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The Thief As Victim – Update for August 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.

PAY THE MAN, SHIRLEY

John O’Hara ripped off his mama.

paytheman240822In February 2019, John pled guilty to wire fraud and bank fraud for stealing over $300,000 from his aged mother, whose finances he was managing. She died a few weeks after his guilty plea – from a broken heart, perhaps? – but she nonetheless passed on leaving her entire estate to her boy John.

At sentencing, the Court ordered John to do 26 months in prison and to pay $332,150 or so in restitution to his mother’s estate. Despite knowing the restitution that John paid to the estate would end up back in his own pocket, the government did not object to the restitution order.

John was released in May 2021 but – contrary to his conditions of supervised release – had paid no restitution since his release from prison. Normally, a supervised releasee would be violated for such a history of noncompliance with release conditions, but the district court was realistic. In May 2023, it issued an order noting that while John had failed for two years “to pay any portion of the restitution as directed by the Court,” still,

inasmuch as the defendant would be the recipient of any restitution he might pay in the future, it is hereby ordered that, within fourteen days, the United States is directed to state its position regarding whether the defendant should be discharged from his existing restitution obligation.

The government suggested that since it couldn’t see the defendant being allowed to pay himself, the Court should substitute the Crime Victims Fund in place of his mother’s estate. John, of course, suggested that the court just forget the whole restitution thing.

The district court ruled that “allowing a perpetrator to effectively receive his own restitution would have the effect of nullifying a court’s restitution order and circumventing Congress’ intent to require mandatory restitution under the Mandatory Victims Restitution Act.” It thus amended the judgment to require John to pay the $332,150 to the Crime Victims Fund.

John appealed, and this week, the 6th Circuit reversed the amended judgment, saying (albeit reluctantly), “Pay the man, Shirley.  And that man is yourself.”

After a court imposes a sentence, the Circuit observed, it has no authority to change the sentence “unless such authority is expressly granted by statute.” Because a restitution order is a part of the sentence, if a court wants to change a restitution order, “it must point to express statutory authorization to do so.”

money240822While 18 USC § 3664 expressly allows modification of restitution order, it lists only “a handful of ways a restitution order may be altered.” It may be amended if the victim’s losses are not ascertainable at sentencing, adjusted due to a defendant’s changed economic circumstances, or modified if the defendant is resentenced.

None of these, the 6th said, apply here, “so the district court could not use them to amend the judgment.”

The Circuit understood the district court’s motivation. “This is a case where a court may be tempted to elide the statute’s text to do what makes practical sense within the spirit and confines of the MVRA,” the appellate court wrote. “But even given the MVRA’s laudable goals, a court does not have discretion to ignore the statutory limits on modifying a final restitution order.”

This is not to say that the courts are without power to deny John his plan to pay himself restitution. The 6th included a detailed footnote observing that Kentucky statute § 381.280(2) excludes people from inheriting the results of their wrongdoing. “We leave the statute’s application to state courts,” the appellate decision states. “We only note that such a statutory scheme seems to fit the occasion and reiterate that it would be in the power of the probate court to apply its terms were the estate to be reopened and receive any money.”

The Circuit’s message: Justice may yet triumph, Mr. O’Hara.

United States v. O’Hara, Case No. 23-5695, 2024 U.S. App. LEXIS 20983 (6th Cir. Aug. 20, 2024)

– Thomas L. Root

Courts Should Favor 2255 Motion Decisions on the Merits, 9th Circuit Holds – Update for August 20, 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.

RULE 4 SHOULD BE USED SPARINGLY IN 2254/2255 CASES, 9TH HOLDS

A 28 USC § 2255 motion often seems to be stacked against the movant. The district court can throw it out on its own if the judge thinks it “plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” If the court tells the government to answer, the judge can then deny the motion without allowing for discovery or an evidentiary hearing. If there is a hearing, the court can then deny it.

Lose200615So many ways to lose!

The court’s right to dismiss the § 2255 motion without even asking for a response from the prosecutor is enshrined in Rule 4 of the clumsily-named Rules Governing Section 2255 Proceedings. 2255. Rule 4 is a lot like Rule 4 of the Rules Governing Section 2254 Proceedings (except that in the § 2255 rules, a judge may also rely on “the record of prior proceedings,” something the Court does not have available to it in a 28 USC § 2254 review of a state habeas proceeding.

Pat Neiss filed a state habeas claim that his Montana conviction should be set aside because his lawyer was ineffective. He was denied by the state courts, so he filed a 28 USC § 2254 petition in district court. Thirteen days after he filed, the district court summarily dismissed Pat’s petition with prejudice, holding that Pat’s claim was not cognizable because his trial counsel “moved repeatedly, in different contexts, to suppress the evidence,” even though he failed to make the one suppression motion – a particularity claim – that would have worked.

The district court cited Strickland v, Washington’s statement that “Counsel’s decision to focus on certain aspects of these attacks rather than on others does not cause their performance to ‘f[a]ll below an objective standard of reasonableness.”

A 9th Circuit decision last week reversed the summary dismissal, warning judges to err on the side of the petitioner in applying Rule 4.

