Is DOJ Gunning for New Compassionate Release Guideline? Some Suspect So – Update for October 23, 2023

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RUMORS: WILL DEPT OF JUSTICE GO AFTER NEW COMPASSIONATE RELEASE GUIDELINE?

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that he has “heard talk that, notwithstanding the text of § 994(t), the Justice Department is planning to contest the new [compassionate release] guideline once it becomes effective on November 1.”

rumor231023Prof Berman does not cite his sources, but his credentials as among the premier federal sentencing law experts in the nation suggest that his report should be taken seriously. The Dept of Justice was adamantly opposed to the new USSG § 1B1.13(b)(6) – which directs that if a defendant has served at least 10 years of an unusually long sentence, a change in the law (other than a non-retroactive Guideline amendment) “may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.” In fact, subsection (b)(6) was the cause of the Sentencing Commission’s extended debate and 4-3 vote split on approving 1B1.13.

Any DOJ litigation attack on 1B1.13 makes little sense. Congress has decreed in 28 USC 994(t) that the Sentencing Commission “shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” What’s more, Congress has built a veto mechanism into the Guidelines, giving legislators 180 days to reject what the USSC does before it becomes effective. It would be tough to argue that § 994(t) and the fact that Congress let the new 1B1.13 go into effect didn’t mean that any DOJ effort to convince a court to invalidate the new Guideline is doomed to failure.

The rumor may be stoked by a USA Today article last week that warned that “new Sentencing Commission guidelines will give [prisoners] a chance for compassionate release. But DOJ threatens to stand in the way.” The authors wrote that

mercy161107[t]he Sentencing Commission’s commonsense expansion of compassionate release makes us hopeful that our federal criminal system can carve out a little space for redemption, mercy and a recognition that we don’t always get it right the first time around. Unfortunately, even with the promise of and need for the commission’s new guidance, the future of compassionate release is uncertain. The Department of Justice has objected to the commission’s recognition that legal changes resulting in an unjust sentence can qualify as an extraordinary and compelling reason justifying relief.

The article cites the DOJ’s spirited opposition to what became 1B1.13(b)(6) – the “change in the law” provision” – of the compassionate release Guideline. But nothing in the DOJ’s opposition comments, which it was perfectly entitled to file, suggests that the government will try to get the amendment set aside judicially.

The USA Today article argued that

the commission’s ‘unusually long sentences’ provision is good policy. Far from a get-out-of-jail-free card, as some have suggested, it is instead a narrow recognition that a sentence imposed decades ago may, upon review today, be longer than necessary. The provision applies in limited instances where, among other things, the person has served at least 10 years in prison and there is a ‘gross disparity’ between their sentence and the one likely to be imposed today. Even then, an individual still must demonstrate that they will not pose a danger to the community and that their individualized circumstances weigh in favor of a sentence reduction….

Bottom line: I doubt that DOJ plans any omnibus attack on 1B1.13(b)(6). Rather, I suspect that the USA Today authors are extrapolating from the Department’s negative comments during the Guidelines amendment process.  Nevertheless, no one’s gone broke yet betting that the DOJ will not be both creative and vigorous in fighting to keep people locked up in order to honor a draconian but lawful sentence.

If Professor Berman seems a little alarmist to you, recall Sen. Barry Goldwater’s famous observation that “extremism in the defense of liberty is no vice. Moderation in the pursuit of justice is no virtue.” For now, I stand with the Professor.

gleesonB160314In other Sentencing Commission news, President Joe Biden last week nominated current federal judge Claria Boom Horn (who sits in both the Eastern and Western Districts of Kentucky) and retired federal judge John Gleeson to full 6-year terms on the Commission. Both of them – who were filling one-year interim terms on the USSC – are intelligent and thoughtful commissioners. I see Judge Gleeson – author of what came to be known as the “Holloway motion” when he used his legal and persuasive authority to correct a grossly unjust sentence – to be a little better rounded on sentencing policy.

That being said, one only has to remember former Commissioner Judge Danny Reeves, Bill Otis and Judge Henry Hudson to realize that the weakest commissioner on the USSC now (and I do not mean to imply that the weakest commission is either Judge Horn or Judge Gleeson) stands far above the ones President Trump favored but was unsuccessful in placing on the Commission.

