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Pardon Joe While He Works on Clemency – Update for February 16, 2021

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

WHITE HOUSE BEGINS TO UNTANGLE CLEMENCY MESS

broken210216President Biden has inherited 14,000 unresolved clemency requests – petitions seeking a pardon (forgiveness of the offense) or commutation of sentence (reduction of sentence, usually to time served). Many of the clemency petitions date from the Obama era but a good number piled up in the last four years, during which time who you knew was more important that what you wrote in your petition.

Politico reported last week that the White House is seeking suggestions on how to reform the clemency system and deal with the backlog. But the White House so far has revealed little about its plans, leaving advocates concerned that Biden’s team lacks a comprehensive plan for dealing with the backlog.

Over 100 criminal justice reform groups are urging Biden to overhaul the process and start resolving cases right away. The ACLU launched an ad campaign last month to push him to grant clemency to 25,000 people and make good on his pledge to tackle criminal justice issues amid a national reckoning on racial injustice. “The danger,” law professor Mark Osler said, “is that they’ll replicate the mistake the past several administrations of never focusing on it until it’s too late and it’s a mess.”

While Biden didn’t campaign aggressively on the issue of clemency, the joint task force Biden and Sen. Bernie Sanders (D-Vermont) assembled last summer proposed a 60-person agency independent of the DOJ, composed of people with diverse backgrounds to review cases.

clemencypitch180716Rep. Steve Cohen (D-Tennessee), who chairs the House Judiciary subcommittee with jurisdiction over pardons, lobbied Obama and Trump to issue more pardons. He said he plans to do the same for Biden.

“There are… more and more people in jail, and a lot of those people have been there forever and they have been there for long draconian sentences,” Cohen said.

Ohio State University law prof Doug Berman counseled patience as the White House figures out a plan. But, he said, “taking a careful and deliberative process toward grander reform of the entire clemency process should not be an excuse for Prez Biden to hold back entirely on the use of his clemency pen…I am pretty confident that only a relatively little amount of time would be needed for members of the Biden team to identify at least a handful of compelling cases that could and should allow clemency grants” to be part of Biden’s first 100-day agenda.

Politico, Trump left behind a clemency mess. The clock’s ticking for Biden to solve it. (February 11, 2021)

Sentencing Law and Policy, How about some clemency grants from Prez Biden while his team works on grander clemency plans? (February 11, 2021)

– Thomas L. Root

Let’s Get Moving, People! – Update for February 12, 2021

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

LORD, GRANT ME PATIENCE… AND I WANT IT NOW

time210212With Biden in office, prisoners have been jamming my email inbox asking when President Biden will be tackling criminal justice reform. Everyone, including me, wants it now.

For that matter, people are asking whether the $1.9 trillion stimulus will include changes in compassionate release, CARES Act release and elderly offender home confinement. The answer: no one knows.

The stimulus bill’s details have not yet been released. For all we know, the details have not yet been written. We don’t know whether prisoners will qualify for the $1,400 stimulus. We don’t know about sentencing breaks, or extending home confinement past the end of the pandemic. The best estimates are that the text will be available some time in March.

advice210212The lack of action right now hasn’t stopped people from proposing what Biden should do. Reason magazine called for creation of a new pardon office, independent of the Justice Department, to handle clemency petitions at volume, with an eye toward cutting the sort of excessive drug sentences that both Obama and Trump criticized but did not address. Reason noted this wouldn’t require an act of Congress—just the will of a president able to admit the size and scope of the problem. Some Latino groups are proposing that Biden issue a mass presidential pardon for at least some of the estimated 11 million people in the country illegally.

Writing in The Hill, Marc Levin argued that among the most important items deserving action by the White House and Congress are abolition of drug mandatory minimums and allowing courts to take a second look at certain sentences after individuals have spent many years behind bars. Others include laws prohibiting prosecutors from contaminating the sentencing phase of a trial with references to acquitted conduct waiving federal laws that interfere with state legalization of medicinal or recreational marijuana.

