Err in Haste… Congress Goofs, Inmates Keep Doing Time – Update for January 16, 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.

54 DAYS GOOD TIME DELAY IS A “MISTAKE”

screwup190116The BOP let inmates know last week that it does not have to recalculate good time to give inmates the extra seven days approved by the First Step Act until the Attorney General adopts a new risk assessment system, relying on Sec. 102(b)(2) of the Act.

First Step gives the AG 210 days from the date the bill was signed to complete the risk assessment. That deadline, and the latest date for BOP crediting the good time, is July 19, 2019.

A Chicago halfway house resident lost his bid for immediate release in District Court last week. The Northern District of Illinois court said the defendant, whose current out date is next month but who would already have been out with the additional time, “cannot obtain relief. Section 102(b) of the First Step Act states that the amendment to section 3624(b) does not take effect until after the Attorney General completes and releases the needs assessment system established under section 101(a) of the Act. The Attorney General is given up to 210 days to implement the risk and needs assessment system.”

“This court is not unsympathetic to the apparent inequity of petitioner’s situation,” wrote U.S. District Judge Sharon Johnson Coleman. “This court, however, is obligated to apply the law as it is written.”

Reuters reported last week that the delay in increased good time resulted from as drafting mistake. First Step activists said the law, as drafted, confused good-time credits, which reduce a sentence for compliance with BOP rules, with earned-time credits, which was to be awarded for completing approved programming. Sec. 102(b)(2) mistakenly said that new rules on good-time credits could not kick in until the AG finishes a risk-assessment process which relates to the earned-time credits, but has nothing to do with good-time credits.

Several First Step supporter told Reuters their groups are working with the White House to find a work-around, although a legislative fix may be needed. The groups are considering trying to tuck a fix into a broader spending bill for action by Congress.

annette190116Meanwhile, Annette Bongiorno, a former Bernie Madoff associate, did not fare much better. We reported on December 31 that her lawyers had petitioned her sentencing court to send her to home confinement under the Elderly Offender Home Detention program as soon as she hit her two-thirds date. Last week, her sentencing judge denied the motion, noting that which Bongiorno appears to be eligible for home confinement in February, “the statute does not provide for direct application to the Court for the relief she seeks. Instead, the initial determination as to Mrs. Bongiorno’s eligibility for release to home confinement, which is discretionary, rests with the… BOP.”

Order, Shah v. Hartman, Case No. 18 C 7990 (N.D. Ill. Jan. 3, 2019)

Reuters, Error in U.S. prisons law means well-behaved inmates wait longer for release (Jan. 9)

– Thomas L. Root

Curtis Johnson Suffers Violence at Hands of Supreme Court – Update for January 15, 2019

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SUPREME COURT RULING ON ROBBERY AS ACCA PRIOR IS BAD NEWS FOR PEOPLE ATTACKING ACCA PRIORS

violence180508Back in 2010, the Supreme Court brought some sense to the classification of crimes as “violent” in Curtis Johnson v. United States, holding that “physical force” means “violent force – that is, force capable of causing physical pain or injury to another person.  Applying that standard to a Florida battery law criminalizing “any intentional physical contact,” the Curtis Johnson Court concluded that the law did not require the use of “physical force” within the meaning of Armed Career Criminal Act.  

Since that time, Curtis Johnson has led to a number of state crimes that can be accomplished with something less than force capable of causing physical pain or injury to another person have been found not to require the use of force as contemplated by the ACCA.

Then came Denard Stokeling, who once tried to snatch a necklace from the nape of a female victim. The State of Florida convicted him of robbery for that. Some years later, Denard was caught with a handgun. He pled guilty to being a felon-in-possession under 18 USC 922(g). Based on his priors, including the Florida robbery conviction, he was sentenced to a 15-year mandatory minimum under the ACCA.

Denard appealed, arguing that Florida robbery was not a crime of violence under the ACCA, because it did not require force that could cause physical harm. His district court agreed, but the 11th Circuit reversed.

