BOP Will Calculate First Step Extra Good Time on July 19th – Update for May 6, 2019

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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.

JULTEENTH

imageMost everyone knows that “Juneteenth” is an unofficial but increasingly-popular holiday commemorating June 19, 1865, the date on which slavery was abolished in Texas, the last stronghold of the dying Confederacy. When the Texan slaves were declared free on that date, slavery was no longer legal anywhere in North America. 

This year, July 19, will become “Julteenth,” the date on which BOP computers will automatically update sentence records to credit the additional seven days per year good-time that was awarded in the First Step Act last December, crediting federal prisoners retroactively to the start of their sentences. Some prisoners will receive, in one fell swoop, a six months credit on their incarceration.

When First Step passed last December 21st, Congress intended that the seven days be credited immediately. Indeed, opponents and supporters of the bill predicted an immediate flood of federal prisoners released in time for Christmas. Proponents envisioned the happiest of Christmases for many reunited families. Opponents darkly predicted vicious criminals running amok on America’s Yuletide streets. But in the back-and-forth on debating and amending the measure to please some die-hard opponents of any criminal justice reform legislation that suggested common sense, the seven days’ good time got tucked in a section of the bill addressing the new risk assessment system. A subsection of that provision gave the Attorney General 210 days (which worked out to July 19, 2019) to roll out the risk assessment proposal. Broadly written and poorly conceived, the measure hooked the seven days’ additional good time to that section as well.

unintendedconsequences190506The additional good-conduct time was granted because it was what Congress always had intended. Unfortunately, the prior good-conduct time provision in 18 USC 3624(b)(1) but had written so poorly that the Bureau of Prisons was able to interpret it in the most miserly way possible. In irony that would be appreciated had it not dashed prisoners’ hopes so badly, the good time “fix” was screwed up to, enabling the Dept. of Justice to interpret it to delay the seven days’ good time until the risk assessment – which has nothing to do with the seven days’ additional good time – was completed.

Since First Step passed, DOJ has blown through a 30-day deadline for starting the risk assessment adoption process, leading some to speculate on whether it would ignore the July 19 deadline for the seven days’ additional good-time credit as well. Fortunately, BOP last week dispelled that speculation with a welcome announcement that the additional credit would be automatically applied on that date.

Whether the Attorney General will deliver a risk assessment program on July 19th, one that will meaningfully determine risk of recidivism in an efficient and fair way, is another thing altogether. Previously, we reported on the appointment of conservative think-tank Hudson Institute to host the Independent Review Committee, the group that is to recommend a risk assessment program for adoption. In a joint statement released a week ago last Tuesday, House Judiciary Committee Chairman Jerrold Nadler (D-New York) and Subcommittee on Crime, Terrorism and Homeland Security Chairwoman Karen Bass (D-California), sharply questioned the appointment, declaring that “our concerns about this decision remain” even after staff was briefed by the agency.

Under the Act, the IRC’s function is to create independent oversight of the law’s implementation and to ensure that reforms are carried out in a bipartisan and evidence-based manner. First Step directs the DOJ’s National Institute of Justice to “select a nonpartisan and nonprofit organization with expertise in the study and development of risk and needs assessment tools.”

strangelove190506“The Hudson Institute appears to have little or no expertise in the study and development of risk and needs assessment tools,” Nadler and Bass complained. “Committee staff questioned DOJ representatives charged with overseeing First Step Act implementation as to why the Hudson Institute was selected, and were told that DOJ representatives did not know. Staff asked whether the Hudson Institute has ever studied or developed a risk and needs assessment tool, and were told that DOJ representatives did not know. Staff asked on what date the Hudson Institute was selected, and were told that DOJ representatives did not know. Staff asked what process was used to select the Hudson Institute, and again were told that DOJ representatives did not know.”

The suggestion is that political sources out the DOJ (read “the White House”) dictated Hudson Institute’s appointment. “The Hudson Institute and its leadership have opposed sentencing reform and… the First Step Act’s reforms,” the joint press release said. “We are concerned that the selection of a biased organization lacking requisite expertise may reflect a lack of intent to diligently and effectively implement the bipartisan criminal justice reforms passed last Congress.”

