After All of the Drama… Trump’s Clemency – Update for January 20, 2021

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

TRUMP DOES SOMETHING RIGHT(?)

obtaining-clemencyAfter all of the angst since November about a flurry of pardons and commutations to be issued by President Donald John Trump (and you cannot imagine my relief at knowing I will never have to type those words again) – including speculation that he would pardon his family, all of his close friends, the Capitol rioters and even himself – Trump issued the final long-awaited clemency list in the wee hours on his last day in office (and you cannot imagine my relief at typing those words).

The media predictably fixated on the of handful of longtime allies and well-connected celebrities, including his former chief strategist, Steve Bannon, and onetime fundraiser Elliott Broidy, on the list. But that should not obscure the fact that, in virtually his last exercise of Presidential power, Trump pretty much got it right.

The White House released the list of 143 pardons and commutations at 12:50 a.m., as – according to the Wall Street Journal – Trump’s deliberations over who should receive clemency stretched late into the last full day of his term. Bannon, much like Schroedinger’s cat, flitted onto and off of the pardon list, but finally was included, short-circuiting his federal trial scheduled for May. A few rappers, politicos and Trump loyalists made the list, but the real story was that 90% of those getting pardons and commutations were rather ordinary people.

Only 18 of those on the list – 13% – were supported by the Dept of Justice Office of Pardon Attorney. The balance were by an array of political leaders, criminal justice reformers and other allies of the president.

On Tuesday, the president was still calling advisers to ask them how he should proceed on certain pardons and waffled repeatedly over whether to grant one to Mr. Bannon, a person familiar with the conversations said.

At various points on Tuesday, advisers believed Mr. Bannon—who was charged in connection to a scheme to siphon money from a crowdfunding campaign for a border wall—wouldn’t get one. The White House in a statement said Mr. Bannon “has been an important leader in the conservative movement and is known for his political acumen.”

Don’t take my word for it: here’s the list of those pardoned (their crimes forgiven) or had sentences commuted (imprisonment reduced or terminated, but the conviction remains):

White House List

trumpjohnson210120Trump has been widely criticized for using his clemency power to favor celebrities and political allies, including Michael Flynn, Paul Manafort, Roger Stone and former Maricopa County Sheriff Joe Arpaio. But he was praised for commuting the sentences of some prisoners serving long sentences for nonviolent drug offenses, like 63-year old Alice Johnson, who was doing life for a 1996 crack conspiracy. Her story (she was hardly the kingpin, but paid the price for not taking a deal) caught the attention of reality-TV star Kim Kardashian, who convinced Trump to commute her sentence. The move paid off for Trump: Johnson was a vocal supporter of the President after that (who could blame her), even speaking at the Republican convention last summer. Trump rewarded that by upgrading her commutation to a pardon. At the same time, Johnson advocated for clemency for people she knew in the system.

Before last week, Trump had pardoned or commuted the sentences of 44 people convicted of federal crimes —far fewer than any other president. To be sure, Trump isn’t the only president to pardon his friends and allies during his fpardon160321inal days in office. Former President Bill Clinton was criticized for including wealthy fugitive Marc Rich in his final batch of reprieves, after Rich’s wife donated generously to Clinton’s presidential library. An investigation later concluded that the pardon was sketchy but not quite illegal.

Experts argue that the erratic clemency process should be fundamentally reimagined, either by taking it out of the president’s hands altogether or at least by moving it out of the Department of Justice. This could speed up the review process and remove review from the people whose careers were made by convicting those seeking clemency. Advocates argues that clemency should be molded into a tool for redressing the harsh sentencing practices of the early Sentencing Guidelines days since 1989. The sentences, especially for drug offense, disproportionately sent minorities to prison for long stretches.

The New York Times reported that “advocates said they were hopeful that the Biden administration would be able to revamp the clemency process, and that the pardons approved by Mr. Trump would give the next administration some cover with conservatives in the future.”

The Biden administration said it would not comment on the Trump pardons.

The Wall Street Journal, Trump Issues 73 Pardons, Including to Ex-Aide Steve Bannon (January 20, 2021)

The New York Times, Trump’s final wave of pardons includes names pushed by criminal justice reform advocates (January 21, 2021)

The Marshall Project, Trump’s Pardons Show The Process Has Always Been Broken (January 19, 2021)

– Thomas L. Root

BOP’s Good and Bad At COVID Management – Update for January 19, 2021

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

COVID – BOP GETS PAT ON BACK, KICK IN PANTS

pat-on-back210119In a self-congratulatory press release issued late last week, the BOP said it has been commended by Operation Warp Speed – the Trump COVID-19 vaccine program – for having been the most efficient agency in the entire government at administering COVID vaccine. According to the CDC, the BOP has used 97% of the doses it has received.