Today, the Supreme Court sided with the 11th Circuit in an opinion that pretty much sounds a death knell for any arguments that any robbery – state or federal – is not a crime of violence. That includes a number of people who are now arguing that Hobbs Act robbery is not a crime of violence for 18 USC 924(c) purposes.

At one time, the ACCA included robbery among the enumerated crimes that were automatically crimes of violence. Congress changed the law to delete “robbery,” but expanded the elements clause of the ACCA to cover any offense that has as an element “the use, attempted use, or threatened use of physical force.”

In a decision written by Justice Thomas, the Supreme Court held earlier today that by replacing robbery with a clause that has “force” as its touchstone, Congress retained the same common-law definition that undergirded the definition of robbery in the original ACCA. The widely-accepted definition of robbery at the state level required nothing more than “a degree of force sufficient only to overcome a victim’s resistance.”

candybaby190117The Court said that the understanding of “physical force” in robbery comports with the definition of force in Curtis Johnson. There, the force necessary for misdemeanor battery required only the “slightest offensive touching” to qualify. Robbery, the Court said, requires force necessary to overcome resistance by a victim, and that is inherently “violent” in the sense contemplated by Johnson and “suggest[s] a degree of power that would not be satisfied by the merest touching.” The Supreme Court held that Curtis Johnson did not purport to establish a force threshold so high as to exclude even robbery from the ACCA’s scope.

Therefore, the Court said, robbery under Florida law qualifies as an ACCA-predicate offense under the elements clause. The term “physical force” in the ACCA encompasses the degree of force necessary to commit common-law robbery.

Curiously, the decision was 5-4, with the dissenters, Chief Justice Roberts and Justices Sotomayor, Ginsburg and Kagan, arguing that the decision eviscerated Curtis Johnson. And they have a point. It is difficult to see what would limit Justice Thomas’ holding that any force sufficient to overcome the will of the victim – such as the yanking a purse away from a woman’s shoulder or even taking candy from the fist of a baby – is not sufficient force to fall within Curtis Johnson.

thThere are those who suspect that today’s decision may limit Curtis Johnson to its facts, which in the law is a nice way to say the court has kneecapped a case.

Not content to vastly expand the reach of the ACCA’s “crime of violence” definition, the decision included the ominous dictum that federal criminal statutes should not be construed in ways that would render them inapplicable in many states. This warning could cause significant problems for people seeking to have state statutory crimes declared to be too broad for ACCA or career offender.

Stokeling v. United States, Case No. 17-5554 (Supreme Court, January 15, 2019)

– Thomas L. Root

Know Your Guns: Supreme Court to Review Mens Rea of Felon-In-Possession – Update for January 14, 2019

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SUPREME COURT TO REVIEW FELON-IN-POSSESSION STATUTE

gun160718The felon-in-possession statute, 18 USC 922(g)(1), makes it illegal for a convicted felon to possess a gun or ammo. But the statute does not specify a punishment. Instead, 18 USC 924(a)(2) provides the 10-year maximum for anyone who knowingly violates the F-I-P statute.

But what do you have to know? Do you have to know you’re breaking the law? Know that you are a convicted felon, or that what you possess is really a gun? Or just know that whatever it is, you possess it?

The Supreme Court granted review to a case that explores the mens rea requirement for the F-I-P statute a case which has implications for thousands of people convicted of being felons-in-possession, as well for the general issue of mens rea requirements for federal criminal statutes. The implications for people serving time for such convictions could be significant.

burglthree160124Certiorari was also granted in a case asking whether generic burglary requires proof that a defendant intended to commit a crime at the time of unlawful entry or whether it is enough that the defendant formed the intent to commit a crime while “remaining in” the building or structure. Two circuits hold the defendant has to intend to commit a crime as he or she enters. Four hold that it’s burglary even if a defendant can enter the structure with a pure heart, and only later decides to commit a crime.

Because burglary is a crime of violence offense for both the Armed Career Criminal Act conviction and the Guidelines career offender label, the holding could be important for a lot of people now doing time.

It is unclear whether the cases will be decided by June or will go into the the next term starting in October 2019.

