BOP Director Has a Bad Day on Capitol Hill – Update for April 23, 2018

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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. 

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BOP DIRECTOR SAYS THERE’S NOTHING BETTER COMING ON HALFWAY HOUSE

punchinface180423Talk about violence directed at BOP employees… Director Mark Inch was beaten up pretty well last week when he delivered his largely fact-free report on the BOP to the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, with the chief executive at the BOP Coleman complex likely to have been taking it on the chin as soon as Inch could get out of the hearing room door.

We thought we were the only ones who found Director Inch’s obsequious and bureaucratic delivery tedious, but it became clear during his nearly 2-hour session that the Committee members were a little frustrated at Inch’s habit of turning every answer into a pretzel and coming up short on meaningful data about his agency.

Congressman Jamie Raskin (D-Maryland) asked about the cancellation of 16 halfway house contracts, and demanded Inch square that with the shortage of halfway house bed space nationwide. Congressman Jerrold Nadler (D-New York) cited the prior BOP director’s complaint that it is “scarce and expensive” to put people in halfway house, and demanded that Inch to explain the cancellations in light of the scarcity.

halfway161117In response to a question from Rep. Steve Chabot (R-Ohio) on BOP halfway house plans, Inch said the BOP spent $350 million on halfway house at 230 centers nationwide last year. Of the approximately 44,000 inmates released annually, he said, 80% get halfway house or home confinement placement. Inch said that reentry centers are “mostly important for inmates at the high end” of sentences.

In 2017, Inch said, the BOP overspent for halfway house and exceeded contractual limits on some locations while others were underused. He anticipated the halfway house placement will remain unchanged in 2018. “The challenges I look at – the constellation of our residential reentry centers is two things, is to the extent of how far out it can spread and the cost that is associated with it – our goal this year in 2018, is to have very clear usage figures data against the ascribed budget so I can make very logical budget requests in the future.”

Stripped of bureaucratic–speak, that means nothing is going to change in BOP halfway house placement any time soon.

work180423The representatives, who have been hearing loud complaints from their BOP employee-constituents, also pushed Inch hard on augmentation, the BOP practice of using noncustody people like nurses, teachers and front-office workers in CO positions. Inch assured the Subcommittee that all of the 6,000 BOP positions being eliminated this fiscal years were vacant, and not the reason for augmentation. The director told the Subcommittee that “a lot” of the BOP staffers used for augmentation had started their careers as COs, and thus were well qualified to fill in on custody positions.

Despite union protests and Federal Labor Relations Authority rulings in favor of BOP employees, the Director insisted that augmentation was safe for employees. “You say it’s not a dangerous situation?” Rep. Michael Johnson (R-Louisiana) asked Inch incredulously. “I’ve met with a number of these [BOP] people from my home state of Louisiana, and they’re not comfortable with this situation.”

At one point in the hearing, Inch was blindsided by charges the BOP was banning books, an allegation arising from a policy being adopted by the Coleman, Florida, federal prison complex. The Coleman policy, which goes into effect next week, bans purchase of any books except those bought through the commissary for a 30% surcharge over list.

ban180423Congresswoman Karen Bass (D-California), who apparently believed the policy was a BOP ban on books, asked the Director how he could adopt such a policy. Inch seemed nonplussed, saying he was unaware of the Coleman policy and would look into it. He suggested Rep. Bass’s understanding of the policy might be a misperception, leading her to snap back, “I hope you follow up with Coleman, because this does not seem to be a misperception, this seems to be a directive.”

In point of fact, the Coleman policy is a book ban of sorts, because every inmate book request is filter through a BOP employee, who could simply refuse to honor a request for a book the BOP felt was inappropriate for whatever reason.

We suspect the Coleman warden, who appears to have violated the sacred bureaucratic rule of “don’t make your boss look bad,” got an unpleasant call from the Director about five minutes after the hearing ended.

House Judiciary Committee, Subcommittee on Oversight, Oversight of the Federal Bureau of Prisons (Apr. 17, 2018)

– Thomas L. Root

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Another Case of the “Shorts” – Update for April 19, 2018

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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.  Today, we’re doing clean-up with a number of short takes from our most recent newsletter to inmates.