Sentencing Law and Policy, Urging the Justice Department to respect the US Sentencing Commission’s new guidelines for compassionate release (October 18, 2023)

USA Today, First Step Act advanced prison reform, but hundreds are still serving unjust sentences (October 18, 2023)

White House, President Biden Names Fortieth Round of Judicial Nominees and Announces Nominees for U.S. Attorney, U.S. Marshal, and the U.S. Sentencing Commission (October 18, 2023)

– Thomas L. Root

Von Vader’s Back Raising Compassionate Release Issue at SCOTUS – Update for October 21, 2023

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CERT PETITION TAKES AIM AT COMPASSIONATE RELEASE CIRCUIT SPLIT

vader231020Last winter, I wrote about Wolfgang Von Vader, who had both a 2000 conviction in the Western District of Wisconsin for distributing meth (a “career offender” 270-month sentence) and a 2012 federal conviction in Kansas for possessing heroin in prison (a 120-month consecutive sentence).

Wolfgang applied for 18 USC § 3582(c)(1)(A) compassionate release in both Kansas and Wisconsin. The Wisconsin case, dismissed for lack of jurisdiction, was reversed by the 7th Circuit and remanded last winter. In the Kansas case, however, his compassionate release motion was denied outright.

Wolfgang’s case should have been resentenced because of Johnson v. United States and Mathis v. United States, but when a multi-agency task force reviewed cases of prisoners qualifying for a 28 USC § 2255 motion to get him the lower sentence, Wolfgang got skipped. It was an accident. As his petition for cert put it, “extraordinary and compelling” describes his circumstances.

oops170417The 10th Circuit, however, held that the district court could not consider the change in the law brought about by Johnson and Mathis in determining whether “extraordinary and compelling reasons” warranted a sentence reduction. Such reasons, the Circuit reasoned, are limited only to “new facts about an inmate’s health or family status, or an equivalent post-conviction development” and that any “legal contention” is categorically outside of § 3582(c)(1)(A)’s scope.

Wolfgang has filed for Supreme Court review, with his petition filed by a partner in the Supreme Court/appellate practice group at McDermott Will and Emery, a 1,400-lawyer global firm. In his petition, Wolfgang noted that the 10th’s holding is at odds with other circuits on an issue on which the 7th Circuit has specifically asked the Supremes to hear.

scotus161130The effectiveness of the amended Guideline 1B1.13 in a little less than two weeks will help a lot of people, but it will not resolve whether a judge can consider a change in the law that makes a prisoner innocent of the offense or, at least, the sentence. With the Supreme Court slamming the door on using 28 USC § 2241 petitions to address changes in statutory interpretation (Jones v. Hendrix last June), the Von Vader cert question is an important one to a lot of people.

Von Vader v. United States, Case No 23-354 (petition for certiorari filed September 29, 2023)

– Thomas L. Root

First Step’s Coming Birthday Reason for Hagiography – Update for October 19, 2023

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FIRST STEP ACT TURNS FIVE YEARS OLD

Cake201130The anniversary is still 63 days away, but a couple of early hagiographic articles on the First Step Act’s 5th birthday are already being posted.

The Crime Report said last week that First Step “now allows federal inmates to significantly reduce their actual penal custody time. That fits into the primary goal of The Act, which is to reduce recidivism among nonviolent offenders through greater emphasis on rehabilitation in the Bureau of Prisons.”

The philanthropy Arnold Ventures interviewed Colleen P. Eren, Ph.D., author of a new book, Reform Nation: The First Step Act and the Movement to End Mass Incarceration. She noted that “33,000 people have been released from federal prison so far under the First Step Act, according to FAMM. The recidivism rate for those people is 12.4% compared to a rate of around 43% for others exiting federal prison. The First Step Act made President Obama’s Fair Sentencing Act of 2010 retroactive, resulting in the release of around 4,000 people who were sitting in prison under the 1987 crack cocaine sentencing disparity. It also made it easier to get compassionate release, and a total of 4,500 people have been released under that change.”

compromise180614First Step was far from perfect, but Dr. Eren says that’s more of a feature than a bug. “The First Step Act is an example of people not letting the perfect be the enemy of the good. There were differences to negotiate between conservative reformists and progressive reformists. Conservatives think that the incarceration system went too far but that it’s not fundamentally flawed… Left-leaning organizations refused to give their support until sentencing reform was included, which was significant… The left had to accept the PATTERN risk assessment – They said it was racist, reinforced existing disparities, and didn’t go far enough toward ending mass incarceration. It was a classic reform-versus-revolution tension.”

