Two Circuits Blast Government ‘Dog Whistle’ Plea Agreement Breaches – Update for June 10, 2024

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‘YOUR HONOR, WE RECOMMEND A MINIMAL SENTENCE FOR THIS AWFUL SCUMBAG’

dogwhistle240610The Government is well known for its dog whistles, silent signals telling the Court that while it says it recommends some sentence agreed to in a plea agreement, it’s really dumping all sorts of dirt on a defendant intended to goad the judge into sentencing well above the agreed-on term.

Last week, two Circuits said the Government had gone too far.

Gerardo Farias-Contreras pled guilty to meth distribution in exchange for the government’s promise to recommend the bottom of a 151-188 month sentencing range.

In its sentencing memo, the government did what it promised, recommending a 151-month term. But the devil’s in the details. In the same memo, it argued that Gerry had been “convicted of an unquestionably serious offense” and that “drug trafficking is nothing less than pumping pure poison into our community.” Its memo quoted drug overdose death statistics, a book about the families of living drug addicts, and a “decades-old 5th Circuit decision that suggests drug dealing is a ‘grave offense’ worse than murder.” Claiming that Gery had “the top… criminal culpability in this case” and had been dealing for 30 years, the memo asserted that “ultimately, a significant sentence was warranted.”

At sentencing, the government said it stood by its recommendation, but that the recommendation had been the subject of much discussion in its office because Gerry “is at the top of the food chain in terms of criminal culpability… we have this individual, multiple years, multiple pounds, a massive amount of drugs that he is responsible for.”

The Court heard the government’s dog whistle and sentenced Joe to 188 months. Gerry didn’t object at sentencing like he should have, but on appeal he argued the government had breached its plea agreement.

pleadealb161116Last week, the 9th Circuit reluctantly upheld Gerry’s sentence. It noted that while the government promised to recommend a low-end sentence, “it spent five pages in its sentencing memorandum arguing for a ‘significant sentence’ and ‘made several inflammatory arguments, including in its sentencing memorandum… What’s more, the Circuit said, “the government seemed to suggest that some prosecutors in its office did not agree with the low-end recommendation” in light of Gerry being “at the top of the food chain in terms of criminal culpability…” thereby “winking at the district court to impliedly request a different outcome.”

The 9th said that the government is allowed to counter a defendant’s argument for a lower sentence, but that its “response must be tethered to its obligations under the plea agreement, even when responding to the defendant’s specific request for a downward departure or to the court’s questions… The government must comply with the letter and spirit of the plea agreement… This is a fact-specific inquiry based on contract principles. Courts should look at the totality of circumstances and consider… the sequencing, severity, and purpose of the statements.”

Because Gerry had not objected to the government’s dog whistle at sentencing, the error was not “plain” under F.R.Crim.P. 52, so the Circuit upheld the sentence.

Meanwhile, in the 1st Circuit, Yavier Mojica-Ramos made a deal on his 18 USC § 922(o) machinegun charge pursuant to which the government would agree to recommend a within-Guidelines sentence. The government filed a sentencing memorandum requesting an upper-end guidelines sentence of 46 months, but attached about 250 photos and a video taken from Yavier’s cellphone showing a lot of guns and drugs, with the video showing “an individual resembling Yavier… recklessly brandishing an assault-style rifle by repeatedly pointing the barrel at the individual who is recording the video.”

gun160718

The government said the photos and video “are additional evidence that Yavier has an interest in… other criminal behavior beyond the machinegun count charged.” Relying on what it called “alarming content,” the government urged the court to consider the cellphone content as “additional information” on Yavier’s criminal activity. The government fumed that “[t]he danger to the community and the serious nature of the offense should be considered exceptional in this case” and highlighted the “high rates of gun violence in Puerto Rico, the purported deterrent effect of lengthy sentences for gun offenders, and the particularly strong need to protect the public from Yavier.”

Yavier demanded that the government honor its obligations under the plea agreement, but the district court denied the motion, hammering Yavier with a 72-month upward-variant sentence.

Last week, the 1st Circuit reversed Yavier’s sentence. The Circuit rejected the government’s excuse that its “duty of candor” required that it provide the cellphone contents to the court, holding that such a duty

does not allow it to goad the court into relying on uncharged conduct without providing any corroborating evidence that Yavier was involved in the alleged firearm and drug crimes depicted in the cellphone content. Aside from stating that the images were extracted from Yavier’s phone, the government did not attempt to demonstrate by a preponderance of evidence that Yavier was involved in the purported crimes… In fact, the government concedes that it did ‘not submit evidence to support’ finding that ‘any [of the] substances depicted in the photos’ were actually illegal drugs, ‘any guns were used in connection with drug trafficking or any other crimes,’ or that Yavier ‘physically possessed’ any of the pictured drugs or guns.

ausalies171207The Circuit concluded that “the government’s insistence that the court consider unproven conduct—seemingly under the guise of identifying public safety and deterrence issues—further signaled to the court that the prosecutor did not genuinely believe the recommended guidelines sentence was appropriate. Indeed, in so doing, the government suggested a basis for the court to vary upward while neglecting our sentencing caselaw’s limitations on considering uncharged conduct.”

