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Clemency Should Be ‘Easy Lift’ For Biden, Some Say – Update for October 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.

BIDEN CARES ACT CLEMENCY CALLED INADEQUATE

We know a little more about the Biden Administration’s plan to solicit commutation applications from some CARES Act prisoners on home confinement, and as more is known, the criticism is mounting.

clemencypitch180716A few weeks ago, the Department of Justice started sending out commutation applications to about 1,000 people (about one out of four those on CARES Act home confinement). Biden is targeting people who have been convicted of a drug offense and have four years or less remaining on their sentences, directing them to apply to DOJ’s Office of the Pardon Attorney.

Last week, The New Republic observed that “Biden is wedded to an inefficient process that’s created a backlog of close to 16,000 petitions. The administration is going out of its way to frame its approach as the opposite of Trump’s chaotic one, which bypassed the Justice Department and freed people seemingly based on the president’s whims.” The New York Times reported last spring that Biden intends to “rely on the rigorous application vetting process,” as opposed to Trump’s approach, “empowering friends, associates and lobbyists to use their connections to the president, his family and his team to push favored requests to the front of the line…”

clemencybacklog190904

But the need to rely on the DOJ pardon system doesn’t sit well with some. Last week, Amy Povah, founder of the Can-Do Clemency Project, told Forbes, “President Biden has been handed an easy political gift. There are 4,000 inmates functioning in society, obeying the laws, bonding with family and held accountable for their past actions. There is no better group vetted to be given clemency than this group of CARES Act inmates… If those at home under CARES Act don’t all qualify to stay there, I’m concerned that we’re dealing with an overly conservative mindset, not consistent with the will of those who voted for President Biden.”

“This should be an easy lift for the Biden administration,” law professor Mark Osler, a former Assistant U.S. Attorney, told The New Republic. “They were handed a carefully vetted group of people who even Attorney General Barr thought should be out in society.”

Osler said the system Biden wants to rely on doesn’t work. “The fact that their commitment to a broken process is going to undermine this is really disappointing,” Osler told TNR. He has long argued that clemency cases should be taken away from DOJ. Before a case makes it to the President, Osler said, “the first thing the pardon attorney’s staff do is seek out the opinion of the local prosecutor and then give that opinion substantial weight. What do you think is going to happen?”

clemency170206No one is saying whether special considerations will be applied to CARES Act home confinees, allowing them to skip DOJ Pardon Attorney review and that office’s embarrassing backlog of cases. FAMM president Kevin Ring complained last week that outside of what they’ve seen in the media, no one knows what Biden plans. “It’s a crazy lack of transparency,” Ring said. “Friday afternoon, there’s a phone call to BOP halfway houses saying, this person should fill out a clemency petition in the next couple of days. Who? Why? What [are] the criteria?”

Unsurprisingly, the pressure remain high for Biden to do more. A week ago, five members of the Maryland congressional delegation wrote to Attorney General Merrick Garland and BOP Director Michael Carvajal, asking for reconsideration of the Trump-era legal opinion (which the Biden DOJ has agreed with) that CARES Act people have to return to prison after the COVID-19 emergency passes. And last Friday, three national law enforcement organizations – the Law Enforcement Leaders to Reduce Crime & Incarceration, Law Enforcement Action Partnership, and Fair and Just Prosecution — wrote to the President to urge him “to use your clemency power to ensure that all people successfully placed on home confinement under the CARES Act do not return to full custody.”

While all of the attention seems to be on CARES Act people, any focus on a re-do of the DOJ pardon system will ultimately benefit prisoners whether still in prison or at home.

Forbes, Biden Considering Options To Avoid Returning Federal Inmates To Prison Post Covid-19 (September 19, 2021)

The New Republic, Biden’s Conservative Vision on Clemency (September  21, 2021)

Maryland Congressional Delegation, Letter to Attorney General (September 17, 2021)

Law Enforcement Action Partnership, Letter to President Biden (September 24, 2021)

– Thomas L. Root

EQUAL Act Jumps Low Hurdle, High Hurdle is Next – Update for September 30, 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.

HOUSE PASSES EQUAL ACT

crackpowder160606Over 25 years ago, the United States Sentencing Commission – never a hotbed of progressive thought – concluded that the draconian drug policy of considering every gram of crack cocaine to be the equivalent to 100 grams of powder cocaine was irrational and resulted in disproportionately severe crack sentences being imposed mostly on black defendants.