Of course, it helps that the BOP has a captive audience. Not among staff so much: in a troubling report, the BOP said only half of its staff offered the vaccine have taken it. But the inmates… that’s another story. Doses not used by staff at the locations receiving it – about 68 of 122 facilities so far – have been offered to inmates using CDC priorities, and there are plenty of takers. The BOP so far has administered over 17,000 doses of the vaccine, a first dose to about 7,600 staff and 5,500 inmates, and a second dose to about 1,000 staff and 1,100 inmates. In other words, only 24% of staff and 4% of inmates have been vaccinated so far.

As of last Thursday – the last day the BOP bothered to release numbers – 4807 inmates and 2049 staff were reported to be sick with COVID. The BOP has tested two out of three inmates at least once, with a positivity rate that keeps climbing. Currently, 43% of inmate tests come back positive.

Death took no holiday last week as an additional eight inmates died last week. Significantly, two of the deaths – at FCI Jesup and FCI Memphis – were of inmates the BOP has previously declared to be “recovered.”  The BOP is quite quick to declare inmates “recovered” when 10 days pass after a positive teas. The declaration is based on CDC guidance, the BOP says, but is often misapplied, with the agency ignoring any continuing symptom other than a fever. 

FCI Fort Dix, where 321 inmates are still reported to have the virus, is set to get the COVID-19 vaccine next week, according to NJ Advance Media. BOP case management coordinator James Reiser told a court on Wednesday that the prison expects to receive COVID-19 vaccine on Jan 19. It is unclear how many doses the prison will initially receive, Reiser said.

kickinpants210119New Jersey Senators Bob Menendez and Cory Booker and Congressman Andy Kim led members of the New Jersey congressional delegation last week in urging the DOJ Inspector General to expand his ongoing investigation into the BOP COVID-19 response to include its handling of the Fort Dix outbreak.

Finally, a kick in the pants: the DOJ Inspector General last week reported that last April, BOP employees at FCC Coleman were threatened with discipline if they wore personally-acquired masks , and sometimes were sent home on sick leave for wearing such coverings. One complainant reported that a supervisor had said wearing a mask would “scare the inmates,” the OIG report said.

BOP, COVID-19 Vaccination Efforts Commended (January 16, 2021)

New Jersey Advance Media, N.J. prison with worst COVID-19 outbreak in the country set to get vaccine next week (January 13, 2021)

InsiderNJ, Menendez, Booker, Kim Lead NJ Delegation Call for IG Probe into COVID-19 Outbreak at Fort Dix (January 15, 2021)

Orlando Sentinel, Federal prison in Central Florida banned masks for staff as pandemic began, report says (January 14, 2021)

– Thomas L. Root

Final Hours for Trump Clemency… and Things Are Strange – Update for January 18, 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.

THINGS ARE GETTING WEIRD

weird210118Secret commutations. A phony White House pardon website. Capitol Hill rioters complaining on TV the president sent them to the insurrection, so he owes them a pardon. A promise of hundreds of clemencies. A president wonder-ing whether he can pardon himself.

For weeks, federal inmates have hoped President Trump would grant clemency to thousands of them on his way out the door. But if things looked like they were going sideways before Jan 6, they have gotten downright screwy since then.

As of this morning, the Washington Post reported “Trump is preparing to pardon or commute the sentences of more than 100 people in his final hours in office, decisions that are expected to be announced Monday or Tuesday, according to two people familiar with the discussions, who spoke on the condition of anonymity to describe the plans.”

The Post said Trump “has been besieged by lobbyists and lawyers for well-heeled clients who are seeking to have their criminal convictions wiped from their records, as well as by advocates for criminal justice reform, who argue that their clients were wrongly convicted or were given unfair sentences and deserve to be freed from prison.” Trump’s clemency binge has been delayed by what the Post called increasing dysfunction stemming from the Capitol riot and impeachment, but he reportedly spent part of the weekend finalizing his list.

The President has always made a big deal of his clemencies, but last Tuesday, he quietly commuted the sentence of Fred Davis Clark, whose Ponzi theft of over $171 million got him a 480-month federal sentence two years ago. Fred’s docket said the 60-year old defendant had an out date beyond 2050, but the BOP released him last Tuesday. The White House has released no official statement on the clemency.

parler210118The White House did, however, release a statement declaring a pardon notice circulating on the right-wing website Parler to be fake. The phony post, which claimed to be from the Office of Pardon Attorney, said “POTUS is seriously considering PARDONING all of the patriots in the next week and a half. If you would like a pardon, please respond below.” It then asks for the rioter’s name, city and even “what crimes you think you need to be pardoned for,” asking for them by “Tuesday” so the President can get to work on them. (Some might suggest that the very notion of the President “working” should have been the tipoff that the post was a fraud).