Marc Mauer, executive director of the Sentencing Project, agreed. “The Hudson Institute has no interest or expertise in criminal justice policy, and to the extent they do have any opinion about policy, they’re very hostile to the kinds of provisions that are in the First Step Act,” Mauer told Salon magazine. “It’s a strange choice when there are so many other reputable think tanks and organizations that do have experience in these issues.”

Nadler and Bass demanded that The Hudson Institute’s appointment be rescinded, but DOJ sources report that such a move is very unlikely. Of more significance is the question of whether a workable risk assessment system is in place in the next two and a half months, so the BOP can roll out programs inmates can use to earn good-time credits.

In the midst of the flying political fur over Hudson Institute’s involvement, no one is speculating about that.

House Judiciary Committee, Nadler & Bass Statement on DOJ’s Selection of the Hudson Institute to Host First Step Act Independent Review Committee (Apr. 23)

Salon, Is the Trump Justice Department trying to sabotage the First Step Act? (Apr. 28)

– Thomas L. Root

Fake News on Second Step Act – Update for May 2, 2019

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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.

JUST FOOLIN’

trumpaprilfool190502President Trump told an April Fools’ Day gathering the White House to celebrate the First Step Act that “I’m announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records, and that’s what we’re starting right away.”

Um… not really.

The Washington Examiner last week quoted White House sources as saying that “there’s definitely not a Second Step Act.” In fact, it appears that Trump wandered off script from the prepared speech, which did not mention a Second Step at all.

Instead, the source is quoted as saying, the White House is focused instead on implementing the First Step Act in a way that denies ammunition to opponents such as uber-critic Sen. Tom Cotton, R-Ark.

cotton190502So far, First Step has not been a roaring success. A drafting error stalled additional “good time” credit for 150,000 federal inmates, creating a likely wave of about 4,000 releases around July. White House officials considered options to move forward the date but ultimately did not. “There’s a lot of concern that they have to get this right. Folks like Tom Cotton are just waiting for someone to do something stupid,” said the source who has worked on White House efforts. “People are going to want to wait and see how this [First Step Act] works out.”

Meanwhile, a broad coalition of groups is pushing for repeal of the federal ban on Pell Grants for incarcerated students, as talks heat up over reauthorization of the Higher Education Act. Those organizations include civil rights groups, religious colleges and conservative organizations, argue that college access for students behind bars is an issue of equity for postsecondary education and also the logical extension of efforts to end mass incarceration.

Since 1994, federal law has prohibited prisoners from receiving Pell Grants, the primary form of need-based student aid. The Trump administration, however, has named financial aid for incarcerated students as a top priority for a new higher ed law.

Washington Examiner, Trump declared he was working on a Second Step Act. The proposal doesn’t exist (Apr. 26)

Inside Higher Ed, The Case for Pell in Prisons (Apr. 22)

– Thomas L. Root

Judge Weinstein (As Usual) Provides Detailed Opinion on Crack Resentencing – Update for May 1, 2019

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WISDOM OF THE ANCIENTS

weinstein160516At age 92, Senior Judge Jack Weinstein is not only still on the Eastern District of New York federal bench, but he remains one of the most industrious and thoughtful federal judges in America, a jurist prone to issuing detailed and resource-rich decision.

In a 15-page opinion hand down last week, Judge Weinstein released Cheyenne Simons under the retroactive Fair Sentencing Act after Chey had served 11 years of his 12-year sentence. This does not sound like such a big deal (a 9% discount on the original immurement), except that as a Guidelines career offender with 50 grams of crack, Cheyenne had faced a 262-month minimum Guidelines advisory sentencing range term in 2008, when Judge Weinstein sentenced him to 144 months instead. What’s more, because of a quirk in how EDNY was applying 18 USC 924(c)’s mandatory consecutive sentence (for using a gun in a drug trafficking crime) back then – a quirk since remedied by the Supreme Court in Abbott v. United States –  Chey did not get a 5-year mandatory consecutive sentence for the gun charge then. Unfortunately, he was obligated to get it now.