There is no shortage of suggestions. It’s just no one knows when it’s going to happen.

Reason, A Practical Wish List for Joe Biden (February 1, 2021)

USA Today, A pardon for ‘Dreamers’? Some activists tout amnesty for undocumented immigrants if Congress doesn’t act (February 2, 2021)

The Hill, Build a bridge, not a wall, between administrations on justice reform (February 1, 2021)

– Thomas L. Root

‘Danger, Danger!’ – Courts Grapple With Prisoners’ ‘Danger to the Community’ on Compassionate release – Update for February 11, 2021

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

GUESS THEY MEANT WHAT THEY SAID…

saymean161103Part 1: About 80 days ago, the 6th Circuit ruled in United States v. Jones that because the Sentencing Commission – due to having too few members to even hold a meeting – had not been able to amend compassionate release policy statement § 1B1.13, district judges had no obligation to follow the old version of that Sentencing Guideline.

A little background: At the same time Congress enacted the Sentencing Reform Act of 1984, it established the Sentencing Commission. Among the Commission’s duties was a directive in 28 USC § 994(t) that it define in detail what constituted an “extraordinary and compelling reason” for a sentence reduction (what we commonly call compassionate release).

The Commission’s response was policy statement § 1B1.13, which faithfully adhered to the statute by – among other things – directing that a compassionate release could only be requested by the Director of the Federal Bureau of Prisons. After all, that was what 18 USC § 3582(c)(1)(A) said at the time. But in 2018, Congress change the statute in the First Step Act to permit prisoners to bring their own motions for compassionate release if the BOP turned down their request for the agency to do so.. Of course, the BOP turned everyone down: Mother Teresa herself could not have wrangled a compassionate release motion out of the Director.

motherteresa210211Normally, the Sentencing Commission would have amended § 1B1.13 in due course, updating it to reflect that compassionate release motions may be coming from inmates as well as the rare filing by the Director of the BOP. However, the Sentencing Commission was having its own crisis at the time. Three members left the Commission at the end of 2018 when their terms expired, and President Trump had not nominated any replacements. When he finally came up with a few names months later, the Senate never got around to confirming them. As a result, the Commission has lacked a quorum for two years now, and has been able to do absolutely nothing.

Thus, we have a revised compassionate release statute on the books, but an enabling policy statement that is still rooted in the Dark Ages.

That old policy statement set restrictive definitions as to what constitutes “extraordinary and compelling” reasons for a reduction, and said that any reason other than those listed in § 1B1.13 had to be approved by the Director. As well, § 1B1.13 required the judge – among other things – to determine that the prisoner “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).”

That brings you up to date. Now, for today’s case:

Jones described a three-step process for deciding compassionate release motions: First, a prisoner must show extraordinary and compelling reasons for a sentence reduction. If that showing is made, the movant must then show that the motion is consistent with any applicable policy statement issued by the Sentencing Commission. If he or she crosses that hurdle, the prisoner must finally show after considering the sentencing factors of 18 USC § 3553(a), the court ought to grant the motion. Jones’s three-step came with one big asterisk: where prisoners were moving for compassionate release on their own – instead of the motion being brought by the BOP Director – the courts should skip Step Two.

Paul Sherwood filed for compassionate release under 18 USC § 3582(c)(1)(A)(i), claiming that COVID-19, coupled with his age and medical condition, constituted extraordinary and compelling reasons for release. He claimed that the 18 USC § 3553(a) factors also weighed in favor of grant. The government admitted Paul’s medical conditions satisfied the “extraordinary and compelling” threshold, but it argued that his possession of prohibited sex images (read that as “kiddie porn”) meant he “remained a danger to the community, and that the § 3553(a) factors counseled against release.” The district court agreed in a two-line order that Paul “has failed to demonstrate that he is not a danger to the community. Not only was he convicted of possession… but he was convicted of transportation as well.”