Quarles v. United States, Case No. 17-778 (certiorari granted Jan. 11, 2019) 

Rehaif v. United States, Case No. 17-9560 (certiorari granted Jan. 11, 20190

– Thomas L. Root

Pounding Pervs: Sentencing Commission Looks at Mandatory Sentences for Sex Offenses – Update for January 11, 2019

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SENTENCING COMMISSION RELEASES STUDY ON MANDATORY MINIMUMS IN SEX CRIMES

The US Sentencing Commission issued a report last week examining the application of mandatory minimum penalties specific to federal sex offenses.

perv160201Relying on 2016 data, the 81-page report analyzes the two types of federal sex offenses with mandatory minimum penalties, sexual abuse and child pornography (CP) as well their impact on the Federal Bureau of Prisons population. Among its findings:

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• Two out of three sex offenders receive a mandatory minimum sentence, and half of those sentences are for at least 15 years incarceration.

• Sex offenders convicted comprised only 4.2% of federal defendants sentenced in 2016, but sex offenses accounted for 19.4% of offenses carrying a mandatory minimum penalties.

• Between 2011 and 2016, sex offenses, however, increased in number and as a percentage of the federal docket, and sex offenders were more frequently convicted of an offense carrying a mandatory minimum penalty.

• Sex offenders are demographically different than offenders convicted of other offenses carrying mandatory minimum penalties. Native Americans are a larger percentage of sex abuse offenders than of any other offense carrying a mandatory minimum penalty. White offenders constituted over 80% of offenders convicted of a CP offense (80.9%). The average age for all CP offenders was 42, five years older than the average age for federal offenders convicted of any other mandatory minimum penalty.

• While there is little distinction between CP receipt possession offenses, the average sentence for receipt offense defendants, which carries a five-year mandatory minimum, is 30 months longer than the average sentence for offenders convicted of a possession offense, which carries no mandatory

US Sentencing Commission, Mandatory Minimum Penalties for Federal Sex Offenses (Jan. 2, 2019)

– Thomas L. Root

BOP Officers Union Fakes Out NBC, Washington Post, With Inmate Luxury Story – Update for January 10, 2019

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UNPAID BOP WORKERS CLAIM THAT INMATES HAVE IT SWEET TURNS OUT TO BE “FAKE NEWS”

NBC News reported last Sunday that the partial government shutdown that continues without an end in sight has “created a delicious irony at federal prisons — inmates dining on lavish holiday meals in front of disgruntled staffers forced to work without pay.”

prisonfood190110Several BOP food service employees complained to NBC News that the Christmas and New Year’s Day meals inmates traditionally receive “aggravate[ed] staffers who were already fretting about bills to pay and children to feed.: The report cited steak and shrimp served Jan. 1 at FCI Pekin, Cornish hen and Boston creme pie at MDC Brooklyn, and “heaping plates of chicken wings” served at an unidentified federal prison in Minnesota.

“You’re giving a gift to somebody who committed a crime, but yet you won’t pay the people who are supervising them?” NBC quoted a food service foreman at FMC Rochester complaining. “It’s frustrating and maddening.” In addition to working without pay, many of the prison staffers, including correctional officers, were ordered to cut vacations short or face a loss in wages and possible administrative punishment, including suspensions.

fakenews190110Well, it turns out that the “several BOP food service employees” who complained were part of a well-orchestrated union campaign, one the news outlets swallowed hook, line and sinker. Reason.com reported on Monday that in order “to make themselves look like the victims in this government shutdown, union officials shopped around a story to multiple media outlets about criminals being treated like kings while prison guards have to freelance as Uber drivers.” Reason said

It’s a bit amazing (and disappointing) how many outlets ran with this tale in exactly the form union reps likely preferred. Over at USA Today, Kevin Johnson described these meals as a “display of culinary largesse.” Cleve Wootson, Jr., at The Washington Post called it an example of the “hypocritical” or “ironic” moments of the federal shutdown. NBC called it a “delicious irony” that unpaid staffers had to feed “fancy” food to the inmates. Characterizing this series of parallel-but-unrelated events as a role reversal suggests that we should be treating prisoners poorly. The reporters can take solace in knowing that, generally, we do.