Cheyenne had pled to 50 grams of crack, but at the 2008 sentencing, the court attributed over 500 grams of crack to him for Guidelines sentencing purposes. The government argued that under the FSA resentencing, the 500 grams made him subject to the new 280-gram 10-year minimum. Judge Weinstein refused:

Any argument that Simons is ineligible for relief on the basis that his actual conduct involved distribution of 280 grams or more of cocaine base, triggering the 841(b)(1)(A) penalties and a 10-year minimum term of imprisonment, is unsound. Statutory penalties are determined by facts submitted to a grand jury, a trial jury, or established by a guilty plea. Findings by a judge… may be used to determine a sentence within the statutory penalties, but do not establish statutory penalties and cannot change the mandatory minimum sentence now applicable.

release160523Although the 924(c) penalty left Chey’s Guidelines at 262-327 months, Judge Weinstein held that the retroactive FSA gave him the discretionary authority to reduce the sentence. Because Chey had “taken substantial steps during his period of incarceration to achieve the rehabilitative goals sought by the original sentence imposed,” Judge Weinstein set him free.

United States v. Simons, 2019 U.S. Dist. LEXIS 67964 (EDNY, Apr. 22, 2019)

– Thomas L. Root

Dance With The Girl Who Brung You – Update for April 30, 2019

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GOVERNMENT DENIED A MULLIGAN IN § 2255 ARGUMENT

A crusty old judge I once knew liked to warn attorneys they had to “dance with the girl who brung” them. That is, if they made a claim in their opening statement, they had to stick with that claim, and not try to slip in a new theory when the old one started looking weak.

mulligan190430The 4th Circuit told the government the same thing last week. Antwan Winbush filed a post-conviction motion under 28 U.S.C. § 2255 that argued his attorney had been ineffective at his sentencing. Specifically, the court attributed two prior drug convictions to Antwan, making him a “career offender” under the Sentencing Guidelines, and exposing him to a dramatically potential higher sentencing range. Antwan arued his lawyer should have noticed that one of the two priors was inapplicable.

The government admitted Antwan was right about one of the drug prior convictions not counting for “career offender” (because the conduct it addressed was drug possession, not drug trafficking). That did not matter, the government said, because Antwan was not prejudiced. It seems Antwan also had a prior conviction for an Ohio robbery, and that prior offense would have counted to make him a Guidelines “career offender” even without the defective prior drug conviction.

Antwan protested that neither the U.S. Attorney nor the court identified the robbery conviction as a “career offender” qualifier at sentencing. Instead, both relied only on the two prior drug convictions.

The district court said it did not matter which convictions the government brought to the dance back at sentencing, because it was free to watusi with the heretofore-unidentified robbery conviction now. But last week, the 4th Circuit disagreed.

The Circuit, noting that Antwan’s presentence report “did not designate his robbery conviction as a predicate conviction for the career offender designation,” ruled that as a result, Antwan “was given no notice at sentencing that his robbery conviction could be utilized as a predicate conviction for a career offender enhancement.”

uglygirl190430The government “has already been given one full and fair opportunity to offer whatever support for the career offender enhancement it could assemble,” the Court held. Because the government did not identify the robbery as a conviction on which it intended to rely to support a Guidelines “career offender” enhancement at sentencing, it cannot decide to do so later when it finds it convenient, because one of the convictions it did rely on to support the career offender designation ends up not counting.

“To hold otherwise,” the 4th ruled, “would be to allow the government to change its position regarding which convictions support the enhancement now that one of its original choices cannot do the job. Worse yet, allowing the government to change positions for the first time on collateral review would unfairly deprive the defendant of an adequate opportunity to respond to predicate offense designations, especially given the fact that a defendant has the burden of proof at the 2255 stage but no right to counsel.”

You dance with the girl who brung you.

United States v. Winbush, 2019 U.S. App. LEXIS 11853 (4th Cir. Apr. 23, 2019)

– Thomas L. Root

Supreme Court 922(g) Case May Hold Unintended Consequence for Felons with Guns – Update for April 29, 2019

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SLEEPER

An oral argument last Tuesday in Rehaif v. United States took a surprising turn, and could make a Supreme Court decision in the case the “sleeper” of the Court’s 2018-2019 term.

gunknot181009Refresher first: Federal law prohibits a long list of people from possessing guns or ammunition. The statute, 18 U.S.C. § 922(g), bans ownership by people charged with felonies, people convicted of felonies, people who have been certified as crazy, people who beat their spouses, people subject to protection orders, people who do drugs, people who are here illegally, and so on and so on.

