Senate Reconvenes with FIRST STEP Act on Its Plate – Update for November 13, 2018

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

IT’S THE WITCHING HOUR FOR FIRST STEP

The Senate reconvenes today for what promises to be a busy lame-duck session, one that may be easier for Republicans to manage because they retained control of the Senate after last week’s bruising mid-term election.

firststep180814The biggest task facing the Senate is to address the budget ahead of a December 7th deadline. But equally important to 5,000 of our readers who happen to be guests of Uncle Sam’s Bureau of Prisons, the Senate has a final chance before the end of the year to pass a bill that combines prison and sentencing reforms calculated to improve the lives of more than 180,000 federal inmates while increasing the odds that they will never be inmates again.

The FIRST STEP Act (S. 2795), a pronounceable acronym for the “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act,” offers prison programs in an attempt to reduce inmates’ likelihood to re-offend after they’ve been released. The House approved the bill in May. In August, the White House brokered a compromise among several senators, including Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Richard Durbin (D-Illinois), to include some sentence reform provisions from the Sentencing Reform and Corrections Act of 2017 (S.1917), which the Senate Judiciary Committee approved last winter. 

The amended Act will reportedly be introduced in the Senate today.


The changes that would flow from passage of FIRST STEP are incremental but significant: Increases in compassionate release of terminally ill inmates: bans on restraints for pregnant inmates during childbirth, cuts to some mandatory minimum sentences, greater leeway for judges imposing sentences, more good time, elderly inmate home confinement, and programs that let inmates earn more time in halfway house and home confinement.


But some tough decisions and hard bargaining lie ahead. The bill is hotly debated and opposed by some conservatives who worry it may release dangerous people prone to reoffend and overburden local police. There is also fear that mixing sentencing reform with prison reforms, which have generally had more support among lawmakers, will threaten chances of passing a criminal justice bill this year before having to start all over again with a new Congress.

Georgetown University law professor Shon Hopwood said he thinks legislators have found a compromise that can pass Congress and be signed into law. FIRST STEP will not bring retroactive relief to that many inmates, but Hopwood still says the reforms would bring about concrete changes in the lives of many federal inmates.

grassley180604Sen. Grassley said last month he thinks the plan to combine the FIRST STEP with his own SRCA can get through the Senate. “We’ve already worked out what I think is something that can move in the Senate if we can get it up, and it would be both sentencing reform and prison reform,” Grassley said. While he did not elaborate on the nature of the agreement, he said he’s been in talks to get the compromise legislation moving in the lame-duck session between November’s elections and the end of the current Congress in January.

A committee aide said the in-the-works deal rolls in several elements of the SRCA, including reductions in mandatory minimums, increased flexibility for judges to set lower sentences, change to how 924(c) enhancements for drug crimes are calculated and Fair Sentencing Act of 2010 retroactivity.

Conservative Republicans who oppose FIRST STEP lost traction last week with the forced resignation of Attorney General Jefferson Beauregard Sessions III, who had previously infuriated Grassley with his unsubtle lobbying to kill SRCA in Committee. Last week, the Fraternal Order of Police, a vigorous opponent of SRCA last March, issued a press release supporting the amended FIRST STEP.

What’s more, some influential conservative voices favor the amended FIRST STEP Act. The National Review said last Friday that “by a 360–59 vote, the House adopted prison reform via the FIRST STEP Act. The Senate should add sentencing-reform language before full adoption.”

There is a chance some controversial elements of prison reform, such as increased “good time,” could still fall by the wayside in order to mollify some conservative concerns with the existing legislation, according to Rep. Doug Collins (R-Georgia), the House FIRST STEP Act (H.R. 5682) sponsor. But not including sentencing reform in the package could alienate Democrats needed to ensure the compromise legislation passes both chambers. Longtime sentencing reform advocate Sen. Durbin and other Democrats like Sen. Cory Booker (D-New Jersey) and Sen. Kamala Harris (D-California) had previously opposed FIRST STEP because it did not include sentencing reform. The three instead pushed for the Grassley/Durbin-sponsored SRCA, although they don’t appear to have been involved in crafting the Senate Judiciary Committee chairman’s compromise legislation.

cornyn181113Sen. John Cornyn, R-Texas, the majority whip and main sponsor of the Senate version of FIRST STEP, said last month that Senate Majority Leader Mitch McConnell (R-Kentucky) will have a tight schedule to fill, between confirming the backlog of two dozen judges and keeping the government open ahead of a Dec. 7 funding deadline. “Certainly Sen. McConnell is going to prioritize federal judicial nominations, but if there is the will to move on legislation, that would be included,” Cornyn said. However, with Republicans not just retaining, but building on their majority in the Senate for the next Congress, the pressure may be off McConnell to push through judicial appointments before next term.