Adding to the staffers’ bitter feelings, NBC News said, “the working inmates were still drawing government paychecks for their prison jobs, which include painting buildings, cooking meals and mowing lawns.”

NBC News, Hard to digest: Inmates eat holiday steak during shutdown while prison workers go unpaid (Jan. 6)

Reason.com, Prison Guards Orchestrate Media Campaign To Complain About Inmates Getting Edible Food for Christmas (Jan. 7)

– Thomas L. Root

Nuts and Bolts of Elderly Home Detention – Update for January 9, 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.

ROGER, DODGER, INMATE CODGER – THE ABCS OF THE EOHD

There seems to be a lot of confusion about the Elderly Offender Home Detention program approved by the First Step Act, judging from the questions still piling up in our email.

elderly190109• Where did EOHD come from? Back in 2009, the Second Chance Act of 2007 authorized the BOP to run a two-year pilot program to permit non-violent elderly offenders (65 years and older) to go to home confinement for the remainder of their sentences if they had been down 10 years and done 75% of their sentences. The program was tested at only one facility (FCI Elkton) for a two-year period.

It did not work that well, because the combination 10-year minimum and 75% seemed to eliminate just about everyone who otherwise would otherwise had been eligible.

• What is it now? The First Step Act has now re-established the program, calling it the Elderly Offender Home Detention program. The new EOHD would apply ay every BOP facility – not just one – and be extended to all nonviolent elderly offenders who had completed 66.67% (no longer 75%) of their sentences. The 10-year minimum service of sentence was eliminated.

Under the program, an eligible inmate could go to home confinement at 66.67% of the whole sentence, and be released from home confinement to supervised release at 85% of his or her sentence.

home190109• What are the requirements? Most of the requirements have not changed from the pilot program. Anyone seriously thinking about applying for EOHD should read 34 USC 60541(g). Among other requirements, the eligible offender has to be 60 years old or older, cannot ever have been convicted of a crime of violence or sex offense, have served 66.67% of “the term of imprisonment to which the offender was sentenced,” have never tried to escape, whose home detention will save the BOP money, and who the BOP determines “to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.”

• It is 66.67% of what? Our reading of the statute suggests that the two-thirds must be of the whole sentence, not the sentence minus good-time, or minus earned time credits, or even minus RDAP. In fact, RDAP would have to be restructured to let eligible elderly offenders take it early in order to get any meaningful EOHD time.

• Can the BOP adopt other rules on how to run EOHD? We suspect that the BOP will treat it like it treats direct-to-home detention now. The inmate has to have a home that passes US Probation Office inspection, have the landline phone rig needed for monitoring, and have health insurance. The BOP has a lot of leeway in administering the program, and not everyone who is eligible will necessarily be permitted to go home.

When the BOP ran the program at Elkton, there was no program statement, because the program was pretty ad hoc and loosey-goosey. The BOP will probably issue a program statement now, detailing how it intends to administer the program.

One final caveat: the EOHD will not necessarily be available at all institutions. The Attorney General retains the authority to designate only certain institutions at which the EOHD will operate. However, if only somer and not others are designated, it will usher in a land-rush of inmates seeking to get to certain prisons and not others in order to benefit from the Act. If too few institutions are designated, Congress may be irate that the BOP is not using a tool available to it to reduce its costs, especially the horrific cost of elderly medical and nursing care.

denied190109I have already heard of one institution where a case manager confidently told an inmate that the warden would never approve any EOHD participants. The BOP will have a lot of discretion as to how it runs EOHD, but it will not have the discretion to NOT run it.

One benefit inmates have with EOHD may be judicial review. Under 18 USC 3625, virtually all of the BOP’s programs – halfway house, the anti-recidivism programming and placement, for example – are immune from the usual Administrative Procedure Act lawsuits an inmate could otherwise bring under 5 USC 706. However, the EOHD is authorized by a different section – in Title 34 – and appears to be subject to APA challenge if the BOP gets too arbitrary or deviates too far from the statute. That ought to give inmates a bit more leverage than they have with other BOP actions.