But just as sex sells in the marketing ethos, outrageous punishment sells in the political world. At least until a few years ago, no member of Congress ever lost an election because he or she was too tough on crime.

Fourteen years ago, Presidential candidate Barack Obama decried the crack-to-powder disparity, and in April 2009, his Dept of Justice lobbied for the elimination of the 100:1 ratio. The House passed a 1:1 bill that year, but by the time the Senate took it up the following summer, 1:1 had become 18:1 in order to satisfy certain troglodytes in that chamber, chief among them the unlamented former senator Jefferson Beauregard Sessions III of Alabama.

Jefferson Beauregard Sessions III
Jefferson Beauregard Sessions III

The resulting Fair Sentencing Act mandated a new 18:1 crack/powder quantity disparity ratio, but without retroactivity, so that accidents of time hammered a defendant who was sentenced in July 2010, for example, with a 100:1 sentence, while one whose lawyer managed to delay sentencing until the dog days of August benefitted from a much shorter mandatory minimum. Under this formula, people caught with 28 grams of crack receive the same sentence as someone caught with 500 grams of powder cocaine, despite the American Medical Association’s findings that there is no chemical difference between the two substances.

The Fair Sentencing Act became retroactive to all defendants with crack mandatory minimums (but see United States v. Terry) by the passage of the First Step Act in December 2018.

Fast forward to last week. The EQUAL Act, pending in both houses of Congress, proposes the elimination of any disparity between crack and powder cocaine. But Sen Charles Grassley (R-Iowa) a conservative lawmaker from the heart of the corn belt but a champion of criminal justice reform, said candidly that he didn’t think he could find enough Republican votes to come up with the 60 needed to pass the EQUAL Act in the Senate.

This past Tuesday, the House decided to give Grassley the chance to try anyway, passing the EQUAL Act (H.R. 1693) by a lopsided vote of 361-66. (Grassley may have a point. All 66 nay votes in the House were from GOP lawmakers).

Surprisingly (at least to me), Representative Louie Gohmert (R-Texas), a former judge who has said some people – not without some justification, I might add – think he is the “dumbest guy in Congress,” was a sponsor of the EQUAL Act. The Congressman said the measure was “a great start toward getting the right thing done. He said during floor debate that as a judge, “Something I thought Texas did right was [to] have an up-to-12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they’ve got a better chance of making it out, understanding just how addictive those substances are.”

In the Senate, at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A Senate version of the EQUAL Act, S.79, was introduced by Sen. Cory Booker (D-NJ) and currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Kentucky), and Thom Tillis (NC). It remains before the Committee on the Judiciary.

The House version of the EQUAL Act that just passed provides that in the case of a defendant already serving a sentence based in any part on cocaine base may return to court to receive a sentence reduction, in a procedure that appears to be similar to the Section 404 procedure for Fair Sentencing Act retroactive resentencings, but with one interesting twist: Section 404 proceedings do not require the district judge to consider whether a sentence reduction is consistent with the sentencing factors in 18 USC § 3553(a). The EQUAL Act procedure permits imposition of a sentence reduction only “after considering the factors set forth in section 3553(a) of title 18, United States Code.”

Is this a good thing? Probably anything that adds structure (however slight) to the process is beneficial. Without any standard, nothing prevents a district judge from making arbitrary decisions. Even with a § 3553(a) requirement, a Sentencing Commission study of the compassionate release process has found that a defendant’s likelihood of success ranged from about 70% in Oregon to a lousy 1.5% (Western District of North Carolina).

crack-coke200804Anything that can avoid swapping one disparity for another is probably a good thing.

So what would be the practical effect of such a change? When the Fair Sentencing Act passed, the U.S. Sentencing Commission responded by reducing sentencing ranges across the board for crack offenses, so that a five-year mandatory sentence for a defendant without a prior criminal history possessing 28 grams of crack equaled what the Guidelines said his sentence should be. If the ratio falls to 1:1, and if the Sentencing Commission makes the same adjustments, a hypothetical defendant with no prior record (and no sentencing enhancements) would see the following sentencing range adjustments:

chart210624

Of course, as they say in the commercials, “actual results may vary.” But if the courts are mandated to consider § 3553(a) first, maybe they will vary less.

But first, the EQUAL Act has to pass the Senate…

– Thomas L. Root

‘What Might Have Been’ Part of § 3553(a) Analysis, 9th Circuit Says – Update for September 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.

A HOLDING OF CONSEQUENCE

A 9th Circuit decision handed down last Thursday appears arcane, but it is very consequential for current and future compassionate release and retroactive Guidelines reductions that will certainly be adopted in the future.