By effectively urging the court to impose a longer sentence “within a context suggesting that the [government] had in mind something greater than” the within-guidelines sentence the parties agreed upon,” the 1st ruled, “the prosecutor wrongfully undermined the plea agreement.”

United States v. Farias-Contreras, Case No. 21-30055, 2024 U.S.App. LEXIS 13231 (9th Cir. June 3, 2024)

United States v. Mojica-Ramos, Case No. 22-1204, 2024 U.S.App LEXIS 13794 (1st Cir. June 6, 2024)

– Thomas L. Root

A Short Rocket – Update for June 7, 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.

rocket-312767Today (and not necessarily in honor of NASA’s long-awaited success in getting the Boeing Starliner to fly), a short rocket of some stories you might have missed.

OREGON LAWMAKERS WANT ANSWERS ON SHERIDAN

Six Oregon members of Congress wrote to BOP Director Colette Peters on May 24th about the “deeply concerning allegations made by the Department of Justice Office of the Inspector General regarding conditions at FCI Sheridan.”

letter161227The letter, from Senators Ron Wyden and Jeff Merkley, and Representatives Val Hoyle, Earl Blumenauer, Andrea Salinas and Suzanne Bonamici (all Oregon Democrats), “demand[ed] swift action to address staffing shortages, inmate medical needs, and other alarming shortcomings placing staff and inmates at significant risk.”

The letter noted that the report “raises new questions about FCI Sheridan’s certification as a Medical Care Level 2 institution. According to BOP regulations, Medical Care Level 2 institutions must be able to provide routine outpatient services to prisoners. However, DOJ OIG found inmates frequently could not get timely outpatient care.”

The lawmakers posited 15 questions about staff shortages, medical care, RDAP and security on which a BOP response is sought.

Letter from Sen Ron Wyden and others to Colette Peters (May 24, 2024)

rocket-312767

WELL, THIS IS A SURPRISE…

A national study performed by a collaboration between the University of California at Irvine and Brigham and Women’s Hospital found that at the peak of the COVID pandemic in 2020, people inside prisons died almost three and a half times more frequently than the free population.

deadcovid210914Over 6,000 incarcerated people died in the first year of the pandemic, researchers found, using numbers they collected from state prison systems and the BOP. A Marshall Project analysis of data the researchers released shows the prison mortality in the BOP increased by 41% between 2019 and 2020.

At the same time, incarceration rates dropped during the first year of the pandemic, but not because an extraordinary number of people were released. Instead, data show that fewer people than in a typical year were let out in 2020. According to The Marshall Project, the reduction in population was due to a dramatic reduction in prison admissions.

The study warned that death rate spikes “in 2020 probably underestimate the true rise in death rates, since many prison populations fell as the year went on.”

Marshall Project, Officials Failed to Act When COVID Hit Prisons. A New Study Shows the Deadly Cost (April 18, 2024)

Science Advances, Excess mortality in U.S. prisons during the COVID-19 pandemic (Dec 1, 2023)

rocket-312767

DEPENDS ON WHOSE OX IS BEING GORED

Less than a week after the DOJ OIG issued a scathing report on the BOP’s operation at FCI Sheridan—which incidentally included a finding that the facility kept lousy records on inmate-to-inmate sexual abuse—BOP Director Colette Peters found the time and inclination to praise a May 14th sentencing of an unnamed federal inmate for having masturbated in front of a BOP employee.

It seems that on May 14, 2024, U.S. District Judge Iain D. Johnston of the Northern District of Illinois hammered a USP Thomson prisoner with a 364-day consecutive sentence under the Assimilative Crimes Act for violating an Illinois disorderly conduct statute by… well, you know… in front of a correctional officer.

oxgored240607Director  Peters expressed “strong support” for this decision, with the BOP PR flack quoting her as saying “This sentencing is a clear message that misconduct, particularly actions that threaten the safety and integrity of our institutions, will not be tolerated. We stand resolute in our mission to foster a humane and secure environment and protect our employees and incarcerated people from any form of sexual harassment and assault.”

Tough words, which makes it all the more surprising that the Director failed to send a “clear message” to her 36,000 underlings about the mess at FCI Sheridan or, for that matter, the announcement two days later that a former correctional officer at FCI Milan had been charged with the felony of having sex with a prisoner and smuggling contraband into the facility.

Fortunately for Peters, the PR task was covered by Eastern District of Michigan US Attorney Dawn Ison, who said:

Every day, federal corrections officers display uncompromising integrity in carrying out their duties and maintaining the safety and security of our federal prisons. Unfortunately, the allegations in today’s indictment reflect a failure on the part of one corrections officer to maintain that standard. Sexual misconduct by prison officials compromises the safety and security of the whole institution and is completely unacceptable at Milan or any other correctional facility.