The Circuit held that Rule 4 permits summary dismissal of claims on the basis of lack of cognizability only where the allegations in the petition are vague, conclusory, palpably incredible, or patently frivolous or false.” Rule 4’s standard, the Court said, “essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted… Our case law has made clear that as long as a petition has any potential merit, it is not so frivolous or incredible as to justify summary dismissal under Rule 4. The legal term ‘frivolous’ is defined in Black’s Law Dictionary as ‘lacking a legal basis or legal merit; manifestly insufficient as a matter of law.’ And 9th Circuit case law is in accord.”

stupidlawyr191202Here, the 9th said, Pat’s petition alleged that his trial counsel provided ineffective assistance when counsel waived a meritorious particularity objection to a search warrant. The Supreme Court has recognized that an ineffective assistance of counsel claim may be based on defense counsel’s failure to litigate a 4th Amendment claim competently. Thus, these allegations state a cognizable claim on which relief could be granted, the Circuit held.

Nothing on the face of Pat’s petition plainly showed that his particularity objection to the search warrant lacked merit as a matter of law or that trial counsel’s failure to object on that ground could not have prejudiced him. But rather than conducting this analysis, the district court ruled that regardless of whether a particularity challenge was made, counsel’s wide and repeated efforts to get the computer search evidence suppressed were objectively reasonable.”

At the summary dismissal stage,” the 9th held, “district courts must consider only whether a claim is frivolous, not whether it is ultimately—or likely—a winner or loser.”

Neiss v Bludworth, Case No. 22-35877, 2024 U.S. App.  LEXIS 20752 (9th Cir., August 16, 2024)

– Thomas L. Root

BOP Employee Death From Suspected Drug-Laden Letter – Update for August 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 MAIL SUPERVISOR DIES AFTER EXPOSURE TO MAIL SOAKED IN “UNKNOWN SUBSTANCE”

A Bureau of Prisons mailroom supervisor at USP Atwater died August 10th  “following his exposure to mail saturated in an unknown substance”, according to a statement issued by BOP Director Colette Peters.

marcfischer240819Supervisory Correctional Systems Specialist Marc Fischer was pronounced dead at a local hospital after falling ill upon coming into contact with the substance. A second employee also came into contact with the substance but was treated at a hospital and released.

Mr. Fischer, a veteran of the United States Coast Guard, had worked for the BOP for over 23 years, according to Corrections1. He spent his entire career at USP Atwater, starting as a correctional officer in 2001 and becoming a Supervisory Correctional Systems Specialist in 2009.

The BOP and federal law enforcement agencies are investigating whether the substance was fentanyl, according to ABC News. The Los Angeles Times reported that “[r]esearchers say that briefly touching fentanyl cannot cause an overdose, and the risk of death from accidental exposure is low.” Nevertheless, the newspaper’s headline claimed “possible fentanyl exposure.”

Last December, Rep. Don Bacon (R-NE) introduced H.R. 5266, the Interdiction of Fentanyl in Postal Mail at Federal Prisons Act, a bill that would require the BOP to electronically scan all inmate mail coming into its facilities. The measure has not yet cleared the House Judiciary Committee, let alone been introduced in the Senate. With fewer than 40 days left in Congress’s legislative calendar, it is unlikely that it will make it before Congress expires.

Mr. Fischer left behind a wife, a son and a daughter.

Reaction to the incident could substantially curtail inmate access to the type of tangible connection to family that kids’ drawings, greeting cards and printed photos provide. That might be an unfortunate overreaction.

However, there will be time to reason out what steps, if any, should be taken to protect BOP workers and to further curtail drugs entering facilities. For now, the focus should be on the real tragedy here:  Mr. Fischer is dead and a family mourns. 

ABC, Bureau of Prisons employee dies after coming into contact with ‘unknown substance’ (August 10, 2024)

Los Angeles Times, Prison worker dies at Atwater Federal Prison in Central Valley; possible fentanyl exposure (August 10, 2024)

Corrections1, Calif. corrections official dies after coming into contact with unknown substance in mail (August 15, 2024)

BOP, Message from the Director (August 12, 2024)

H.R.5266, Interdiction of Fentanyl in Postal Mail at Federal Prisons Act

– Thomas L. Root

November 1st Promises to be a Quiet Day – Update For August 16, 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.

MYTHBUSTERS

I might fairly be accused of trotting out the old “Mythbusters” trope every few months or so when I have nothing else to write about. But it’s not so.

mythbusters240816A loyal reader, himself a skilled jailhouse lawyer, urged me several months ago to revisit some of inmates’ most cherished rumors and myths. He was feeling a little beaten down by well-intended questions about how the Loper Bright Enterprises v. Raimondo decision invalidating the Chevron deference doctrine must mean that people with medium and high recidivism scores will now be able to earn First Step Act credits. (Hint: Loper Bright will affect FSA credits not at all).

Others are demanding to know how President Joe Biden’s signing of H.R. 3019 into law would do the same.