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8TH CIRCUIT RULES MISSOURI 2ND DEGREE BURGLARY DOES NOT COUNT FOR ACCA

burglary160502Chuck Naylor pleaded guilty to being a felon in possession of a firearm. The district court found that four of his prior Missouri 2nd-degree burglary convictions qualified as violent felonies under the Armed Career Criminal Act. On appeal, the 8th Circuit agreed, because it was bound by United States v. Sykes.

But in an April 5 rehearing en banc, the Circuit changed its mind, holding that “convictions under Mo. Rev. Stat. § 569.170 (1979) do not qualify as violent felonies under the ACCA. To the extent Sykes concluded otherwise, it is overruled.”

The decision suggests that a lot of people doing ACCA time because of the Sykes decision will be visiting their local district courts soon with 28 USC 2241 petitions.

United States v. Naylor, Case No. 16-2047 (8th Cir. Apr. 5, 2018)

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FDA SEEKING COMMENT ON MARIJUANA DRUG SCHEDULE

Mike, an alert reader, brought to our attention that the FDA and Trump Administration have asked the public to comment on the “abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use of” marijuana and its derivatives. Mike noted that “there are medical benefits, jobs to be had, taxes to be made to go to education, a sure way to help get the people off opioids, not to mention a drop in schedule would help all those incarcerated with mandatory mins.”

Any interested person can comment on the proposal online.

Food and Drug Administration, Case No. FDA-2018-N-1072), International Drug Scheduling; Single Convention on Narcotic Drugs; Cannabis Plant… Request for Comments

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CALLING JUDGE POSNER

paging180419We wrote about Judge Posner’s new pro se assistance organization a few weeks ago, and since then, we’ve heard from a number of people wanting contact information. We still do not have an address, but the editor at Litigation Daily provided us with the organization’s web address:

http://www.justice-for-pro-ses.org
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THE AUSA, NOT THE COURT, PULLS 5K1.1 STRINGS

When a federal defendant assists the authorities prior to his or her being sentenced, the government returns the favor by filing a motion with the sentencing court under Sec. 5K1.1 of the Guidelines, asking for a sentence cut. Sec. 5K1.1 is about the only way a defendant can get a substantial reduction in sentence (the cut averages about 52%), and only the government can make the motion.

An unnamed defendant who helped out the government received his USSG Sec. 5K1.1 motion at sentencing, but the Feds only recommended dropping his 235-293 sentencing range to 135-168 months. That was a nice reduction, but was still above his 120-month statutory minimum sentence. The sentencing judge granted the 5K1.1, but departed downward to 80 months. The government thought that was too much, and appealed.

toughluck180419Last week, the 5th Circuit reversed, holding that the law is clear a court cannot impose a sentence below a statutory minimum for substantial assistance unless the government, in its 5K1.1, specifically moves to go below the minimum. The district court knew this, but justified its sentencing decision by citing its authority “to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if they find the refusal was based on an unconstitutional motive.” The district court said its bigger reduction was warranted because the government did not take into account the lower Guidelines sentencing range the district court had applied, and overlooked other grounds, such as the fact that Appellee voluntarily withdrew from the conspiracy early on, encouraging others in the conspiracy to quit, volunteering at a local church, and maintaining a job. The district judge said he “disagrees with the concept of mandatory minimum sentencing by which members of the legislature and the executive who do not see the human beings before the Court nevertheless impose on the judiciary arbitrary minimum sentences.”

Tough, the Circuit said. Regardless of the district court’s own policy views about the use of mandatory minimum sentences, the law in this area is clear. And we must faithfully apply it. A motion by the government was required for the district court to depart below the minimum term of imprisonment established by Congress for the drug offense Appellee committed. Thus, it was error for the district court to sua sponte depart from the minimum.”