pornC160829Last week, the 6th Circuit reversed the district court, telling everyone it meant what it said in Jones: § 1B1.13 is to be ignored. “While a brief order may well be sufficient for purposes of denying compassionate release,” the Circuit wrote, “where the order relies exclusively on an impermissible consideration, we must vacate the order and remand the case for further consideration.” The 6th admitted that the district judge could consider whether Paul had a “propensity to be a danger to the community upon release, as well as the nature and circumstances of his offense,” and it even presumed that “the district court’s initial balancing of the § 3553(a) factors during Paul’s sentencing remains an accurate assessment as to whether those factors justify a sentence reduction…”

In other words, the Circuit telegraphed to the district court that it didn’t expect the outcome to be any different after remand, only the process used to get there.

Despite its expectations, “because the district court relied on § 1B1.13(2) as the sole basis for denying Sherwood compassionate release,” the 6th remanded the so that the district court could decide whether the § 3553(a) factors alone weighed in favor of Sherwood’s release, without considering “danger to the community.”

Part 2: In early December, the 4th Circuit ruled in United States v. McCoy that § 1B1.13 should be ignored, and – additionally – that district courts could even consider disproportionately long sentences as reasons for compassionate release.

danger210211Paul Kratsas has spent nearly three decades in prison for a non-violent drug offense committed in Maryland. He moved for a sentence reduction, arguing that he would not get a mandatory life sentence if convicted today, and that his record of achievement in prison showed rehabilitation. The government, predictably enough, argued that there was nothing extraordinary or compelling in Paul’s showing, and anyway, he had not shown he would not be a danger to the community (even after 30 years in prison).

The district court noted that even under current law, Paul would qualify as a career offender, but “with good time credits, he has already served more than the bottom of those guidelines.” District Judge Deborah K. Chasanow obviously concluded that United States v. McCoy meant what it said. She held:

It is time to recognize that both the law and Mr. Kratsas have changed over the last three decades. His youthful refusal to acknowledge his guilt – or to accept punishment – has given way to reflective maturity. His positive attitude while in prison is demonstrated by the myriad courses, programs, and activities he has completed successfully, earning him transfer to a low security facility and the support of his mentor and family. He has demonstrated that he is not likely to be a danger to society due to his insights into his personal responsibility and the release plan he has offered. He is to be commended for his refusal to lose hope.

Paul went home last Friday… for the first time since 1992.

United States v. Sherwood, Case 20-4085, 2021 U.S. App. LEXIS 2806 (6th Cir., February 2, 2021)

United States v. Kratsas, Case No. DKC 92-208, 2021 U.S. List. LEXIS 13313 (D.Md., January 25, 2021)

– Thomas L. Root

Resentencing Good Fortune Can’t Be Bootstrapped Into a New 2255 – Update for February 8, 2021

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

GOING BACK TO THE WELL

nogoingback210208Any federal prisoner who has filed a post-conviction habeas corpus motion under 28 USC § 2255 knows that the § 2255 remedy – a powerful way to get as conviction overturned or sentence vacated – is pretty much a one-and-done thing: you can’t file a second § 2255 without permission from a court of appeals (pursuant to 28 USC § 2244). Getting that permission is a pretty tall order, requiring that you show there’s a new Supreme Court decision that the Court has decided should be applied retroactively to cases already decided, or you have some newly-discovered evidence that is so boffo that the jury would have acquitted you and the judge himself would have driven you home.

Charlie Armstrong thought he had found a work-around that would let him file a second § 2255 without having to jump through the § 2244 hoop. After being convicted and imprisoned on a marijuana charge, Charlie found himself to be the beneficiary of the Sentencing Commission’s 2014 reduction of drug-crime scoring for Guidelines sentence. The change was essentially an across-the-board reduction of two levels, and people already sentenced were allowed to apply two their sentencing judges for discretionary resentencing applying the 2-level reduction under the procedure laid out in 18 USC § 3582(c)(2).