It has been a busy summer, however, and although I am getting the usual number of emails asking why the BOP won’t renew the elderly offender home detention program and when the new meth law takes effect, it took this email yesterday to force my hand:

PATRICIA PRISONER on 8/15/2024 at 10:32:58 AM wrote

i have a question concerning the FSA..IN NOVEMBER WHEN THE LAWS COME INTO EFFECT..WILL THE PPL WITH HIGH OR MEDIUM RECIDIVISM BE ABLE TO USE THEIR TIME CREDITS??DO ANYTHING CHANGE FOR THOSE WHO HAVE PROGRAMED BUT WONT BE ABLE TO CHANGE THEIR STATUS TO A LOW???

Aarrgh! Another FSA credit question.

So here we go, by the numbers:

(1)    What will happen on November 1st?

On November 1st, two things will happen. First, Sentencing Guidelines amendments proposed last spring will go into effect, unless Congress blocks them (which it will not).

nothinghere190906The second is that BOP Director Colette Peters will ride up to the front gate of every BOP institution and give one lucky inmate a ride home on the back of her BOP Central Office unicorn.

Only one of the foregoing is true. And it ain’t the unicorn.

Unfortunately, the traditional November 1st date for the effectiveness of sentencing guidelines amendments has attained an almost mythical status on the inmate grapevine commonly known as “inmate.com.” But let’s remember this (covered in high school government class, probably on a day you skipped): The sentencing guidelines, like all government regulations, are NOT laws. Guidelines are written by the Sentencing Commission pursuant to authority granted by Congress. They are advisory only. A judge does not have to follow them. And this year, not a single Guidelines amendment will retroactively apply to people already sentenced. So, the amendments going into effect on November 1 have absolutely no effect on federal prisoners.

Congress has not passed any changes to the federal criminal laws this year. With only about 35 more days of legislative sessions this year for the House and 39 for the Senate (and with elections for all representatives and one-third of the senators), there is no chance that Congress will do anything to benefit federal prisoners.

The misperception that crime is rising is one of the bogeymen of this election cycle. No legislator’s going to vote for something that may benefit maybe 50,000 federal prisoners but gives his or her opponent an opening to argue that the incumbent voted to let dangerous criminals go free. As the politicians say, it’s bad optics.

(2) The BOP is not arbitrarily denying FSA credits to high and medium recidivism inmates.

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

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

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

(3) H.R. 3019 was indeed signed by the President, but it is the Federal Prison Oversight Act and has nothing to do with FSA credits.

In the 5½ years since the First Step Act was passed, no one has mounted any serious effort to change the FSA credits. Congress seems content that 63 different categories of offenses (comprising about half of all federal inmates) remain ineligible for FSA credits.

The FPOA is legislation that holds great promise for increasing BOP accountability, but it has nothing to do with the First Step Act in general or FSA credits in particular.

(4) Elderly Offender Home Detention Program has come and gone.

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

Of course it is. The two-thirds home confinement for 60+ people was the Elderly Offender Home Detention Program, authorized by the First Step Act. It was a pilot program, and was authorized to run until September 30, 2023. When it expired, I wrote about it.

The important point is that Congress set the expiration date. The BOP has no right to waive the expiration date or to extend it. It’s up to Congress, and Congress hasn’t done a thing about it.

(5) When does the new meth law go into effect?

meth240618What new meth law? About 18 months ago, a single district court in Mississippi ruled that the Guidelines enhancement for methamphetamine purity should not be applied because these days, just about all meth is high purity. The judge in question, however, was Carleton Reeves, who happens to be chairman of the Sentencing Commission, making the holding kind of a big deal.

The Guidelines enhancement is based on 21 USC § 841(b)(1)(A)(viii), which sets differing levels for pure meth and a “mixture… containing a detectable amount” of meth. Last June, the Commission released a study showing that meth purity is no longer a reasonable metric for enhancement. The Commission may yet take up the enhancement, although it has not yet committed to do so. However, no real change can be effected until Congress changes the law. Congress has given no indication it is interested in doing so.

(6)    A Basic Government lesson

We should all understand that a “congress” runs for two years. We are in the 118th Congress right now. It ends on January 2, 2025, The 119th Congress begins on January 3, 2025, and ends on January 3, 2027.

When a Congress ends, any bill that is pending but not passed disappears. The 119th Congress starts with a clean slate. This means that any bill currently pending (like marijuana reform, the EQUAL Act, First Step Act changes) will die.

Whether any criminal justice reform legislation makes it through the 119th Congress has a lot to do with who controls the House and Senate and who will be sitting in the White House. If one party ends up controlling all of it (especially the Democrats), some of what has been stalled – such as the Cannabis Administration and Opportunity Act and EQUAL Act — may have a real shot.

– Thomas L. Root

“Abandon Hope” at MDC Brooklyn – Update for August 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.

A PRISON UNFIT FOR PRISONERS

The Tower of London, Black Hole of Calcutta, Devil’s Island… Add to the list of infamous prisons where no one should be confined the Federal Bureau of Prisons Metropolitan Detention Center in Brooklyn, New York.

calcutta240108Last week, US District Judge Gary Brown (EDNY) sentenced 74-year-old Daniel Colucci – convicted of failing to pay over taxes collected from his employees to the IRS – to nine months in prison conditioned on the BOP not designating him to serve it at MDC Brooklyn, a designation to that would be, “under present circumstances, unacceptable.”