United States v. Sealed Appellee, Case No. 17-50451 (5th Cir. Apr. 10, 2018)

– Thomas L. Root

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Dimaya Strikes Down “Crime of Violence” Residual Clause Throughout the Code – Update for April 18, 2018

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SUPREME COURT DECLARES 18 USC 16(b) CRIME OF VIOLENCE RESIDUAL CLAUSE UNCONSTITUTIONALLY VAGUE

violent170315The Supreme Court handed down the long-awaited Dimaya decision yesterday, a 96-page tome with splintering concurrences and dissents going everywhere, but holding by a 5-4 majority that the residual clause of the 18 USC 16(b) crime of violence definition is unconstitutionally vague.

For those who just joined us, 18 USC 16 defines “crime of violence” as the term is used throughout the criminal code. The statute in it entirety reads:

The term “crime of violence” means 

(a)  an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another, or

(b) any other offense that is a felony and 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.

burglar160103The focus, ever since Johnson v. United States, has been on the vagueness of subsection (b). Mr. Dimaya is a noncitizen being deported because of two California burglaries. He challenged whether those were crimes of violence. While his case was pending, Johnson was handed down, so he added a Johnson claim. The government argued Johnson did not apply to 18 USC 16(b).

The liberal wing of the Court – Kagan, Sotomayor, Brennen and Ginsburg – were joined in a concurrence by newest Justice Neil Gorsuch – in holding that “a straightforward application of Johnson effectively resolves” Dimaya. The majority said that Section 16(b) of the Criminal Code has the same two features as the residual clause of the Armed Career Criminal Act struck down in Johnson — an ordinary-case requirement and an ill-defined risk threshold — combined in the same constitutionally problematic way.

The opinion noted that the ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tied the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime and indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

risk160627The majority said Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, 16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. And its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. Thus, the majority concluded, the same “two features” that “conspired to make” ACCA’s residual clause unconstitutionally vague also exist in 16(b), with the same result.

The Court’s “ordinary-case requirement and an ill-defined risk threshold” test for determining vagueness strikes us as a bludgeon that inmates should be able to use in attacking vagueness in 18 USC 924(c) crime of violence residual clause, as well as anywhere else the “crime of violence” definition appears. 

devil180418There’s a lot to this case (especially if you take time to read the dissents), and the politics of the majority opinion, four liberal bomb-throwers joined by cool, conservative Neil Gorsuch, should engender its own comment. But for now, we can say this is a big win for criminal justice (and we mean “criminal justice” in a good way). But beware: as law professor Leah Litman noted at the Harvard Law Review blog this morning, because the devil’s in the details:

Dimaya was right to correct a wrong of the past. But while Dimaya may prevent another rerun of the ACCA insanity, 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.

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

– Thomas L. Root

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2018 Guideline Amendments… The Rest of the Story – Update for April 17, 2018

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2018 GUIDELINE AMENDMENTS HARD ON SYNTHETICS, EASIER ON PROBATION

As we reported last Friday, the U.S. Sentencing Commission killed the First Offender proposal by neglect, never mentioning it during the half-hour meeting last week at which the USSC adopted a slate of new amendments to the Guidelines Manual to be sent to Congress.

khat180417That’s not to say, however, that the Commissioners did nothing. They did vote to update the federal sentencing guidelines to address synthetic drugs. The amendments addressed synthetic cathinone (the active drug in African khat, used in bath salts) and synthetic cannabinoids, including K2. To address fentanyl, the USSC adopted a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (a 50% increase in sentence).

release180417The Commission also adopted a new application note suggesting judges consider alternative sentencing options to prison for “nonviolent first offenders” whose applicable guideline range falls at 8-14 months or less. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. The alternatives include probation, halfway house confinement and house arrest.

The USSC also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes, and adopted a non-exhaustive list of factors that courts may consider in determining whether a prior Indian tribal court conviction warrants an upward departure from the recommended sentencing range.

Nothing in the proposed amendments, which will be effective November 1, 2018, applies to people who have already been sentenced.

U.S. Sentencing Commission, Amendments to the Sentencing Guidelines (Preliminary) (Apr. 12, 2018)

– Thomas L. Root

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Prison Reform Gets a Hearing – Update for April 16, 2018

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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. 

