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

JUDICIARY COMMITTEE SENDS FIRST STEP ACT FOR FULL HOUSE VOTE

In a surprise burst of bipartisan effort, the House Judiciary Committee this afternoon approved a new prison reform bill, H.R.  5682, being pushed by the White House.

The bill, called the “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act’’ or the ‘‘FIRST STEP Act,” offers more funding for prison programs in an attempt to reduce inmates’ likelihood to re-offend after they’ve been released.

The House Judiciary Committee approved the bill by a 25-5 vote, sending it to the House floor for a vote. The measure replaces the Prison Reform and Redemption Act, H.R. 3356, that had been set for markup two weeks ago. Reps. Doug Collins (R-Georgia) and Hakeem Jeffries (D-New York), co-sponsors of the PRRA, spent the last week negotiating after committee Democrats pushed back against a number of conservative provisions, which resulted in their introducing the new FIRST STEP Act.

In the legislation now advancing to the House, lawmakers created more opportunities for prisoners to earn time credits by completing prison programs. Programs that may earn credit include working at UNICOR (Federal Prison Industries, Inc.) and adult education programs, as well as more traditional rehabilitation programs. Inmates participating the approved programs can earn 10 days of credit for every 30 days of classes, and while participating be given higher spending limits at the commissary, more phone and email time, and increased visits.

Priority for participation in recidivism reduction programs is to be given to medium-risk and high-risk prisoners, with access to productive activities given to minimum-risk and low-risk prisoners. Inmates may use credits earned in the programs to serve more time in halfway houses or on home confinement.

The bill also clarifies current law, 18 USC 3624(b), to allow prisoners up to 54 days of credit for good behavior annually. The law was previously interpreted as only allowing prisoners to earn 47 days a year. A bipartisan amendment from was also approved to clarify that the legislative fix, which makes prisoners eligible for 54 days of good time instead of 47, applies to prisoners already serving sentences.

Two additional provisions of interest to inmates and their families are, first, a directive that the BOP designate people to institutions within 500 driving miles of their families, where other factor permit it, and second, that the BOP “shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph,” which is 10% of the inmates’ sentence up to a maximum of six months. There is also a provision requiring increased use and transparency for compassionate release.

Sens. John Cornyn (R-Texas) and Sheldon Whitehouse (D-Rhode Island) have a companion bill in the Senate, S. 1994, The CORRECTIONS Act. Rep. Collins said he’s confident there’s enough Democratic support to get the bill through the House and the Senate.

In a weird twist, some liberal groups have already called for the bill’s defeat on the grounds that it does not go far enough in that sentencing reform is not included and too many inmates are excluded. “The FIRST STEP Act, as introduced, would exclude too many in people in federal prisons from receiving time credits for participating in the rehabilitative programs authorized by the bill,” according to a statement issued by People for the American Way. “The long list of exclusions in the bill sweep in, for example, those convicted of certain immigration offenses and drug offenses. Because immigration and drug offenses account for 53.3% of the total federal prison population, many people could be excluded from utilizing the time credits they earned after completing programming.”

The group did observe that the “good-time” fix from 47 days to 54 days “could immediately impact 4,000 individuals if made retroactive, however this number has not been verified. According to a BOP calculation done over a decade ago, approximately 4,000 people could be eligible for release within a year, not on the first day of implementation. While the “good time fix” is a much needed, positive reform, which should become law, this provision alone is not enough to overcome our overwhelming concerns with the core of the bill as outlined above.”

The Hill, White House-backed prison reform bill advances in House (May 9, 2018)

H.R. 5682, Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act (approved by House Judiciary Committee, May 9, 2018)

S. 1994: The CORRECTIONS Act

People for the American Way, PFAW and AAMIA to Congress: Criminal Justice Reform Requires More Than the “FIRST STEP Act”
(May 9, 2018)

– Thomas L. Root

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

THE JUDGE KNOWS BEST

Some people who received Armed Career Criminal Act sentences have gone back to court in the last few years arguing that since Johnson v. United States, their crime is no longer an ACCA predicate. They are disappointed where their district judge peremptorily decides that the Johnson argument doesn’t matter, because the crime still counts under a different ACCA clause.

More than one guy has asked, “Hey, can they do that?”

Last week, the 6th Circuit said, “Yes, they can.”

Tony Potter’s presentence report identified a prior Georgia burglary that put him over the three-violent felony limit for the ACCA. His PSR did not spell out whether the conviction counted as a violent crime under the statute’s enumerated crimes clause, the elements clause, or the residual clause. The district court accepted the PSR and held Tony qualified for an ACCA sentence without specifying why the Georgia burglary counted.