The opinion, describing in extensive detail the inhumane conditions at MDC Brooklyn – including lengthy lockdowns, vicious assaults and significant delays in providing medical care – came several weeks after an MDC inmate was killed in a fight there.

Judge Brown ruled that the severity of the million-dollar tax loss, the court’s suspicions about the “depth” of Colucci’s remorse, and reluctance to pay restitution, made the nine-month sentence necessary.

However, all of that was trumped, the Court said, by the risk that Colucci’s short sentence might result in the BOP designating him to MDC Brooklyn:

[J]udges in this district are subject to a steady drumfire of [allegations of inhumane treatment at MDC]… And these issues continue to affect judicial determinations. In United States v. Chavez, contrary to statutory presumptions, Judge Furman ordered that a narcotics defendant subject to a multi-year sentence remain at liberty pending surrender, based largely on the conditions at MDC. In United States v Griffin, Judge Komitee granted a motion for compassionate release based primarily on the conditions at MDC for a defendant serving time for violating supervised release. Cf. United States v. Santana (“Given the severe prison conditions that prevail at the MDC (conditions that amount to imposing harsher punishments on prisoners), this Court and others have adjusted sentences of defendants in custody there for lengthy periods.”). In yet another case, Judge Cogan indicated that he might have sentenced an offender to incarceration “if not for the length of the sentence landing him in the Bureau of Prison’s Metropolitan Detention Center in Brooklyn.

medicalcare220912In Chavez, Judge Furman identified three areas of concern in the post-COVID conditions at MDC: (1) continued reports of inordinate periods of lockdown, (2) claims that the facility provides inadequate and/or substantially delayed necessary medical care—a particular risk in this case and (3) general issues about the conditions at the facility. Allegations of inadequate supervision, unbridled assaults and lack of sufficient medical care are supported by an increasing body of evidence, with certain instances that are irrefutable. [See] Griffin (‘it has been well documented that the MDC has an ongoing issue with frequent lockdowns due to violence and the threat of violence, among other concerns, which has delayed medical care for a number of inmates’).”

The Court also cited Griffin’s finding that “[c]haos reigns, along with uncontrolled violence” at the facility. Judge Brown wrote, “This Court has identified shocking instances of brutal violence within the facility. This review is necessarily limited, as the Court’s access to relevant information was exceptionally narrow. In other words, there were, most certainly, other incidents not collected during this Court’s review. Nevertheless, the results are staggering.”

Colucci was deserving of some incarceration, the Court held, but the “circumstances present a conundrum… [T]he defendant, like the defendant in Chavez, is over 70 years of age, faces significant health challenges and has no criminal record… Thus, a sentence of incarceration imposed, if that sentence would be served at the MDC, would most assuredly be excessive..”

The Court ruled that Colucci would remain on bond until the BOP designated him to a facility. If he is sent somewhere other than MDC Brooklyn, he will do his time there. However, if the BOP designates MDC as Colucci’s facility, the Court intends to vacate the 9-month sentence and send Colucci to home confinement instead.

accountable220225David E. Patton, the former chief federal defender for New York City, told the New York Times that the BOP has evaded accountability for the deplorable state of MDC Brooklyn. “People are dying because of their inaction,” he said. “I know it’s not easy to take on your colleagues in the Bureau of Prisons. I know it’s not easy to reform a broken culture. But it’s time for some fortitude from our leaders.”

The BOP told The Times, “We make every effort to ensure the physical safety and health of the individuals confined to our facilities through a controlled environment that is secure and humane.”

United States v. Colucci, Case No. 23-CR-417, 2024 U.S. Dist. LEXIS 138497 (E.D.N.Y. Aug. 5, 2024)

United States v. Chavez, Case No. 22-CR-303, 2024 U.S. Dist. LEXIS 1525 (S.D.N.Y. Jan. 4, 2024)

United States v. Griffin, Case No. 22-CR-408, 2024 U.S. Dist. LEXIS 102127 (E.D.N.Y. June 9, 2024)

United States v. Santana, 2024 U.S. Dist. LEXIS 90220 (S.D.N.Y. May 20, 2024)

New York Times, Brooklyn Jail Is Too ‘Inhumane’ for 75-Year-Old Tax Scammer, Judge Says (August 8, 2024)

– Thomas L. Root

Open Season on Gun Laws – Update for August 13, 2024

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

FURBALL OVER SECOND AMENDMENT CONTINUES

lotsalaw240813As a young pup in law school a half-century ago, I had a contract law professor, Robert J, Nordstrom, who was as theatrical as he was brilliant. One day while discussing an obscure point of contract law, he dramatically waved his arm in the general direction of the law library and said, “Remember, people, there’s enough law in there for everybody.”

I got his point. A canny lawyer could find a decision somewhere in the law books that supported whatever position – however ridiculous – he or she wanted to take. Turns out that the same is true of history.