Some of the people who thought that vandalizing the Capitol was great fun are apparently have second thoughts now that their selfies and tweets are leading to criminal charges. Jenna Ryan, a Texas real estate broker who was arrested for joining the attack on the Capitol, has pleaded with Trump to pardon her. After surrendering to the FBI on Friday, Ryan said: “We all deserve a pardon. I’m facing a prison sentence. I think I do not deserve that.” Ryan said she had been “displaying my patriotism,” adding, “I listen to my president who told me to go to the Capitol.”

The Dept of Justice issued a statement last weekend that “the information circulating on social media claiming to be from Acting Pardon Attorney Rosalind Sargent-Burns is inauthentic and should not be taken seriously.”

In private, the president has continued to pursue which pardons he can grant in his final days in office, calling advisers to ask for suggestions. The White House is expected to release dozens of pardons in the days before he leaves office, aides say. Aides say they don’t know if some of the most controversial pardons—including for Rudy Giuliani, for the president’s children, and for the president himself—will be among them.

The New York Times reported last night that “a lucrative market for pardons is coming to a head, with some of his allies collecting fees from wealthy felons or their associates to push the White House for clemency, according to documents and interviews with more than three dozen lobbyists and lawyers.” People reported to be selling services include former AUSA Brett Tolman, Trump’s personal lawyer John M. Dowd, and Guliani.

pardonsale210118Politico reported last Friday that former White House advisor Steve Bannon – facing a federal fraud trial in May – is on the pardon list. Politico’s White House source said “two additional batches of pardons are expected — one on Friday night and one Wednesday morning before President-elect Joe Biden is sworn into office.” Of course, Friday has come and gone, and the first of the promised clemency lists did not happen. Last Monday, ABC reported that after some of Trump’s lawyers told him that if he pardons himself, he could be more vulnerable to civil lawsuits. “The president is angry,” ABC reporter Jonathan Karl said. “He has not taken that well, and I am told that he is now saying that he doesn’t want to see pardons for anybody. So the attitude seems to be: ‘If I can’t get a pardon, then nobody else should get one, either.'”

Washington Post, Trump prepares to offer clemency to more than 100 people in his final hours in office (January 18, 2021)

Law360.com, Trump Commutes Ex-Cay Clubs CEO’s Ponzi Sentence (January 14, 2021)

DOJ, Statement on Misinformation on Social Media Regarding the Office of the Pardon Attorney (January 9, 2021)

The Guardian, ‘I’m facing a prison sentence’: US Capitol rioters plead with Trump for pardons (January 16, 2021)

New York Times, Prospect of Pardons in Final Days Fuels Market to Buy Access to Trump (January 17, 2021)

Wall Street Journal, Trump Spends Final Days Focused on GOP Defectors, Senate Defense (January 16, 2021)

Politico, Trump weighing a pardon for Steve Bannon (January 15, 2021)

The Week, Trump is reportedly so angry aides are warning him against a self-pardon, he’s put all pardons ‘on hold’ (January 12, 2021)

– Thomas L. Root

SCOTUS Bulks Up on Criminal Cases – Update for January 15, 2021

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

SUPREME COURT GRANTS CERT ON THREE FEDERAL CRIMINAL CASES

The Supreme Court last week added three federal criminal questions to its docket.

crack-coke200804In Terry v. United States, the justices agreed to hear a technical sentencing issue with significant implications for thousands of inmates: whether defendants who were sentenced for low-level crack-cocaine offenses under 21 USC § 841(b)(1)(C) before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018.

Lower courts are divided on this question; as a result, one party argued, Supreme Court review is necessary “to prevent thousands of predominately Black defendants from being forced to spend years longer in prison than identically situated defendants” elsewhere in the country “and to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized.”

In Greer v. United States, the Court will consider whether, when applying plain-error review based on an intervening decision of the Supreme Court, a court of appeals can look at matters outside the trial record to determine whether the error affected a defendant’s substantial rights or affected the trial’s fairness, integrity or public reputation.

structuralerror210115Finally, one that everyone expected: the Court granted the government certiorari in United States v. Gary, to determine whether the 4th Circuit is right that a Rehaif v. United States error is structural, meaning that a defendant does not have to prove that he or she was prejudiced by the court’s failure to instruct on all elements of the 18 USC § 922(g) felon-in-possession offense.

