reports… are disturbing. Corrections officers, they say, aren’t properly wearing masks, including while interacting with inmates. Sick inmates aren’t receiving proper medical attention and are being placed in cells with healthy individuals. One person incarcerated at the facility told an attorney with the Federal Defenders that severely ill inmates who asked for medical attention didn’t get it.”

A BOP spokesman disputed the Defenders’ claims. Nevertheless, the Times said, “if the conditions are anything like what the Federal Defenders describe, they are an affront to human dignity and a threat to the public health of Americans in and out of the Brooklyn facility.”

lies170310And here’s an interesting glimpse at the BOP’s record-keeping, a factoid that could suggest to reasonable people that the BOP’s numbers cannot necessarily be trusted. A Youngstown, Ohio, news website, reporting on Columbiana County, Ohio, COVID numbers, was trying to derive a number of people recovered from the virus. It noted that FCI Elkton – located in the county – reported “896 incarcerated people and 54 employees had recovered from COVID-19 as of today… That number has declined in recent weeks, suggesting the bureau removes cases from its total when people are transferred out of the prison.”

Yale University Law School, CJAC Wins Speedy Release of Medically Vulnerable Individuals from Federal Prison in Danbury (December 12, 2020)

Order, Whitted v Easter, Case No 3:20-cv-00569 (D. Conn, December 11, 2020)

WWLP-TV, Judge orders release of 17 virus-vulnerable federal inmates (December 12, 2020)

KMSP-TV, ACLU sues federal prison in Waseca, Minn. after 67% of inmates test positive for COVID-19 (December 10, 2020)

Burlington County Times, More NJ lawmakers renew call for end to inmate transfers at FCI Fort Dix (December 10, 2020)

Johnstown Tribune-Democrat, Feds: Loretto prison following guidelines (December 11, 2020)

Mahoning Matters, Columbiana County reports 244 new COVID-19 cases, 2 new deaths (December 11, 2020)

New York Times, Stop the Coronavirus Outbreak at Brooklyn’s Federal Jail (December 8, 2020)

– Thomas L. Root

Whither Vaccine? – Update for December 10, 2020

Leave a comment

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

VACCINE DELIVERY TO FALL SHORT WHILE DEBATE OVER INMATE ACCESS INTENSIFIES

The Washington Post reported last Saturday that federal officials have slashed the amount of coronavirus vaccine they anticipate will ship in December because of constraints on supply, sending local officials into a scramble to adjust vaccination plans and highlighting how early promises of a vast stockpile before the end of 2020 have fallen short.

COVIDstockpile201210

And if that were not enough, it now appears that before Pfizer’s coronavirus vaccine was proved highly successful in clinical trials last month, the company offered the Trump administration the chance to lock in supplies beyond the 100 million doses the pharmaceutical maker originally agreed to sell the government. The New York Times reports, however, that the administration, according to people familiar with the talks, never made the deal, “a choice that now raises questions about whether the United States allowed other countries to take its place in line.”

papertiger201210

The President issued an executive order on Tuesday that proclaimed other nations will not get the U.S. supplies of its vaccine until Americans have been inoculated. But, the Times said, “the order appears to have no real teeth and does not expand the U.S. supply of doses…”

Instead of the delivery of 300 million or so doses of vaccine immediately after emergency-use approval and before the end of 2020, as the administration had originally promised, current plans call for availability of around a tenth of that, or 35 to 40 million doses. And that is out of a maximum delivery of 100 million Pfizer doses, enough to inoculate 50 million people.

Meanwhile, The New York Times reported a week ago that as public health officials are scrambling to develop guidelines for the equitable allocation of limited vaccine supplies, “inmates are not ranked in the top tiers of the federal criteria, even though some of the largest outbreaks have occurred in the nation’s prisons.” The CDC advisory committee has prioritized correctional officers and others who work in jails and prisons for the first phase of immunizations, a decision the Times says “raises a chilling prospect: another prison outbreak that kills scores of inmates after the only preventive was reserved for staff.”

corona200313Several groups, including the American Medical Association, are calling for coronavirus vaccines to be given to inmates and employees at prisons, jails and detention centers, citing the unique risks to people in confinement — and the potential for outbreaks to spread from correctional centers, straining community hospitals. “We aren’t saying that prisoners should be treated any better than anybody else, but they shouldn’t be treated any worse than anybody else who is forced to live in a congregate setting,” said Dr. Eric Toner, co-author of a report on vaccine allocation published by the Johns Hopkins Center for Health Security.