After New York State Rifle & Pistol Association v. Bruen, lawyers stampeded to the history books to find evidence that the many statutes regulating guns on the federal and state books had 18th and 19th-century precedents. Then, last June’s United States v. Rahimi decision relaxed the Bruen standard a bit, clarifying that the historical regulation didn’t have to be identical, just analogous.

In other words, the history doesn’t have to fit exactly. It just has to sort of fit. What’s more, in the fitting, the courts can draw such conclusions as they wish. The results are a pastiche of contradictions. For instance, AR-15s can be banned in Maryland but not in New Jersey.

In the last two weeks alone

• the 8th Circuit quickly upheld its decision that 18 USC § 922(g)(1) did not violate the 2nd Amendment when applied to a defendant previously convicted of a drug offense. The case had been appealed to the Supreme Court but was remanded for the Circuit to reconsider it in light of Rahimi. The Circuit ruled that the Supreme Court said in District of Columbia v. Heller that nothing has “cast doubt on longstanding prohibitions on the possession of firearms by felons,” and that neither Bruen nor Rahimi nor historical analysis changed that.

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

• the 11th Circuit ruled that neither Bruen nor Rahimi “abrogate[d] our previous holding that § 922(g)(1) does not violate the 2nd Amendment because “felons are categorically ‘disqualified’ from representing their 2nd Amendment right under Heller.”

United States v. Lowe, Case No. 22-13251, 2024 U.S.App. LEXIS 19494 (11th Cir. Aug. 5, 2024)

minuteman240813• the 4th Circuit upheld Maryland’s ban on “assault weapons,” concluding that guns such as the popular AR-15 platform (perhaps 25 million copies in civilian hands in the United States) are outside 2nd Amendment protection because they are “military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense.” The Circuit cited Blackstone’s Commentaries on the Laws of England (1769) that noted existing prohibitions on “riding or going armed, with dangerous or unusual weapons, which would terrify the good people of the land.”

Bianchi v. Brown, Case No. 21-1255, 2024 U.S.App. LEXIS 19624 (4th Cir. Aug. 6, 2024)

• on July 30, the US District Court for New Jersey ruled that the state’s AR-15 platform ban violated the 2nd Amendment because the style of rifle is commonly owned throughout the United States and well-adapted for self-defense.

Association of New Jersey Rifle & Pistol Clubs, Inc., v. Platkin, Case No. 18-10507, 2024 U.S.Dist. LEXIS 134737, (D.N.J., July 30, 2024)

• In the same week, the 4th ruled that 18 USC § 922(k) – which outlaws possession of a gun with an obliterated serial number – did not violate the 2nd Amendment. The Circuit said that because “we cannot fathom any common-sense reason for a law-abiding citizen to want to use a firearm with an obliterated serial number for self-defense, and there is no evidence before us that they are nonetheless commonly lawfully used, we conclude that firearms with obliterated serial numbers are not in common use for a lawful purpose and they therefore fall outside the scope of the 2nd Amendment’s protection.”

United States v. Price, Case No. 22-4609, 2024 U.S.App. LEXIS 19623 (4th Cir. Aug. 6, 2024)

furball240813The more we see the Bruen standard applied, the confusing-er it gets. The Rahimi holding, at least this early in the game, does not seem to have helped a lot.

Professor Nordstrom might have said, “There’s enough history out there for everyone.”

Pick your facts and make your holdings.

– Thomas L. Root

Dublin Presents “101 Damnations” – Update for August 12, 2024

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COURT-APPOINTED SPECIAL MASTER DECLARES BOP MANAGEMENT OF FCI DUBLIN ‘UNCONSCIONABLE’

dalmations240812There are no cute spotted puppies in Special Master Wendy Still’s 101-page report on FCI Dublin, made public last week in the class action case pending in Oakland, California, federal court against the Bureau of Prisons.

US District Court Judge Yvonne Gonzalez Rogers ordered the report released at an August 2 hearing where BOP attorneys argued the suit should be dismissed. Gonzalez Rogers has yet to issue a ruling on that request, but the report was unsealed last week.

Still’s report had very little good to say about Dublin or the BOP, finding an “unconscionable” pattern of derelict care and oversight at the now-closed women’s prison and “rais[ing] the alarm that similar problems may be plaguing other federal prisons across the nation,” according to the San Jose Mercury-News.

Special Master Still, a veteran corrections professional, listed a litany of policy failures at Dublin, including inadequate medical care, improper investigations into sex abuse reports, unnecessary disciplinary measures, lack of FSA and RDAP programming and a completely broken administrative remedy system. “The cascade of failures in operational practice has led to staff and [adults in custody] becoming discouraged and to lose confidence in the ability of the BOP to protect/support them,” Still wrote.

Judge Gonzalez Rogers appointed Still as the first special master of a federal prison in history after the Judge made an unannounced visit to Dublin in February and declared the prison to be “a dysfunctional mess.” Still had only been on the job 10 days when the BOP announced Dublin would be closed and started hustling prisoners out the door, a fall-of-Kabul-style evacuation that was halted by Judge Gonzalez Rogers only after Still called the Court to report that the buses were loaded and idling in the parking lot.

medical told you I was sick221017Still’s report chronicles systemic failures at Dublin from sexual abuse recordkeeping to boilerplate BP-9 responses to medical care to the second worst short-staffing in the Western Region. She singled out medical care, noting that “nurses and doctors at the prison often failed to adequately examine inmates “even when the patients presented with symptoms of serious medical conditions,” the report said. Patients were denied timely access to care for physical ailments or mental illness, with Still finding “serious deficiencies” in the prison’s specialty care medical records.