Those advocating for reform have an ally in the White House: President Donald Trump’s son-in-law Jared Kushner has championed passage of FIRST STEP for months, and Trump himself has continued to say he would support the Act.

A CNN report last week suggested continuing White House interest in FIRST STEP. CNN said that former New Jersey governor Chris Christie, whom CNN says is a front-runner to be President Trump’s new attorney general, attended a “law enforcement roundtable on prison reform efforts at the White House on Thursday morning.” Christie then met privately with the President’s son-in-law and senior adviser Jared Kushner to further discuss prison reform issues. An administration official said Kushner and Christie have “a really close and good working relationship, particularly as it relates to prison reform.”


Some reform advocates worry that pushing too hard to add too much to a reform package could jeopardize the progress made by FIRST STEP. Kevin Ring, president for FAMM, said there are real people who will have their lives improved by the bill, and they could easily end up with no legislation at all. “We’d greatly prefer having the sentencing be a part of it, but we don’t want to hold out for everything and end up with nothing,” he said.


For Hopwood, the next two months presents a choice between trying to help as many people as possible now and going for the long haul. “What you’re saying when you hold out for systemic reform is, ‘We don’t want to help the lives of people who are in the system for 20 years,’ because it might be that long,” Hopwood said.

Law360, Hard Decisions Loom In Lame-Duck Push For Sentencing Reform (Nov. 4, 2018)

CNN, Trump considering Christie, Bondi, Acosta for attorney general (Nov. 8)

National Review, The Lame-Duck Session Should Sprain Trump’s Wrist (Nov. 9)

– Thomas L. Root

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Dial-a-Snare: New Searchable Database of Collateral Consequences on the Web – Update for November 9, 2018

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

NEW SEARCHABLE TABLE OF COLLATERAL CONSEQUENCES ON WEB

Not that prisoners themselves can access this, but a new interactive tool from the National Reentry Resource Center – run by the Council of State Governments Justice Center – lets anyone search by state or type of consequence over 1,600 collateral consequences placed on people with criminal records.

collateral181109The National Inventory of Collateral Consequences of Conviction permits searches by state, by consequence, or by keyword. Collateral consequences are penalties buried in various laws that can limit or prohibit people convicted of crimes from finding work, accessing housing, and otherwise impact their rights and benefits that can help them to rebuild their lives.

“It’s amazing how, in the midst of helping people reenter society, we’re often flying blind when it comes to understanding some of things they’re up against. A lot of the time, the people who are responsible for the enforcement of these regulatory sanctions aren’t even aware of them,” said John Wetzel, secretary of the Pennsylvania Department of Corrections and chair of the CSG Justice Center Board of Directors. “This database launched today gives us a clear view into these obstacles in each state, which will help us navigate the reentry process and, in some cases, could lead to policy change.”

National Reentry Resource Center, New Web Tool Provides Look at Often-Overlooked Legal, Regulatory Restrictions Against People who have Criminal Convictions (Oct. 31, 2018)

– Thomas L. Root

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5th Circuit Holds Conspiracy to Rob Not a Violent Crime – Update for November 8, 2018

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

924(c) AND HOBBS ACT ROBBERY GETS EVEN MORE CONFUSING

We have reported over the past few weeks that a number of Circuits have held, in the wake of Sessions v. Dimaya, that determining whether the crime underlying an 18 USC 924(c) conviction for using or carrying a gun during a crime of violence had to be conduct-specific or case-specific, as opposed to a hypothetical ordinary-case categorical approach.

Robber160229The 5th Circuit reminded us last week that, curiously enough, it is the outlier. In United States v. Lewis, the Circuit repeated its holding last summer in United States v. Davis that conspiracy to commit a Hobbs Act robbery cannot support a conviction for using or carrying a gun under 18 USC 924(c).