When a single inmate commits a misdemeanor, the Director is Jenny-on-the-spot to denounce what is otherwise a pedestrian (if disgusting) offense. But with over a dozen cases of BOP employees being charged with or convicted of sex offenses against inmates in the last year, you’d think that Ms. Peters would issue a press release on that, or at least that a government official’s comment could drop the “display uncompromising integrity” blather.

BOP,  Director Peters Commends Sentencing (May 28, 2024)

Ann Arbor News, Former federal prison guard charged for having sex with prisoner, smuggling in contraband (May 30, 2024)

– Thomas L. Root

This Mallard Is Not A Duck, 6th Circuit Holds – Update for June 6, 2024

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JUSTICE REQUIRES THAT THIS 60(b) NOT BE CALLED A DUCK
Except when it's not...
Except when it’s not…

Ever since the Supreme Court’s 2005 Gonzalez v. Crosby decision, people who try to use F.R.Civ.P. 60(b) as a means of getting the denial of a 28 USC § 2255 post-conviction motion reconsidered have run into a brick wall. If the Rule 60(b) motion was challenging the underlying conviction at all rather than an infirmity in the 2255 proceeding (and they almost always are), the 60(b) was deemed to be a second 2255 motion and was kicked to the Court of Appeals (where it was almost always spiked).

But sometimes, justice’s cries are so loud that they are heard.

Roy West is serving a life sentence for a murder-for-hire conviction that now, even his sentencing judge describes like this:

Errors on the part of competent people — prosecutors, defense counsel, probation officers and, ultimately, this judge at the time of sentencing — resulted in the imposition on Roy of a sentence in violation of the law. Even skilled appellate counsel failed to raise the sentencing error.”

habeas_corpusNot that Roy hasn’t tried. He filed a 2255 years ago, arguing that “counsel was ineffective for failing to investigate a causation defense. The district court denied that motion, however, explaining incorrectly that death was ‘not an element of this offense.’ Years later, the district court, “now aware of the defect in West’s conviction” granted him compassionate release, “concluding that justice and faith in our judicial system demand correcting West’s sentence.” The 6th Circuit reversed, holding that compassionate release could not be used “as a vehicle for second or successive § 2255 motions.”

Roy then filed a Rule 60(b) motion, asking that the 2255 be reopened. He focused on the “injustice to himself and the risk to public confidence in the judicial process that could accrue were his unconstitutional life sentence permitted to stand,” noting that the district court had already admitted that his sentence was wrong. The Government fought the 60(b), demanding that it be dismissed as a second 2255 regardless of the fact that James’ sentence was unlawful. The district court agreed and transferred it to the 6th Circuit.

Last week, the 6th Circuit decided that while the 60(b) may waddle, quack, and fly like a second 2255, justice demands that it not be deemed a second 2255.

“Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, in limited circumstances,” the Court said, citing Gonzalez v. Crosby. “The Rule enumerates five specific instances in which relief may be warranted, followed by a catchall covering “any other reason that justifies relief.” Relief under the catchall provision may be granted in ‘extraordinary circumstances’.”

Extraordinary circumstances “rarely occur in the habeas context,” the Circuit said, “but they are not unheard of. Courts considering whether extraordinary circumstances exist “may consider a wide range of factors,” including “the risk of injustice to the parties and the risk of undermining the public’s confidence in the judicial process.”

duckcow240606

Roy’s arguments of injustice, of risk to public confidence, that the district court’s acknowledgment that the sentence was wrong and that the “Government’s conduct in this case raises the specter of fraud on the court,” were the extraordinary circumstances needed to make a Rule 60(b) motion appropriate despite Gonzalez v. Crosby. The case was sent back to the district court to decide the 60(b) motion.

In re W, Case No 23-1792, 2024 U.S. App. LEXIS 12826 (6th Cir. May 29, 2024)

Gonzalez v. Crosby, 545 U.S. 524, 125 S. Ct. 2641, 162 L. Ed. 2d 480 (2005)

– Thomas L. Root

NBC Reports What Prisoners Already Know About FSA Credit Failure – Update for June 4, 2024

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NBC REPORTS THAT HALFWAY HOUSE CAPACITY INTERFERES WITH FSA CREDITS
Not this kind of halfway house...
Not this kind of halfway house…

NBC News reported Saturday what will come as little surprise to many prisoners who are counting on FSA credits for the additional halfway house/home confinement promised by 18 USC 3624(g)(2): the First Step promise of reward for completing programming is illusory for many people granted more halfway house/home confinement time by the Bureau of Prisons but turned away from halfway houses for lack of space.

Sreedhar Potarazu, who successfully sued the BOP in 2022 over its repeated miscues in calculating FSA credits, alerted NBC to nine cases in which inmates were incarcerated between two and eight months past their “last date inside,” a term that he says denotes when an inmate can be transferred to prerelease custody because of FSA credits they had earned beyond the 365 days that the BOP is allowed to subtract from their sentence.