The failures Still noted were not limited to Dublin. She wrote

In addition to the dysfunction noted by the Court, the [Special Master] found numerous operational, policy and constitutional violations as outlined in the body of this report. This included the failure of Central Office and Regional Office management to correct significant and longstanding deficiencies that had previously been iden[ti]fied in multiple audits and investigations. Furthermore, management’s failure to ensure staff adhered to BOP policy put the health, safety and liberty of AICs at great risk for many years. It is unconscionable that any correctional agency could allow incarcerated individuals under their control and responsibility to be subject to the conditions that existed at FCI-Dublin for such an extended period of time without correction.

This Special Master continues to have concerns that the mistreatment, neglect and abuse the AICs received at FCI-Dublin not be repeated at the facilities where these individuals are being transferred to as many of the conditions that existed at this facility appear to be longstanding and systemic in nature.”

Still’s report said that more than 600 women removed from Dublin have filed reports in court of similar problems at other prisons. “It is critical to note that some of the deficiencies and issues exposed within this report are likely an indication of systemwide issues with the BOP,” Still wrote, “rather than simply within FCI Dublin.”

“What happened at Dublin did not happen in a vacuum — it was extremely open and obvious what the warden and others were doing at the time,” said Kara Janssen, an attorney helping to oversee the class-action lawsuit. “Until they fix the broken system, we’re just waiting for the next Dublin. They’re being caused by the failures at the top” of the federal Bureau of Prisons.

kickingbutt240812In an email, BOP spokeswoman Randilee Giamusso said the agency “welcomes the report and will work with Still on her findings and recommendations.” Of course it does, just like Ms. Giamusso probably welcomes a root canal without anesthetic.

Courthouse News Service, Unsealed court monitor’s report describes ‘cascade of failures’ at Bay Area women’s prison (August 5, 2024)

San Jose Mercury News, Federal prison leaders excoriated for ‘unconscionable’ conditions at shuttered FCI Dublin women’s prison (August 6, 2024)

Case No. 4:23-cv-04155 (NDCal), First Report of the Special Master Pursuant to the Court’s Order of March 26, 2024

– Thomas L. Root

Sentencing Commission’s Sounds of Silence on Retroactivity – Update for August 9, 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.

SENTENCING COMMISSION PUTS BRAKES ON RETROACTIVITY

deafeningslience240809In the annals of retroactive U.S. Sentencing Commission guidelines, never has such an ambitious retroactivity agenda yieldzed such… silence.

The USSC is the federal agency responsible for promulgating guidelines for federal judges in imposing criminal sentences. Its proposed amendments to those Guidelines — made in the spring of every year — become part of the Guidelines on November 1 unless Congress steps in to veto some or all of the changes.

A Guidelines change that would reduce a sentencing range does not apply to the sentence of a prisoner who has already been sentenced unless the Commission proposes a change in USSG § 1B1.10, the Guideline governing retroactivity.

Retroactivity doesn’t happen often. In 36 years and over 825 amendments, the USSC has made an amendment retroactive 21 times (under 3% of the time).

retro240506This year, the Commission proposed to make four Guideline changes, in areas of acquitted conduct, gun enhancements, Guidelines calculation where a defendant is convicted of an 18 USC § 922(g) felon-in-possession count, a 21 USC § 841 drug trafficking count , and a separate 18 USC § 924(c) gun conviction; and a change in the drug Guidelines to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that inflate sentencing ranges.

The Commission solicited public comment on the proposed retroactivity and the staff prepared retroactivity impact reports that, among other matters, estimated how many prisoners would be eligible for reduced sentences if retroactivity on each proposal was adopted.

However, at yesterday’s meeting, the Commission tersely declined to vote on the measure. After about 10 minutes of discussion on Commission priorities for the coming year, US District Court Judge Carlton Reeves (SD-MS), chairman of the Commission called for a motion to adopt the retroactivity proposal. His call was met with a deafening silence.

Chairman Reeves was not surprised, the decision to defer retroactivity apparently having been scripted beforehand. He said:

The matter fails for a lack of a motion.

The public tuned in today to hear not only about the commission’s final priorities but also our decision about retroactivity. Our final priorities made clear that we are listening closely to the public’s recommendations about how to do our work. Many have called for the Commission to identify clear principles that will guide its approach to retroactivity. After deep deliberation, we have decided to heed those calls. For that reason, we will not be voting on retroactivity today. Nevertheless, I want to thank all of those who submitted comments and testimony regarding retroactivity for these amendments. Please know that your input has been heard and will continue to be heard as the Commission moves forward.

So what happened?