Elderly Offender Home Detention, 34 USC 60541(g) (as amended by the First Step Act)

– Thomas L. Root

Ohio Not as Violent, 6th Circuit Says, Overruling Itself – Update for January 8, 2019

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6TH CIRCUIT FLIPS, DECIDES OHIO ASSAULT IS NO CRIME OF VIOLENCE AFTER ALL

In 2012, the 6th Circuit held Ohio felonious assault and aggravated assault felonies are crimes of violence under the “elements” clause of the Armed Career Criminal Act and the career offender Guidelines. Last week, the Circuit reversed six years of precedent, holding in an en banc ruling that the two Ohio assault offenses are overbroad but divisible: just beating someone up is not violent, but using or trying to use a deadly weapon or dangerous ordnance to do so is.

violence151213The statutes require that a defendant cause physical harm to the victim, but Ohio law defines “physical harm” to include mental harm. Several Ohio cases have convicted where defendants merely failed to prevent their kids from suffering mental trauma. For that reason, the 6th said, the statutes are overbroad.

However, the statutes (ORC 2903.11 and ORC 2903.12) are divisible. A defendant can violate the statutes by causing physical harm to others or by using a deadly weapon to cause or try to cause physical harm to others. The 6th said the first subsection, (a)(1), is clearly overbroad because it is possible to violate the statute by inflicting mental distress on a person without causing physical harm,  and thus cannot count for ACCA or career offender. Subsection (a)(2), however, can be used as a prior for ACCA or career offender.

The government complained that the Circuit’s flip flop, after six years going the other direction, will “excuse thousands of violent career criminals” from the consequences imposed by the ACCA and the Guidelines.” Maybe so, the Court said, but “we are a lower court, and we must follow the Supreme Court’s categorical-approach jurisprudence here.”

United States v. Burris, Case No. 16-3855 (6th Cir., Jan. 3, 2019), 2019 U.S. App. LEXIS 129

– Thomas L. Root

Dimaya Redux at the Supreme Court? – Update for January 7, 2019

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SUPREME COURT GRANTS CERTIORARI TO 924(C) CASE

After the Supreme Court decision last spring in Sessions v. Dimaya, a lot of people doing time for using a gun during a crime of violence had hoped to attack their 18 USC 924(c) convictions by arguing the underlying crime was not violent.

gunb160201Section 924(c) outlaws using, carrying, or possessing a firearm in connection with a drug offense or “crime of violence.” “Crime of violence” is defined in subsection (c)(3)(B) to be a crime in which force is used or threatened against the person or property of another (the “elements clause”) or any a felony “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,” known as the residual clause.

In Johnson v. United States and, later, in Dimaya, the Supreme Court invalidated similar residual clauses as violating due process because of vagueness.

After Dimaya, the courts of appeal entertained a spate of cases arguing that if 18 USC 16(b) (the residual clause found unconstitutional in Dimaya) was invalid, so was the identically-worded clause in § 924(c)(3)(B). Last September, the 5th Circuit became the first appellate court to decide the matter, holding in United States v. Davis that it would use the same “categorical approach” approved by the Supreme Court in Johnson and Dimaya when applying § 924(c)(3)(B) to the underlying offense. Doing so, the Court said, there was no doubt that 924(c)(3)(B) was unconstitutional.

A number of other circuits have differed with the 5th since then. Most recently, the 2nd ruled in United States v. Barrett and the 11th held in Ovalles v. United States that § 924(c)(3)(B) survives Johnson and Dimaya. Those circuits agree that, first, 18 USC 924(c) is a criminal offense that requires a determination of guilt beyond a reasonable doubt of the underlying offense by a jury in the same proceeding. For that reason, the categorical approach – which requires a reviewing court to ‘imagine’ an “idealized ordinary case of the crime” and which would render the 924(c) residual clause unconstitutional – need not be employed. Instead, those circuits used a conduct-based approach, looking at how the defendant actually committed the underlying crime instead of employing some “least violent hypothetical.” See “Circuits Busy Shutting Down 924(C) Dimaya Claims,” Newsletter, Oct. 8, 2018.

