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‘He Should Have Called,’ Lawyer Tells 5th Circuit – Update for January 30, 2024

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

‘YOU HAD ONE JOB’, 5TH CIRCUIT TELLS LAWYER

A trial lawyer representing a client post-sentencing can fairly be said to only have one remaining task: To consult with the client about the advantages and disadvantages of appeal and to determine whether the client wants to file appeal papers with the court.

onejob240130Lucas Tighe, represented by Attorney Sharon Diaz, pleaded guilty in 2019 to conspiracy and firearms charges. The court sentenced him to a top-of-the-Guidelines 150 months in prison, a sentence made up of the statutory maximum of 120 months on two counts (run concurrently) and 30 months consecutive for the conspiracy charge. Luke was also charged in state court for organized criminal activity related to the same gun issues as in his federal conviction.

Two months after his federal sentence, Luke got 15 years on his state charges. He wrote to the federal court asking it to run his federal sentences concurrent with the state sentence, claiming that he was misled by counsel and that he never saw his presentence report. The district court construed the letter as a 28 USC § 2255 motion, but when Luke did not respond, the court dismissed it. About 5 months later, Luke sent another letter to the court asking about his appeal. He told the court that he was in state custody, his attorney had told him she was not able to help him anymore, and he never received a copy of the judgment or sentencing paperwork. The district court appointed counsel, who filed a 28 USC § 2255 motion claiming ineffective assistance of counsel because trial counsel failed to perfect an appeal.

Luke said that he had directed Diaz prior to sentencing to ask the judge about running his federal sentence concurrently to any forthcoming state sentence but counsel “blew me off.” Luke complained that Diaz told him that after he was sentenced,  she would visit him at the jail later that day, but she never showed.

The district court denied the § 2255 motion, but last week, the 5th Circuit reversed. “Diaz admitted that she had not advised Luke about the advantages or disadvantages of taking an appeal,” the Circuit said. She “excused her failure to directly ask Tighe before sentencing whether he wanted to appeal by saying, ‘Well, at that point, he hadn’t been sentenced yet, so — I did not ask him at that point if he wanted to appeal’.”

shouldcall240130But after sentencing, she failed to ask Luke whether he wanted to appeal, relying instead on whether he successfully reached out to her from prison. Diaz said that if Luke had contacted her and “expressed his desire to appeal, then she would have advised him of the potential advantages or disadvantages of appealing.”

Not good enough, the 5th ruled: “Counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.”

Here, the Circuit found a rational defendant in Luke’s situation would have wanted to appeal, and Luke reasonably demonstrated that he was interested in appealing. Luke and Diaz were admittedly both shocked by the court’s stacked 150-month sentence. “Regardless of whether Diaz did or did not tell Tighe that he would not get a stacked sentence, she still expressed shock over it,” the 5th said. “It is reasonable to expect that Tighe would have that same reaction.”

shocked191024Also, Attorney Diaz acknowledged that Luke wanted to ask the district court to run his federal sentence concurrent with his state sentence,” but she failed to do that. “Those are all indications that Tighe would be interested in appealing. Further, Diaz excused her failure to directly ask Tighe whether he wanted to appeal because he had not yet been sentenced. Under that same reasoning, Diaz could not have properly consulted with Tighe about an appeal prior to sentencing when she gave him his notice of right to appeal because she would not yet have known the ‘advantages and disadvantages of taking an appeal’ that she is required to counsel her client on.”

In other words, you can’t fairly tell your client that a sentence should be appealed until you know what the sentence is.

“In the absence of any self-evident reason why Tighe would not have filed a direct appeal,” the 5th said, “and without any regard to the potential merits of such an appeal, we conclude that he has established prejudice…”

United States v. Tighe, Case No. 22-50332, 2024 U.S.App. LEXIS 1758 (5th Cir. January 25, 2024)

– Thomas L. Root

’60 Minutes’ Looks Behind BOP’s Potemkin Village Facade – Update for January 29, 2024

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

’60 MINUTES’ PUTS BOP DIRECTOR ON THE HOT SEAT

The American public got a primer on the Federal Bureau of Prisons last night on “60 Minutes,” and what the public saw was sobering.

BOP Director Colette Peters walked 60 Minutes reporter Cecilia Vega around FCI Aliceville. She told CBS that she wanted “people to see the good stuff” going on in the BOP. Inmates were shown in UNICOR, at a “Life Connections” graduation, and in classes. CBS did not fall for the Potemkin village.

dogandpony240129First, in a surprisingly candid interview between Vega and five or so inmates, the women freely admitted that CBS was seeing a dog-and-pony show. Director Peters admitted that things had been cleaned up but explained, “I’ve been doing this work for a long time– so I can see when things have been swept under the rug, if you will. I’m not naïve. And when anybody comes to your house you clean it up.”

Vega pressed Peters on the issue of short staffing and augmentation, asking how many more employees are needed.

Colette Peters: So we hope to have that real number for– you and the public– very soon.

Cecilia Vega: That seems like a critical number. How was that not on your desk when you s– took this job on day one, and– and still not there a year later?