How long the 5th Circuit’s position lasts is anyone’s guess. The government filed a petition for writ of certiorari in Davis last month, arguing that the 5th Circuit’s use of the ordinary-case categorical approach in 924(c) cases is at odds with everyone else, and is just plain wrong. Given the stark circuit split and the importance of the issue, we think the government’s chance to win certiorari on the issue is better than even.

United States v. Lewis, Case No. 17-50526 (5th Cir. Nov. 1, 2018)

United States v. Davis, Supreme Court Case No. 18-431 (petition for certiorari filed Oct. 3, 2018)

– Thomas L. Root

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Misery on the Mountain – Update for November 7, 2018

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

WHITEY BULGER MURDER INTENSIFIES CONGRESSIONAL FOCUS ON USP HAZELTON

The murder of James “Whitey” Bulger last week at USP Hazelton, a day after his transfer to that facility, was not the first this year at the high-security institution.

hazelton181106Hazelton, known by inmates as “Misery Mountain”, has a history of violence. The New York Times reported earlier this year that 2017 saw 257 violent incidents at Hazelton, a 15% increase from 2016. Two other inmates were murdered in 2018 prior to Bulger’s appointment with a lock-in-a-sock.

Union officials have raised a flurry of concerns over the past year about acute understaffing and lethal violence at the prison, which is categorized as a high-security lockup. There are more than 3,000 inmates at the prison complex. “We’re short of 42 correctional officers,” Richard Heldreth, president of Local 420 of the American Federation of Government Employees, which represents more than 800 employees at the U.S.P. Hazelton in Bruceton Mills, West Virginia. “It affects the security of the prison.”

lockinsock181107Prisons across the nation have dealt with extreme shortfalls in correctional officers since the Trump administration imposed a hiring freeze in January 2017 and the Bureau of Prisons stopped filling vacant positions. At the beginning of this year, the agency eliminated 6,000 positions nationwide, a 14% reduction in staffing levels. The cuts included 127 jobs at Hazelton.

Nearly two weeks before Bulger’s death, Washington, D.C., Delegate to Congress Eleanor Holmes Norton asked the Dept. of Justice Inspector General to “open a formal investigation into the alleged appalling conditions inmates are facing at the Federal Bureau of Prisons’ (BOP) Hazelton facility… Two inmates from the District of Columbia have died at Hazelton during violent altercations during this past year alone amid reports of brutal treatment of others… Based on the evidence presented to my office, I believe that the federal employees serving in this facility have likely received inadequate training, are under-supported, and are being compelled to perform duties outside the scope of their positions and their training, which is leading to these horrific and entirely unacceptable outcomes.”

Last Tuesday, Norton doubled down on her demand, saying in a news release, “Today’s reports of another inmate death at Hazelton heighten the need for an IG investigation into the operations and prisoner conditions at this federal prison. The two other killings at Hazelton earlier this year were of inmates from the District.  Based on reports from my constituents who are housed at Hazelton and their relatives, there appears to be a serious shortage of staffing and other resources, leaving prisoners and guards vulnerable to attacks.”

Inch181108It may have just been coincidence that the day Bulger was killed, FAMM sent a letter to President Trump urging immediate appointment of a permanent BOP Director, to replace Mark Inch, who resigned last April. FAMM President Kevin Ring wrote, “The BOP has been without a permanent director since General Mark Inch’s resignation from the post in May of this year. The void in consistent leadership has caused and exacerbated numerous problems throughout the federal prison system, for both staff and those in custody.”

Washington Examiner, ‘Misery Mountain’: The jail where ‘Whitey’ Bulger was slain has history of murder and violence (Oct. 30, 2018)

The New York Times, Safety Concerns Grow as Inmates Are Guarded by Teachers and Secretaries (June 18, 2018)

Los Angeles Times, Mafia hit man is suspected in former mob boss ‘Whitey’ Bulger’s beating death in prison (Oct. 31, 2018)

Office of Congresswoman Eleanor Holmes Norton, Norton Demands IG Investigation of Appalling Prisoner Conditions Reported at BOP Hazelton Facility After Two D.C. Inmates Killed This Year (Oct. 18, 2018)