Five years into the Act, the BOP has yet to work out properly accounting for FSA credits and placing prisoners with credits in halfway house and home confinement appropriately. But as frustrating as the implementation of First Step has been, life before the Act passed was much bleaker.

The Crime Report, The First Step Act: A Five-Year Review and the Path Forward (October 10, 2023)

Arnold Ventures, Historic Bipartisan Justice Reform Turns Five (October 6, 2023)

Colleen Eren, Reform Nation: The First Step Act and the Movement to End Mass Incarceration (Stanford Univ Press, Sep 2023)

– Thomas L. Root

7th Circuit Limits Court’s Dive Into Prisoner’s Pockets – Update for October 17, 2023

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HOW MUCH IS TOO MUCH FOR IFP?

The right of access to the courts is not forfeited by indigent people (including prisoners), a constitutional imperative for the past 75 years or so. The Prison Litigation Reform Act tried the limit that right by hobbling would-be litigants, due to what politicians perceived to be abuses of the federal courts by prisoners with grievances,

broke191011One provision requires prisoners to pay filing fees upfront unless they can prove poverty. If they are successful, prisoners may proceed in forma pauperis (IFP), but the courts extract the filing fees from their prison commissary accounts at a set rate.  An indigent who is not a prisoner is not subject to this limitation.

To gain IFP status, and thus to avoid prepaying a $405 U.S. District Court filing fee, prisoners must – among other things – file an affidavit including a printout of their inmate trust accounts (commissary account) showing how much they collected and spent for the past 6 months.

But how much can you have in the account before you’re too rich to be poor? Jordan Whitaker, an Illinois prisoner, found that out last week. He wanted to appeal the loss of a federal suit against his state prison. His IFP filing showed his commissary account had $575, more than enough to cover the $505 filing fee, on the day his notice of appeal was filed, so the district court denied his request and told him to pay.

Last week, a 7th Circuit judge reversed the district court, holding that “the district court did not adequately consider the balance the Prison Litigation Reform Act (PLRA) struck between the need to collect fees and a prisoner’s discretionary use of his funds.”

IFP status is an exception to the normal rule in federal court that parties must prepay fees when filing litigation. But if a prisoner shows he or she is indigent, the PLRA requires the court to collect 20% of the prisoner’s average monthly deposits or balances in the past six months (whichever is higher) and then collect the remainder of the fees in installments based on 20% of the prisoner’s monthly income until the full debt is paid.

pooremptypockets231017Here, the 7th said, “drawing the line for in forma pauperis eligibility at the mere ability to pay the full filing fee fails to respect Congress’s compromise. Worse, it can lead to odd results that Congress likely did not intend. For example, such a rule creates a sharp welfare cliff: a prisoner with a consistent monthly income of $504 that he spent in full would need to pay only $100.80, but a prisoner like Whitaker with a balance of a few dollars more would need to pay almost everything he has, regardless of his income… A court may well have discretion to find a prisoner ineligible short of the point where the outcome of the statutory formula exceeds the full fee, but Whitaker’s income and assets are nowhere close to that limit…Whitaker should be permitted to prepay the prescribed portion of the fee with the rest to be collected from his future income, as Congress envisioned.”

Whitaker v. Dempsey, Case No 23-1086, 2023 U.S. App. LEXIS 26851 (7th Cir. Oct 10, 2023)

– Thomas L. Root

PACER Users Closer To Pot Of Money – Update for October 16, 2023

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PACER SUIT HEADS FOR FINISH LINE

pacer231016Many families of federal prisoners have become familiar with PACER, the federal courts’ portal to filings, orders, opinions and case dockets. The system, officially “Public Access to Court Electronic Records,” lets lawyers and the public alike obtain documents that once could only be gotten by visiting the U.S. Courthouse and convincing a clerk to pull from the files.

PACER’s 10¢-a-page charge (with a max of $3.00 per document no matter how many pages) – billed every 90 days to your credit card – seems like one of the real bargains left in this country to someone (like me), who used to trudge to courts all too often for the time-consuming task of checking paper dockets. Now, a few keystrokes and less than the cost of a cup of coffee get me more than I could ever retrieve from the clerk’s office. (Of course, being able to pull a record from a District Court in Anchorage, Alaska, from an office 3,000 miles away in Cleveland, Ohio, for $3.00 and five minutes of time is unparalleled convenience easily worth ten times the price).