More surprising than Peters’s non-answer was her assertion that the BOP would hire the employees needed to solve short staffing by October.

Shane Fausey, the recently retired national president of the Council of Prison Locals 33 and a former BOP lock and security specialist, was much more certain. He told Vega, “We’re short about 8,000 positions nationwide. ” He complained:

The[ BOP’s] buzz phrase is, “Everybody’s a correctional officer first.” That sounds good on paper. But if you take the teacher out of the classroom, and nobody’s teaching the offender the skills to go back out to society, we’re just back to warehousing people.

forcedsex161202Vega also focused on sexual abuse of women inmates at FCI Dublin and in other facilities, most of which Peters inherited from years of prior BOP directors who found it convenient to ignore allegations that, after all, came from untrustworthy and unworthy inmates. Peters claimed that the BOP is cleaning up the “Rape Club” culture at Dublin.

Colette Peters:  We’ve done a tremendous job in the last year rebuilding that culture and creating– an institution that is more safe, where individuals feel comfortable coming forward and reporting claims

Cecilia Vega: You just used the phrase, “tremendous job” in Dublin. Eight inmates have filed a class action lawsuit, and they’ve got testimony from more than 40 current and former Dublin inmates who say that the abuse is ongoing.

Colette Peters: That means the– the process is working, that they have the ability to come forward. They have the right to bring that class action lawsuit together.

bartsimpson240129Vega noted that more than 45 women have filed suits against the BOP, some of which claim that abuse continues, and that female inmates claim continuing retaliation by staff against those who voice allegations. Peters was skeptical:

Cecilia Vega: It’s one thing for you to say that retaliation is not tolerated, but it sounds like it’s actually still happening.

Colette Peters: Again, I would say those are allegations. I would like to be more grounded in fact around proven retaliation.

CBS 60 Minutes, Inside the Bureau of Prisons, a federal agency plagued by understaffing, abuse, disrepair (January 28, 2024)

– Thomas L. Root

Bad Advice Kills ‘No-Brainer’ Plea Deal, 10th Circuit Says – Update for January 26, 2024

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

SIX MINUTES OF BAD ADVICE COST DEFENDANT AN EXTRA 14 YEARS

clockwatcher190620Jonathan Kearn was indicted on three counts alleging he possessed some unsavory and illegal photos of his own children. He was looking at a 30-year sentence when the government threw him a lifeline: it offered him a Rule 11(c)(1)(C) plea deal with a fixed 10-year sentence in exchange for a guilty plea to just one of the three counts.

Most plea agreements specify that, while the government and defendant may anticipate the Sentencing Guidelines will recommend a sentence within a certain range, the court is not bound by their anticipations and may impose whatever sentence it believes is appropriate. Federal Rule of Criminal Procedure 11(c)(1)(C), however, lets the government and criminal defendants lock the court into a binary choice: the judge may either accept the plea deal, which comes with an agreement that the defendant will get a certain sentence (or occasionally, a sentence within a certain range) regardless of what the Sentencing Guidelines recommend or the judge prefers.

If the court doesn’t like the sentence specified in the 11(c)(1)(C), it can reject the deal, at which time the defendant can walk away from the agreement and go to trial. So-called (c)(1)(C) pleas are popular with defendants because they provide certainty – defendants either receive the sentence they agreed to or they can withdraw their plea.

tooasy240126Anyone familiar with the draconian sentences usually imposed in child pornography cases would see acceptance of the (c)(1)(C) offer made to Jon as a “no-brainer.” But not Jon’s lawyer. After exhaustively counseling his client about the (c)(1)(C) plea for all of six minutes, learned counsel convinced Jon to reject the offer and proceed to trial. You can guess the end: Jon was convicted on all three counts and sentenced to 24 years in prison.

Jon filed a 28 USC § 2255 post-conviction motion, arguing his lawyer was constitutionally ineffective during the plea-bargaining phase. The district court found that counsel didn’t tell Jon that if the court accepted the plea agreement, he would be guaranteed a 10-year sentence but if the court rejected the plea agreement, he could withdraw the plea. In fact, the district court found counsel failed to explain anything at all about Rule 11.

The district judge granted Jon’s § 2255 motion and let him plead to the 10-year offer. This week, the 10th Circuit upheld the decision.

Jon’s hang-up was that he did not want to stand in open court and “personally describe the facts of his offenses – which involved his daughters – before his family and friends in open court.” Under Rule 11, “[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” This requirement is intended to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense.

But Jon’s lawyer told him that he had to do that in order to accept the plea. This advice, the Court said, was absolutely wrong. “The defendant does not have to provide the factual basis narrative,” the appeals court said. Instead, “[t]he district court may look to answers provided by counsel for the defense and government, the presentence report, or… whatever means is appropriate in a specific case – so long as the factual basis is put on the record.”

dumblawyer180108Jon’s lawyer didn’t know this. The lawyer admitted that he “regularly advised his clients that they would have to admit the facts surrounding the offense… and didn’t know if Mr. Kearn would actually receive a 10-year sentence if he pleaded guilty.”