The best speculation is that the Commission is responding to criticism heaped on it for adopting amended Guideline 1B1.13(b)(6), which permits judges to grant compassionate release where a prisoner’s sentence could not be imposed today because of changes in the law that occurred after the sentence was imposed. Subsection (b)(6) contains a lot of caveats: the prisoner must have served 10 years, the change must have created a substantial disparity between the prisoner’s sentence and current sentences for the same offense, and the inmate’s prison record had better be clean as a whistle.

Nevertheless, after the Commission adopted the amended 1B1.13 containing the new subsection (b)(6), Sen John Kennedy (R-LA), a member of the Judiciary Committee, introduced the Consensus in Sentencing Act (S.4135) to require the Commission to achieve “bipartisan agreement to make major policy changes.” The bill would amend 28 USC § 994(a) to require that amendments to the Guidelines receive five votes from the Commission’s seven voting members.

At the time, Kennedy whined that “[t]he Sentencing Commission for decades strove to achieve bipartisan agreement when adopting amendments to the Sentencing Guidelines. In recent years, the Commission has lost its way and begun forcing through amendments on party-line votes.”

The Commission has seven voting members. No more than four members can belong to the same political party.

Sens Ted Cruz (R-TX), John Cornyn (R-TX), Tom Cotton (R-AR) and Marco Rubio (R-FL) cosponsored S.4135, which is stalled in the Judiciary Committee and has no chance of passage before the 118th Congress expires at the end of the year.

Nevertheless, in June, retired US District Judge John Gleeson, a member of the Commission, met with Kennedy, after which Kennedy said that “Gleeson acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.”
“I look forward to seeing the fruits of this commitment.”

I suspect he just did.

can230407The Commission did not reject retroactivity on the amendments, but its intention to adopt guiding principles for retroactivity pretty much ensures that any decision on making the acquitted conduct and other amendments retroactive has been kicked down the road for a year or better.

Sentencing Commission Public Hearing (Video) (August 8, 2024)

Sentencing Commission, Final Priorities for Amendment Cycle (August 8, 2024)

S.4135, Consensus in Sentencing Act

Sen John Kennedy, Kennedy introduces bill to restore bipartisan decision-making at Sentencing Commission (April 7, 2024)

Sen John Kennedy, Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines (June 3, 2024)

– Thomas L. Root

Some Pro Tips for Compassionate Release D-I-Y’ers from the 1st Circuit – Update for August 8, 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.

1ST CIRCUIT HANDS OUT A FEW PRO TIPS FOR COMPASSIONATE RELEASE MOTIONS

The 1st Circuit reminded us last week that 18 USC § 3582(c)(1)(A) compassionate release decisions are granted largely in the district court’s discretion, and if the district court thinks you’re still a danger to the community, don’t expect love from the court of appeals.

walkedwomantalkedman240808Michel D’Angelo robbed a bank in 2012 dressed like a woman and carrying a purse he told tellers contained a bomb. His lengthy criminal history of burglary, theft, disorderly conduct, criminal threatening, multiple assaults, and trafficking in prison contraband, qualified him under the law at the time as a Guidelines career offender (sentencing range of 210-240 months. The judge varied downward because of Mike’s mental health challenges and gave him 180 months.

In 2022, 11 years after the bank robbery, Mike sought compassionate release. He argued that changes in Guidelines interpretation meant that he would not be a career offender if he were sentenced today, that he had been rehabilitated, and that the BOP had not adequately treated his mental conditions.

The district court denied the compassionate release motion. Last week, the 1st affirmed, finding that the district court’s holding that Mike was still a danger to the public — despite his showing on other 3553(a) factors — was well within the judge’s discretion.

The case arose when USSG § 1B1.13 was still advisory, making some of its holding inapplicable to current compassionate release motions. However, there are two takeaways worth considering for those seeking compassionate release now.

nickdanger220426First, the district court found Mike to still be a danger because he had a long criminal history even before robbing the bank; the robbery was “a frightening and life-endangering offense;” and he had “accumulated a tumultuous disciplinary record while incarcerated.” Also, Mike’s recidivism score was “high,” a fact more important to the Circuit than Mike’s argument that his age – 42 years old – made him statistically less likely to commit new crimes.

The lesson here is that if you have a significant criminal history (Mike’s was a “V”), if you committed a crime of violence, or if you have a checkered institutional disciplinary record, you may have a steep hill to climb getting a compassionate release. If your PATTERN score is a “low” or “minimum,” you should soundly thump that fact.

Second, the 1st agreed that Mike wouldn’t be a career offender if sentenced today, but it held that that fact alone was not extraordinary and compelling. Look to § 1B1.13(b)(6) (change in sentencing law that produces a gross disparity and the prisoner has served 10 years and his or her “individualized circumstances” justify a reduction. Mike had gotten a downward variance sentence to 180 months because of his mental health problems, within what his Guidelines would have been without career criminal status. No gross disparity here, and Mike’s “individualized circumstances,” mainly his institutional conduct and progress, were not good.