“Even one life kept in longer is an injustice,” Potarazu told NBC. “The taxpayer should care because they’re footing the bill. You may not have anyone in there, but you’re still paying for it.”

The BOP lists contracts with 145 halfway houses nationwide on its website, and an agency spokesperson told NBC that those halfway houses have more than 10,000 beds. The BOP said more than 8,200 prisoners are designated to halfway houses, but it is not clear how many are in home confinement but supervised by halfway houses.

The BOP is not much help in tracking the problem. The agency admitted to NBC that it keeps no records on how many inmates are losing the benefit of FSA credits already earned because halfway houses are refusing placement.

“Every effort is made to review and adjust available resources within the community so individuals may utilize” time credits, the BOP told NBC News, but that “some areas, specifically populated urban areas, are experiencing capacity concerns.”

bureaucracybopspeed230501The BOP insists that “credits are being calculated as required under the First Step Act.” But NBC said, “As the law has been implemented over the years, concerns have grown about whether time credits are being properly added up and applied as case managers log the information.”

Rep David Trone (D-MD), a member of the House Appropriations Committee, complained, “I always refer to the First Step Act as criminal justice lite,” Trone said. “We need to get real savings and give people real second chances. We haven’t executed the First Step Act properly.”

Writing in Forbes last week, Walter Pavlo argued that the BOP could bypass halfway house for a lot of prisoners and instead place them directly in home confinement. “Many inmates report that due to limitations in halfway house capacity that they are not able to utilize those credits for home confinement and they stay in prison… Overall, this issue of housing inmates in prison longer than necessary, and for which the BOP currently has the power to transfer to the community, affects tens of thousands of prisoners, many are minimum or low-security inmates. The BOP has the ability, but it is up to BOP Director Colette Peters to implement change that is within her power… something she has often spoken about.”

Ames Grawert, a senior counsel for the Brennan Center for Justice, acknowledges the capacity problem but argues that it’s up to Congress to ensure the BOP has the funding to implement the First Step Act and the infrastructure is in place. “Implementation is always a challenge in any law, especially when you’re dealing with a system that’s as complex and with so many issues as the Bureau of Prisons.”

Potarazu, an ophthalmic surgeon, spent at least four additional months in prison after his FSA eligibility date due to an admitted BOP error in calculating the credits. He filed a 28 USC § 2241 petition for habeas corpus in 2022 seeking proper calculation of his credits and designation to halfway house by July 31, 2022, the proper date for the transfer.

runoutclock221227Potarazu’s case was finally ruled on last week, dismissed as “moot” because he was no longer in BOP custody. The Court ruled, “Petitioner’s requested relief—immediate placement in pre-release custody and/or supervised release—has already been achieved” because he was transferred to a halfway house on May 18, 2023” (10 months late) and released from custody on December 22, 2023, “Thus, Petitioner does not maintain any redressable claims and does not satisfy the collateral consequences exception.”

Potarazu told NBC he ultimately wants to see others released when the BOP is legally obligated to do so, and that prisoners shouldn’t have to assume they’re going to remain behind bars longer than they should and go to the lengths of litigation that can take years.

“Even when you have the foresight to do so, you’re still trapped,” he said.

NBC News, Despite First Step Act, some federal inmates remain in prison extra months (June 1, 2024)

Potarazu v Warden, Case No MJM-22-1334, 2024 USDist LEXIS 94086 (D.Md, May 28, 2024)

Forbes, Bureau Of Prisons Stumbles On Reducing Costs On Incarceration (May 30, 2024)

– Thomas L. Root

“Failure…” May Be An Option – Update for June 3, 2024

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SCOTUS WILL DECIDE WHETHER DOING NOTHING IS VIOLENT

BillyJoe240603Today is June 3rd, forever to be remembered as the day Billy Joe McAllister jumped off the Tallahatchie Bridge (if you recall that 1967 earworm by Bobbie Gentry or the forgettable movie that followed it).

But what really happened that fateful day? If Bobbie pushed him, she committed a crime of violence. But what if he slipped, called for her to throw him a rope, and she sat there doing nothing? Would that also be a crime of violence? And why would we care?

We may never know about the star-crossed lovers or Billy’s inner demons, but the Supreme Court decided today that it will decide whether nothing is the same as something in the world of violent crime.

The “categorical approach” to whether an underlying offense is a crime of violence has both complicated 18 USC § 924(c) cases and benefitted a number of people wrongly convicted of possessing a gun during a crime of violence or punished under the Armed Career Criminal Act (18 USC § 924(e)(2)).

violent170315Section 924(c)(3) provides that a crime of violence encompasses any felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The “categorical approach” to determine whether a predicate offense is a crime of violence focuses on the elements of the underlying crime rather than the particular facts of the case, considering whether the least culpable conduct that could satisfy the elements in a hypothetical case would necessarily involve the “use, attempted use, or threatened use of physical force against the person or property of another.”