But a political backlash has been brewing over the idea that inoculating people behind bars should be a priority. “Killers and rapists set to get COVID vaccines before Granny,” a recent Fox News segment proclaimed.

Curiously (and this should be treated as probably true but unconfirmed) two inmates from two very different locations – FCI Petersburg Medium and FMC Carswell – told me yesterday that BOP health services personnel were surveying inmates at each location to determine their willingness to be vaccinated.

Can we pronounce the word “optimism,” boys and girls?

The Washington Post, Trump’s Operation Warp Speed promised a flood of COVID vaccines. Instead, states are expecting a trickle (December 5, 2020) 

The New York Times, Trump administration officials passed when Pfizer offered months ago to sell the U.S. more vaccine doses (December 7, 2020)

The New York Times, Prisons Are Covid-19 Hotbeds. When Should Inmates Get the Vaccine? (December 2, 2020)

– Thomas L. Root

Higher and Higher… – Update for December 8, 2020

Leave a comment

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

BOP COVID CASES BREAKS 5,000 AS LEGISLATORS GRILL CARVAJAL

rocket-312767BOP inmate COVID-19 cases passed a grim milestone last Friday, rocketing past the 5,000 mark. That number jumped another 10% over the weekend. As of last night, the BOP had ended with

•     5,634 ill inmates (up 15% from the week before);

•    1,613 sick staff (up 12% from last week);

•    COVID in 128 BOP facilities; and

•    163 dead inmates.

The BOP has tested 57% of all inmates at least once, with the positivity rate climbing from 25% – where it has hovered for months – to over 32%.

To put this in perspective, one out of every five federal inmates who has ever had the virus has it right now.

BOPCOVID201208jpg

Two BOP facilities have more than 300 sick inmates, Loretto and Texarkana, three more with over 200 ill, andand another 16 with over 100 COVID cases. USP Tucson has 75 sick staffers, with Pollock in second place with 60 and Oklahoma FTC with 50.

Last Wednesday, BOP Director Michael Carvajal testified before the House Subcommittee on Crime, Terrorism, and Homeland Security. It wasn’t pretty. After he delivered his prepared statement – a BOP puff piece about how in response to COVID-19, the BOP had “implemented a decisive and comprehensive action plan to protect the health of the inmates in our custody, the staff, and the public, to the greatest extent possible, consistent with sound medical and corrections principles” and how the BOP’s “procedures have proven effective as this is evidenced by the steep decline in our inmate hospitalizations, inmates on ventilators and deaths” – the knives came out.

fired161227Subcommittee Chair Karen Bass (D-California) quoted a Dept of Justice Inspector General report that found up to six days elapsed before FCI Oakdale inmates who had been exposed or tested positive for COVID-19 were isolated, and wondered how that squared with the BOP’s representations. Carvajal insisted that the situation in Oakdale was not representative of BOP policies, and blamed the then-warden. “In a nutshell, we had some leadership issues there,” he said. “Our regional director had some concerns about the procedures not being enforced or followed. In essence, without getting into details, I removed the leadership.”

Carvajal pushed back at Subcommittee demands the BOP institute a blanket staff testing plan (arguably a good idea considering that 43% of all staff who have had COVID since March are sick right now). He argued that the BOP could not compel employee COVID tests. But a written statement filed with the Subcommittee by Shane Fausey, national president of the BOP employees’ unions, disputed that, complaining that despite unions’ urging, the BOP “has repeatedly refused” to offer voluntary coronavirus testing to staff members at the prison facility where they work. Instead, Fausey said, “employees who believe they were exposed or might be infected with the coronavirus must get tested on their own time and in their own communities.” For good measure, Fausey also blasted BOP and Marshals Service for transferring inmates without adequate quarantining, which he said has put “the health and safety of tens of thousands of federal correctional workers, their families, and their communities at risk.”

covidtest200420In a separate exchange with Representative Sheila Jackson Lee (D-Texas), the director said he could not force his employees to get tested for Covid-19, although the BOP waives insurance copays for those tests.

“I understand civil liberties, civil rights the Constitution, but you’re talking about individuals coming into contact with incarcerated persons who can’t walk away, who can’t get out,” Jackson Lee said. “And that means they are endangering themselves, their families at home.”