Terry v. United States, Case No 20-5904 (certiorari granted January 8, 2021)

Greer v. United States, Case No 19-8709 (certiorari granted January 8, 2021)

United States v. Gary, Case No 20-444 (certiorari granted January 8, 2021)

– Thomas L. Root

Risk of COVID Interrupts Death For A Bit – Update for January 14, 2021

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

HOW BAD IS COVID?

Despite the 11th-hour Supreme Court petitions, the celebrity protests, the scathing editorials, nothing has stopped the Trump Administration’s headlong rush to execute federal inmates. Thirteen have been executed this century, 10 of them in the last six months.

Then came COVID.

President-elect Joe Biden has promised to halt the lethal injections, but three more were scheduled to die this week until last Tuesday, when SD Indiana Judge Jane Magnus-Stinson ruled that the federal government’s poor management of the previous 10 executions “has created a substantial risk” that other inmates and staff may contract the virus.

The judge got promptly overruled by higher-ups, so the death march continued with killing Lisa Montgomery two days ago. The government plans on doing in two more inmates between today and next Wednesday at noon, when the new President stops it.

executionwoman21011For the BOP to be able to carry out the remaining executions, the judge ruled, it has to create a contact log that tracks staff who come into close contact with others during the execution process. For 14 days after the execution, execution staff have to take daily rapid COVID-19 tests, and anyone who produces a positive test must go through contact tracing. “The defendants have touted the availability of testing but have chosen not to utilize rapid testing of staff and visitors who enter prison grounds,” the judge wrote. “Most disconcerting, the defendants represented to the Court that contact tracing would occur after any BOP staff member involved in the executions tested positive. This has not been the case—and the Court finds the failure was not by accident but by design.”

COVID might have been stymied at stopping the intentional killing, but it remains adept at bringing death to inmates. The number of dead inmates hit 198 last Friday. Inmate COVID cases fell 25% between Dec 31 and last Wednesday, but then jumped back up to 6,227 as of Friday. They started falling again (as the BOP continues to declare anyone who tested positive 10 days ago to be cured), settling at 5,043 yesterday.

Ominously, BOP staff cases continue to climb. The number crossed  2,000 for the first time ever last week, and stood at 2,107 yesterday. If the staff keeps getting sick, more inmates invariably will contract it as well.

BOPCOVID210113

As of yesterday, FCI Ft Dix reported 461 cases, with Lexington (444 cases), Butner Medium II (208 cases) and nine other facilities with more than 100 cases each, with 19 more having 50 or more cases.

The BOP’s vaccine program is not going all that well. Government Executive reported last week that the Bureau “has received just 12,800 vaccine doses, but has already used 57% of those.” The BOP has distributed the vaccine to only 31 of its roughly 150 facilities. COs and health care workers are receiving the vaccine in the BOP’s first phase of distribution, although some inmates have gotten vaccines when stocks remained after all employees who elected to get vaccinated had been served. Only about “half of staff at each of the 31 facilities receiving vaccines have so far been vaccinated, according to Justin Long, a bureau spokesman. Inmates will begin receiving doses when more become available under a plan developed by the Trump administration’s Operation Warp Speed, Long said.”

Meanwhile, a national debate is brewing over whether inmates should be inoculated before the general population. Health officials say inoculating prison employees without giving the shot to prisoners won’t help stop the spread. “It doesn’t make sense to vaccinate workers but not vaccinate the people they are charged with protecting,” said Wanda Bertram, a spokeswoman for the Prison Policy Initiative, which is advocating that staff and inmates receive the vaccine.

nothing170125But a typical reaction came from Colorado Gov. Jared Polis, a Democrat, who said last month, “There’s no way it’s going to go to prisoners before it goes to people who haven’t committed any crime.”

Meanwhile, the Minnesota ACLU accused FCI Waseca staff of showing deliberate indifference to inmates during a massive COVID-19 outbreak in a hearing last Wednesday. The ACLU represents a plaintiff class of inmates seeking a temporary injunction to release many Waseca inmates to home confinement to curb the spread of the outbreak.

ACLU lawyer Clare Diegel called it a “drastic remedy” but necessary because of “terrifying” conditions at the prison. But Erin Secord, an AUSA representing the BOP, insisted the prison had taken numerous steps to protect inmates, the infections had been quelled and the court lacked jurisdiction to release prisoners. She said the suit should be dismissed.

control200511The president of a union representing employees at FCI Williamsburg in South Carolina last week blamed prison leadership for decisions that led to skyrocketing COVID-19 cases there. ”They made some changes on the process of what we were doing… that allowed COVID to actually walk into the institution,” American Federation of Government Employees’ Local 525 President Stephen Pinckney said. “From there, it spread like wildfire once it got in.”