“In the plea agreement context,” the 10th ruled, “counsel has a critical obligation… to advise the client of the advantages and disadvantages of a plea agreement… Because counsel understated the benefits and overstated the burdens of the plea offer, Mr. Kearn could not make an informed choice about whether to accept it.”

The government argued that Jon could not show that his attorney’s bad advice prejudiced him because there was no evidence Jon would have taken the deal had his lawyer properly advised him. But the Court held that Jon “lacked the requisite information to weigh the options in front of him, and whatever desire he exhibited before trial is not dispositive of what he would have done if he were properly educated about the charges against him… We cannot rationally expect defendants to theorize contemporaneously about the decisions they would make if they were receiving different advice. If courts required this kind of evidence, no defendant could show prejudice.”

41475-Forever-Is-A-Long-TimeThe significant disparity between the 10-year sentence Jon was offered and the 24 years he got is very relevant to the prejudice analysis, the Court said. Jon “was not adequately informed that the district court would have been bound by the agreed-upon sentence. Thus, counsel improperly skewed his attention away from the sizeable sentencing disparity he faced in favor of the need for him to personally supply a factual basis… Sentencing disparity is strong evidence of a reasonable probability that a properly advised defendant would have accepted a plea offer, despite earlier protestations of innocence.”

United States v. Kearn, Case No. 23-3029, 2024 U.S. App. LEXIS 1471 (10th Cir. January 23, 2024)

– Thomas L. Root

Lurching Toward A Dangerousness Standard for Bruen – Update for January 25, 2024

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

BRUEN CONTINUES TO EXPAND GUN RIGHTS

aliengun240124For the first time, a West Texas federal judge last month ruled that 18 USC § 922(g)(5)(A) – which prohibits aliens in the country unlawfully from possessing guns or ammo – violates the 2nd Amendment in the wake of the Supreme Court’s 2022 New York State Rifle & Pistol Ass’n v. Bruen decision. The West Texas decision, which the government has appealed to the 5th Circuit, is noteworthy, as is the judge’s lament at the outset of her opinion:

The Court pauses to join the choir of lower courts urging the Supreme Court to resolve the many unanswered questions left in Bruen’s wake… In the estimate of one legal scholar who reviewed more than 300 decisions applying Bruen, “lower courts have received Bruen’s message to supercharge the 2nd Amendment, but they have not yet located its Rosetta Stone. Their collective decisions in the months since the ruling have been scattered, unpredictable, and often internally inconsistent…” Against this backdrop of uncertainty, the Court “applie[s] Bruen as well as possible in evaluating the constitutionality of” the gun laws that Sing-Ledezma is charged with violating.

Citing Bruen, the judge deemed the law prohibiting people here illegally from possessing a gun “facially unconstitutional” and “an outlier that our ancestors would never have accepted.”

Last week, the 3rd Circuit joined in the “supercharging,” ruling that a Pennsylvania law that bans 18-to-20-year-olds from carrying guns outside their homes during a state of emergency violates the 2nd Amendment.kidgun240125 The 3rd ruled that 18-to-20-year-olds, like other subsets of the American public, are “presumptively among ‘the people’ to whom 2nd Amendment rights extend…. The Commissioner cannot point us to a single founding-era statute imposing restrictions on the freedom of 18-to-20-year-olds to carry guns… At the time of the 2nd Amendment’s passage, or shortly thereafter, the minimum age for militia service in every state became eighteen… We understand that a reasonable debate can be had over allowing young adults to be armed, but the issue before us is a narrow one. Our question is whether the Commissioner has borne his burden of proving that evidence of founding-era regulations supports Pennsylvania’s restriction on 18-to 20-year-olds’ 2nd Amendment rights, and the answer to that is no.”

The ”Rosetta Stone” that the Western District of Texas court seeks – at least for people serving sentences for being felons-in-possession under 18 USC 922(g)(1) – may come in United States v. Rahimi, the 5th Circuit case now awaiting a decision from the Supreme Court. The 3rd Circuit’s Range v. Attorney General en banc ruling – that held 18 USC § 922(g)(1), as applied to a nonviolent ex-felon, violated the 2nd Amendment – is on hold at the Supreme Court until Rahimi is decided.

In a thoughtful law review note to be published in the next few weeks, Jamie McWilliam argues that

in the context of felon disarmament, the primary group of laws that the government has put forward involve disarming classes that the government deemed dangerous… [embodying] a broad theme of dangerousness… [T]o determine the scope of the dangerousness standard, courts should look to the principles embodied by the 2nd Amendment itself—in particular, defense against immediate personal violence. Ultimately, this essay suggests that only those who have actually created the kind of danger that the amendment was meant to protect against—i.e., who have perpetrated physical violence—should be disarmed. This standard may defend against potentially prejudicial discretion, while simultaneously upholding 2nd Amendment rights and protecting our community.

nickdanger220426Many expect the Supreme Court to adopt such a dangerous exception to Bruen, an adoption that should advance the argument that many felon-in-possession convictions – where the dangerousness of the defendant is nonexistent – violate the 2nd Amendment.