A decade ago, Jose Lizarraras-Chacon was convicted of heroin distribution. He entered into a Rule 11(c)(1)(C) plea agreement for 210 months. After the First Step Act passed, he filed for the 2014 Guidelines Amendment 782 two-level reduction under 18 USC § 3582(c)(2). Jose pointed out to the court that after First Step, his prior state drug conviction the government had used to enhance his sentence with a 21 USC § 851 notice no longer counted as a felony drug case.

criminalrecord2100928A § 3582(c)(2) motion requires a court to first consider whether a defendant’s sentencing range has gone down because of a retroactive Guidelines change. If it has, the court has to consider whether to reduce the sentence in light of the 18 USC § 3553(a) sentencing factors. Jose argued that the court should consider that fact he could no longer get enhanced under 21 USC § 851 if he were sentenced after First Step. The district court refused, saying it was not allowed to consider subsequent changes in the law when reaching a § 3582(c)(2) decision.

The 9th Circuit reversed, holding that a court’s discretionary decision under the § 3553(a) factors at step two of the § 3582(c)(2) inquiry “exceeds the limited scope of a resentencing adjustment applicable to step one.” While at step one, a district court may substitute only the new Guidelines amendments for the guideline provisions applied when the defendant was sentenced, “at step two, there are no similar limitations on what a district court may consider.”

“An underlying principle in federal judicial tradition is that the punishment should fit the offender and not merely the crime,” the Circuit held. “In seeking to ensure that the punishment fit the offender, the Supreme Court has explained that judges should use the fullest information possible concerning the defendant’s life and characteristics… It follows that in a § 3553(a) factor analysis, a district court must similarly use the fullest information possible concerning subsequent developments in the law, such as changes in sentencing guidelines, legislative changes to a mandatory minimum, and changes to a triggering predicate offense to ensure the punishment will fit the crime and critically, to ensure that the sentence imposed is also sufficient, but not greater than necessary to reflect the seriousness of the offense, promote respect for the law, and provide just punishment; to afford adequate deterrence; and to protect the public.”

The Court’s analysis should apply equally to § 3553(a) factors being considered for compassionate releases. The decision means that when arguing whether a sentence is “just punishment” or provides deterrence, the fact that the sentence originally opposed would be unlawful if handed down today should have a major impact on a district court’s reasoning.

United States v. Lizarraras-Chacon, Case No. 20-30001, 2021 U.S.App. LEXIS 28823 (9th Cir., September 23, 2021)

– Thomas L. Root

Police Reform Goes Down; EQUAL Act May Be Next – Update for September 27, 2021

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

NO GOOD NEWS ON CRIMINAL JUSTICE REFORM

good-bad-news-400pxDemocratic and Republican negotiators in the Senate last Wednesday called off talks aimed at overhauling police tactics and accountability, with the lawmakers unable to reach a compromise in the wake of nationwide protests sparked by the killings of Black Americans by law-enforcement officers.

Sen. Cory Booker (D-NJ) said, “In the end we couldn’t do it, if you just take some of those issues of transparency, professional standards and accountability, we couldn’t get there.”

The implications for criminal justice reform are significant. If the two parties can’t get together on reforms most everyone believes are needed, other reform measures could be stillborn. Last week, Sen Charles Grassley (R-Iowa) – one of the two sponsors of the First Step Act – said that the EQUAL Act, which will reduce penalties for crack to match those for powder cocaine, doesn’t have enough support in the Senate to pass. Attempting to eliminate the disparity, Grassley said last week, would jeopardize the likelihood he and Sen. Richard Durbin (D-Illinois) can get the 60 votes needed to bring the justice reform bills to the floor. Among Republican colleagues, it’s a non-starter, he said.

compromise180614“Does that mean that there’s not some possibility for compromise? I would be open to that, but I’m going to have to get enough Republicans to go along to make sure we don’t scuttle the other good provisions we have,” Grassley said.

Although optimistic about prospects for his justice reforms, such as the First Step Implementation Act and the COVID-19 Safer Detention Act, Grassley acknowledged the looming challenge is “dealing with all the other things that are on the agenda right now and have been all year.” He anticipates Democratic Senate Majority Leader Chuck Schumer (D-NY) will give Durbin and him time to debate and pass their package this fall. “But with the progress of negotiations and floor time and all the other stuff that’s in the news more often than this is, I think it could be delayed into 2022,” Grassley said.