Pinckney alleged that the process of screening people entering the complex to determine whether they had potential symptoms of COVID-19 symptoms was shifted from outside the facility to inside in early December. “I really would like to see our executive staff removed for one thing because they are more concerned right now on the financial side of the institution that they are about the health and wellbeing of staff there,” Pinckney said.

Indianapolis Star, Terre Haute executions paused by judge until COVID-19 measures are instituted (January 8, 2021)

Government Executive, Federal Agencies Have Distributed 200K Coronavirus Vaccine Doses So Far (January 4, 2021)

Wall Street Journal, As Covid-19 Surges in Jails, Guards Want Vaccine Early (January 4, 2021)

WCSC-TV, Charleston, South Carolina, Prison workers union calls for action on COVID-19 outbreak at FCI Williamsburg (January 8, 2021)

– Thomas L. Root

Clemency Hopes Fade After Trump Capitol Riot Beatdown – Update for January 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.

DID LAST WEEK’S TRUMP DEBACLE KILL HOPES OF CLEMENCY PUSH?

That the insurrection on Capitol Hill is leading to an unprecedented second impeachment for President Trump has dimmed some hopes for a lot of clemency activity before January 20. Others – including Ohio State University law professor Doug Berman (writing in his Sentencing Policy and Law blog) – believed as of late last week that Trump is still “planning to issue more clemency grants before he loses the power to do so.”

trump210112

But things are changing quickly in D.C. Last night, ABC News reported that sources told it that

White House Counsel Pat Cipollone advised the president that he could face legal jeopardy for encouraging his supporters to storm the Capitol building, according to sources familiar with their discussions.

After these conversations, sources say the president grew angrier, and the entire pardon process has been described as “on hold” — meaning others who have been lobbying the president for pardons, including his personal attorney Rudy Giuliani, may not receive one.

ABC correspondent Jonathan Karl told ABC anchor David Muir that the president has been warned that self-pardon “would be seen as an admission that he did something wrong that he would need to be pardoned for. The president is angry, he has not taken that well, and I am told that he is now saying that he doesn’t want to see pardons for anybody. So the attitude seems to be: ‘If I can’t get a pardon, then nobody else should get one, either’.”

Bloomberg reported last week that Trump had prepared a sweeping list of people he’d hoped to pardon in the final days of his administration, including senior White House “people familiar with the matter,” Bloomberg said Trump intends to announce the pardons on Jan 19 – his final full day in office – and the list is currently being vetted by the White House counsel’s office. Besides Trump’s kids, in-laws and immediate staff, sources report, he is considering pardons for the husband of a Fox News personality, and rappers Lil Wayne and Kodak Black.

anderson210112Trump’s most recent contretemps have not slowed down the lobbying for high-profile pardons. Former Baywatch star Pamela Anderson, a thoughtful and incisive commentator on world affairs, is pushing to have Wikileaks founder and accused rapist Julian Assange pardoned, and conservative Florida congressman Matt Gaetz (who most recently has alleged that Antifa members in MAGA hats, not Trump patriots, stormed the Capitol) has urged that Edward Snowden should be pardoned as well.

Berman wrote, “I am hopeful, but not really optimistic, that there will be some good number of final Trumpian clemency grants for persons who are not well-connected or famous.” But now it may develop that even the Kushners, Lil Waynes and Assanges of the world may still be waiting outside the White House, MAGA hats in hand, as Marine One carries President Trump away for the last time.

trumptrain210112Even if a few of then favored get pardoned in the next 195 hours, the stats suggest there is little reason for the average prisoner to hold out optimism for Trump clemency. A recent study showed that only seven of the 94 Trump clemency grants over his term came on recommendation from the pardon attorney. Like it or not, the only way a clemency petition from someone who is not connected gets to the White House is through the Dept of Justice, not that a system leaving the prosecutor in charge of the clemency gateway is such a favored idea, either.

Berman wrote, “I hope Prez-elect Biden comes into office understanding that the best way to restore faith in the pardon power could be by using it right away to advance justice and mercy rather than parochial personal privilege.”

Lawfare, Trump’s Circumvention of the Justice Department Clemency Process (December 29, 2021)

Sentencing Law and Policy, Gearing up for Prez Trump’s coming final round of clemency grants (January 7, 2021)

ABC News, Trump warned about potential civil liability, as some aides clear out desks (January 11, 2021)

The Week, Trump is reportedly so angry aides are warning him against a self-pardon, he’s put all pardons ‘on hold’ (January 12, 2021)

Bloomberg, Trump Prepares Pardon List for Aides and Family, and Maybe Himself (January 7, 2021)

– Thomas L. Root

Compassionate Release Only Breaks Even in Two Appeals Decisions Last Week – Update for January 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.