Still, I grump every quarter when a PACER bill for a few hundred dollars arrives in my email inbox.  I pay it, and most of the time, I wish state courts uniformly offered the same convenience for the same price.

coffee210521But not everyone is satisfied. Lawyers for some PACER users were in front of a  federal judge in Washington, DC, last week asking approval of a $125 million settlement in a class action lawsuit that accused the federal courts of overcharging the public for PACER electronic court records system documents. The deal includes $23.8 million for the plaintiffs’ attorney fees.

The lawsuit, brought in 2016, alleged that the statute establishing PACER limited the amount charged to users to only enough to run the system. Instead, over the years, the courts let “mission creep” into PACER, using the collected fees to fund other programs as well. In 2020, the US Court of Appeals for the Federal Circuit ruled that 28 USC § 1913 limited “PACER fees to the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information.”

money170419Last year, the government created the $125 million common fund to provide up to $350 per class member who paid PACER fees from 2010 through 2018. Those who paid over $350 during that time would receive their pro rata share of anything left. The deadline for making a claim to share in the settlement passed several months ago.

A bill to make PACER free (S.2614 – Open Courts Act of 2021) passed out of the Senate Judiciary Committee late last year but died when the 117th Congress expired on January 2nd of this year.

Nat’l Law Journal, ‘Extraordinary Achievement’: Lawyers Ask Judge to OK $125M PACER Fees Settlement (October 12, 2023)

Nat’l Veterans Legal Services Program v. United States, 968 F.3d 1340 (Fed. Cir. 2020)

PACER Fees Class Action

S.2614 – Open Courts Act of 2021

– Thomas L. Root

Gunfight Brewing at the SCOTUS Corral – Update for October 13, 2023

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RAHIMI TEEING UP TO BE GUN POLICY DEBATE

United States v. Rahimi, the fast-track Supreme Court review of a 5th Circuit gun case, passed a filing deadline last week with no fewer than 60 separate amicus briefs on both sides of the debate.

lotsofguns231013In Rahimi, the 5th declared the 18 USC 922(g)(8) prohibition on people with domestic protection orders possessing guns to be unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen.

Dozens of the briefs argue that the Circuit was right. One such example was an amicus filing by the California Public Defenders Association:

The State of California aggressively criminalizes the possession of firearms. We have seen that this disproportionately affects people of color, particularly Black people. Since New York State Rifle & Pistol Association, Inc. v. Bruen, we have litigated hundreds of motions seeking to bring California’s expansive gun regulations in line with the Second Amendment. And we have found the difference between punishment and freedom often depends on how our courts interpret “law-abiding responsible citizens.” We have also seen our clients in California face criminal prosecution for violating civil disarmament orders that sweep far beyond domestic violence.

As to the particular statute at issue in this case, 18 USC § 922(g)(8), we acknowledge the need to protect people from domestic violence. Many of our clients are themselves victims of domestic violence. But we also have first-hand experience fighting the rote issuance of civil protective orders that deny our clients their Second Amendment rights and lead to unjust, unequal criminal prosecutions.

Rahimi is set for oral argument on November 7, 2023.

The Department of Justice’s sense that Rahimi may be its decisive battle on the Second Amendment was reflected in last week’s filing of a petition for writ of certiorari in Range v. Attorney General. The Solicitor General wrote:

The decision below — which held an Act of Congress unconstitutional, conflicts with decisions of other courts of appeals, and has important practical consequences— would ordinarily warrant this Court’s review. See, e.g., Iancu v. Brunetti, 139 S. Ct. 2294, 2298 (2019) (noting that this Court’s “usual” approach is to grant review “when a lower court has invalidated a federal statute”). But the Court has already granted review in Rahimi to decide the constitutionality of 18 USC § 922(g)(8), the statute that disarms individuals who are subject to domestic-violence protective orders… The Court should therefore hold this petition for a writ of certiorari until it decides Rahimi… This case substantially overlaps with Rahimi. Both cases concern Congress’s authority to prohibit a category of individuals from possessing firearms. In each case, the government argues that the Second Amendment allows Congress to disarm individuals who are not law-abiding, responsible citizens.