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HOUSE PRISON REFORM BILL GOES TO HEARING THIS WEEK

redemption180411The House Judiciary Committee will mark up H.R. 3566, the Prison Reform and Redemption Act, this week, a Republican proposal that aims to reduce recidivism. Rep. Doug Collins (R-Georgia), sponsor of the PRRA, said the bill, which has 10 Democrat and seven Republican co-sponsors, would allow prisoners to serve the final days of their sentences in a halfway house or home confinement if they complete evidence-based programs that have been shown to reduce recidivism rates.

Prison programming could include everything from job and vocational skills training to education and drug treatment.

The White House announced in February it was throwing its support behind prison reform measures such as the PRRA instead of measures like the Sentencing Reform and Corrections Act, sponsored by Senate Judiciary Committee Chairman Charles Grassley (R-Iowa). The White House says it sees no path forward for sentencing reform. “And so what we see now is an environment where the prison reform does have enough support to get done,” an official said. “And we think that by maybe doing this in smaller bits and pushing the prison reform now, we think this has a better chance of getting done.” 

blackprisoner171116Not everyone agrees. The Leadership Conference on Civil and Human Rights an umbrella group of 63 organizations, wrote to the House Judiciary Committee last week to complain about the PRRA and “efforts to pass prison reform (or ‘back-end’ reform) legislation without including sentencing reform (or ‘front-end’ reform).” The Conference said that any “legislation that addresses only back end reforms is doomed to fail in achieving these goals. Without changes to sentencing laws that eliminate mandatory minimums, restore judicial discretion, reduce the national prison population, and mitigate disparate impacts on communities of color, H.R. 3356 alone will have little impact.”

The PRRA lets inmates earn credits for completing designated BOP programs that will let them go to halfway house or home confinement early, with the more credits earned, the earlier the prisoner can get released to residential reentry. But the Conference letter noted that “currently there are not enough of these programs available in the Federal Bureau of Prisons (BOP) to serve those currently in prisons. Furthermore, BOP more recently has reduced the number of residential reentry centers it contracts with to provide halfway house programming.”

mcconnell180219And the leadership of two organizations on the opposite end of the political spectrum, conservative FreedomWorks and liberal Center for American Progress, wrote in The Hill last week that “[a] recent markup of the Sentencing Reform and Corrections Act yielded the same favorable vote as the last committee vote on this legislation, and even those who voted against the legislation voiced support for some level of sentencing reform. Sen. Lee maintains that SRCA would receive 70 votes on the Senate floor, if Senate Majority Leader Mitch McConnell (R-Kentucky) would simply allow the bill to come to a vote.”

Trump son-in-law and advisor Jared Kushner convinced President Trump to support prison reforms like those some states have implemented more than a decade ago, which since saved billions and has resulted both in the closure of prisons and a drastic reduction the crime rate. Jared presented those ideas to Trump at a White House meeting in January. The following month, the White House asked lawmakers to draw up legislation, highlighting many of the same policies.

Kushner has since worked with Sen. John Cornyn, R-Texas, a long-time criminal justice reform advocate, who helped craft the plan the House will begin debating this week.

Meanwhile, speculation that Trump may fire Attorney General Jefferson Beauregard Sessions III – the man who torpedoed the SRCA and has backed off Obama-era easing of DOJ charging policies – has cooled. The Weekly Standard reported his week that such a firing is highly unlikely. Instead, Sessions has a stronger hold on his job than ever.

With Sessions gone, it would be difficult for Grassley to avoid spending the rest of the year on anything but hearings for a new AG. With the risk growing daily that the Democrats may capture the Senate in the midterm elections in November, the chance to confirm more conservative judges would have been frittered away.

sessions180215Still, The Standard reports that anti-Sessions sentiment lives on in the Trump family. Jared Kushner is a supporter of criminal justice reform, which Sessions opposes. EPA Administrator Scott Pruitt, who openly lobbied to replace Sessions and angered the President in the process, was Kushner’s hope for attorney general and possible backer of SRCA. Pruitt is hanging on to his EPA job by a thread, and has probably permanently spindled any hope of becoming Attorney General.