A TALE OF TWO COVID DECISIONS

Two circuits handed down decisions on COVID compassionate release last week. Like Charles Dickens’ “best of times, worst of times,” the rulings represented the best in appellate decision-making and the worst.

tutorial210111The Tutorial: Section 3582 of Title 18, United States Code, governs the imposition of sentences, including regulating the limited circumstances under which a sentence can be modified. Once such circumstance is found in § 3582(c)(1)(A)(i), which provides that a court may reduce a sentence when it finds “extraordinary and compelling” reasons to do so, and concludes that such a reduction is consistent with the factors to be considered when a sentence is imposed (found in 18 USC § 3553(a), and generally called “3553(a) factors“).

Since the advent of COVID-19, courts have granted sentence reduction motions (also called “compassionate release” motions, the same way all tissues are called “Kleenex”) in cases where the prisoner has health conditions that increase his or her susceptibility to COVID-19. The approval rate has been something like 19% of all compassionate release motions, but in a criminal justice system in which 97 out of 100 people charged with a federal crime get convicted, the compassionate release odds seem to a lot of inmates to be a sure thing.

One fly in the ointment has been a § 3582(c)(1)(A)(i) requirement that a compassionate release comply with “applicable” Sentencing Commission policies. The only Sentencing Commission policy has not been updated since before the First Step Act (which is what have inmates the right to file their own compassionate release motions), and the policy contains limitations clearly at odds with the intent of Congress in opening up compassionate release to inmates. As a result, four courts of appeal so far have ruled that district courts need pay no mind to the “applicable policies” language of § 3582(c)(1)(A)(i), at least until the Sentencing Commission gets around to changing the policy.

Now for the two decisions of the week:

best210111The Best: A district court found Lisa Elias’s hypertension (high blood pressure) alone was not an extraordinary and compelling reason to grant a sentence reduction. The 6th Circuit last week upheld the denial, underscoring the broad discretion district judges have in deciding compassionate release cases with thoroughness and careful reasoning.

Noting that three other circuits now agreed with its Jones decision that Guideline 1B1.13 does not limit courts in deciding prisoner-brought compassionate release motions, the 6th said “there has emerged a newfound consensus among the courts, and the government provides no compelling reason for us to disturb the consensus of our sister Circuits. Therefore, we hold that 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates, and so district courts need not consider it when ruling on those motions. Further… district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others… And, in the absence of an applicable policy statement for inmate-filed compassionate-release motions, district courts have discretion to define ‘extraordinary and compelling”’ on their own initiative.”

worst210111Now the worst: Chadwick Townsend sought compassionate release because, he claimed, his hypertension, high cholesterol and a 10-year old stroke put him at higher risk from COVID-19. His district judge held Chad’s reasons were not extraordinary and compelling, and Tom appealed.

The 5th Circuit turned him down. It held that while Chad’s “chronic illnesses place him at a higher risk of severe symptoms, should he contract COVID… it is uncertain that he is at a significantly higher risk than is the general inmate population. In fact, nearly half of the adult population in the United States suffers from hypertension. And roughly 12% of Americans suffer from high cholesterol. Thus, we cannot say that either of those conditions makes Thompson’s case “extraordinary.” Unfortunately, both are commonplace.”

The Circuit relied on Guideline 1B1.13 without observing that four other circuits have held it does not apply to inmate-filed compassionate release motions. Acting as though it had just emerged from a cave where it spent the last year, the panel noted with some surprise and puzzlement, “To be sure, courts around the country, in some exceptional cases, have granted compassionate release where the defendant has demonstrated an increased risk of serious illness if he or she were to contract COVID. Even where they have denied release, some courts have assumed that the pandemic, combined with underlying conditions, might be an extraordinary and compelling reason for compassionate release. But that is certainly not a unanimous approach to every high-risk inmate with preexisting conditions seeking compassionate release.”

The Circuit seemed to conflate “extraordinary and compelling” reasons with the separate compassionate release step of considering the 18 USC § 3553(a) sentencing factors: “The courts that granted compassionate release on those bases largely have done so for defendants who had already served the lion’s share of their sentences and presented multiple, severe, health concerns. Even where the court denied the motion on grounds other than the lack of ‘extraordinary and compelling reasons,’ the defendants’ medical conditions oftentimes were more serious than are Thompson’s. Fear of COVID doesn’t automatically entitle a prisoner to release. Tom can point to no case in which a court, on account of the pandemic, has granted compassionate release to an otherwise healthy defendant with two, well-controlled, chronic medical conditions and who had completed less than half of his sentence.”