2dAmendment231013This is palpable nonsense. Even if a low-grade conviction 25 years before (Range was convicted of a misdemeanor, but one carrying a maximum sentence of more than a year in prison, thus disqualifying him from having a gun under 922(g)(1)) can bar firearms possession consistent with the 2nd Amendment, Rahimi has little to do with barring someone who is not a “law-abiding, responsible citizen[]” from possessing guns or ammo. For example, in Ohio the testimony of the victim alone is enough to meet the simple “preponderance of the evidence” standard needed for a civil protection order. While a lesser standard such as this makes perfect sense where an order is intended to protect life and safety, to claim that the words on one aggrieved domestic partner establishes that someone is not a “law-abiding, responsible citizen[]” who can be stripped of 2nd Amendment rights demonstrates the weakness of the government’s “take-no-prisoners” approach to gun rights litigation.

In that vein, I note that last week the government also filed a petition for writ of certiorari in United States v. Daniels, a 5th Circuit decision from last August holding that 18 USC 922(g)(3) – which prohibits users of unlawful controlled substances from gun possession – was unconstitutional. Employing the same argument (indeed, the same language) it used in the Range petition, the government asked that Daniels be held pending the outcome of Rahimi.

United States v. Rahimi, Case No. 22-915

Amicus Brief of Alameda County Defenders Assn and California Public Defenders Assn (filed October 3, 2023)

United States v. Range, Case No. 23-374 (Petition for writ of certiorari filed October 5, 2023)

United States v. Daniels, Case No. 23-376 (Petition for writ of certiorari filed October 5, 2023)

– Thomas L. Root

Scandalous Content About the BOP – Update for October 12, 2023

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LAST WEEK AT THE BOP

Now for BOP news from the prior week that is so scandalous that the administration at one unnamed federal prison (we’ll call it “FCI Englewood” for easy reference) banned the LISA Newsletter this week as a threat to institutional security.

banned231012

Hotline for Hazelton: The U.S. Attorney for the Northern District of West Virginia has set up a hotline for information related to civil rights abuses occurring at FCC Hazelton. The USAO is looking for information from witnesses or victims of physical assault while incarcerated at Hazelton.

The hotline number 1-855-WVA-FEDS and the email address is wvafeds@usdoj.gov.

shocked180619One inmate – a Hazelton alum but now at another facility – complained to me in an email on Monday that the domain “@usdoj.gov” is blocked on BOP mail servers. At his request, I forwarded his message to the ND West Virginia U.S. Attorney’s Office. An Assistant U.S. Attorney responded yesterday to tell me the issue was being looked into.

U.S. Attorney for the Northern District of West Virginia, Civil rights hotline created for federal prison in West Virginia (October 3, 2023)

National Alert Bags Phones: Cellphones held by prisoners in state and federal facilities were caught last week when a National Emergency Alert System test set off loud buzzing in the unlawfully possessed sets.

cellphone231012On Wednesday, cellphone users across the country received a loud alert from FEMA and the FCC to test the exchange of emergency messages at a national level. TMZ reports that COs at a New York State prison and FCI Coleman Low found cellphones buzzing from the emergency test.

The Daily Mail reported that “the test was conducted over a 30-minute window, meaning prisoners would have gotten the message if they turned their phones back on within the next 30 minutes.

Complex, Prisoners Across the United States Caught With Cell Phones During National Emergency Alert System Test (October 7, 2023)

Daily Mail, National emergency alert system ‘outed prisoners hiding phones and made them easy targets for guards’ after millions received message across the U.S. (October 7, 2023)

Take This Job… BOP COs are hoping the recent approval of retention bonuses will offer some relief to a workforce that’s been struggling for years.

Moneyspigot200220The Office of Personnel Management has approved pay bonuses amounting to 25% of annual for COs working in several BOP facilities nationwide. The retention incentive amounts to 25% of an employee’s base salary.

Brandy Moore White, president of Council 33 of the American Federation of Government Employees (representing over 30,000 BOP employees), welcomed the one-time bonuses, but warned that “the pay incentives won’t be enough to stave off massive, ongoing staffing challenges across the entire agency,” the Federal News Network reported. “I will be brutally honest,” she said. “I think they’re Band-Aids.”