After Johnson, Tony filed a 2255 motion claiming his burglary could no longer be used as a predicate for the ACCA. The district court turned him down, saying the prior counted toward the ACCA under the enumerated crimes clause because it fit the generic definition of burglary. Tony appealed, arguing that the district court was not allowed to now say his prior did not fall under the residual clause if it did not say so at the time he was sentenced.

The 6th Circuit disagreed. It accepted the court’s finding, holding that “it is difficult to think of a better source of information about what happened the first time around” than the judge who sentenced Tony. And Tony’s argument that the Georgia burglary conviction did not meet the ACCA’s definition of “burglary” under Mathis v. United States could be considered. Mathis, the Circuit said, involved an old rule of statutory law, not a new rule of constitutional law, and thus does not open the door for a second collateral attack.

“Nor,” the 6th said, “does Johnson open the door for prisoners to file successive collateral attacks any time the sentencing court may have relied on the residual clause. That approach turns collateral sentencing challenges on their head. Instead of requiring prisoners to prove that they are entitled to relief because they have been incarcerated illegally, Tony’s approach would require the government to prove years later (more than a decade later in this case) that the prisoner’s sentence is lawful. Other courts have rejected this approach.”

So did the 6th Circuit.

United States v. Potter, Case No. 16-6628 (6th Cir. Apr. 17, 2018)

– Thomas L. Root

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

HOPE AND HYPE FOLLOWS DIMAYA RULING

Judging from the flames erupting from our Corrlinks email inbox, federal prisoners’ excitement over Sessions v. Dimaya is at a fever pitch. We have had requests from guys with convictions for drugs, tax evasion, bank robbery and even child porn downloading for help on using Dimaya to attack their sentences. At the same time, we hear that inmates are hearing from several “paralegal” firms urging them to file Dimaya petitions.

As Lee Corso likes to say, “Not so fast, my friend.” First, while Dimaya could be huge down the road, it is not huge yet. Dimaya held that 18 USC 16(b), which defines a “crime of violence” to include “any other 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,” was struck down as unconstitutionally vague. As the court put it, “Johnson tells us how to resolve this case… None of the minor linguistic disparities in the statutes makes any real difference.”

Dimaya principally helps people facing deportation for “aggravated felonies,” which are defined as including “crimes of violence” as defined in 16(b). Right behind them may be people with 18 USC 924(c) convictions whose underlying crime was a crime of violence under the residual clause. The case does not help people who got Guideline enhancements for crimes of violence that are no longer violent. The Supreme Court saw to that in the Beckles case.

Second, Dimaya has not suspended the many procedural hurdles facing people wanting to attack their already-imposed sentences. Dimaya has not been declared to be retroactive, although it may be in the future. Dimaya has nothing to do with sex, drugs or taxes. Most important, as law professor Leah Litman wrote in the Harvard Law Review Blog last Tuesday, “it’s not yet clear how many wrongs of the past Dimaya will ultimately right. Whether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review.”

Those restrictions include retroactivity, limitations on second-and-successive 2255 motions, limitations on 2241 “actual innocence” motions, and the statute of limitations set out in 28 USC 2255(f)(3). Prof. Litman noted that people sentenced based on 16(b) have a year from Dimaya to file, “but what about prisoners who were convicted or sentenced under provisions that closely resemble section 16(b)? It’s not clear whether the statute of limitations has restarted for them.”

For example, 16(b) and 924(c)(3)(B) use very similar residual clause language, but they are not identical. Prof. Litman wrote “assuming a court of appeals thinks that the best reading of Dimaya is that section 924(c)(3)(B) is also unconstitutionally void for vagueness, did Dimaya restart the statute of limitations clock for persons convicted of section 924(c)(3)(B)? On the one hand, we want errors of that kind to be corrected, and corrected quickly, given that prisoners whose convictions may be affected could be serving more time in prison than they should be. On the other hand, Dimaya didn’t involve section 924(c); it just involved the materially identical section 16(b). In light of that, did the “Supreme Court” itself recognize that section 924(c) is void for vagueness, as the statute of limitations provision requires? Perhaps not.”

Dimaya has potential, but even if it benefits you, it’s a procedural furball. Part with your money very carefully.

Sessions v. Dimaya, Case No. 15-1498 (Supreme Court, Apr. 17, 2018)

Harvard Law Review Blog, Vague Criminality and Mass Incarceration: Will Dimaya End the Insanity? (Apr. 17, 2018)

– Thomas L. Root