Sentencing Law and Policy, Sixth Circuit panel reiterates “district courts have discretion to define ‘extraordinary and compelling’ on their own initiative” for 3582(c)(1)(A) motions (January 7, 2021)

United States v. Elias, Case No. 20-3654, 2021 U.S. App. LEXIS 251 (6th Cir. January 6, 2021)

United States v. Thompson, Case No. 20-40381, 2021 U.S. App. LEXIS 194 (5th Cir. January 5, 2021)

– Thomas L. Root

Presidential Clemency May Be Only Personal for Trump – Update for January 8, 2021

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CLEMENCY – WWJD (WHAT WILL JOE DO?)

The silliness has already started about incoming President Joe Biden. Example: I received one report last week that the new President intended to pardon one inmate a day for his first 100 days in office.

Any truth to this? Not a bit.

fuhrerbunker210108We had expected an avalanche of clemencies from the Trump Administration in its remaining 12 days, although with the Oval Office sounding more like the Fuhrerbunker. What will happen over the final 300 hours or so of the Trump Administration is anyone’s guess. Late reports say that the President is much more focused on pardoning himself than he is on anyone else. Bloomberg reported yesterday that Trump has a very short list of preemptive pardons, including his family, closer staff, two rappers, Kodak Black and Lil’ Wayne, and the ex-husband of a Fox News host.

No one should be encouraged by President Trump’s track record so far. Harvard professor Jack Goldsmith said Trump “is stingy” with his pardon power. A Pew Research Center study showed that through November 23, Trump had granted clemency to less than 0.5% of the 14,000 people who petitioned him for it through the end of the 2020 fiscal year, according to the study. As The New York Times observed, “Many who have applied have little chance of clemency under any circumstances. But those with sentences they contend are excessive and people who have shown remorse and turned their lives around in prison are hoping for mercy.”

Almost all of the people to whom Trump has granted clemency have had a personal or political connection to the White House, and it appears that only seven were recommended by the Dept of Justice Pardon Attorney, Goldsmith said. DOJ rules normally requires a person applying for clemency to wait at least five years after conviction or release from confinement, a rule that was not applied many of Trump’s grants.

clemency170206Not that skipping the Pardon Attorney’s office is necessarily a bad thing. Criminal justice reform advocates believe Trump is right to sideline the DOJ from clemency decisions. But rather than control the process for political ends, advocates say, Biden should use it to help non-violent drug offenders with questionable convictions or harsh sentences. Relying on the DOJ’s Pardon Attorney to review and make recommendations on clemency requests, they say, is bureaucratic and puts those decisions in the hands of the department that put the offenders behind bars.

Biden’s criminal justice plan says he will “broadly use his clemency power for certain non-violent and drug crimes.” In addition to removing the sole oversight of the Office of the Pardon Attorney, Biden could improve the process by creating a permanent independent advisory panel that includes criminal justice reform activists, defense attorneys and pardoned convicted offenders, alongside federal prosecutors, supporters say.

“It can be improved by not depending on the same office that fought for an individual’s conviction and draconian sentence to look back and say we need to provide relief,” one advocate said. “There is a conflict right there.”

clemencyjack161229Former Pardon Attorney Margaret Love says that the biggest problem with clemency is that too much is asked of it. There should be more statutory relief valves, like sentence reduction, to reduce sentences, as well as a means of regaining full citizenship rights for people who have been released. She argued last week, “President Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can presidential pardon play the constructive role that the Framers intended.”

CNN, Trump asking aides and lawyers about self-pardon power (January 7, 2021)

Bloomberg, Trump Prepares Pardon List for Aides and Family, and Maybe Himself (January 7, 2021)

The New York Times, Outside Trump’s Inner Circle, Odds Are Long for Getting Clemency (December 28, 2020)

Bloomberg, Biden gets unlikely advice on pardons: Copy Trump, sideline DOJ (December 31, 2020)

Lawfare, Are Trump’s Pardons a Blessing in Disguise? (December 29, 2020)

– Thomas L. Root

‘How Are We Doing?’ Attorney General Asks (Rhetorically) – Update for January 5, 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.

FIRST STEP REPORT ISSUED

The First Step Act required that starting in 2020, the Attorney General generate an annual report on the Bureau of Prisons’ implementation of the various provisions of the law. The AG issued the report two weeks ago, which reads more like a hagiography of First Step compliance than a dispassionate recitation of how rocky the road to First Step implementation has been.

awesome210105Example: The AG says the BOP and Department of Justice “also implemented and responded to changes the FSA made involving retroactive application of the Fair Sentencing Act, compassionate release, and good conduct time.” If “implemented and responded to changes” means fighting compassionate release (10,929 out of 10,940 requests to the BOP for compassionate release denied) and Fair Sentencing Act reduction motions hammer-and-tong, DOJ and BOP have surely overperformed.