The statute (922(g)) is colloquially known as the “felon-in-possession” statute, although its reach is much broader than that. Read the statute to figure out where you fit.

A quirk of the felon-in-possession statute is that it provides no punishment. Rather, punishment is meted out by another statute, 18 U.S.C. § 924(a)(2), which specifies a 10-year sentence for people who “knowingly” violate 922(g).

But “knowingly” what? Do you have to know it is a gun? Or a round of ammo? Do you have to know you are a felon or a drug abuser or here illegally? Do you have to know you are possessing it? Up to now, the statute was interpreted by the courts as requiring only that you know that it’s a firearm or ammunition.

Which brings us to the unluckiest hedonist in America, Hamid Rehaif. Hammy came to the US to attend college. Under immigration law, he retained his student-visa status only as long as he remained enrolled as a full-time student. But when he got here, he discovered that the non-classroom parts of college were more fun, the bars, the tailgating, the frat parties, all of the stuff that has conspired to place less of a workload on college students than on eighth graders.

Naturally, Hammy flunked out. But he had so much fun doing it that he couldn’t give it up. Instead of returning to his mother country with his academic tail between his legs, Hammy stayed in America. In Florida, actually, and who could blame him?

florida190429But events conspired against him. One day he went to a shooting range, rented a Glock .40 cal. pistol (is this a great country or what?), and happily blasted away at targets for an hour or so.  A few weeks later, some solid citizen reported Hamid, because she had seen him skulking around an apartment building (he lived there, but then, he is Middle Eastern, so of course he must be a terrorist). The FBI came by to talk to him, and Hammy – who had been at a party instead of an American government class, and thus did not know about the “right to remain silent” part of the Constitution – mentioned at one point in the interview that he had been shooting a few weeks before.

Like I used to tell my clients, remaining silent is not just a  right – it’s a whopping’ good idea. Hamid was charged as an unlawful alien in possession of a firearm under 18 U.S.C. § 922(g)(5). Of course, he was convicted, despite the fact Hammy argued he did not know he was in the country illegally. The trial court said that did not matter. The only “knowledge” provision of 922(g) that mattered was that he knew he possessed a gun, even just for an hour.

knowledge190429The question of whether “knowingly” meant a defendant had to be aware of his or her status (felon, spouse-beater, drug-abuser, illegal-alien, whatever) in order to violate 922(g). At oral argument last week, the Supreme Court justices quickly saw the slippery slope: if they rule that the government must prove an unauthorized immigrant with a firearm knew he was in the country illegally, that ruling will necessarily mean it will have to prove that a felon with a firearm knows he or she is a felon.

If Hamid’s conviction is reversed, the practical consequences could be huge. Only Justice Alito seemed to accept the current view that a defendant need not know his or her status to violate the statute.

Justice Ginsburg wondered what would happen if the Court ruled that status under 922(g) requires knowledge: “How many people who have been convicted under felon-in-possession charges could now say, well, the Supreme Court has said… I can’t be convicted of [the] crime I was convicted of, so I want to get out. I want habeas.” The government’s lawyer responded that “under Bousley v. United States, the defendant would have to show on collateral review that he was actually innocent, meaning he actually did not know about his status.”

It is tricky to predict a Supreme Court case’s outcome from oral argument, but the headcount strongly suggests Hamid will win. If the Supremes’ decision holds that knowledge of felon (or illegal immigrant) status is an element of a 922(g) offense, a flood of actual-innocence 28 U.S.C. § 2241 habeas corpus petitions is sure to follow. That would make Rehaif the “sleeper” decision of the year.