Grassley’s realistic appraisal is in stark contrast to the hopeful tone in yesterday’s New York Daily News. William Underwood, whose life sentence was cut by compassionate release and who now works with The Sentencing Project, wrote that while “bipartisanship on Capitol Hill is in short supply these days, these bills can pass the Senate with broad support from both parties. Passing these two bills would acknowledge that each and every one of us, when given the opportunity, can be better than the worst thing we have ever done.”

marijuana160818One piece of hopeful news came last week with the House of Representatives passing the National Defense Authorization Act. Tucked into that bill were provisions of the SAFE Banking Act, which would protect banks by prohibiting regulatory actions to keep them from servicing legitimate marijuana businesses. Passage suggests that action to normalize the sale and use of marijuana may continue, and lead to retroactive changes in federal criminal pot laws.

Wall Street Journal, Bipartisan Police-Overhaul Talks End With No Deal (September 22, 2021)

Sioux City Journal, Grassley skeptical of GOP support for cocaine penalty reforms (September 20, 2021)

Marketwatch, House includes cannabis banking measure in defense bill (September 22, 2021)

New York Daily News, Bend Open the Prison Bars (September 26, 2021)

– Thomas L. Root

Going Back to the Well – Update for September 24, 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.

PROCEDURAL BOOTSTRAPPING

well210924Back to the Well Once Too Often: Federal prisoners who lose their 28 USC § 2255 motions sometimes resort to filing motions to set aside the § 2255 judgment under Federal Rule of Civil Procedure 60(b), as a clever means of getting around seeking permission for a second or successive § 2255 under 28 USC § 2244. It seldom works.

A few fun facts: First, although a post-conviction motion under 28 USC § 2255 challenges a criminal conviction or sentence, the § 2255 proceeding itself is considered to be a civil action. That is how a movant even has the option to employ Fed.R.Civ.P. 60(b), or any other Federal Rule of Civil Procedure, for that matter. Second, Rule 60(b) – which governs motions to set aside the judgment – is usable after a final judgment is rendered, although that some time constraints and designated bases for invoking the Rule that are beyond today’s discussion. Third, the Anti-Terrorism and Effective Death Penalty Act – known as the AEDPA – puts severe restrictions on prisoners bringing more than a single § 2255 motion without meeting some pretty high standards (a new retroactive rule of constitutional law or some killer new evidence) and getting advance approval from a United States Court of Appeals under 28 USC § 2244. These restrictions can run headlong into a Rule 60(b) motion.

Desmond Rouse and several co-defendants were convicted based on what they called “outdated, false, misleading, and inaccurate” forensic medical evidence, testimony that had since been recanted, and juror racism. Having failed to win their § 2255 motions, they filed a motion to set aside the § 2255 judgment under Rule 60(b), arguing that a “new rule” announced in Peña-Rodriguez v Colorado would now let them “investigate whether their convictions were based upon overt [juror] racism,” and the witness recantations showed they were actually innocent.

Last week, the 8th Circuit rejected the Rule 60(b) motion as a second-or-successive § 2255 motion.

aedpa210504The Circuit held that newly discovered evidence in support of a claim previously denied and a subsequent change in substantive law “fall squarely within the class of Rule 60(b) claims to which the Supreme Court applied § 2244(b) restrictions in Gonzalez v. Crosby back in 2005. The requirement in § 2244(b)(3) that courts of appeals first certify compliance with § 2244(b)(2) before a district court can accept a motion for second or successive relief applies to Rule 60(b)(6) motions that include second or successive claims. Our prior denial of authorization did not sanction Appellants’ repackaging of their claims in Rule 60(b)(6) motions to the district court. The motions are improper attempts to circumvent the procedural requirements of AEDPA.”

Back to the Well is Just Fine: In the 7th Circuit, however, a prisoner who filed reconsideration on denial of his First Step Act Section 404 motion chalked up a procedural win. Within the 14 days allowed for filing a notice of appeal after his district court denied him a sentence reduction, William Hible filed a motion asking the district judge to reconsider his denial. The judge denied the motion, and Bill filed his notice of appeal, again within 14 days of the denial. The government argued the notice was late, because a motion for reconsideration doesn’t stop the appeal deadline from running.