Federal News Network, New 25% retention bonuses at Bureau of Prisons only a ‘Band-Aid’ for larger staffing issues (October 4, 2023)

Ernst Critical of BOP Sex Abuse Nonresponse: Sen Joni Ernst (R-IA) blasted BOP Director Colette Peters last week for failing to address prolonged safety and staffing concerns voiced by staff.

Last December, Ernst queried the agency about what it was doing to investigate allegations of sexual misconduct against staff at USP Thomson. In a follow-up letter sent October 4th, Ernst said “Last year, my letter sought numerous answers regarding your bureau’s plan to properly respond to the ongoing criminal activity occurring at USP Thomson… I am dismayed by BOP’s slow response to this situation and apparent lack of corrective action in preparation for future similar situations.”

Press Release from Sen. Jodi Ernst, Ernst Demands Answers on Sexual Misconduct at USP Thomson (October 4, 2023)

– Thomas L. Root

Elderly Offender Program Dies – Update for October 10, 2023

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LAW FORCES END OF ELDERLY HOME DETENTION PROGRAM

The Federal Bureau of Prisons’ Elderly Offender Home Detention pilot program (EOP) is over for now, Whether it will ever return is an open question.

okboomer231010Originally adopted as a pilot program in the Second Chance Act of 2007, the EOP was authorized at a single BOP facility only, permitting nonviolent offenders who were 66 years old to serve the final months of their sentences at home. The First Step Act expanded the program to the entire BOP system in 2018, allowing “offenders who are over 60 years of age, have served two-thirds of their sentence, are not convicted of a crime of violence, and do not have a history of escape to be placed on home confinement for the remaining portion of their sentence.”

A great idea: take nonviolent, unlikely-to-offend-again oldsters who are costing the BOP a ton of money for healthcare, and send them to home confinement. OK, Boomer!

But tucked into a corner of the EOP statute at 34 USC 60541(g)(3) was the limitation that the EOP would remain a “pilot program and shall be carried out during fiscal years 2019 through 2023.” Fiscal 2023 ended on September 30th.

By all accounts, the program worked well. Since 2018, the BOP has placed over 1,220 people at home under the program with no reports of new criminal conduct.

Writing in The Hill, former BOP Director Hugh Hurwitz noted a July 2022 Sentencing Commission study showed that the recidivism rate for people over 50 is less than half that of those under 50. “Under the pilot program,” Hurwitz wrote, “only those over 60 are considered, and they can’t have any history of violence, thus making their recidivism rate even lower.”

The Vera Institute of Justice reported six years ago that the cost of keeping older people locked up “is double that of housing younger ones, due to health care expenses.” Even a decade ago, the BOP spent a fifth of its budget on older inmates. The average prisoner age is up about 8% since then. “People serving time on home confinement see their own doctors (while being monitored electronically),” Hurwitz wrote, “and bear the costs themselves, saving taxpayers millions.”

notokboomer231010Walter Pavlo wrote in Forbes that “many are calling for EOP’s renewal. Budget constraints, administrative changes, and shifts in policy priorities left the EOP program hanging in the balance. This termination has raised concerns among advocates and experts who believe that the program’s end is a step in the wrong direction.”

Sadly, reauthorization of the program will require action by a Congress that is not producing much in the way of legislation and is awaiting reauthorization of a program that will send prisoners to home confinement – even a proven one that makes perfect sense – may have a long wait. In fact, I doubt that we will see the program return in the next five years.

Not OK, Boomer.

The Hill, Moving elderly prisoners home saves taxpayer dollars without sacrificing safety (September 27, 2023)

Forbes, Old and Facing Prison (October 7, 2023)

Dept of Justice, First Step Act Annual Report (April 2023)

Vera Institute, Aging Out (December 2017)

– Thomas L. Root

SCOTUS Tackles the ‘And/Or’ Debate in Pulsifer Case – Update for October 6, 2023

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SUPREMES HEAR ORAL ARGUMENT ON DRUG SENTENCING “SAFETY VALVE”

The Supreme Court opened its nine-month term last Monday hearing oral argument on the meaning of a First Step Act amendment to 18 USC § 3553(f), a subsection known as the “safety valve.”

Under the “safety valve” provision, judges could disregard mandatory minimum sentences for people convicted of certain nonviolent drug offenses who had limited criminal history and met a few other conditions.

andor210524At issue is how to interpret a part of the law that determines who is eligible for this provision, which could potentially lead to a shorter sentence. Three requirements under the provision involve prior criminal history, and the court is being asked to decide whether people no longer qualify if they meet one of these criteria — or if they must meet all three.