FAMM, Letter to President Trump Re BOP Director (Oct. 29, 2018)

– Thomas L. Root

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Supreme Court Hears Failure-to-Appeal Argument – Update for September 6, 2018

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 SEEMS SKEPTICAL OF ATTORNEY RIGHT NOT TO APPEAL; AGREES TO HEAR PAIR OF SUPERVISED RELEASE ISSUES

While it can be dangerous to predict an outcome from the justice’s comments at oral argument, Supreme Court observers are predicting that it seems more likely than not that the Court will rule that a lawyer who unilaterally decides to disregard his or her client’s instruction to appeal provides ineffective assistance of counsel, even where the client has waived appeal rights.

appeal181107Under Strickland v. Washington, in order to establish ineffective assistance of counsel, a petitioner must show the lawyer rendered objectively unreasonable representation, and that there is a reasonable probability that the poor performance caused adversely affected the result of the proceeding. The issues in last week’s Garza v. Idaho case were whether the lawyer rendered deficient performance by refusing to file an appeal, despite his client’s repeated requests and without consulting him, and whether Garza must demonstrate prejudice or whether it is assumed as provided for in the Court’s 2000’s Roe v. Flores-Ortega decision.

Idaho argued there was no prejudice because the state “had already secured the waiver of many, many, many issues, in fact, all of the reasonable issues that could be tried.”

“Well, many but certainly not all,” interjected Chief Justice John Roberts. “They didn’t assure themselves of victory on appeal since there were arguments outside the scope of the agreement, including some that have to be available outside the scope of the agreement,” Roberts explained, alluding to possible claims that the plea and appeal waiver were themselves involuntary.

supervisedrevoked181106In other Supreme Court developments, the Court granted certiorari in Mont v. United States, a 6th Circuit case asking whether a period of supervised release for one offense is tolled under 18 USC 3624(e) during a period of pretrial confinement for a new criminal case, if upon conviction the time is credited toward the defendant’s sentence for the new crime.

A week before, the Court granted certiorari to another supervised release case, United States v. Haymond. Last spring, the 10th Circuit held in that case that 18 USC 3583(k), which requires additional prison time for sex offenders who violate the terms of their supervised release, is unconstitutional, because it takes away the sentencing judge’s discretion and imposes additional punishment on sex offenders based on new conduct for which they had not been convicted beyond a reasonable doubt. The government petitioned for high court review.

SCOTUSblog.com, Argument analysis: Court skeptical that a lawyer may unilaterally countermand client’s instruction to file a criminal appeal (Oct. 31, 2018)

Mont v. United States, Case No. 17-8995 (cert. granted Nov. 2, 2018)

United States v. Haymond, Case No. 17-1672 (cert. granted Oct. 26, 2018)

– Thomas L. Root

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FIRST STEP First Up After Mid-Terms? – Update for November 5, 2018

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

SENATE POISED TO CONSIDER AMENDED FIRST STEP ACT

Criminal justice reform advocates confirmed to the Washington Examiner last week that sentencing reform provisions will be included in the FIRST STEP Act (S.2795), to be unveiled shortly after tomorrow’s mid-term elections, amendments which are likely to trigger an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill. 

firststep180814The FIRST STEP Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms. Reform advocates expect rapid legislative action after a pre-election pause, and believe there will be enough votes to pass the expanded legislative package. Two people close to the process told the Washington Examiner that a bipartisan group of senators has agreed to attach a set of sentencing reforms to the House-passed bill. 

The additions include shortening federal three-strike drug penalties from life in prison to 25 years, reducing two-strike drug penalties from 20 years to 15, unstacking 18 USC 924(c) sentencing enhancements to require a conviction on the first 924(c) charge before 25-year minimum mandatory sentences apply, making the 2010 Fair Sentencing Act (that cut crack penalties) retroactive, and expanding the 18 USC 3553(f) “safety valve.”

“We are very excited about it. We think that the four reforms that are in the bill are ones that make sense,” said Mark Holden, the general counsel of Koch Industries and an influential conservative reform advocate. “From what we understand, there are enough votes — plenty — for it to happen.”

Both Holden and another person close to the legislation drafting process, who asked not to be identified, said there is wording to reduce concern about illegal immigrants benefiting from sentencing reform. 