After his conviction but before the 2014 Guidelines reduction, Charlie filed a § 2255 motion alleging ineffective assistance of trial and appellate counsel. While the § 2255 motion was pending, the Sentencing Commission adopted Amendment 782, and after Charlie applied to his sentencing court, his judge cut his sentence by 25%.

mulligan190430Some time later, the district court got around to denying Charlie’s § 2255 motion (which, alas, is the fate of most such motions). Charlie promptly filed a second § 2255, challenging his newly-reduced sentence on the basis of ineffective assistance of his attorney. Charlie explained that he didn’t need § 2244 permission to file the new motion, because his 2-level reduction was a new, intervening judgment giving him the right to challenge the new sentence with a § 2255, essentially giving him a § 2255 mulligan.

The district court disagreed, and dismissed the new § 2255 petition as a second or successive motion.

The 2010 Supreme Court Magwood v. Patterson decision held that if “there is a ‘new judgment intervening between the two [§ 2255] petitions, an application challenging the resulting new judgment is not second or successive.” With this opinion in hand, Charlie appealed the district court’s denial, arguing his 2-level reduction was the exactly the kind of new judgment Magwood had in mind.

doover210208Last week, the 11th Circuit turned him down. The Circuit said that in Magwood, the sentencing court “conducted a full resentencing and reviewed the aggravating evidence afresh,” the 11th said, giving the sentencing judge a chance to commit new errors or to repeat the same errors as in the original sentence. But a § 3582(c)(2) sentence reduction “does not authorize a sentencing or resentencing proceeding.” Instead, it simply “provides for the ‘modification of a term of imprisonment’ by giving courts the power to ‘reduce’ an otherwise final sentence in circumstances specified by the Commission.”

Armstrong v. United States, Case No 18-13041, 2021 U.S. App. LEXIS 3265 (11th Cir., February 5, 2021)

– Thomas L. Root

COVID Miracles (Performed by Statisticians) – Update for February 8, 2021

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

A COUPLE OF COVID MIRACLES… OTHERWISE, A BAD WEEK FOR THE BOP

Despite what was a pretty bad run last week, PR-wise, for the Federal Bureau of Prisons, we were privileged to witness a couple of miracles of Biblical proportion.

Screen Shot 2021-02-08 at 9.03.53 AM

First, the numbers: The BOP continues to write down the COVID-19 inmate totals. As of last Friday, the BOP reported 2,273 sick inmates, down 43% from the week before. Curiously, the agency reports 1,729 sick staffers, a mere 3% reduction from the week before. Cynics might say that when you control the patients, you can say when they’re recovered and when they’re not. Controlling employees who go home at the end of each shift… not so easy,

At the end of the week, the BOP reported 229 federal prisoner deaths, an increase of five. The BOP says it has tested 68% of all inmates at least once, with a whopping 44.6% testing positive for COVID.

Raisedead210208Now for the miracles: Three federal prisoners housed in private prisons have miraculously come back to life, at least on paper. Last Tuesday, the total number of inmate deaths in the private prisons dropped from 16 to 13 without explanation. The private operators, who are losing their federal contracts, seem to know something about how to cure people of COVID. Or perhaps they’ve taken the story of Lazarus to heart.

Meanwhile, the BOP is starting to provide vaccination information on its website, and – speaking of miracles – as of last Friday, the BOP was reporting that it had received 36,650 doses of vaccine, but somehow administered 2,638 more doses than it had received. The New Testament records that Jesus fed 5,000 people with five loaves and two fishes, and had more left over than he started with. The BOP has apparently replicated that miracle.

The BOP’s detailed vaccination information is woefully incomplete. In its facility-by-facility data, the number of inoculations accounts for only a third of the doses the BOP says it had distributed. Last Friday’s numbers show 7,468 staff (20.7% of all BOP employees) and 5,751 inmates (3.8% of the population) receiving the vaccine. The data only report that vaccines have been administered in 33% of all locations, which clashes with BOP statements several weeks ago . The New York Daily News said lawyers for defendants at MCC New York told it “the vaccine’s distribution at the jail has been haphazard, with some high-risk prisoners still waiting for shots.”

vax210208Other than the miracles, it was a tough week for the BOP. First, FCI Ft Dix Warden David Ortiz, who presided over a COVID-19 explosion at that facility last fall, suddenly was relieved of duty, reassigned to the BOP Northeast Regional Office. You may recall that the BOP uses desks at its regional offices as “time-out chairs” for wardens and other management people on the outs. Last summer, for example,  the BOP sent the FCI Oakdale warden to work on a desk at an office well away from inmates.