Courts disagree about whether crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action are crimes of violence because sitting there and doing nothing is not really the use of physical force. At common law and in an overwhelming number of state statutes, no distinction is made between crimes of omission–failing to act in a way that results in a victim’s death or injury–and crimes where physical force is used. Thus, a decision in favor of the defendant could put a lot of § 924(c) convictions at risk.

That defendant, Sal Delligatti, was indicted in 2017 for attempted murder in violation of the Violent Crimes in Aid of Racketeering (VICAR) statute, 18 USC § 1959(a)(5). The Second Circuit ruled that attempted murder (a New York state charge) was necessarily a crime of violence even if it can be committed through inaction. Under the law of some states, a person who has a duty to act but fails to do so—such as by failing to provide medicine to someone who is sick or by neglecting to feed a dependent—may face criminal liability, even a murder charge if the defendant’s nonfeasance results in death.

Most courts of appeal agree, but the Third and Fifth have gone the other way (and the Ninth has suggested it may do so as well).

nottoact240603Sal has asked the Supreme Court to conclusively resolve whether a crime that requires proof of bodily injury or death but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force. Surprisingly, the government supports the grant of certiorari (although it wants the Supremes to uphold the Second Circuit). The National Association for Public Defense and National Association of Criminal Defense Lawyers have filed briefs in support of the grant of certiorari as well.

The Supreme Court granted the petition for certiorari today, so it will be argued next fall.

Delligatti v US, Case No 18-2432 (petition for cert pending)

SCOTUSBlog.com, Supreme Court once again considers the “categorical approach” to sentencing enhancements (May 31, 2024)

– Thomas L. Root

DOJ ‘Aggressively’ Hammers BOP Guard With 24-Month Sentence for Sex Abuse – Update for May 30, 2024

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FORMER BOP OFFICER GETS 24 MONTHS FOR SEXUALLY ABUSING INMATES

wetnoodle220906The DOJ issued a press release last week lauding a draconian 24-month sentence imposed on a former BOP correctional officer for having sexually assaulted two female inmates at FCI Aliceville (Alabama).

“Robert Smith has been held to account for abusing his position of trust by sexually assaulting an adult in his custody,” a press release quoted Deputy Attorney General Lisa Monaco as saying. “The Department will continue to hold accountable any BOP employee who violates their oath to protect those in their care through sexual assault.”

Assistant AG Kristen Clarke was quoted as declaring that “the Justice Department will continue to aggressively prosecute those who violate the civil and constitutional rights of people detained in correctional facilities.”

hammertime200818By comparison, the Government sought almost as much time–20 months–for former Baltimore prosecutor Marilyn Mosby, convicted of what the prosecutor admitted was the victimless crime of lying about her need to be allowed to withdraw her own money from a pension plan during COVID. (She got probation).

According to the U.S. Sentencing Commission’s Interactive Data Analyzer, in FY 2023, only 5% of people convicted of sexual abuse in the federal system got a sentence of five years or less.  The mean sentence for sexual abuse was 213 months, with the median being 180 months.

Meanwhile, U.S. District Judge Yvonne Gonzalez Rogers (N.D. Cal.) has set a June 2025 trial date on a class action suit by former FCI Dublin inmates on claims the agency knew of and maintained a system allowing officers to sexually abuse and mistreat inmates.

DOJ, Former Federal Bureau of Prisons Corrections Officer Sentenced for Sexually Abusing Inmate in His Custody (May 23, 2024)

AP, Baltimore’s former top prosecutor spared prison for mortgage fraud and perjury (May 24, 2024)

Courthouse News Service, Feds headed to trial on abuse claims from shuttered Bay Area prison (May 22, 2024)

– Thomas L. Root

No Worse Federal Employer than the BOP… Again – Update for May 28, 2024

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BOP REMAINS TERRIBLE EMPLOYER EVEN AS CONGRESS MOVES TO BRING AGENCY UNDER CONTROL

The Federal Bureau of Prisons again grabbed the bottom spot on the annual Partnership for Public Service “Best Places to Work in the Federal Government” survey.

job210830The BOP ranked 459 out of 459 government subcomponent agencies overall, garnering the bottom score in effective leadership, mission match, employee recognition, diversity, work-life balance and professional development. In categories in which the BOP was not last–such as “effective senior leadership–it nonetheless ranked within five of dead last.  Coming in at 455 of 459 is hardly a reason for celebration.

Back in 2015, the agency was in the middle of the pack (53% of federal agencies worse)), but fell in 2016 to 36% and in 2018 to 12%. By 2021, the BOP was in the bottom 1% of federal agencies, where it has stayed.

In a perhaps-related development, the House of Representatives last Tuesday passed the Federal Prison Oversight Act, a bill introduced by Reps Lucy McBath (D-GA) and Kelly Armstrong (R–ND). By a vote of 392-2, the House approved the measure, which would require the DOJ Inspector General to conduct comprehensive, risk-based inspections of the BOP’s 122 facilities, provide recommendations to fix problems and assign each prison a risk score, with higher-risk facilities required to be inspected more often.

hr3019oversight240528The BOP would be required to respond to all IG reports within 60 days with a plan of corrective action.