Rep. Hakeem Jeffries (D-New York) braced Carvajal about underutilization of compassionate releases. Before filing for a compassionate release, an inmate must first ask the BOP to bring the motion for him or her, a vestige of the procedure before the First Step Act broadened the law to let inmates bring their own motions. Jeffries noted that while about 2,000 such motions had been granted by courts, the BOP had approved only 11 requests when inmates first asked to the agency to do so. Jeffries asked Carvajal, “10,929 requests out of 10,940 requests were rejected, does that sound right?”

Carvajal said the BOP has been intentionally careful. Given public safety considerations, Carvajal said, the BOP’s approval rate of 0.1% makes sense: it is “not a process that should be rushed.” This suggests that the courts, with compassionate release approval rates that are 182 times higher than the agency, are profligate.

The day before the hearing, Government Executive magazine published a sobering piece in which BOP employees said that staffing shortages and COVID-19 are creating a crisis. “If not for COVID, we would still have augmentation but it wouldn’t be as crazy,” Joe Rojas, a union official. “It’s already a dangerous workplace with COVID and it’s made worse by understaffing.”

quit201208Several employees said they expect that attrition to accelerate in the coming months. Rojas said he and many others have stuck around in part due to a retention bonus the BOP offered to veteran workers in recent years. That incentive is disappearing next year, he said. A BOP spokesman said the Bureau is providing incentives “where appropriate” and taking other steps to boost recruiting. He noted the agency has hired 3,400 employees in 2020, a sharp uptick over recent years.

Already some of the prisons in the Southeast, Rojas said, are operating at 70% or less of their expected workforce level. “You can’t run a prison like that. The seams are going to burst,” he said. “I’m afraid.”

DOJ, Statement of Michael D. Carvajal, Director Federal Bureau Of Prisons (December 2, 2020)

Courthouse News Service, Officials Spar Over Covid Spread Through Prison System (December 2, 2020)

Statement of Shane Fausey, National President, Council of Prison Locals (December 2, 2020)

Government Executive, Federal Prison Employees Fear Staff Shortages and Mass Reassignments as COVID-19 Cases Spike (Dec 1)

– Thomas L. Root

4th Circuit Endorses Compassionate Release for Stacked 924(c) Sentences – Update for December 7, 2020

Leave a comment

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

THE REAL MCCOY


mccoy201207The compassionate release statute, 18 USC § 3582(c)(1)(A)(i), requires that any sentence reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” The policy statement implicated by the statute is set out in USSG § 1B1.13, a Guideline which lists three very specific reasons for granting compassionate release, and a fourth “catch-all” provision permitting grant of a compassionate release motion if “as determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the [other three] reasons.”

USSG § 1B1.13 was written before the First Step Act authorized inmates to file their own sentence reduction motions. The Guideline has never been changed, because the Sentencing Commission has lacked a quorum, and thus has been able to conduct no business, since 2018. But that has not stopped the government from arguing that compassionate release motions could not be granted because the Director of the BOP has not decided that possessing COVID-19 risk factor is an extraordinary and compelling reason for a sentence reduction.

Many judges decided that because § 1B1.13 was written back in the day when only the BOP could file the motion, it was a relic that could be ignored. But not all. The result has been a terrible disparity between district courts in granting compassionate release motions: the same set of facts that justify a sentence reduction in front of one judge would be rejected by another.

Last September, the 2nd Circuit laid down the law on compassionate release in United States v. Brooker (some are calling the case United States v. Zullo), ruling that district courts have broad discretion to consider “any extraordinary and compelling reason for release that a defendant might raise” to justify a sentence reduction under § 3582(c)(1)(A), and that Guideline § 1B1.13 only applies to compassionate release motions brought by the BOP (which would be virtually none of them). Then, two weeks ago, the 6th Circuit followed Brooker/Zullo in United States v. Jones, and the 7th agreed in United States v. Gunn.

Sentencestack170404It may be hard to remember that compassionate release motions get filed for reasons other than COVID-19. One reason advanced by some defendants has been that they received horrific sentences because of stacked § 924(c) convictions. Recall that before First Step, if you robbed a bank with a gun, you got maybe 87 months for the robbery and a mandatory 60 months more for the gun. But rob three banks on successive days, and you would get 87 months for the robbery, 60 more months for the gun used in the first robbery, 300 months more for the gun used the next day, and 300 more months for the gun used the third day. This was because § 924(c) specified that each subsequent § 924(c) conviction carried 300 months. First Step changed that, making clear that the 300-month sentence only applied if you committed a § 924(c) offense after being convicted of the first offense.