United States v. Sing-Ledezma, Case No, EP-23-CR-823, 2023 U.S. Dist. LEXIS 223028 (W.D. Tex, December 10, 2023)

Law360, For Immigrants, Gun Rights Debate Goes Beyond Firearms (January 19, 2024)

Lara v. Commissioner, PA State Police, Case No. 21-1832, 2024 U.S. App. LEXIS 1159 (3d Cir., January 18, 2024)

McWilliam, Jamie, Refining the Dangerousness Standard in Felon Disarmament (December 4, 2023). 108 Minn. L. Rev. Headnotes (publication forthcoming ,2024)

– Thomas L. Root

Why We Should Expect Nothing from Congress This Year – Update for January 23, 2024

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

BIDEN’S DISAPPEARING SUPPORT FOR CRIMINAL JUSTICE REFORM

The emails are unrelenting. When will the Second Step Act pass? What is Congress doing for people with 18 USC 924(c) convictions? Is it true they’re bringing back CARES Act home confinement? And the old favorite: How about the 65% law?

nothinghere190906My answers have not changed: Never.  Nothing.  No.  And ‘there’s no 65% law.’

Back when he was a candidate in 2020, President Biden staked out big, bold stances on criminal justice reform. We imagined what The Hill last week called “a ground-up reworking of the carceral state,” with all First Step Act changes in gun and drug crime law becoming retroactive, substantial marijuana decriminalization, passage of the EQUAL Act… As The Hill put it, “Biden’s vows of far-reaching reform were so numerous that the Prison Policy Initiative had to limit itself to listing only his five biggest pledges in a post-election recap. The Marshall Project called Biden’s criminal justice platform “the most progressive … of any major party candidate in generations.”

Four years later, Biden’s criminal justice reform efforts have brought forth a mouse. His grand 2020 pledges have disappeared from his website, and “a shroud of silence has fallen over Democratic offices when queried about the issue,” as BNN described it last week.

Last week, the Dept of Justice reported that Federal arrests during fiscal year 2022 were up 24% from the number in FY 2021. Immigration offenses accounted for 24% of those arrests, supervised release violations were almost as numerous at 23%, and drug trafficking offenses accounted for 21%.

nothing190906

It is significant that criminal justice reform people – who usually have nothing good to say about President Trump – are comparing Biden’s reform record unfavorably to Trump’s, whose First Step Act “has shown positive results, with those released under it being less likely to reoffend, demonstrating that federal criminal justice reform can be effective,” BNN said.

So what happened? The Hill says Biden’s abandonment of meaningful criminal justice reform

has been driven in large part by a wildly successful Republican messaging campaign. GOP politicians, aided by a friendly network of right-wing media outlets, have spent much of their time since 2020 selling American voters on the fiction that crime is surging. They’ve also made sure those Americans know to lay the blame on so-called “soft on crime” Democrats, whom they universally portray as eager to release dangerous felons onto the street. That messaging helped Republicans rack up wins that cost Democrats control of the House.

“The states are all still passing criminal justice reforms or fighting for them,” Crime and Justice News quoted Lorenzo Jones of the Katal Center for Equity, Health and Justice as saying. “The people doing that are all local, but those local people have been largely shut out of the national spotlight.” Burns believes that Republican presidential front-runner Donald Trump can run to Biden’s left on criminal justice reform. He urges Biden to bring together “neglected criminal justice reform groups and do[] some much-needed listening.”

nothing190924Terrence Coffie, an adjunct assistant professor at New York University (and a man whose first academic achievement was getting his GED in 1993 while serving a drug trafficking sentence), said Biden could turn around his abandonment of criminal justice reform by leading an effort to repeal the Violent Crime Control and Law Enforcement Act of 1994, an “outdated and draconian piece of legislation…” that has “perpetuat[ed] harm rather than fostering justice.” Writing in Forbes last week, Walter Pavlo said Coffie “believes it is a critical step towards rectifying historical injustices and forging a more equitable path forward for marginalized communities.”

Just don’t expect any steps along that “equitable path” to be taken in 2024, with Democrats frightened of criminal justice reform and Republicans decrying a violent crime wave sweeping America.

The Hill, What happened to Biden’s promises on criminal justice reform? (January 17, 2024)

BNN, Biden’s Criminal Justice Reform: Promises Unfulfilled Amidst Political Play (January 17, 2024)

DOJ Office of Justice Programs, Federal Arrests Increase 24% After Falling to a 20-Year Low (January 18, 2024)

Crime and Justice News, Have Biden, Other Dems Caved On Criminal Justice Reform? (January 19, 2024)

Forbes, Biden’s Mixed Messaging On Criminal Justice Reform (January 15, 2024)

– Thomas L. Root

‘You Can Earn Them, Just Not Spend Them,’ Said No One To The Senators – Update for January 22, 2024

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

JUDICIARY COMMITTEE FIRST STEP ACT HEARING IGNORES HALFWAY HOUSE ELEPHANT

Senate Judiciary Committee leader Richard Durbin (D-IL) presided over a hearing last Wednesday commemorating the 5th anniversary of the First Step Act. The testimony was positive, upbeat, and largely useless.