Last week, the 7th Circuit agreed with Bill. The 7th observed that while the Federal Rules of Criminal Procedure lack any parallel to the Federal Rules of Civil Procedure 59, the Supreme Court “has held repeatedly that motions to reconsider in criminal cases extend the time for appeal. But under the Sentencing Reform Act of 1984, only Criminal Rules 35 and 36 offer any prospect of modification by the district judge. Rule 36 is limited to the correction of clerical errors. Under Federal Rule of Appellate Procedure 4(b)(5), a motion under Rule 35 does not affect the time for appeal.

 timewaits210924The government argued these rules govern sentence reduction proceedings, but the 7th disagreed. The Circuit said the First Step Act authorizes reduction of a sentence long after the time allowed by Rule 35. Thus, “the First Step Act’s authorization to reduce a prisoner’s sentence is external to Rule 35,” so the provision in Rule 4(b)(5) about the effect of Rule 35 motions does not apply here. A reconsideration motion in a 404 proceeding thus stops the running of the time to appeal, and Hible’s notice of appeal was timely.

Rouse v. United States, Case No. 20-2007, 2021 U.S. App. LEXIS 27795 (8th Cir., September 16, 2021)

United States v. Hible, Case No. 20-1824, 2021 U.S. App. LEXIS 27548 (7th Cir., September 14, 2021)

– Thomas L. Root

Clemency Tips – Update for September 23, 2021

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

YOU’RE STILL LOCKED UP – SHOULD YOU FILE FOR CLEMENCY?

writing160425On Monday, I wrote about the Biden clemency initiative. And I have gotten questions about it, principally this one: What should you do if you’re not in the cohort of 1,000 people on CARES Act home confinement that Joe purportedly has asked to submit a clemency request?

Write one anyway. Like the lottery people say, you can’t win if you don’t buy a ticket. The commutation forms and instructions are available online. You probably should get your application in the hopper anyway, doing your best to show that you’re non-violent, show rehabilitation during your incarceration, and explain why your situation is similar to the 1,000 prisoners invited to file or otherwise praiseworthy.

Some pointers:

A commutation petition is not the time to say this...
A commutation petition is not the time to say this…

(1) No one cares about your innocence: Explaining that you’re actually innocent or that you were convicted by bad lawyering, corrupt courts, or cheating prosecutors is a bad idea. No one in the Administration wants to hear that, even if it happens to be so. The commutation process wants to hear about your remorse and rehabilitation, not about how you may have been done wrong. Clemency is an act of executive grace, completely discretionary and utterly unreviewable. Imagine that you have a gun with only one bullet. This shot absolutely has to count. Whining about your judge or lawyer fires your one bullet right into your foot.

(2) Truth counts:  Maybe the “gun with one bullet” analogy isn’t such a good one. You want to demonstrate that Gandhi has nothing on you when it comes to non-violence, but don’t sugar-coat things. If you were a hot-blooded young gun in your past, admit that and explain how you’ve aged out of it, found a spiritual path, whatever. But be truthful about your history. Glossing over prior conduct figuring that no one in Washington will examine your past in too much detail is not a winning strategy. Betting on the other side being lazy or incompetent is no plan.

(3) Reach for the possible, not the ideal. You want a pardon. Of course you do. Everyone would love to have his or her federal crime wiped off the books. But, if history is a guide, pardons are for celebrities – political or otherwise – or, if you’re a little guy, for people with decades-old offenses and a history since conviction that should make them Time’s Person of the Year. You want a pardon, sure. But that ain’t gonna happen. File for a commutation, which does not forgive your crime, but says that you’ve been punished enough and should have the rest of your sentence commuted.

So how should you write your petition? Attorney Brandon Sample has posted tips on writing clemency petitions at clemency.com. (Brandon’s site contains a lot of good information, and invites you to contact him – which is not to say that hiring Brandon or another attorney who knows the process is a bad idea: it’s a very good idea, especially if you have a decent shot at getting some traction from the Biden initiative).  

Speaking of lawyers, Margaret Colgate Love – who was U.S. Pardon Attorney during the George H.W. Bush and Bill Clinton administrations – has written a lot on clemency and is available for hire as well.

There are other effective legal advocates out there, too. I have just mentioned two whose work for which I have respect.

obtaining-clemencyWhile not attorneys for hire, the people at Amy Povah’s Can-Do Foundation – focused on clemency for non-violent drug offenders –have posted some tips on applying for clemency or (and this is important) getting friends or family to write in support. Some of Can-Do’s information is a little dated, having been written during the Wild West days of Trump clemency, but there are nuggets of good advice on the website.

Finally, while its focus is slightly different (or perhaps larger than just clemency), Attorney Brittany Barnett’s Buried Alive project has worked on some high-profile commutation as part of its work on drug life-without-parole sentences. Alice Marie Johnson, one of President Trump’s most deserving commutations (and later, pardons), was represented by Barnett.