scotus161130Naturally, the government prefers the approach favored by every court except the 5th Circuit. Last Friday, the Supreme Court granted the government’s petition for certiorari to challenge the 5th Circuit’s use of the categorical approach in Davis. In that case, the 5th held the defendants’ 924(c) conviction could not stand, because it was based on conspiracy to commit a Hobbs Act robbery. A conspiracy itself does not use force or threat of force, the Circuit reasoned, so it only could be a crime of violence under 924(c)’s residual clause. Because that clause was identical to the crime of violence residual clause declared unconstitutional in Dimaya, the 5th Circuit held conspiracy to commit a crime of violence could not constitutionally support a 924(c) conviction under the residual clause in that statute, either.

It is possible there will be a decision by June, but it is more likely the case will not be argued until the fall.

United States v. Davis, Case No. 18-431 (certiorari granted Jan. 4, 2018)

– Thomas L. Root

Court’s Still In During Shutdown – Update for January 4, 2019

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FEDERAL COURTS: BUSINESS AS USUAL (FOR NOW)

Despite President Trump’s partial government shutdown that began almost two weeks ago, the federal courts remain open and will continue operations for about three weeks, at least through January 11, by using court fee balances and other funds on hand.

38700Most proceedings and deadlines will occur as scheduled. In cases where an attorney from an Executive Branch agency is not working because of the shutdown, hearing and filing dates may be rescheduled. As of late last week, federal courts across the country started hitting pause on many cases at the request of the Dept. of Justice, which was arguing in cut-and-paste pleadings that the shutdown restricts government lawyers from performing their usual duties.

If the federal courts burn through their resources, they would then operate under the terms of the Anti-Deficiency Act, which allows work to continue during a lapse in appropriations if it is necessary to support the exercise of Article III judicial powers. Each court and federal defender’s office would determine the staffing resources necessary to support such work.

Meanwhile, the DOJ has cited its own 13-page contingency plan for continuation during the shutdown. The agency says that “criminal litigation will continue without interruption as an activity essential to the safety of human life and the protection of property,” but “civil litigation will be curtailed or postponed to the extent that this can be done without compromising to a significant degree the safety of human life or the protection of property… The Department will limit its civil litigation staffing to the minimum level needed to comply with the court’s order and to protect life and property. Receipt of summonses, pleadings and motions by mail may be delayed.”

Not all is bliss, however. Several Bureau of Prisons employees (who are considered essential) have sued the government for requiring them to show up for work without being paid at the appointed time. Apparently, the notion that when your employer stops paying you, you find another job – an idea well known in the private sector, where performance, merit, advancement and compensation are generally tightly-connected concepts –  has not occurred to these government employees. 

Administrative Office of US Courts, Judiciary Operating During Shutdown (Dec. 22, 2018)

DOJ, FY 2019 Contingency Plan (Sept. 11, 2018)

The Washington Post, ‘Nothing short of inhumane’: Union sues Trump administration over shutdown (Jan. 2, 2019)

– Thomas L. Root

Reading First Step A Little More Carefully – Update for January 3, 2019

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SOME EASTER EGGS – NOT ALL GOOD – IN THE FIRST STEP BILL

software_easter_eggIn computer software and media, an Easter egg is an intentional inside joke, hidden message or image, or secret feature of a work. It is usually found in a computer program or video game.

The First Step Act text raced through the Senate and House, and was signed by the President, in four days. It was difficult to be sure that the available version of the Act – and there had been at least three even before the Senate passed a fourth on Dec. 18 – was the latest.

The final version has a few tweaks, previously unnoticed revisions and poorly-drafted parts that were finally noticed last week. Some are confusing, a few are interesting, but others are  rather ugly.