The bill would also create an independent ombudsman position, The ombudsman would investigate complaints lodged by inmates, their families and staff.

“Incarcerated Americans should not fear death when they enter our Federal prison system, and correctional officers should not fear for their safety in their workplace,” McBath said. “Our Federal prisons must serve as institutions that rehabilitate and prepare Americans for reentry into society, and that cannot happen without putting meaningful accountability measures in place.”

A companion bill has been introduced in the Senate by Senators Jon Ossoff (D-GA), Mike Braun (R–IN) and Senate Majority Whip Richard Durbin (D-IL).

Partnership for Public Service, Best Places to Work in the Federal Government (May 22, 2024)

Federal Prison Oversight Act (HR 3019)

Reason, House Passes a Bill To Create Independent Oversight of the Troubled Federal Prison System (May 22, 2024)

Sen Jon Ossoff, U.S. House Passes Sens Ossoff, Braun, & Durbin, Rep McBath & Armstrong’s Bipartisan Bill to Overhaul Federal Prison Oversight (May 21, 2024)

– Thomas L. Root

SCOTUS Says ‘My Bad’ Remains Bad Forever under ACCA – Update for May 24, 2024

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BABY DID A BAD, BAD THING…

The Supreme Court yesterday took on the role of a scold, holding in essence that if the thing was bad when you did it, the fact that it isn’t bad now doesn’t much matter.

gun160718The two defendants involved, Brown and Jackson, were convicted of being a felon in possession of a gun. Because each had three prior convictions in state court for what 18 USC § 924(e) calls a “serious drug offense,” the mandatory minimum sentence for each was 15 years under the Armed Career Criminal Act.

For a state crime to qualify as a “serious drug offense,” it must carry a maximum sentence of at least 10 years’ imprisonment and involve “a controlled substance… as defined in section 102 of the Controlled Substances Act. The CSA includes a schedule of controlled substances ( 21 USC §§ 811-12) which must be updated each year by the Attorney General.

So say you’re convicted three times in Seattle of trafficking frappacinone–a controlled substance that gives frappucinos their delicious froth–to local coffee shops. Frappacinone happens to be listed as a controlled substance by a caffeine-hating Attorney General. Then, 10 years later, a new AG who survives on Starbucks deschedules frappacinone, so that any 8-year-old with a parent’s credit card can get a frap buzz.

Unfortunately, you get caught carrying a gun (merely for protection from all the coffee shop owners you overcharged during your frappacinone-dealing days). Your three prior frap-trafficking drug convictions make you eligible for an ACCA sentence.

frappucino240524You argue to your sentencing judge that you might have been a drug dealer when you got convicted in Seattle of pushing frappucinone, but if you were doing it today, you’d just be a latter-day Howard Schultz. In other words, you argue that whether your three prior state-law convictions constitute a “serious drug offense” should depend on whether the drug you were pushing is on the federal schedules when you got caught with the gun, not when you got caught trafficking the coffee dope.

Yesterday, the Supreme Court ruled 6-3 that the state-law conviction was a “serious drug offense” if it qualified when a defendant commits the drug offense, not if it still qualified much later when a defendant commits the felon-in-possession offense.

“Precedent and statutory context support the Government’s interpretation,” the Court ruled. The “ACCA gauges what a defendant’s ‘history of criminal activity’ says about his or her ‘culpability and dangerousness.’ In previous cases, the Court has held that ACCA requires sentencing courts to examine the law as it was when the defendant violated it. This “backward-looking” approach supports the Government’s interpretation. And the plain language of the statute points to the same conclusion. Section 924(e)(2)(A)(i), which immediately precedes the provision at issue, defines a ‘serious drug offense’ to include, among other things, ‘offense[s] under the Controlled Substances Act.’ A later change in a federal drug schedule does not change the fact that an offense ‘under the CSA’ is a ‘serious drug offense.’”

In essence, if it was a bad, bad thing when baby did it, it remains a bad, bad thing forever.

babybad240524
The Court’s 6-3 split is not the “liberal justice-conservative justice” split pundits have come to expect. The dissent, written by Justice Ketanji Brown Jackson (who is not related to either defendant Brown or Jackson) was joined by Justice Elana Kagan and reputedly conservative Justice Neil Gorsuch. Justice Sonia Sotomayor, generally seen as a liberal justice, was with the majority. Justice Jackson’s dissent argued that where a statute like the ACCA cross-references another statute (the drug schedules of 21 USC § 812), we have always simply applied the version of the other provision in effect at the time the cross-referenced provision was needed, even if Congress amended that provision at some point in the past.”