Ortiz was “temporarily” replaced by Lamine N’Diaye, the former warden at the MCC New York, who himself was placed on desk duty at the Northeast Regional Office in 2019 while authorities investigation the death of millionaire sex offender Jeffrey Epstein. At the time, Jose Rojas, a BOP union leader and teacher at FCI Coleman, said N’Diaye should be home without pay instead of being reassigned. “I put this on the warden,” he said. “If he would have had common sense and followed policy, we wouldn’t be here discussing this.”

In Chicago, inmates filed a proposed class action suit against the BOP for conditions at MCC Chicago. The suit, Price v. Federal Bureau of Prisons, Case No 1:21-cv-00542, claims the high-rise jail’s “haphazard and insufficient” measures to contain the coronavirus pandemic led to two major outbreaks, endangering people in custody and staff. The suit alleges a lack of cleaning supplies and proper social distancing as well as a “poorly implemented and incomplete” isolation and quarantine process. Officials also allegedly turned “a blind eye” to staff who didn’t wear masks and ignored some people in custody who asked for tests.

As a result, almost 300 MCC Chicago inmates have tested positive for COVID-19, although the lawsuit claims that “the real infection rate was certainly higher” than that.

More210208BOP correctional officers at FCI Mendota sued the BOP in the Federal Court of Claims last week for an extra 25% in pay for the hours they’ve worked during the COVID-19 pandemic. Aaron McGlothin, an FCI Mendota employees union leader, said COs feel particularly strongly about the need for hazard pay because they believe the Bureau of Prisons has not taken the proper precautions to protect them.

“At some point you have to say enough is enough, you have to do what you have to do, and seek outside assistance,” McGlothin said. “If our agency took the proper precautions, we wouldn’t have to deal with this the way we have, and they owe us.”

The Associated Press last week reported that records it obtained showed that the BOP’s string of executions at FCI Terre Haute last December and January “likely acted as a superspreader events… something health experts warned could happen when the Justice Department insisted on resuming executions during a pandemic. The AP said BOP employees carrying out the executions “had contact with inmates and other people infected with the coronavirus, but were able to refuse testing and declined to participate in contact tracing efforts and were still permitted to return to their work assignments… Other staff members, including those brought in to help with executions, also spread tips to their colleagues about how they could avoid quarantines and skirt public health guidance from the federal government and Indiana health officials.”

oops211202Finally, an arrest: A federal grand jury has returned a three-count indictment charging a former BOP CO, Jimmy Lee Highsmith, with sexually abusing three female prisoners at FCI Tallahassee. Highsmith was arrested last Wednesday night. In fall 2019, Florida Sen. Marco demanded the BOP respond to newspaper reports of sexual abuse of female inmates at Tallahassee and FCI Coleman camp. In fact, Highsmith was identified nine months ago by a former FCI Tallahassee inmate as having raped her.

There’s a saying among BOP inmates that many of the COs are “only a uniform change away…” Jimmy has become the illustration for that aphorism.

New York Daily News, Ghislaine Maxwell receives COVID-19 vaccine at Brooklyn federal jail: source (February 2, 2021)

NJ.com, Warden at N.J. federal prison reassigned amid massive COVID outbreak (February 2, 2021)

Albany Times-Union, Jail’s warden reassigned (August 14, 2019)

Chicago Sun Times, Inmates file class-action lawsuit over handling of COVID-19 at downtown jail (January 31, 2021)

The Fresno Bee, California prison employees file lawsuit demanding hazard pay during COVID pandemic (February 5, 2021)

Associated Press, Records show 13 federal executions under Trump administration at Indiana prison likely acted as COVID-19 superspreader (February 5, 2021)

Associated Press, Former corrections officer accused of sexually abusing multiple inmates at Federal Correctional Institution in Tallahassee (February 4, 2021)

– Thomas L. Root

Not So Fast… – Update for February 4, 2021

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

… MY FRIEND

corso170112This week, a pair of cases admonishing judges that haste makes waste.