The Hill, Prison reform bill set for House markup next week (Apr. 11, 2018)

McClatchy Washington Bureau, Washington looks to Texas on federal prison reforms (Apr. 13, 2018)

The Leadership, Letter of Concern regarding H.R. 3356, the Prison Reform and Redemption Act (Apr. 12, 2018)

The Weekly Standard, Jeff Sessions and His Enemies (Apr. 13, 2018)

– Thomas L. Root

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Not With a Bang But A Whimper Does ‘First Offender’ Die – Update for April 13, 2018

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SENTENCING COMMISSION DOES NOTHING ON FIRST OFFENDER PROPOSAL

In a half-hour meeting ending yesterday, the U.S. Sentencing Commission promulgated amendments which will become effective on November 1, 2018, unless Congress blocks their effectiveness. As expected, the Commission proposed tough new sentencing guidelines for synthetic drugs like fentanyl. But not as anticipated, the USSC mentioned nothing about its ballyhooed First Offender Proposal.

planethype180413Last year, the Commission proposed a “First Offender” amendment, one that would give additional Guidelines benefit to people with pure criminal records. The USSC proposed that the virgins of the criminal world – people who had no prior convictions – get bonus points for a prior record that’s even better than Crim I.

For prisoners, the proposal has been the most hyped change in the Guidelines since the 2014 drug table amendments, despite the fact that its retroactivity was in doubt. Yet at yesterday’s meeting, without a single mention, the Commission adjourned without acting on the proposal.

As we have reported, if President Trump is successful in get his latest two nominees past the Senate and onto the Commission, retroactivity will enter the dark ages. But judging from yesterday’s nonevent, it looks like things could not get a whole lot worse for the already-sentenced.

U.S. Sentencing Commission, Amendments to Sentencing Guidelines (Preliminary) (April 12, 2018)

– Thomas L. Root LISAStatHeader2small

Sentencing Reform Taking It On The Chin – Update for April 11, 2018

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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. 

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SENTENCING REFORM IS DEAD… LONG LIVE PRISON REFORM

kushner180411A couple of hagiographic news articles on Trump son-in-law Jared Kushner’s efforts pushing federal criminal justice reform last week make it clear, if it was not clear before, that hopes of sentencing reform – rewriting mandatory minimums and giving guys with grossly-stacked sentences a chance to get resentenced to something that make sense – are waning.

Notwithstanding Sen. Charles Grassley’s (R-Iowa) optimism, prospects for the Sentencing Reform and Corrections Act of 2017, are bleak, with Attorney General Jefferson Beauregard Sessions III leading Administration opposition to the notion of front-end sentencing reform.

So, if traditional sentencing reform is dead in the water, The Hill asked last week, what’s left? Prison reform legislation that focuses on reentry programs offering prisoners the opportunity to shorten their sentences on the back end is what’s being favored now. Rather than trimming sentences from the start, these programs allow prisoners to earn credits toward early release by participating in programs intended to help reintegrate them into society and reduce their propensity to reoffend. Although they face some of the same political resistance as front-end sentencing reductions, it is significantly easier to overcome.

redemption180411The Hill argued that prison reform bills “avoid many of the usual pitfalls that sentencing reform legislation encounters because they shift the narrative from one of retribution to redemption, from past wrong to future promise. Instead of getting bogged down on issues like whom to punish and for how long, politicians are able to talk about what comes next. Leaving the nominal sentence unchanged insulates these reforms from charges that they don’t adequately reflect the egregiousness of a given crime or that they will negatively impact deterrence.”

The Las Vegas Review-Journal suggested last week that anything criminal justice advocates may get from Congress this year will be due to Kushner, whose father did a bit a decade ago for some white-collar and tax beefs. Sentencing reform failed last year despite Obama’s willingness to sign it, and after law-and-order Trump was elected, it looked like any reform would not happen.