The good: It has always been gospel for people seeking reductions in sentence under 18 USC 3582(c)(2) because of the changed drug tables that Guidelines career offenders and people with 851 enhancements were blocked from the benefits of the reductions. Guidelines career offenders have their offense levels set on a scale of 12 up to 3, depending on the statutory maximum sentence of the underlying offense. A change in drug quantity Guidelines did not affect the stat maximum, so career offenders’ offense levels did not change.

retro160110The retroactivity of the Fair Sentencing Act – part of First Step – changes the statutory maximum. It used to be that 5 grams of crack got you 5 to 40 years. Now, anything under 28 grams is 0-20 years. More than 50 grams got you 10-life; now 50 grams is 5-40, and 10-life only starts after 280 grams. The effect for a lot of guys, who were convicted of “at least 5 grams” or “at least 50 grams,” is to drop the statutory maximums, and therefore reduce their career offender ranges from 37 to 34 or 34 to 32.

Because the retroactivity of the Fair Sentencing Act requires that a court “impose a reduced sentence as if… the Fair Sentencing Act of 2010… [was] in effect at the time the covered offense was committed,” it appears that Guidelines career offenders with the right numbers in their indictments may be entitled to lower sentences, as well as the straight USSG 2D1.1 crack guidelines people.

The same stepdown from 21 USC 841(b)(1)(A) to (b)(1)(B), and from (b)(1)(B) to (b)(1)(C) may well let people with 851 enhancements get lower sentences as well.

narrow190103That’s a great gift. But not so great is language in First Step Sec. 102(b)(2) that suggests that the extra seven days a year does not have to be applied by BOP until late July 2019, when the Attorney General is required to have a risk assessment program adopted. The interpretation of the subsection is capable of being interpreted to applying only to earned-time credits, but the BOP has a history of interpreting statutory language to the inmates’ detriment (see the 2010 Supreme Court Barber v. Thomas decision).

Perhaps even worse is the apparent squishiness of the Elderly Offender Home Detention program. People who think the EOHD is a brand new bauble are mistaken: First Step is not writing on a clean slate.

The definition of “elderly offender,” unchanged (except for dropping the age requirement to 60), has been around since 2008 in The Second Chance Act. Second Chance authorized an EOHD pilot program of two years’ duration, run at a single institution. The terms are set out at 34 USC 60541(g), and should be reviewed by any inmate interested in the program.

The parts of the definition of an “eligible elderly offender” which were not changed by First Step give the BOP a lot of discretion. For example, if the BOP does not “determine that release to home detention… will result in a substantial net reduction of costs to the Federal Government,” the prisoner would be deemed ineligible. 34 USC 60541(g)(5)(A)(vi). This could exclude some people at the younger end of the age range who are especially skilled at a UNICOR job or some other maintenance position valued by the particular institution.

ripper190103Likewise, to be eligible, an offender must be “determined by the Bureau of Prisons to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.” 34 USC 60541(g)(5)(A)(vii). This criterion makes perfect sense in a perfect world: who wants Jack D. Ripper to return to the house next door?  But in the real world, this provision grants the BOP virtually unbridled discretion. If it predicts that a drug defendant has a substantial risk of peddling some more pot, or a fraudster will likely run a three-card monte game from his front porch, what judge would ever rule otherwise? What the subsection really says is that the BOP can send who its lower-level staff want to send and deny those who staff want to deny.

 Parenthetically, I witnessed the operation of the 2-year pilot program, run at FCI Elkton in Lisbon, Ohio. In one memorable denial, a 79-year old man, 10 years into a 15-year marijuana sentence – who had had multiple strokes, suffered from heart disease and hearing loss, and had gone through multiple chemotherapy treatments for unrelated cancer, was denied the pilot EOHD program because of violence in his criminal history. It seemed that in 1949, as a hot-blooded youth, he had robbed a corner grocery store.

“You’re a danger,” the Elkton case manager told the minimum-security septuagenarian, “based on your robbery conviction” more than a half-century before. And that was that.

The BOP did not release a guiding program statement for the Elkton EOHD experiment, just a one-page release for prisoners. One can only hope for more detail, more consistency, and more common sense from the full-blown EOHD.

Enrolled Bill, First Step Act of 2018 (Dec. 21)

BOP, Elderly Offender Home Detention Pilot Program (Feb. 5, 2009)

– Thomas L. Root