Cake201130“Five years ago, we wrote the blueprint for reimagining rehabilitation and protecting public safety, and now we know by the numbers that it works,” Durbin said to open the proceeding. “Today, I am looking forward to reflecting on what we can achieve… In order to make our system fairer, we must continue to learn from and [build upon] the proven successes of ‘smart on crime’ policies like the First Step Act. We must provide more opportunities for those who are incarcerated to reenter society successfully, reunite with their families, and contribute to their communities.”

Ja’Ron Smith, former Deputy Assistant for Domestic Policy under Trump, noted that the recidivism rate for First Step releasees is about 37% lower than what it was before the Act passed, used to be. Smith said, “For those released under the First Step Act, the rate is just 125. And technical violations – not new crimes – account for a third of that number.”

J. Charles Smith III, president of the National District Attorneys Assn, said First Step “did a great job of differentiating between good people making bad decisions and bad people making bad decisions. The bad people who make bad decisions stay in jail… The good people who made a bad decision, were convicted for it, [and] went to jail for it, are getting rehabilitated and released earlier as well, as they should.”

Steve Markle, an officer with the National Council Of Prison Locals, lauded the Act but said the Federal Bureau of Prisons 20% staffing shortfall (40% among correctional officers) “not only compromises safety by reducing the number of staff available to respond to emergencies but also hinders the provision of programming for the First Step Act. To fully realize the Act’s potential,” he said, “it is crucial to address the critical staffing crisis within the Bureau. The Council believes that the staffing crisis can only be resolved by addressing the pay band issue.”

Not this kind of halfway house...
Not this kind of halfway house…

It fell to Walter Pavlo, who was not a witness at Durbin’s lovefest, to explain a major glitch in First Step Act’s implementation of the evidence-based programming problem. Inmates are motivated to earn credits because those credits can buy up to a year off their sentences and – if any credits are left after the one-year credit -more halfway house or home confinement. But, writing in Forbes last week, Pavlo observed that inmates are being denied the right to spend those credits because “the BOP does not have room in halfway houses to monitor those who have rightfully earned First Step Act credits. The result, thousands of prisoners languish in expensive institutions rather than being placed in community halfway houses.”

Prisoners with many months of First Step halfway house/home confinement credit are being told by halfway houses that they cannot be accommodated. I know of one prisoner awarded his nine months of halfway house/home confinement credit only to be told that the halfway house could only give him a third of that. The Act states in 18 USC 3624(g)(11) that the BOP Director “shall ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners.” Pavlo writes, “This is a problem that is going to persist unless something is done.”

The BOP’s Residential Reentry Management Branch administrator said in a speech two weeks ago that halfway houses had a “90-day projection of 99% utilization,” meaning, Pavlo said, “that there was no room to place any more prisoners.”

The BOP knew five years ago that it would have to increase halfway house capacity, but doing so is a bureaucratic nightmare. Because the BOP has relied on halfway house staff to monitor home confinement inmates, the capacity crunch has affected home confinement placement as well. A decade ago, the BOP worked with the US Probation Office to get some prisoners monitored on Probation’s Federal Location Monitoring (FLM) to allow some home confinement prisoners to be monitored by Probation rather than halfway houses. But as of now, only 3.6% of home confinement prisoners are on FLM.

The BOP has an Interagency Agreement with Probation which Pavlo says presents “an opportunity to expand FLM in a manner that is both cost-effective and consistent with the evidence-based practices. However, each district court is responsible for participating, or not, in FLM. Getting every district court to coordinate with the BOP has been an issue for years, as the few prisoners in FLM clearly demonstrate.”

release161117FLM costs far less than a halfway house per diem or halfway house-monitored home confinement. However, FLM is managed by each of the 94-odd federal judicial districts. Some participate with the BOP: others do not. Pavlo said a retired BOP executive told him, “I think the BOP would be receptive to expanding the program and it would resolve many of the issues related to capacity for prerelease custody, but the Courts are going to have to help.”

Senate Judiciary Committee, Five Years of the First Step Act: Reimagining Rehabilitation and Protecting Public Safety (January 17, 2024)

Press Release, Durbin Delivers Opening Statement During Senate Judiciary Committee Hearing on the Fifth Anniversary of the Landmark First Step Act (January 17, 2024)

Forbes, The Bureau of Prisons’ Halfway House Problem (January 16, 2024)

– Thomas L. Root

New Year, Old Woes at the Federal Bureau of Prisons – Update for January 19. 2024

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

BOP: CRIME’S UP, INCENTIVES ARE DOWN

Instances of Federal Bureau of Prisons employees running afoul of the law continue along with staff shortages, even as the agency finds ways to provide additional disincentives to employees’ desire to work.

truecrime240119Former BOP Correctional Officer Quandelle Joseph pled guilty last week in US District Court for the Eastern District of New York to receiving bribes in exchange for providing phones and drugs to prisoners at MDC Brooklyn. The government said Joseph, who began working at MDC in May 2020, “accepted tens of thousands of dollars from inmates in exchange for smuggling narcotics, cigarettes, and cell phones into the MDC… He also warned inmates about upcoming contraband searches at the MDC.”