Dept. of Justice Pardon Attorney website

Brandon Sample, Clemency Resources

Margaret Colgate Love, Clemency Resources

Can-Do Foundation, Clemency Resources

Buried Alive Project

– Thomas L. Root

BOP, COVID, Vaccine and Rumors – Update for September 21, 2021

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

COVID’S GRIP

coviddelta210730Despite the BOP’s best efforts to quickly declare COVID-suffering inmates to be “recovered” – which the agency insists is done in conformance with Centers for Disease Control and Prevention guidelines – the numbers continue to creep upward. As of yesterday, the BOP reported 627 inmates (up 13%) with COVID. The agency reported four more inmate deaths than a week ago. Staff numbers were holding at 562, down one from a week ago.

The BOP phenomenon of inmates dying of COVID weeks or months after “recovery” was noted last week by the Beaumont Enterprise. That is hardly surprising. Even if the BOP is carefully determining that “recovered” inmates have no symptoms 10 days after a positive COVID test – and a number of inmate reports suggest that the agency’s approach to “recovered” is fairly slapdash – that does not mean the inmate is “recovered.” Guidance released last week by the CDC states that this means simply that “isolation and precautions can be discontinued 10 days after symptom onset and after resolution of fever for at least 24 hours, without the use of fever-reducing medications, and with improvement of other symptoms.”

As many prisoners have found out, COVID may be a long-haul thing. A CDC study released last week reported that one in three people who survived COVID-19 may suffer from long COVID. The study found that 35% of survey responders reported at least one ongoing symptom of COVID-19 two months after the initial positive test. Fatigue was reported by 17% of those long COVID patients; difficulty breathing and loss of taste or smell were reported by 13%; and muscle or joint pain was reported by 11%.

COVIDvaccine201221As of last Friday, 61.6% of BOP inmates had been vaccinated. Staff vaccinations still lag at 54.0%, up only 4/10th of a point since last week. That may be changing, however. The Safer Federal Workforce Task Force last week set November 22 as the deadline for federal employees to get fully vaccinated under President Biden’s new mandate. By and large, the staff will either get vaxxed or quit (bad news for an already-understaffed BOP).

However, 24 Republican state attorneys general warned the Biden administration last week that their states would sue to block the federal employee mandate if the plan is not abandoned.

Forbes last week noted that the pandemic had not particularly influenced federal criminal sentences. It noted that in Fiscal Year 2020, federal judges cited the Covid-19 pandemic as a basis for lower sentences in just over just 2.5% of all cases at most. Forbes cited SDNY Judge J. Paul Oetken’s observation that time served during the pandemic is “essentially the equivalent of either time and a half or two times what would ordinarily be served,” and SDNY Judge Paul A. Engelmayer’s statement that “prison is supposed to be punishment, but it is not supposed to be trauma.”

unicorn210921That being the case, there is no truth to the rumor, reported regularly by inmate emails, that anyone – Biden, Congress, or even the shuttered Sentencing Commission – is considering an across-the-board sentence reduction for federal inmates because of the pandemic. You can expect that if that happens, President Biden will personally ride up to BOP headquarters on a pink unicorn to deliver the happy news.

Beaumont Enterprise, Second senior, COVID recovered federal inmate dies in Beaumont (September 15, 2021)

Los Angeles Times, 1 in 3 COVID-19 patients suffer from long COVID, a CDC study of Long Beach residents finds (September 16, 2021)

CDC, Ending Isolation and Precautions for People with COVID-19: Interim Guidance (September 14, 2021)

CDC, Post-Acute Sequelae of SARS-CoV-2 Infection Among Adults Aged ≥18 Years — Long Beach, California, April 1–December 10, 2020 (September 17, 2021)

Government Executive, Coronavirus Roundup: A November 22 Deadline for Feds to Get Vaccinated; Booster Shot Clashes (September 14, 2021)

Columbus Dispatch, Ohio and 23 other state attorneys general tell Biden to drop vaccine mandate or be sued (September 17, 2021)

Forbes, The U.S. Sentencing Commission’s Inadequate Response To Covid-19 (September 17, 2021)

– Thomas L. Root

Biden Proposes Clemency Lite – Update for September 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.

ADMINISTRATION TROTS OUT COMMUTATION PLAN THAT IS OPAQUE AND TINY

clemencypitch180716President Biden’s administration last week announced something that looks like a clemency plan, only much smaller. Last Monday, White House spokesman Andrew Bates said the Administration “will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve.”