Rehaif v. United States, Case No. 17-9560 (Supreme Court, decision by June 30, 2019)

SCOTUSBlog.com, Argument analysis: Court leaning toward requiring the government to prove that a felon in possession knew he was a felon (Apr. 24)

– Thomas L. Root

Whose Number Counts for Fair Sentencing Act Resentencings? – Update for April 25, 2019

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THE GAME’S AFOOT

The 900-lb. gorilla900-pound-gorilla190425 in the room at most Fair Sentencing Act resentencings under the First Step Act is this: before the United States v. Booker Supreme Court decision, the government typically did not bother to specify an amount of crack the defendant was accused of distributing. It did not bother, because the jury would find him or her guilty of some quantity (however small), and then the government would get the defendant tagged in the presentence report with 1.5 kilos of the stuff.

The quantity would result in the defendant getting hammered, not just with a mandatory minimum of 10 years (usually enhanced into the stratosphere by prior convictions noticed under 21 U.S.C. § 851), but usually with sky-high sentences as well.

The legal landscape is much different now. Booker and Alleyne have held that not only must the Sentencing Guidelines be advisory, but any amount raising the mandatory minimum must be found by a jury beyond a reasonable doubt.

Many of the Defendants going back for FSA resentencing had indictments that did not specify any minimum amount, or just a small amount that is no longer relevant. Thus the jury never found that they had possessed any significant amount. But their Presentence Reports – written by Probation Officers and often untethered to reality – may claim they had more crack than you could move with a truck. So at an FSA resentencing, does the district court go with what the jury found (which is constitutionally required) or by what was found in the PSR (on which the Court could legally rely on then, but not now)?Comparativecrack190425

The government claimed that Emerson Davis should not get a retroactive FSA sentence reduction, because while the jury only found that he was responsible for 50 grams or more of crack, the PSR said he had moved over 1.5 kg. It did not matter that sticking him with 1.5 kg-plus violates his due process rights, the government argued, because it was all right to do when he was sentenced back in 1995.

The district court was unimpressed with the government’s argument, and two months ago it cut Emerson’s sentence to time served.

Two weeks ago, the government appealed the sentence reduction to the 11th Circuit. This was undoubtedly a calculated decision made by the Solicitor General in Washington, D.C., based on the belief that the 11th Circuit is likely to be the friendliest circuit to the government anywhere in the country on this issue.

An adverse decision could be ugly. No briefs have been filed yet.

United States v. Davis, Case No. 19-11311 (11th Cir. Filed Apr. 2, 2019)

– Thomas L. Root

ACLU Questions Implementation of First Step – Update for April 24, 2019

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ADVOCACY GROUPS BLAST DOJ/BOP FIRST STEP ACT PLANNING AND IMPLEMENTATION

An Apr. 12 letter to the Dept. of Justice from the American Civil Liberties Union, writing on behalf of 10 other advocacy groups, blasted DOJ’s selection of the Hudson Institute as host of the Independent Review Committee, which is tasked with developing the First Step Act’s risk assessment system.

risk160627The IRC is to propose a risk assessment system for use in the enabling the Bureau of Prison’s programming to reduce recidivism, for which inmates will receive extra good time that can be used to cut sentences and award additional halfway house or home confinement. The First Step Act requires that the risk assessment system be in place by July 19, but DOJ is already two months behind.

The ACLU letter complained that while the Act required that a non-partisan non-profit host organization with expertise in the study and development of risk and needs assessment tools be picked, “the Hudson Institute is… a politically conservative think tank, whose research and analysis promotes global security, freedom and prosperity…” and “there is no evidence on its website, in the form of research publications or otherwise, which remotely suggests the organization has any expertise or experience in the study and development of risk and needs assessment systems.”

The letter also warned that neither the current BOP security classification system nor the U.S. Probation Office post-conviction risk assessment protocol should be adopted as a substitute for the Act’s risk assessment system, because neither was “designed to identify specific criminogenic needs and heavily relies on static factors that classify many people who do not go on to reoffend as high risk.”

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.

Finally, the letter noted that since 2017, BOP has made substantial cuts in rehabilitative programming, staff, and halfway houses. “There are 25,000 people in federal prison waiting to be placed in prison work programs, at least 15,000 people waiting for education and vocational training, and at least 5,000 people are awaiting drug abuse treatment,” the letter said. “There is nowhere near enough programming to help prisoners succeed in their communities upon release and thereby reduce recidivism overall. We therefore urge BOP to begin rebuilding rehabilitative services now.”