Last Friday, a former BOP CO at FCI Aliceville (AL) pled guilty to one count of sexual abuse of a ward. In February 2019, the indictment alleged, Smith had sex with a female inmate. He also admitted engaging in a sexual act with another female inmate under his control.

The Marshall Project reported a week ago on the continuing short-staffing at BOP facilities, noting that FCI Florence (CO) was short at least 188 staff members. Senators John Hickenlooper and Michael Bennet told BOP Director Colette Peters a year ago that “fatigue, exhaustion, and low morale have reduced staff productivity and led to more sick leave, retirements, and resignations.” The Marshall Project called the situation “a downward spiral.”

pay240119The BOP had been offering retention pay incentives for employees at prisons hard hit by staffing shortages, but those programs are ending. A week ago, the BOP terminated incentives at USP Thomson (Illinois), and last week announced that officers at USP Canaan (Pennsylvania) will soon see similar cuts.

The American Federation of Government Employees is urging the BOP to reverse course at USP Canaan, which is about to open more units and bring in more inmates, according to AFGE. Without the incentive, the union says, officers may leave their jobs.

understaffed220929

The real cost of the staffing shortfall to prisoners? Obviously, the frequent and repeated facility lockdowns – because confining inmates to their housing units requires fewer BOP employees than normal operations – is the most visible. But last week, I heard from a prisoner who willingly transferred to an institution hundreds of miles farther from his home to enroll in the faith-based Life Connections program. He told me that upon arrival, he found that the Life Connections Program was not running due to shortness of staff and government funding, and no one had any idea when that would change: “I have made the choice to seek change while incarcerated,” he wrote, “signing up for this program. It’s not my fault that they have no staff to run the program and lack the funds to pay outside contractors to facilitate the classes for the purpose of education.”

US Attorney EDNY, Ex-Federal Correction Officer Pleads Guilty to Taking Bribes in Exchange for Smuggling Contraband into Federal Jail in Brooklyn (January 11, 2024)

Trussville AL Tribune, Former Federal Bureau of Prisons Corrections Officer pleads guilty to sexually abusing inmate in his custody (January 12, 2024)

Federal News Network, More Bureau of Prisons pay incentives get death penalty (January 10, 2024)

The Marshall Project, Federal Prisons Are Over Capacity — Yet Efforts to Ease Overcrowding Are Ending (January 6, 2024)

Senators Bennet and Hickenlooper, Letter to Colette Peters (December 5, 2022)

– Thomas L. Root

Mountains of Evidence Trumps Molehills Every Time – Update for January 18, 2024

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

MORE IS BETTER

By now, everyone knows that for a federal prisoner to win a sentence reduction motion under 18 USC § 3582(c)(1)(A) – known to all by the misleading but convenient shorthand “compassionate release” – he or she must show that extraordinary and compelling reasons exist for the motion (a list of what situations fit this bill may be found in the U.S. Sentencing Commission’s new § 1B1.13(b)) and that grant of the requested reduction is consistent – whatever that means – with the sentencing factors of 18 USC § 3553(a). Such factors include the history of the offense and the offender, the need for just punishment, protection of the public, deterrence, and other considerations.

founderingship240118Unsurprisingly, most federal prisoners seeking compassionate release focus on the “extraordinary and compelling reasons” standard, because it’s easier to quantify, and people generally like to focus more on the bad things currently happening to them than bad things they might have done in the past. Yet as many compassionate release motions founder on the shoals of § 3553(a) as ever die on the “extraordinary and compelling” hill.

While you sit back to drink in the beautiful symmetry of the prior paragraph’s mixed metaphor, consider the strange position that  “post-sentencing rehabilitative efforts” occupy in the compassionate release firmament. Post-sentencing rehabilitative efforts may not be the sole extraordinary and compelling reason for a sentence reduction, but they may be one of several. At the same time, post-sentencing rehabilitative efforts are relevant to the § 3553(a) sentencing factors: good behavior and completion of in-prison programming suggest that the prisoner will not pose a danger to the public and perhaps has already been justly punished so as to correct his or her errant ways.

So what kind of consideration must a district court give evidence of good conduct and programming? The 4th Circuit ruled almost five years ago in United States v. Martin that “where a movant presents substantial evidence of post-sentencing rehabilitative efforts, a district court must provide a more robust and detailed explanation in ruling on a motion for compassionate release.” Last week, the appellate court reminded everyone that for the Martin rule to apply, a movant should remember that more is better.

violent160620Historically, Angel Centeno-Morales had been anything but an angel. Before his current felon-in-possession conviction, he had been convicted of aggravated assault with a deadly weapon, burglary, battery, and several gun and drug offenses. In his current case, he sold meth and threatened people with his gun to discourage cooperation with law enforcement.

While he was locked up, Angel’s wife died of COVID, leaving their young son without a caregiver. He filed for compassionate release, arguing that the death of the primary caregiver for the minor child was an extraordinary and compelling reason for a compassionate release grant.