Mark Pulsifer pled guilty to one count of distributing 50 grams of methamphetamine and then sought application of the “safety valve.” To be eligible, a defendant cannot have “(A) more than 4 criminal history points… (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

At issue is whether “and” means “and.”

The government argues that “and” means “or,” so defendants are ineligible if they fail any of the three subparts. “It joins together three independently disqualifying conditions by distributing the phrase ‘does not have.’ That’s the only interpretation that avoids rendering the first subparagraph entirely redundant,” the Solicitor General’s attorney told the justices.

Pulsifer’s lawyer disagreed. “Letting the government get to ‘or’ when Congress said ‘and’ would encourage Congress to be sloppy with the most basic English words, leaving square corners far behind, and in the criminal context, where fairness matters most. The Court should hold Congress to what it wrote.”

words221110At oral argument, the justices spent most of their time parsing the grammar and conjunctions, trying to determine whether § 3553(f) uses the word “and” to join three eligibility criteria together or distributively across three independently disqualifying criteria. The government’s lawyer often appealed to a canon of construction rooted in “common sense,” a suggestion not that well received. “I don’t know that canon, but I guess it’s a good one,” Justice Neil Gorsuch quipped.

Pulsifer’s lawyer rejected it as well: “The government focuses a lot on common sense, but it’s common sense that if Congress wanted to say “or,” it would have said “or,” he contended. “It knew how to do that in other parts of this very sentence, of § 3553(f). The — Congress’s own drafting manual says to do so, and that would be the ordinary meaning — that would be the ordinary term to use in order to express the meaning that the government attributes to this statute.”

The court’s ruling may affect thousands of defendants with pending cases and those in federal prison. And how to read an ambiguous “and” may become important to a lot of zero-point people pretty soon, too.

zeropoints230420The Sentencing Commission’s retroactive zero-point amendment (USSG 4C1.1) goes into effect in a month. Section 4C1.1(a)(1) directs that an eligible defendant is one who “did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC § 848.” Does this mean that no one with a 3B1.1 enhancement or who was convicted of a 21 USC § 848 continuing criminal enterprise is eligible? Or does it mean that you must have both a 21 USC § 848 conviction and a § 3B1.1 enhancement to be disqualified?

Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that he suspected Pulsifer

will end up with a 5-4 vote in favor of the government’s proposed statutory interpretation that would restrict the reach of the First Step Act’s expansion of the statutory safety valve exception to drug mandatory minimum sentencing terms. But I would not entirely discount the possibility that the four Justices who seemed most favorable toward the defendant’s reading, particularly Justices Gorsuch and Jackson, might find a way to peel off a key fifth vote (especially since the Chief was pretty quiet throughout and Justice Kagan hinted toward the end that she might be less sure than she seemed at the outset).

Berman anticipates a decision in winter 2024, although he offers the chance that “this one might take quite a while if lots of Justices decide to write on lots of broader statutory interpretation topics (like the reach of the rule of lenity and/or the use of legislative history and/or corpus linguistics).”

New York Times, On First Day of New Term, Supreme Court Hears Debate Over First Step Act (October 2, 2023)

The Hill, Supreme Court opens term with case on prison terms for drug offenders (October 2, 2023)

Slate: The Supreme Court’s Oddest Pairing Comes Out Swinging on Behalf of Criminal Defendants (October 2, 2023)

Transcript of Oral Argument, Pulsifer v. United States, Case No. 22-340 (October 2, 2023)

Sentencing Law and Policy, Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case (October 3, 2023)

– Thomas L. Root

‘Sexual Abuse Victims: We’ve Got Your Back!’ Said No BOP Official Ever – Update for October 5, 2023

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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.

LEGAL ABUSE CONTINUES AFTER SEX ABUSE ENDS

The California office of a New York law firm announced last week that it had sued the Federal Bureau of Prisons alleging that 10 inmates were sexually assaulted while in BOP custody while housed at FCI Dublin. The action was brought under the Prison Rape Elimination Act.

Slater Slater Schulman LLP said at least 20 different BOP sex abuse perps have been identified by at least 92 former female inmates at FCI Dublin. And the lawyers are going after them.

rape230207However, a 6th Circuit decision last week suggests that holding the BOP liable for its employees’ sex crimes could be a hard sell.