The tip is that a change in the law alone is not enough to establish extraordinary and compelling reasons for grant of a compassionate release motion. Read and follow § 1B1.13(b)(6).

nothingcoming210420The final pro tip in this decision arose from Mike’s complaint that the district court was obligated to correctly calculate his lower Guidelines range (without career offender) before performing the 18 USC § 3553(a) “sentencing factors” analysis. The 1st disagreed, finding that the district judge “correctly calculated this lower Guidelines range before explaining why § 3553(a) did not favor reducing Mike’s sentence. Because the district court performed its § 3553(a) analysis after assuming that the career-offender enhancement would not apply, we gather from context that it implicitly considered that Guidelines range as part of its analysis.”

This holding suggests that any compassionate release motion raising the argument that the movant would not have been sentenced as harshly today should include a reasonably detailed analysis of the correct Guideline range and point out that any § 3553(a) analysis should start from the adjusted lower range.

United States v. D’Angelo, Case No. 22-1875, 2024 U.S. App. LEXIS 18794 (1st Cir. July 30, 2024)

– Thomas L. Root

Judge Skeptical At BOP’s Claim That FCI Dublin’s Problems Are In the Rear-View Mirror – Update for August 6, 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.

FCI DUBLIN CLOSURE HAS NOT MADE EVERYTHING “HUNKY DORY”

If anyone at Bureau of Prisons headquarters thought that peremptorily closing FCI Dublin and creating a diaspora of its female prisoners across the BOP would solve its sex abuse headache, last week may have dissuaded such hopes.

hunkydory240806Oakland TV station KTVU reported that at a hearing last Friday, US District Court Yvonne Gonzalez Rogers (N.D. Cal.) “slammed” BOP lawyers for trying to dismiss a class action lawsuit over sexual abuse and retaliation at the FCI Dublin and “grilled” BOP Director Colette Peter’s deputy, who flew in from Washington, DC for the hearing.

The BOP shut down FCI Dublin on April 15 following a years-long sex abuse scandal by guards and a federal court’s appointment of a special master to oversee reforms at the prison. Its lawyers now argue that the lawsuit against the BOP is moot because of the closure.

Judge Gonzalez did not receive the argument well:

You’re asking to dismiss this case and are saying that everything is hunky dory, and you can’t even resolve ]a myriad of issues that include giving the women their property back or proper medical treatment]… The BOP caused these problems themselves. It strains credulity that this motion was filed, given everything. Clearly, major issues still need to be resolved… You want this court to wipe its hands clean and go its merry way with respect to those hundreds of individuals that are out there?

KTVU reported that the issues include 126 medical cases, 63 people with substance abuse needs, 39 mental health issues and 137 property claims that are still not resolved. All of these stem from the closure of the prison, where 605 women were transferred to prisons across the country.

BOP lawyers argued that staff can’t process property claims because the prisons to which the women were transferred are “severely understaffed.” The judge testily reminded the attorneys that the transfers and understaffing “was completely of their own doing,” KTVU reported.

The judge had ordered Deputy Director William Lathrop to appear before her or she would throw out the BOP’s motion to dismiss. He testified that a “high-level executive decision” to close Dublin was made about a month before the closure.

nothingtosee240806The judge suggested that the BOP simply spread the problem elsewhere. “So you sent [the incarcerated women] to understaffed facilities and didn’t increase staffing?” the judge asked.

“Correct,” Lathrop answered.

BOP lawyers, for the first time, told the court that another reason for closing Dublin was because local doctors (none of whom were identified) did not want to work at the prison because they were worried the women would falsely accuse them of sexual assault.

The judge expressed her skepticism. “This is all news to me,” she said. “It’s nowhere in the record and I have not heard any evidence of that.”

Documents ordered unsealed last Friday in the lawsuit included Special Master Wendy Still’s report that detailed systemic abuse and inadequate medical and mental health care at Dublin:

Management’s failure to ensure staff adhered to BOP policy put the health, safety and liberty of [adults in custody] at great risk for many years… It is unconscionable that any correctional agency could allow incarcerated individuals under their control and responsibility to be subject to the conditions that existed at FCI-Dublin for such an extended period of time without correction.

Special Master Still, a former corrections professional, wrote that she “continues to have concerns that the mistreatment, neglect and abuse” inmates experienced at the facility not be repeated where they were transferred, “as many of the conditions that existed at this facility appear to be longstanding and systemic in nature.”

The Report was to be made public yesterday but was not posted on the docket as of the morning of August 6th.

dungeon240806The Special Master’s concern is not misplaced. Susan Beaty, an attorney who represents hundreds of women formerly held at Dublin, told KTVU last week that about 200 of the 605 women transferred from the now-closed facility are being held in three BOP detention centers and have lacked access to sunlight for months.

“The lack of access to outdoor space has really compounded the impact of these transfers and the trauma that our clients have already been through,” Beaty said. She reported that one of her clients told her that the BOP is aware of this issue because the prisoner’s unit team told her to “drink milk” to help with Vitamin D deficiencies.

KTVU, Judge slams BOP for trying to dismiss FCI Dublin case; grills deputy director (August 2, 2024)

KTVU, Former FCI Dublin prisoners say they haven’t felt sunlight in months (July 30, 2024)

KQED, Special Master Slams Conditions at FCI Dublin in Report (August 2, 2024)

– Thomas L. Root