ACLU, Letter to David B. Muhlhausen (Apr. 12)

– Thomas L. Root

Spoiler Alert: There’s No Easter Bunny (Especially an Armed One) – Update for April 23, 2019

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AIN’T NO EASTER BUNNY… AND NO DEFENSE TO FELON-IN-POSSESSION, EITHER

manyguns190423Something that just about all readers of this newsletter (at least, those who have it delivered through the Bureau of Prisons’ email system) have in common is that the current state of the law prohibits them from possessing a firearm or any ammunition. The felon-in-possession statute, 18 USC 922(g)(1), is easier to violate than you’d think. An old, broken shotgun missing its firing pin in a pile of attic junk, a single empty shell casing kept as a souvenir: either is enough to buy you a few more years in federal prison. Read the definitions in 18 USC 921 if you doubt it.

Bernard Cherry was lit up on booze when a police officer found him on his hands and knees in the grass with a flashlight, looking for his keys. The friendly cop helped Bert search until he found a .40 cal. Glock in the grass not far from the hapless drunk. Bernie said someone had tried to rob him, and he had knocked the gun out of the assailant’s hands before the man fled. Bernie had then picked up the Glock, but threw it down when the police officer pulled up.

Bernie had a record, and so was charged with being a felon-in-possession. At trial, he asked for an “innocent possession” instruction, that he was not guilty of being in possession if he obtained the gun innocently and held it with no illicit purpose; and if possession of the gun was only momentary. The district court turned him down, and Bernie was convicted.

bunnygun190423Last week, the 7th Circuit agreed, holding that – like the Easter Bunny – there ain’t no “innocent possession” defense. There may be “necessity” and “duress” defenses to felon-in-possession, where defendants can justify their momentary possession of a gun (you see a 6-year old waving a loaded pistol, and grab it for the child’s safety, for example). But the Circuit has never recognized the kind of defense Bernie proposed.

Besides, the Court pointed out, Bernie threw the gun away. “Even though he was in the presence of law enforcement,” the 7th said, “there is no evidence that he took any action, much less immediate action, to turn over the firearm.”

United States v. Cherry, 2019 U.S. App. LEXIS 11219 (7th Cir. Apr. 17, 2019)

– Thomas L. Root

Davis Has Its Day At Supreme Court – Update for April 22, 2019

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IS THE LAST JOHNSON DOMINO ABOUT TO FALL?

A few months ago, the 4th Circuit Simms decision described the residual clause in 18 USC § 924(c) as “the last Johnson domino to fall.” Last Wednesday, the Supreme Court heard argument on that domino in United States v. Davis.

domino190422The Supreme Court’s 2015 Johnson v. United States decision invalidated the Armed Career Criminal Act residual clause as unconstitutionally vague. The next domino after Johnson was 18 USC § 16(b), the criminal code’s general definition of “crime of violence,” which the court invalidated in Sessions v. Dimaya, and which had great significance for immigration.

Davis brings Johnson to § 924(c). Sec. 924(c)(3)(B) defines a crime of violence as “an offense that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Those are the same words Dimaya invalidated in § 16(b). Both provisions have been interpreted using the “categorical approach,” in which courts identify a crime’s “ordinary case” and then assess whether the ordinary case crime poses a substantial risk of force. In Johnson and Dimaya, the court concluded that the categorical approach made the provisions too vague.

In Davis, the government wants the Court to solve that problem by abandoning the categorical approach in favor of looking at the facts of the defendant’s particular case to determine whether the crime was violent. This, the government claims, would save 924(c)’s residual clause. Two circuits – the 1st and 11th – have already agreed.

The government, with its gift for understatement, argued in its brief, “As the facts of this case illustrate, defendants whose prosecution requires application of [this law] include some of the most violent criminals on the federal docket.” 

violent160620At Wednesday’s argument, the justices pushed the government for a reason why they should abandon the categorical approach, wanting to know why 924(c) is better interpreted on the specific facts of a particular case instead of the “ordinary case.” Justice Neil Gorsuch asked the government how it could interpret the word “offense” in the introductory clause of 924(c)(3) to mean the ordinary case of an offense while interpreting the same word to mean “specific facts of a case” in § 924(c)(3)(B). Gorsuch called that “a problem,” telling the government attorney “I’m not tracking you at all.”