L.C. (we’ll call her ‘Lonnie,’ not her real name) was in the BOP’s Residential Drug Abuse Program at FMC Lexington when her path crossed with Hosea Lee, a BOP RDAP instructor and serial rapist. When happened then was ugly and left Lonnie with a sexually transmitted disease. Hosea was eventually walked off the compound, arrested and convicted.

Lonnie was traumatized by being repeatedly raped and assaulted by a person she was powerless to resist. Eventually, she got medical treatment for herpes, at which time a BOP Health Services nurse told her that Harry had given herpes to all of his inmate victims. She said another BOP employee, a counselor, told her that Hosea had been reported to BOP officials a long time before she had been raped.

Lonnie sued the BOP under the Federal Tort Claims Act, arguing that the agency had a duty to protect inmates from serial rapist employees and it negligently failed to do so. To make clear how seriously the BOP takes its obligations to protect inmates from criminal sex acts of its own staff, the BOP argued in court that it had discretion whether to protect female inmates from sexual predator staff and anyway, Lonnie had not made a plausible claim that BOP management knew that Hosea liked to rape female inmates.

didnotknow231005Under the FTCA, a federal agency is immune from being sued for negligence if it is accused of not performing a function that is discretionary or grounded in policy. The district court held that investigating and taking action where the BOP has become aware of alleged misconduct is discretionary, so Lonnie’s FTCA suit had to be dismissed. Even if that were not so, the district court said, Lonnie’s negligence claim should be dismissed under Fed.R.Civ.P. 12(b)(6) because her complaint failed to “allege sufficiently” that the BOP knew or should have known of Hosea’s attacks.

Last week, the 6th Circuit left Lonnie with nothing. The Circuit agreed that BOP Program Statements impose a mandatory requirement that the first BOP official with “information concerning incidents or possible incidents of sexual abuse or sexual harassment,” report such information and investigate immediately. “These are mandatory regulations and policies that allow no judgment or choice,” the 6th said.

But Lonnie had not “plausibly alleged that BOP officials failed timely to report or investigate information that Lee may have been attacking women incarcerated at FMC before November 22, 2019,” the Court ruled. While Lonnie pointed to her allegation that a BOP told her that Hosea had been reported “a long time ago,” her complaint “provides no context for when the counselor made the statement, which limits our ability to draw inferences that the counselor herself knew of Lee’s attacks before November 22, 2019, or that the counselor later came to learn that others knew of his attacks before then. [Lonnie’s] allegation that a medical department staffer told her on February 18, 2020, that all of Lee’s victims had contracted herpes does not permit the inference that staff treated multiple other victims before November 22, 2019, and knew then that each person they were treating had contracted herpes because Lee had attacked them.”

bartsimpson231005The Circuit admitted that “there is of course a possibility that some BOP officials knew of Lee’s assaults before November 22, 2019, and failed to act on that information… With so many holes in the timeline in [Lonnie’s] allegations, we cannot plausibly draw the necessary inferences in a manner that satisfies the pleading standard.”

In an opinion piece appearing on CNN two weeks ago, US District Court Judge Reggie Walton (District of Columbia) wrote that a commission he served on heard from former prisoners who “described in detail to me and to my fellow commission members the abuse they endured while incarcerated, sometimes over many years. Some recounted how they were disbelieved, silenced or unofficially punished for speaking out and seeking help. The formerly incarcerated people who testified spoke of the guilt, shame and rage that consumed them after being sexually assaulted and how the abuse cast a shadow over their lives even years after they were released — trauma evident in their voices, on their faces and in the tears many shed.”

As the government made clear before the 6th Circuit, it will take any position necessary – even that the BOP is not liable if it knows its employees are raping prisoners – to avoid paying damages to those harmed by agency negligence.

PR Newswire, Approximately 250 Survivors of Sexual Assault File Lawsuits Against U.S. Federal Bureau of Prisons and State of California For Being Sexually Assaulted by Correctional Staff While Incarcerated (September 27, 2023)

LC v. United States, Case No. 22-6105, 2023 U.S.App. LEXIS 25695 (6th Cir. September 28, 2023)

CNN, Opinion: Sexual assault should never be part of a prison term (September 17, 2023)

– Thomas L. Root