John Doe (and I call him that because the court redacted his name and case number, something that you don’t see very much) was doing 151 months for a drug case. While locked up, John convinced his cellie to admit to killing his stepdaughter, a crime the cellmate was suspected but not charged with. The guy did so, and got life from the state. The government filed a motion to reduce John’s sentence under F.R.Crim.P. 35(b), asking for 12-18 months off.

The same day the motion was filed, the district judge granted it, cutting the 151-month sentence by a mere 12 months. John appealed, and last week the 6th Circuit reversed.

opinion210204The district court erred, the Circuit ruled, in granting the Rule 35(b) without giving John an opportunity to respond to the Government’s motion. “In granting the Government’s motion and deciding on the amount of reduction on the same day that the motion was filed,” the Circuit held, “the court denied John an opportunity to provide his own recommendation and present argument and accompanying evidence regarding the sentence reduction that he believed was warranted for his substantial assistance… a court does not, merely by agreeing with the Government’s assessment of the value of the assistance provided, thereby disavow its statutory discretion, particularly when the defendant has not provided his own recommendation concerning the value of that assistance and does not dispute the government’s description of his assistance.”

The judge in this district court travesty was none other than our perennial troglodyte jurist, the Honorable Danny C. Reeves, a guy whose sentencing screw-ups have graced this blog before (such as here and here). What’s so frightening is that then-President Trump nominated this knuckle-dragger to serve on the Sentencing Commission.  But I digress.

Meanwhile, in the 4th Circuit, three defendants filed Sec. 404 motions for the retroactive crack reduction. In what must seem like getting a pair of socks for Christmas, the district court their motions on a standard “AO 247” form (in which the judge just checked the box for “granted” without explanation) but then reduced the supervised release terms of each by one year without cutting any time from the prison sentences. Each defendant appealed, and last week, the Court vacated the reductions and send the cases back.

There is a presumption, the Circuit said, that a district court sufficiently considers all relevant factors in a resentencing motion, but that presumption is rebuttable. In this case, the defendants all presented evidence of their extensive coursework and exemplary prison conduct, “mitigating evidence that was not available at their initial sentencing hearing… “The presentation of post-sentencing mitigation evidence in each of the motions is sufficient to rebut the… presumption that the district court, in fact, considered all of the relevant evidence.”

goodboy210204The government argued that there was nothing special about the defendant’s post-sentencing conduct. Not so, said the 4th: the defendants “here have each spent nearly two decades in prison where, despite lengthy prison terms, they utilized the resources and programming they could access in prison to work toward rehabilitation… That kind of post-sentencing mitigating evidence is enough to require a district court to provide an explanation on the record of its reasons for deciding a sentencing reduction motion.”

United States v. [Redacted], Case No 19-[redacted], 2021 U.S. App. LEXIS 2306 (6th Cir. Jan 26 2021)

United States v. McDonald, Case No 19-7668, 2021 U.S. App. LEXIS 1827 (4th Cir Jan 22, 2021)

– Thomas L. Root

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

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

MOST BOP STAFF ARE REFUSING COVID-19 VACCINES

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Reading the Tea Leaves on Biden’s Criminal Justice Reform – Update for February 1, 2021

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

CHANGE IS GONNA COME… SLOWLY BUT SURELY

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

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

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

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

crackpowder191216

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

WE AIN’T TELLIN’ – UPDATE FOR JANUARY 28, 2021

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

DOUBLE SECRET PROBATION

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

I Trust You, Madam Prosecutor – Update for January 26, 2021

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

THE DILIGENCE THAT IS DUE

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

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

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

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

– Thomas L. Root