Brown v. United States, Case Nos. 22-6389, 22-6640, 2024 U.S. LEXIS 2261 (May 23, 2024)

Courthouse News, Conviction timing is key to solving defunct drug charge sentencing row, Supreme Court says (May 23, 2024)

– Thomas L. Root

Faking Suicide To Get Healthcare And Other BOP Tales of Horror – Update for May 23, 2024

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

FCI SHERIDAN IS POSTER CHILD FOR BOP DYSFUNCTION

IG230518The Department of Justice Inspector General released a report yesterday that found “serious operational deficiencies,” including “alarming staffing shortages” at the Bureau of Prisons facility in Sheridan, Oregon.

One might say that BOP dysfunction is trending.

FCI Sheridan, a medium-security men’s prison with an adjacent detention center and prison camp, was Inspector General Michael Horowitz’s third unannounced prison inspection since the IG began the program at FCI Waseca (a women’s facility) last May. That report was followed by last November’s findings on a surprise inspection at FCI Tallahassee, another women’s facility. Now, after inspecting two female facilities, the IG has focused on the other 92% of inmates, the men.

IG Horowitz is taking Jan and Dean to heart: Two girls for every boy.

The dominant theme of the Sheridan report is staffing shortages and the effect the problem has on healthcare. providing a glimpse into the depth of inmates’ frustrated enterprise:

For example, we found that, just prior to our inspection, an inmate feigned a suicide attempt in order to receive medical attention for an untreated ingrown hair that had become infected. When finally examined after the feigned suicide attempt, he required hospitalization for 5 days to treat the infection.

gottaso240523No doubt the prisoner was punished for his desperate caper, but only he got out of the hospital. The BOP is unlikely to have acknowledged that it shared any responsibility for turning the simple ingrown hair removal into a $50,000+ medical expense. The inmate was right: you gotta do what you gotta do, and that includes doing what it takes to get urgent healthcare from an overtaxed and uncaring bureaucracy.

The Sheridan findings are plenty harrowing, even without the illustration of the faked suicide attempt. The IG summarized them as:

• Healthcare Worker Shortages: Because of short staffing in the Health Services Department, a backlog existed of 725 lab orders for blood draws or urine collection and 274 pending x-ray orders at the time of the inspection. “These backlogs cause medical conditions to go undiagnosed and leave providers unable to appropriately treat their patients,” the report said.

• High Correctional Officer Vacancy Rate: A shortage of correctional officers meant that “inmates must routinely be confined to their cells during daytime hours and are therefore often unable to participate in programs and recreational activities.” What’s more, the shortage meant that “FCI Sheridan did not always have available Correctional Officers to escort inmates to external medical providers.”

• Psychology Services and Education Department Staffing Shortages: “[S]erious shortages among drug treatment program employees prevented the institution from offering its Residential Drug Treatment Program (RDAP) to inmates… We also found long waitlists, some exceeding over 500 names, for other trauma-related mental health, anger management, and work skills classes.”

• Sexual Misconduct Reporting: FCI Sheridan did not centrally track the number of all allegations of inmate-on-inmate sexual misconduct reported to employees. The failure “undermines the ability of… the BOP to collect data consistent with Prison Rape Elimination Act (PREA) standards that would allow them to assess and improve the effectiveness of sexual misconduct prevention efforts.”

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NPR reported that the staffing shortages “are among the biggest obstacles facing the federal prison system, according to this report, and contribute to other challenges at Sheridan and the more than 120 facilities like it.” Horowitz told NPR that “[i]t’s a problem that is at least 20 years in the making. It’s not going to get fixed overnight. But what these inspections show us how serious the problem has now become.” Horowitz said. “It is deeply concerning when you go to a facility like Sheridan and you hear from the staff, correctional officers, health care workers, educators, that they can’t do the jobs that they’re there to do and they want to do.”

After this third IG inspection, a trend is developing:

• Both the Tallahassee and the Sheridan inspections found “serious operational deficiencies” and “alarming” problems. At FCI Tallahassee, the alarming conditions were with the facility’s execrable food service. At Sheridan, staff shortages were “alarming.” The IG is able to be frugal, reusing the same descriptors for multiple prisons.

• All three inspections included the same disclaimer: “We did not make recommendations in this report because in our prior work we have recommended that the BOP address many of these issues at an enterprise level.” In other words, the IG was reporting on endemic BOP problems that exist throughout the system. The Sheridan report parrots the prior reports, conceding that “[m[ost of the significant issues we found at FCI Sheridan were consistent with findings the OIG has made in other recent BOP oversight work, which we have reported on publicly.”

Nothing new here, either folks.

• We’re starting to suss out the inspection tempo. The Waseca report was last May, the Tallahassee report was in November 2023, and Sheridan was this week. It looks like the IG is inspecting about two facilities a year. Certainly, there are resource considerations: it takes people to kick open the prison doors. Horowitz told a National Press Club audience last March that “[m]y 500 personnel [are] comprised mostly of auditors and law enforcement agents. We also have evaluators and inspectors. One of the things we’re doing now, by the way, is unannounced inspections of federal prisons, and those are much smaller groups compared to the auditors and the agents.”