Sentencestack170404Many of the proposed changes to the FIRST STEP Act are included in the Sentencing Reform and Corrections Act (S.1917), which passed the Senate Judiciary Committee last February but has not been brought to the floor for a vote. While the physical text of the new sentencing reforms is still being written, the SRCA provides a good example of what might be in the final bill text. “The sentencing reforms that could be included in the First Step Act… do not eliminate any mandatory minimum sentences,” wrote FreedomWorks vice president Jason Pye in The Hill last week. “But these proposed reforms would apply a measure of common sense to federal sentencing law.”

Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill. Last month, President Trump said in a Fox News interview that while Attorney General Jefferson Beauregard Sessions III opposed sentencing reform, Trump was in favor. “”If he doesn’t support reform, then he gets overruled by me,” the President said. “Because I make the decision, he doesn’t,” Trump said Oct. 11. 

“I think President Trump is doing a really good job on these sentencing reform measures,” Holden said. “He’s right, he’s the president, he makes the call, and we’re glad he said it.”

cotton171204It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell (R-Kentucky), will be the ultimate decision-maker in whether the bill gets a floor vote. A Louisville Courier-Journal writer said last week that with prison and sentencing reforms polling off the charts in Kentucky, and Sen. Rand Paul (R-Kentucky) leading the charge, there is little doubt McConnell will find enough votes during the promised whip count (he needs 60) to send the bill to the floor.

The reform efforts have received significant White House support, and in turn, policy advocates have sought to build bridges with Trump-supporting activists. Last month, clemency advocates including Amy Povah of CAN-DO Clemency and Alveda King, the anti-abortion evangelical leader, hosted a panel at a Women for Trump event at Trump International Hotel in Washington. 

pardon171128Povah wants Trump to supplement FIRST STEP passage with generous use of his constitutional pardon powers. Last month, Trump said “a lot of people” are jailed for years for “no reason” and that he was actively looking to release some. Povah said clemency would be particularly appreciated around the holiday, including Thanksgiving, when presidents pardon turkeys, disillusioning people who are looking for one. 

“I think Trump said it best, he said that he’s going to release a lot of people and I think a lot of people in prison took that seriously and literally,” Povah said.

Povah said she’s particularly grateful for Kushner’s role in pushing both legislation and clemency cases, particularly after Sessions’ appointment as attorney general (an appointment Trump openly regrets making and who is likely to resign or be fired after tomorrow’s election). “Jared is a beacon of hope for so many prisoners. They had lost hope for any leniency or reform when Jeff Sessions was sworn in as attorney general. If felt like a nail in the coffin,” she said.

Washington Examiner, Prison reform bill to include sentencing, setting up post-election fight (Nov. 4, 2018)

Americans for Tax Relief, The US Needs Sentencing Reform and the First Step Act (Nov. 2, 2018)

Louisville Courier Journal, Rand Paul and Mitch McConnell play key roles in justice reform (Nov. 1, 2018)

The Hill, Congress must make sentencing reform priority for public safety (Nov. 2)

– Thomas L. Root

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Sentence is ‘Barbaric’ But Not Unusual – Update for November 2, 2018

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

SENTENCE ON REMAND IS REASONABLE… JUST BARELY

Jared Sawyer was sentenced for sex-related offenses to 30 years in federal prison. Last year, the 2nd Circuit threw out the sentence as being substantively unreasonable, calling it “shockingly high given Sawyer’s harrowing upbringing and comparatively low danger to the community.” On remand, the district court disagreed with the appellate court analysis, but found that Sawyer’s good prison record justified a reduction to 25 years.

barbaric181102Last week, the 2nd Circuit grudgingly upheld Sawyer’s new sentence. The Court wrote that Sawyer’s second appeal “continues to protest the reasonableness of his sentence, but we cannot bring ourselves to call it shocking under governing law. He faced a mandatory minimum of fifteen years. Regrettably, twenty‐five years is no great departure from sentences routinely imposed in federal courts for comparable offenses… In 2010 – the most recent year for which data is available – the average sentence for production of child pornography was 267.1 months, or approximately 22 years. The sentence is barbaric without being all that unusual.”