The district court agreed but denied the compassionate release motion nonetheless based on the § 3553(a) factors. The judge cited that Angel had distributed a lot of meth while on probation, used guns for intimidation and coercion, and had gotten two disciplinary infractions in his six years in prison. The district court held that Angel’s continued incarceration was “necessary to reflect the seriousness of his offenses, protect the public from further crimes, provide for just punishment, promote respect for the law, and provide deterrence.”

angels240118On appeal, Angel complained that the district court violated Martin by not providing enough detail supporting its denial, but the 4th Circuit disagreed. The Martin defendant presented “a mountain of new mitigating evidence that the sentencing court never evaluated,” the Circuit said. “What’s more, the movant in Martin was incarcerated for nearly two decades, became a respected tutor for other inmates, and exhibited such exemplary behavior that correctional staff moved her into a low-security facility.” But district courts must only “set forth enough to satisfy our court that it has considered the parties’ arguments and has a reasoned basis” for its decision. “The district court does not owe every movant for compassionate release a ‘robust and detailed’ explanation on every argument about post-sentencing rehabilitative efforts,” the 4th said.

Angel presented no “mountain” of mitigating evidence that he had become an angel. “He completed just a few vocational courses and received two disciplinary infractions while incarcerated. Importantly, he remains classified as a ‘medium’ security inmate. This is not the kind of exceptional post-sentencing evidence for which Martin would require a ‘robust and detailed’ explanation,” the Circuit held.

United States v. Centeno-Morales, Case No. 22-6607, 2024 U.S. App. LEXIS 310 (4th Cir. January 5, 2024)

United States v. Martin, 916 F.3d 389 (4th Cir. 2019)

– Thomas L. Root

Supreme Court Teeing Up Some Significant Criminal Law Decisions – Update for January 15, 2024

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

SUPREMES’ JANUARY LOOKING CONSEQUENTIAL FOR CRIM LAW HOLDINGS

alicewordsmeanhumpty231122The first argument of the current Supreme Court term last October, Pulsifer v. United States, ought to be yielding an opinion in the next few weeks. The First Step Act “safety valve” case – that considers whether “and” means “and” or simply “or” – has increased importance for a lot of people who might otherwise qualify for the zero-point sentence reduction under the new USSG § 4C1.1.

A condition of § 4C1.1 is that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise…” So does that mean the defendant is qualified unless he has a § 3B1.1 adjustment AND a CCE conviction? Or is he disqualified if he has a § 3B1.1 OR a CCE violation? There are a lot of § 3B1.1 enhancements out there, but not nearly as many CCE convictions.

Even without the § 4C1.1 angle, Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that Pulsifer may “prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.”

Meanwhile, other interesting Supreme Court developments are happening largely unseen. Last November, the Court granted review in Erlinger v. United States, a case which asks whether the Constitution requires that a jury (instead of the judge) find beyond a reasonable doubt that an Armed Career Criminal Act defendant’s three predicate offenses were “committed on occasions different from one another.”

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

(The ACCA, for those who got here late, is a sentencing enhancement contained in 18 USC § 924(e)(2) which provides that the punishment for a felon-in-possession conviction under 18 USC § 922(g) begins with a mandatory 15 years and goes to life imprisonment if the defendant has three prior convictions for serious drug offenses or crimes of violence committed on occasions different from one another. Erlinger explores the collision of those elements with the 6th Amendment: can a judge find the ACCA applies to a felon-in-possession by a simple preponderance of the evidence, or must those elements be found by a jury beyond a reasonable doubt?)

The curious development in Erlinger is that both the Solicitor General and defendant Erlinger agree that after the Supreme Court adopted the current “standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States” in 2022, the issue of whether the predicates were “committed on occasions different from one another” implicates a defendant’s Apprendi v. New Jersey rights to have facts that raise the statutory minimum and maximum must be decided beyond a reasonable doubt by a jury.

When both parties in a Supreme Court case agree on how the case should come out, the Court appoints a lawyer to argue the other side. SCOTUS has appointed one in this case, who will file a brief next month opposing the briefs Erlinger and DOJ have already filed.

Erlinger is important not only for the ACCA issue presented but because some on the Court have argued that where an enhanced penalty (like 21 USC § 851 drug enhancements) requires a showing of a prior conviction, due process requires that the fact of the conviction be decided by a jury. The Supremes ruled the other way in the 1998 Almendarez-Torres v. United States decision, a holding that was unaffected by the subsequent Apprendi ruling. Justice Clarence Thomas especially has criticized Almendarez-Torres, believing it is wrong, and the fact of prior convictions should be a jury question. Erlinger may give a holding that is expansive enough to address the Almendarez-Torres holding.

expert160905Last week, the Court heard argument in Smith v. Arizona, addressing whether a defendant’s 6th Amendment right to confront witnesses means that the lab expert who prepared a report on drug purity must be put on the stand to verify the report. Many courts currently permit another expert who did not conduct the test to testify as to drug purity based on the report’s findings.

The  Court seemed sympathetic to Jason Smith, an Arizona prisoner who contends that the expert’s testimony – based on a drug purity test performed by someone who wasn’t present to testify – contravened the 6th Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him.”