Those who have been invited to apply fall into a specific category: drug offenders released to CARES Act home confinement who have four years or less on their sentences. Neither the White House nor the Dept of Justice would say how many people have been asked to submit commutation applications or whether it would be expanding the universe of prisoners who would be considered.

However, according to news reports, about 1,000 home confinees – about 25% of the people on CARES Act home confinement – are included in the batch the White House wants to review. Weldon Angelos, who was pardoned for a marijuana conviction by President Donald Trump last year and works with the current administration on criminal justice reform, told Marijuana Moment that about 1,000 people were asked to report to their designated halfway houses to fill out the clemency form in recent days.

Udi Ofer, the ACLU’s deputy national political director, said he was troubled by the possibility that the White House was cleaving off CARES Act recipients into those deserving commutation and those who didn’t, arguing that the Bureau of Prisons, in originally releasing inmates under the CARES Act, had already made a determination between those who posed a threat of violence and those who didn’t.

clemency170206“We are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency,” Ofer told Politico.

Others disagree that then BOP’s decisions on home confinement – which have largely been delegated to 122-odd executive officers at BOP facilities – are a consistent or reliable indicator of who should get clemency. “It’s not clear how the Bureau of Prisons chose people for this home confinement program, which raises the question of whether it’s fair to give a special benefit to these folks not available to those who have filed clemency petitions sometimes years ago and have been patiently waiting,” said former DOJ Pardon Attorney Margaret Love.

Biden’s limited clemency plan appears not to be enough for some lawmakers. Last Friday, 28 House Democrats called on Biden to commute the sentences of all 4,000 CARES Act home confinees, as well to establish a review board for pending clemency petitions.

“We urge you to use your authority as President to immediately commute the sentences of the 4,000 people who, under the [CARES Act], are currently on home confinement and at risk of being sent back to federal prison, and further, to create an independent clemency board to review the more than 15,000 pending clemency petitions,” the letter, spearheaded by Reps. Cori Bush (Missouri), Bonnie Watson Coleman (New Jersey), Pramila Jayapal (Washington), and David Trone (Maryland), said.

The President had announced in May that he would tackle clemency in 2022.

noplacelikehome200518A BOP spokesperson told The Hill last week that the agency is focused on the “expanded criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred… The BOP and the [Department of Health and Human Services] continue to explore all potential authorities that could be exercised after the end of the pandemic to help address this issue.”

Politico, Biden starts clemency process for inmates released due to Covid conditions (September 13, 2021)

CNN, Administration to start clemency process for some federal inmates on home confinement due to Covid conditions (September 13, 2021)

Marijuana Moment, Biden Administration Asks Prisoners with Certain Federal Drug Convictions to Apply for Clemency (September 13, 2021)

The Hill, Democrats urge Biden to commute sentences of 4K people on home confinement (September 17, 2021)

– Thomas L. Root

There Ain’t No Easter Bunny… – Update for September 16, 2021

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

HOW’S THAT 65% BILL DOING?

After answering yet another email about the mythical 65% bill – legislation that purportedly would reduce everyone’s sentence to 65% of what the court imposed – I thought I would lead with this sad news:

There is no Santa Claus. There is no Easter Bunny. And there is no 65% Bill.

easterbunny210916While Congresswoman Sheila Jackson Lee (D-Texas) has introduced such a bill in a number of previous sessions of Congress since 2001, there is no such bill in the hopper now. When she did introduce it, the bill never even got a committee hearing. If it did exist, it wouldn’t get one now. A 65% bill would stand a chance of passage approaching zero.

In sum, the so-called 65% bill is like a pink unicorn: fun to imagine, but not real. And neither is the rumor that everyone will get a sentence cut because of COVID.

So what is real? First, a letter sent last week by 25 state attorneys general to House and Senate leadership, urging an expansion of Section 404 of the First Step Act to include people sentenced under 21 USC § 841(b)(1)(C). You recall that in Terry v. United States last June, the Supreme Court held that Section 404 did not qualify pre-2010 crack sentences for sentence reduction. The state attorneys general want legislation to change that.