One of the three judges dissented, complaining that the district court failed to provide reasons for the sentence that would reasonably support the sentence. Here, the dissent said, “we have already considered the principal reasons offered at both sentencings and found them to be insufficient to support the original sentence. That sentence has been re‐imposed — reduced only by an unrelated factor not previously available. By failing to enforce its original mandate, the majority denies the defendant a sentence that fairly addresses the reasons which we previously identified as critical to a just sentence.”

United States v. Sawyer, Case No. 15‐2276‐cr (2nd Cir. Oct. 26, 2018)

– Thomas L. Root

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USSC Commentary Can’t Expand Guideline Coverage? – Update for November 1, 2018

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

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GUIDELINES “CAREER OFFENDER” COMMENTARY GOES TOO FAR, 6TH CIRCUIT SUGGESTS

Jeff Havis attacked his sentence for gun possession by arguing that a prior Tennessee conviction for selling or delivering cocaine should not count as a “controlled substance offense” under the Guidelines to increase his base offense level. The 6th Circuit last week said it was foreclosed by a prior panel decision that the Tennessee offense did count under the Guidelines, and thus could not give Jeff the relief he wanted.

But remarkably, the opinion does not stop there. Instead, it held that Jeff’s complaint “has legs” despite a panel opinion to the contrary. Thirty years ago, the Supreme Court found the Guidelines not to violate the constitutional separation-of-powers doctrine in Mistretta v. United States, because Congress has a chance to review amendments before they take effect and the United States Sentencing Commission must comply with the notice-and-comment requirements of the Administrative Procedure Act when it adopts them.

Is Sentencing Commission commentary not the last word?
Is Sentencing Commission commentary not the last word?

This is crucial, because Tennessee’s drug trafficking statute includes “attempts” to violate the statute within its definition, something the Guidelines does not include in its text. Thus, the Tennessee law is broader than the Guidelines, meaning the Tennessee statute should not count as a controlled substance offense. However, in the commentary to the Guidelines, the USSC expanded the Guidelines definition to include attempts.

This is a problem, the Circuit said. The procedural requirements governing amendment of Guidelines “are one piece of a larger puzzle. If the Commission can add to or amend the Guidelines solely through commentary, then it possesses a great deal more legislative power than Mistretta envisioned. This means that in order to keep the Sentencing Commission in its proper constitutional position — whatever that is exactly — courts must keep Guidelines text and Guidelines commentary, which are two different vehicles, in their respective lanes.

The 6th Circuit panel quietly begged Jeff to seek en banc review to overturn the prior precedent, and to put USSC commentary into limited role it should occupy.

United States v. Havis, Case No. 17-5772 (6th Cir. Oct. 22, 2018)

– Thomas L. Root

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Not Even Halfway on Halfway – Update for October 31, 2018

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

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A SOBERING REPORT ON HALFWAY HOUSE AND HOME CONFINEMENT
Not the right halfway house - but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP's transitional housing mandates.
       Not the right halfway house – but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP’s transitional housing mandates.

As Congress is on the verge of passing FIRST STEP Act, a prison reform measure which will let inmates earn substantially more halfway house or home confinement time for successfully completing programs that cut recidivism, the reality is that the BOP’s halfway house and home confinement programs needed to implement the Act may be dead on arrival.

Politico reported last week that even while inmate transfers to transitional housing (halfway house) have been delayed by many weeks and months, scores of halfway house beds lie empty (with some estimates of at least 1,000 vacant spaces) and home confinement has been drastically curtailed.

Just before he unexpectedly resigned last spring, BOP Director Mark Inch told Congress the agency is curbing transitional housing overspending of past years and streamlining operations. Yet, halfway house and home confinement are much cheaper than imprisonment: in 2017, the BOP reported it spent almost $36,300 a year to imprison an inmate, $4,000 more than the cost of halfway house placement. It costs a mere $363 a month to monitor someone on home confinement.

sessions180322Politico argued that “abandoning transitional supervision aligns with Attorney General Jeff Sessions’ disputed opinion that reduced prison populations during the Obama administration are to blame for a small uptick in violent crime.” But Sessions’ policies are running headlong into those of President Trump, who has endorsed the FIRST STEP Act, which not only lets inmates earn significant additional halfway house/home confinement time for successful programming, but also directs that the BOP shall “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted…”

In 2015, more than 10,600 federal prisoners were in halfway houses. The number of inmates in home confinement — 4,600 — was up more than a third from the year before. In all, 7.1% of BOP inmates were in transitional housing. Since then, halfway house population has dropped by 28% and home confinement is in freefall, down 61% to 1,822. Most of that cut has happened in the last year. Now only 1 in 20 people under federal supervision is in transitional housing.