Finally, the Court will hear the argument tomorrow in Loper Bright Enterprises v. Raimondo, the case that could end Chevron deference – the notion that courts must defer to agency interpretation of statutes and rules. A change in Chevron deference could affect the Sentencing Guidelines, court deference to agency interpretation of gun laws, and court deference to BOP policies, among other changes.

Sentencing Law and Policy, Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi’s application to part of ACCA (January 9, 2024)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Erlinger v. United States, Case No. 23-370 (S.Ct., awaiting decision)

Smith v. Arizona, Case No. 22-899 (S.Ct., argued January 10, 2024)

SCOTUSBlog, Court appears to favor Arizona man’s confrontation clause claim (January 10, 2024)

Loper Bright Enterprises v. Raimondo, Case No. 22-451 (S.Ct., awaiting argument)

– Thomas L. Root

Prisoners Joining The 16,000-Member Club – Update for January 11, 2024

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

BIG BOX, SMALL BAUBLE

My email inbox started smoking yesterday with reports from federal prisoners that they were receiving the promised Dept of Justice Office of Pardon Attorney letters informing them that their clemency petitions – many of which had been languishing for years – had been denied. Never year, the letters advised them, because they are welcome to apply again on the new and improved form.

The letter is at once brazen in its misrepresentations and utterly incompetent in its execution. What do I mean?

clemencyltr240111How about this? “Your commutation application was carefully considered, and the determination was made that favorable action is not warranted at this time.” Suddenly, after letting 16,000 or so clemency petitions pile up – although to be fair, most petitions were already piled high on the tables and chairs and floor when she took office – Pardon Attorney Elizabeth G. Oyer had in a few short weeks “carefully considered” all of the thousands of clemency petitions clogging the offices and corridors and made the “determination… that favorable action is not warranted at this time.”

That’s not what DOJ said.

The current Administration inherited an unprecedented backlog of clemency petitions. Soon, the Justice Department will begin issuing letters to petitioners that have not been granted clemency in order to deliver closure to those waiting for answers they deserve. Those receiving letters are welcome to submit new petitions.

No careful consideration. No “determination” that favorable action was not warranted. just delivery of closure and an invitation to start over.

Honesty, which appears to be in short supply at the OPA, would have said, “We’re so overwhelmed with petitions, many of them years old, that we’re just throwing everything out and starting over. If you’re still interested, you’re welcome to file again.”

OPApardonoyer240111And how about “[T]he list of names is published on the Department’s website at www.justice.gov/pardon?” As of January 10, 2024, no such list can be found. So an office so dysfunctional that it can’t even rustle up a list of all of the prisoners and former prisoners whose petitions were bounced – after telling unhappy applicants that the list was online – wants prisoners to believe that their “commutation application[s were] carefully considered.”

Or maybe the OPA doesn’t even care whether petitioners believe the assurance or not.

Sadly, this latest affront is about par for the Biden clemency approach. Sure, clemency seemed to be for sale in the Trump White House, but at least it was available, even if you had to navigate The Donald’s kleptocracy to get one. With President Biden, virtually the only people able to get clemency are the ones no longer in prison.

Which leads me to clemency experts and law profs Rachel Barkow and Mark Osler, who last week accurately described most of President Biden’s December 2023 clemency grants as just a “small gift in a big box,” according to .

Writing in The Hill, Osler and Barkow complained that Biden’s “claim to ‘have exercised my clemency power more than any recent predecessor has at this point in their presidency’ is pure hyperbole, but underneath might be the seed of a truly significant movement towards more meaningful uses of federal clemency.”

First, the hollow gesture: Biden’s pardon of people convicted of simple marijuana possession underwhelms. The Sentencing Commission estimates that more than 6,500 people are covered by the pardon but only 110 people have applied for the pardon so far.

The commutation of sentences of 11 people who were serving extraordinarily long sentences for nonviolent drug distribution offenses is more significant, Barkow and Osler say, but “eleven grants from a backlog of more than 16,000 clemency petitions waiting for action is hardly grounds for applause.”

paperpile240111

A few weeks before, Osler wrote in The Atlantic that federal clemency “has become a certifiable disaster, [having] withered to the point of uselessness and disrepute after decades of neglect, abuse, and administrative bloat. Petitions go through seven consecutive levels of review, wandering through the deeply conflicted Department of Justice — which sought the sentence in the first place — and the office of the White House Counsel. Not surprisingly, given this sticky muck of bureaucracy, a backlog of more than 16,000 pending petitions has built up—a striking number compared with the fewer than 2,000 pending petitions at the start of Barack Obama’s first term as president or the 452 petitions that President Bill Clinton inherited.”

The DOJ has promised a new, more streamlined process, but recalling that Biden – the “most lackluster user of the pardon power in memory [who] has done little beyond granting commutations to people who are already out of prison and pardons to minor marijuana offenders” – is the one making the promise, skepticism is the order of the day.

This week’s form-letter offal only underscores the reason such dubiousness is justified.

The Hill, Biden’s marijuana clemency grants are a small present in a big box (January 1, 2024)

The Atlantic, The Forgotten Tradition of Clemency (December 16, 2023)

– Thomas L. Root