Surprisingly (or maybe not, given the political roar coming from Washington over the last two months), the First Step Report seems to have landed silently. Yet there are some interesting gold nuggets in the 59 pages of dross. I’m still reading it, and I’ll report more on it next week, but a few stats have jumped out already:

•      70% of all BOP inmates are designated to facilities within 500 miles of their release residences (but the Report does not compare this to the stats prior to passage of First Step);

•    the BOP has transferred over 19,000 people to home confinement since last March;

•         in 2020, one out of every four BOP inmates did not get any halfway house or home confinement prior to release

The most interesting tables I have seen so far are the recidivism tables. The Report found recidivism among people released under the First Step Act to be 11.3%, much less than the one-third or higher numbers usually cited. One curious finding: people who served less than 5 years had a recidivism rate of 10.9%; those serving between 5 and 10 years, 12.6%; those serving between 10 and 15 years, 13.1%; and those serving over 15 years, 7.8%.

tableB210105 copy

These stats present a strong argument about the deterrence value (or lack thereof) of sentences, a point which should be part of any 18 USC § 3553(a) analysis in a compassionate release or Fair Sentencing Act determination.

Dept of Justice, The Attorney General’s First Step Act Section 3634 Annual Report (December 21, 2020)

– Thomas L. Root

Where Did The HEROES Go? (And Other Stories That Puzzle Inmates) – Update for January 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.

DEAD HEROES

deadheroes210104Last May, the House of Representatives passed the HEROES Act, intended to be the second coronavirus stimulus. The bill, which included in its $3 trillion giveaway a number of criminal justice changes (like letting eligible elderly offenders get home confinement after two-thirds of their good-time adjusted sentences, instead of gross sentences), was promptly denounced by Republicans appalled at its price tag and then ignored by the Senate.

Eight months later, I am still getting questions about it, mostly from people who may have been sleeping in the back of the classroom during high school government class.

A bill passed by the House must then be passed by the Senate and then signed by the President in order to become law. In the case of HEROES, the Senate refused to consider the bill. Rather, the Senate passed the HEALS Act in response to HEROES, a bill that was then immediately not considered by the House.

sleep210104What finally happened last month was that the Senate and House worked out a compromise bill that was neither HEROES nor HEALS. The compromise bill included no sentencing provisions at all, a fact that seems not to detain prisoners at all. One inmate wrote me last weekend, asking me to confirm the rumor that § 205 of the stimulus bill gave elderly offenders the home confinement adjustment they sought. Alas, § 205 is entitled “Pipeline Safety Management Systems,” a provision of interest to elderly offenders only if they’re in the natural gas transmission business.

Another inmate asked me whether HEROES might still pass in January or February. Remember this from high school civics, boys and girls: every Congress lasts two years, and ends on January 3. The 116th Congress ended yesterday, and the 117th Congress starts its two-year run today. When a two-year Congress ends, any bill not passed by both the House and Senate is dead.

That means the sentencing changes contained in HEROES will have to be introduced all over in a new bill.

caresbear210104Someone else wondered how long the BOP’s home confinement authority will last under the CARES Act. There are three answers to that. First, the BOP’s authority lasts until 30 days after the COVID-19 national emergency declared by Trump ends. The National Emergencies Act requires any emergency to end one year after it is declared, unless extended by the President. Since some national emergencies (such as with respect to Iranian assets) have continued for four decades. The current COVID emergency ends in March, but there is little doubt Biden will extend it.

Second, the BOP’s authority only lasts as long as the Attorney General’s determination that the emergency conditions are “materially affect[ing] the functioning of the BOP.” Attorney General Barr made that determination last April, but he or the new AG could withdraw the finding at any time.

Finally, the CARES Act lets the BOP Director put prisoners in home confinement “as the Director determines appropriate.” This provision delegates virtually unreviewable power to the BOP. If the Director decided tomorrow that he had sent all the people he needed to send, he could pull the plug.

A year ago, the BOP population stood at 175,858 inmates. As of last week, the number had fallen 13.5% to 152,184. That’s a 31% drop from six years ago.

No one knows when the BOP will no longer place prisoners in home confinement. But we’re much closer to the end than we are to the beginning.

HEROES Act, H.R. 6800 (May 15, 2020)

HEALS Act, S.4318 et al. (July 27, 2020)

Section 205, Consolidated Appropriations Act, 2021 (December 27, 2020)

Section 12003(b)(2), CARES Act, H.R. 748 (March 28, 2020)

Sentencing Law and Policy, Federal prison population closes out 2020 at new modern low of 152,184 according to BOP (December 31, 2020)

– Thomas L. Root