Judge Ricardo S. Martinez, who chairs the Committee on Criminal Law of the Judicial Conference of the United States, complained that “we are in the dark about those numbers.” He said the committee is working to establish better communication with the BOP, because, as Politico put it, “federal judges, who can sentence defendants to halfway houses, need to know how much space is available.”

Politico, President Trump Says He Wants to Reform Prisons. His Attorney General Has Other Ideas (Oct. 25, 2018)

83 Federal Register 18863, Annual Determination of Average Cost of Incarceration (Apr. 30, 2018)

Administrative Conference of U.S. Courts, Incarceration Costs Significantly More than Supervision (Aug. 17, 2017)

– Thomas L. Root

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5th Circuit Pummels § 2255 Petitioner in Pair of Cases – Update for October 30, 2018

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

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5th CIRCUIT DEALS TWO SETBACKS TO 2255 PROCEDURE

The 5th Circuit handed down a pair of 2255 procedural decisions last week that complicate matters for inmates seeking post-conviction relief in that circuit.

siegfried181101Every inmate law library denizen knows that if the district court denies a 2255, the Federal Rules of Civil Procedure let the defendant file a motion to alter the judgment under Federal Rule of Civil Procedure 59(e). It seems like a free bite of the apple: you get to reargue your position, and a timely-filed 59(e) stops the clock running on the appeal deadline.

But, it turns out, a 59(e) motion is not free of cost. Andre McDaniels found that out last week. After the district court denied his 2255, which was based on ineffectiveness of counsel, Andre filed a Rule 59(e) motion that argued the court had erred in refusing to grant an evidentiary hearing. That motion also was denied. Andre got a certificate of appealability from the 5th Circuit, but the government complained the Circuit lacked jurisdiction to hear the appeal.

The Supreme Court’s 2005 Gonzalez v. Crosby decision held that Rule 60(b) motions filed in 2255 cases seeking “to add a new ground for relief” or “attack the federal court’s previous resolution of a claim on the merits” is a second-or-successive 2255 petition. A motion that merely targets a procedural defect in the integrity of the federal habeas proceedings, however, remains a bona fide Rule 60 motion over which a district court has jurisdiction.

Circuit courts are applying Gonzalez to Rule 59 motions filed in 2255 the allegations that he had made in the 2255 motion, and complained the district court had erred in dismissing the motion without an evidentiary hearing. The 5th Circuit ruled that the district court lacked jurisdiction to hear Andre’s substantive claims under the 5th and 6th Amendments. Because they attacked the district court’s previous ruling on the merits, they constituted a successive habeas application.

However, his claim that the district court should have conducted an evidentiary hearing was not an attack on the decision on the merits, but rather on the proper procedure used by the district court in the 2255 proceeding. Andre was able to go forward on that issue.

In a separate decision, the 5th Circuit weighed in on a circuit split on the meaning of 28 USC 2244(d)(1)(D). That statute permits second-and-successive 2255 motions in some cases, including newly discovered evidence. The 5th Circuit held that to show there is newly-discovered evidence, a defendant must “establish that the affidavits were unavailable to trial counsel at the time of trial.” A number of other circuits hold only that the evidence must be “reliable evidence that was available but not presented at trial.”

grasp181101The Circuit ruled that movant Jamal Hancock failed to show his evidence was newly discovered, because “it was always within the reach of petitioner’s personal knowledge or reasonable investigation.” The Court admitted it had not previously “decided what affirmatively constitutes ‘new’ evidence,” but it has “explained what does not.” Jamal’s affidavits did not show the witness affidavits were unavailable to his attorney at the time of trial, and therefore the Court held that Jamal had offered no “new” evidence.

United States v. McDaniels, Case No. 16-20508 (5th Cir., Oct. 26, 2018)

United States v. Hancock, Case No. 16-20662 (5th Cir. Oct. 23, 2018)

– Thomas L. Root

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