First Step did not make the § 924(c) changes retroactive. Nevertheless, after it passed some guys with stacked § 924(c) violations filed compassionate release motions, arguing that it was extraordinary and compelling to make them serve much longer sentences when the law had changed, and people being sentenced now did not face the same penalty.

One guy in Virginia, Thomas McCoy, and three others from Maryland filed such cases. Their respective district courts agreed with the motions, cutting their sentences to time served. But the government appealed, arguing that the sentence reduction did not fit § 1B1.13, and even if they did, the fact that the defendants had stacked § 924(c) sentences was not extraordinary and compelling because in First Step, Congress decided against retroactivity of the First Step changes to § 924(c). Last week, the 4th Circuit sided with the defendants, in the process pushing the bounds of compassionate release to new horizons.

The 4th Circuit agreed with Brooker, Gunn and Jones that § 1B1.13 – because it refers only to compassionate release motions filed by the BOP – is not an “applicable policy statement” within the meaning of the statute, and thus may be ignored.

draco201207Beyond that, the 4th rejected the Government’s argument that there was nothing wrong with holding the defendants to their draconian sentences, ruling instead that “the district courts in these cases appropriately exercised the discretion conferred by Congress… We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions…”

The appellate holding is huge, suggesting that sentence unfairness and rehabilitation gives sentencing judges the right to make sentence reductions under § 3582(c)(1)(A)(i).

United States v. McCoy, Case No 20-6821, 2020 U.S. App. LEXIS 37661 (4th Cir., Dec. 2, 2020)

– Thomas L. Root

Pinching a Statute ‘Til It Hollers: BOP and Earned Time – Update for December 2, 2020

Leave a comment

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

BOP ROLLS OUT PROPOSED FSA EARNED TIME RULES

Twenty-three months after passage of the First Step Act authorized the Federal Bureau of Prisons to give earned time credits to inmates who complete programs that have been shown to reduce recidivism, the BOP is finally getting around to adopting rules on how such credits will be rewarded. And, unsurprisingly, the BOP is making Ebenezer Scrooge look like Santa Claus.

scrooge201202First Step focused on assessing each prisoner’s likelihood of recidivism and rolling that assessment into a recidivism and needs assessment system known as PATTERN. The BOP was then to determine which of the programs identified as likely to reduce recidivism each inmate needed. As the inmate completed the programs, he or she would see the PATTERN score – ranging from “high risk” down to “minimum risk” – decrease. To encourage the prisoners to complete the programs, First Step authorized the award of “earned time credits,” equal to 10 to 15 days for each 30 days of programming completed. The earned-time credits can be used for more halfway house, more home confinement, or up to 12 months of early release.

Of course, the devil’s in the details. The language in the Act says:

A prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.

rules201202What exactly does First Step mean by “30 days of successful participation?” The BOP has finally announced proposed rules to define that, and the definition is a doozy.

The proposed rule figures that “30 days” means 30 program days. A “program day” is eight hours, the BOP says. In other words, a 500-hour program would be worth 500 hours/8 hours-to-a-day, or 62.5 program days. Completion of the 500-hour program would award an inmate two months (60 days) of program credit, which is worth 20 days earned time credit for inmates with medium or high recidivism risk, and 30 days credit for inmates with minimum or low risk.

In the BOP, a 500-hour program takes 12-18 months to complete.  That may seem like a fairly substantial commitment for a month more of home confinement. But it is consistent with what we’ve come to expect from the BOP: given a chance to interpret the extent of its authority to be lenient, it invariably interprets that authority in the most chary way possible.

results201202The proposed rule does settle one question which has been coming up often in the last few months: FSA earned time credits may only be earned for successful completion of an Evidence-Based Recidivism Reduction Program and Productive Activity assigned to the inmate based on the inmate’s risk and needs assessment, and only for those successfully completed on or after January 15, 2020.

The proposed rule does not address the procedures for determining whether an individual inmate will have FSA earned time credits applied towards prerelease custody, early transfer to supervised release, a combination of both, or neither. Instead, it only addresses the procedures for earning, awarding, loss, and restoration of FSA credits.

The public may submit comments to the BOP on the proposed rule until January 25, 2021.

Federal Register, Proposed Rule: FSA Time Credits (November 25, 2020)

– Thomas L. Root