One observer suggested, “It seemed possible that Gorsuch would dictate the outcome of Wednesday’s case, with a series of questions suggesting skepticism, if not outright dismissiveness, of the government’s position.”

Chief Justice John Roberts said the government’s warnings that the “specific case” approach is needed to avoid visions of violent criminals running amok are self-defeating. Such predictions, he suggested, stack the deck against the government in future cases.

“The government in all of these cases keeps upping the ante, even though they continue to lose hands,” Roberts said. “I would have thought you’d be more interested in saying that there are plausible distinctions in these other cases so that you don’t automatically stack the odds against you when that next case comes up.”

vagueness160110A SCOTUSBlog analysis, reported that after the government argued, it seemed that up to five justices were already inclined to rule for Davis. His counsel did not appear to lose any votes during his argument, either, although Gorsuch at one point noted that the rule of constitutional avoidance (under which courts try to interpret statutes to avoid finding them unconstitutional) favors the government, while the rule of lenity (under which courts interpret ambiguity in criminal statutes in favor of the defendant) favors Davis. Gorsuch wondered how those two rules should be reconciled when they clash.

By the end of the argument, SCOTUSBlog recounted, “it was clear that at least three justices, and quite possibly five, are not inclined to abandon the categorical approach in order to save Section 924(c). The only question seems to be whether Breyer will join them, or whether Gorsuch will find a reason to apply the canon of constitutional avoidance (assuming the text is sufficiently ambiguous) instead of the rule of lenity.”

The case will be decided by the end of June.

United States v. Davis, Case No. 18-431 (Supreme Court)

SCOTUSBlog.com, Argument Analysis, “The Last Johnson Domino to Fall?” (Apr. 17, 2019)

Daily Caller, A law used to punish gun crimes is under attack at the Supreme Court (Apr. 17, 2019) 

– Thomas L. Root

Brilliant! Pell Experiment to be Studied to See Whether It Worked – Update for April 18, 2019

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IS DEPT. OF EDUCTION SMARTER THAN A FIFTH GRADER? EFFECTIVENESS OF PELL GRANT EXPERIMENT FINALLY WILL BE STUDIED

Since 2015, the federal Dept. of Education has been experimenting with returning Pell grant assistance to inmates, giving grants to about 8,800 prisoners have been funded to take college-level courses inside their correctional institutions.

But no one knows whether the program has been effective. Back in 5th grade, we learned the scientific method. Integral to that method was evaluating the experimental testing, and refining or eliminating hypotheses as a result of the evaluation.

smarterthan5th190418

So let’s try this, kiddies. Our hypothesis is that providing prisoners with access to college-level course in prison will reduce recidivism. So four years ago, we experimented by giving 8,800 inmates Pell grants so that they could take college course while locked up. So what was the result? Was our hypothesis supported by the experimental results or not?

No one knows, because no one at DOE ever looked at the experimental results. When the agency was finally called out on it last week by the Government Accountability Office,  DOE unabashedly announced plans to conduct a “rigorous” examination of the program (after earlier saying it could not afford to do so.) The study is to “help provide policymakers with the information needed to make decisions about the future of Pell grants for incarcerated students,” wrote Gretta L. Goodwin, director of the Homeland Security and Justice division at GAO.

second170119Pell grants were made available 55 years ago to help low-income Americans benefit from higher education. The grants were denied to inmates after passage of the Violent Crime Control and Enforcement Act in 1994. But policymakers, faced with mounting evidence that education is critical to prisoner rehabilitation, approved the “Second Chance Pell” pilot program in a cautious attempt to rehabilitate the concept.

Advocates hoped the study will spark a bipartisan consensus about the need to return Pell grants in order to reduce mass incarceration.

The Crime Report, Does College Education in Prison Work? Ask the 8,800 Inmates Who Got Pell Grants (Apr. 11)

– Thomas L. Root