Second, a lot of criticism of the President over the CARES Act. Writing in the Washington Examiner last week, Matt Schlapp – chairman of the American Conservative Union – argued that Congress should act to ensure that CARES Act home confinees stay at home after the pandemic ends. He wrote, “As a former influential senator and Judiciary Committee chairman, President Joe Biden is at least partially responsible for the explosive growth of our federal prison population. His legislative record is riddled with bills he supported, and sometimes wrote, that filled BOP cells and encouraged states to do the same. Indeed, there are thousands of Americans still serving draconian sentences authorized by some of then-Sen. Biden’s bills.”

chart210624Meanwhile, a piece in the Deseret News made the conservative argument for the EQUAL Act, which would retroactively make crack cocaine sentencing levels equal to those of powder cocaine: The EQUAL Act already passed through the U.S. House Judiciary Committee with a vote of 36-5, garnering support from both sides of the aisle. It faces another battle to pass through the rest of Congress, and Utah’s delegation should be there to vote in support. The debate over crack versus powder cocaine has no basis in science, in rationality, or in ethics. Because of this, many individuals have been needlessly imprisoned for far too long in comparison to the crime committed. Congress should pass the EQUAL Act to ensure these penalties are equalized and fairness is restored to criminal sentencing.”C

So when will Congress get to any criminal justice reform measures? No one knows. Only a few bills have been voted out of committee in the Senate – the COVID-19 Safer Detention Act, the First Step Implementation Act of 2021, and the Prohibiting Punishment of Acquitted Conduct Act. In the House, the EQUAL Act is the only criminal justice bill voted out of committee. No floor votes have been scheduled for any bills. With infrastructure and the $3.5 trillion spending bills taking center stage in Congress, it is unlikely that criminal justice reform will get any attention until next year.

Letter to Sens Charles Schumer and Mitch McConnell (September 2, 2021)

Washington Examiner, Biden promised to address over-incarceration. He’s blowing his opportunity (September 8, 2021)

Deseret News, Conservatives should support sentencing reform for crack cocaine (September 8, 2021)

– Thomas L. Root

Too Early, Too Late – Update for September 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.

TIMING IS EVERYTHING

timewaits200325Two decisions last week remind us that timing is key.

Julio Cardenas filed a 28 USC § 2255 motion arguing that his defense attorney had rendered ineffective assistance to him. In fact, he had no idea how ineffective counsel had been (and was continuing to be).

Julio lost his direct appeal, and the Supreme Court then denied certiorari. Julio filed for Supreme Court rehearing, and that was denied, too.

Fast forward a year. Julio’s attorney filed his § 2255 motion, but did so a year after denial of Supreme Court rehearing. But courts have uniformly held that the deadline for filing a § 2255 motion is really a year after the Supreme Court first denies certiorari, not a year after the later date when it denies rehearing whether its earlier denial of cert was correct. As a result, Julio’s § 2255 was filed 47 days past the date it was due under 28 USC § 2255(f)(1).

Julio asked his district court to accept it anyway under a doctrine called equitable tolling. A prisoner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Equitable tolling is warranted only in “rare and exceptional circumstances,” as the courts like to say.

Last week, the 5th Circuit said Julio didn’t have such circumstances here. The 5th said Julio’s counsel simply messed up. His lawyer admitted he now knew that a “petition for rehearing on a denial of certiorari on direct appeal does not toll the AEDPA time limit. All I can say in my defense is the concept is so counterintuitive that it did not even occur to me to check or research the question.”

The Circuit said Julio’s lawyer’s mistake was “precisely the kind of case that does not warrant equitable tolling…”

worm210913Timing also played a role in a second 5th Circuit decision last week. Leondus Garrigan filed an 18 USC § 3582(c)(1)(A) compassionate release motion, but he sent his request to the warden two weeks after filing the motion in district court. After his court denied the compassionate release motion, Leo filed a motion for reconsideration, pointing out that his administrative remedies were now exhausted, and the court could rule on the motion.

The district court denied the reconsideration, and last week, the 5th agreed: 

The primary basis on which Lionel justified reconsideration,” the Circuit ruled, “was a purported ‘manifest error of law.’ But there was no legal error in the underlying judgment. Because he filed his motion in the district court before the warden received his request, he failed to exhaust his administrative remedies. To be sure, after Garrigan’s first motion was denied without prejudice, he successfully exhausted. But it is irrelevant that he achieved exhaustion in the intervening period between the denial and his motion for reconsideration – he was required to properly exhaust before filing the motion. The district court did not have discretion to excuse his failure to do so.

United States v. Garrett, Case No 20-61083, 2021 U.S. App. LEXIS 27214 (5th Cir., Sept. 9, 2021)

United States v. Cardenas, Case No 18-40790, 2021 U.S. App. LEXIS 26910 (5th Cir., Sept. 7, 2021)

– Thomas L. Root