• All three inspections found serious staffing problems, which is hardly news. The Waseca and Sheridan inspections found long delays in providing First Step Act and drug abuse programming to inmates, which the Sheridan report said resulted in inmates having “limited opportunities to prepare for successful reentry into our communities. “ All three reports found that shortages of Healthcare staff had “negatively affected healthcare treatment” (as the Tallahassee report put it). The Waseca findings were that “staff shortages in both FCI Waseca’s health services and psychology services departments… have caused delays in physical and mental health care treatment.”

• The IG reports all seem to come with some sexy news hook. Waseca’s was inmates living in basements and under leaky pipes. Tallahassee’s was moldy food and rat droppings in the chow hall. Sheridan’s was the feigned suicide attempt to get healthcare.

suicide240523“What we’ve seen over and over again, in our unannounced inspections of the Bureau of Prisons is the challenges they face in meeting their mission of making prisons safe and secure, and preparing inmates for reentry back into society,” Horowitz told NPR in an interview reported yesterday. “And this is another case where we’ve seen severe challenges that they face in fulfilling those missions.”

DOJ Inspector General, Inspection of the Federal Bureau of Prisons’ Federal Correctional Institution Sheridan (May 22, 2024)

NPR, Lack of staffing led to ‘deeply concerning’ conditions at federal prison in Oregon (May 22, 2024)

National Press Foundation, ‘The Truth Still Matters’: Justice Department Inspector General Highlights Non-Partisan Work (March 15, 2024)

– Thomas L. Root

Duck Hunting With Steve Duarte – Update for May 21, 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.

THE FUTURE OF GUNS

duckhunting240521I got an email last week from a Georgia friend who’s been home for about eight years from serving a 30-year on a crack conspiracy, asking whether it was true that an appeals court said he could once again own a shotgun and pursue his passion for duck hunting (a passion not shared by the ducks themselves).

I explained that what he had read about, the 9th Circuit’s United States v. Duarte decision, did not necessarily say that and–even if it had–the last word hasn’t yet been written about the 2nd Amendment and 18 USC § 922(g)(1)’s felon-in-possession statute.

The May 9th Duarte decision had a 3-judge panel split 2-1, with the majority holding that the 2nd Amendment does not necessarily exclude people formerly convicted of felonies: New York State Rifle & Pistol Assn v. Bruen’s “scattered references to ‘law-abiding’ and ‘responsible’ citizens did not implicitly decide the issue in this case., the Court said. In the 2008 District of Columbia v. Heller decision, the Supreme Court made passing reference to the “presumptive[] lawful[ness]” of felon firearm bans, but the Duarte majority said the presumption “will no longer do after Bruen,” given Bruen’s call for a historical analysis and that the “felon firearm ban[] was never an issue the Heller Court purported to resolve.”

Eugene Volokh, a constitutional law professor at UCLA, told Courthouse News Service that Duarte “is a shift in Ninth Circuit law, and it differs from the view adopted by many circuits… However, it’s similar to what the Philadelphia-based 3rd Circuit decided last year in Range v. Attorney General.“

gunknot181009Duarte leaves open the possibility that felons convicted of violent crimes could still be prohibited from owning firearms. What’s more, the government wasted no time, last week filing a Petition for Rehearing En Banc and for Expedited Order Vacating Panel Opinion that asks the 9th Circuit for en banc review of Duarte. Appellant Steve Duarte has been ordered to file an opposition by May 30th.

En banc review may be put on hold pending the Supreme Court decision in the United States v. Rahimi decision, due any time before the end of June. The Rahimi case considers the constitutionality of a law banning gun possession by people subject to domestic violence restraining orders. Volokh said, “The question in Rahimi and the question in this case aren’t identical, but they share considerable similarities.”

gun160711For now, both Range and Duarte are “as applied” cases, not holding that § 922(g)(1) is unconstitutional on its face, that is, in every circumstance, but rather only “as applied to the one’s own particular conduct.” In Range, the petitioner had been convicted 25 years before on a food-stamp misdemeanor that carried a possible 2-year sentence (and thus fell under § 922(g)(1)’s prohibition). The Duarte majority held that the defendant lacked any violent crime conviction (despite the fact that one of his priors was for fleeing and eluding, which sounds like more than a simple jaywalking to avoid a cop on the same sidewalk Steve was on).

The § 922(g)(1) tide may be turning, but no one should feel as though it’s open season on gun ownership just yet, or–more to the point–that a felon-in-possession conviction is open to a successful constitutional attack.

Reason, Volokh: Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights (May 9, 2024)

Courthouse News Service, 9th Circuit finds that convicted felons also have Second Amendment rights (May 9, 2024)

Ammoland, Court Finds Convicted Felons have Second Amendment Rights (May 15, 2024)

New York Law Review, The Dog That Didn’t Bark Is Rewriting the Second Amendment (May 5, 2024)

ABA Journal, Ban on gun possession by felons is unconstitutional as applied to some offenders, 9th Circuit rules (May 13, 2024)

– Thomas L. Root