But Kushner convinced Trump to support prison reform (not sentencing reform), changes that would “create a prison system that will rehabilitate citizens who have made mistakes, paid the price and are deserving of a second chance — which will ultimately reduce crime and save taxpayer dollars.”

sessions180322In practical terms, Kushner has helped in two ways. First, his commitment tells Hill Republicans that Trump is not likely to reverse his support for prison reform. Second, Kushner found a way to co-opt Sessions, by convincing advocates to delay their push for sentencing reform in exchange for Sessions not standing in the way of their rehabilitation goals. As a result, DOJ now “is working closely with the White House to develop legislative reforms that further the president’s goals for prison and re-entry improvements,” said spokesman Drew Hudson.

The lead horse in the prison reform race is the Prison Reform and Redemption Act, sponsored by Rep. Doug Collins, R-Georgia, that would require prisons to assess inmates’ recidivism risk, encourage drug treatment and offer incentives for inmates to participate in recidivism reduction programs.

Collins said his bill would create “a federal prison-wide system for evaluating the risk of every individual prisoner for re-offending and then offering evidence-based resources — like mental health care, vocational skills, substance abuse treatment and faith-based programs — that make them less likely to re-offend when they are released.”

Las Vegas Review-Journal, For Trump son-in-law Jared Kushner, prison reform is personal (April 7, 2018)

ABC, Inside Jared Kushner’s personal crusade to reform America’s prisons (April 8, 2018)

The Hill, Incentivized early release the right path to sentencing reform under Trump-Sessions (April 6, 2018)

– Thomas L. Root

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10th Circuit Adds Fuel to the 3582(c)(2) Jurisdiction Fire – Update for April 10, 2018

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CIRCUIT SPLIT ON 3582(c)(2) JURISDICTIONAL QUESTION DEEPENS

Marconia Green is a guy who is determined to get sentence-reduction credit because of the USSC’s 2-level changes in the drug Guidelines. He has filed numerous times, but run up against a district judge not included to cut him a break. On his fourth 18 USC 3582(c)(2) filing, the district court ruled it lacked jurisdiction to hear a successive sentence-reduction motion.

success180410When the U.S. Sentencing Commission changes the Sentencing Guidelines in such a way as to reduce the sentencing range a defendant would be assigned for certain conduct, that change does not necessarily benefit people who have already been sentenced. Instead, it’s prospective only, unless the Commission makes a separate determination that the change should be retroactive to people already doing time.

If a Sentencing Guideline change is made retroactive, a prisoner must file a motion under 18 USC 3582(c)(2) in order to obtain the benefit of it. If the prisoner is eligible because the Guideline change lowers his or her advisory sentencing range, the judge who originally imposed the sentence considers a wealth of information about the offense and the prisoner’s progress since being locked up. The judge may grant a sentence reduction to the extent of the Sentencing Guideline change, may deny it, or may decide to only grant a portion of the benefit.

Retroactivity is not always a sure thing. The Commission has passed on it for some changes, primarily because so many inmates would have been affected that the courts would be swamped with 3582(c)(2) motions. But many changes, primarily reductions in drug sentencing levels since 2007, have been made retroactive. About 30,000 inmates took advantage of the last change in 2014 to seek and obtain sentence reductions.

A few who tried and failed have tried, tried again. Marconia Green is one. As we noted, on Marconia’s fourth try, the court ruled that it lacked jurisdiction to hear more than one 3582(c)(2) per inmate per Guidelines change.

jurisdiction180410Jurisdiction, of course, is a big deal, because it cannot be waived and it does not depend on the merit of the claim. And lack of it is pretty final. There could be big changes in an inmate’s history since the last filing, some prior state convictions might have gone away, the prisoner might have amassed a lot more programming, he might have suffered an illness that means he is unlikely to pose a threat to the community… But if the court lacks jurisdiction to hear a second 3582(c)(2) after the first one is denied, none of that could matter.

Last week, the 10th Circuit joined five other Circuits in holding that 3582(c)(2) does not contain a jurisdictional bar to successive motions under the same guidelines amendment. “Such a numerical restriction on the court’s jurisdiction is wholly absent from the text of the statute,” the 10th said. For the bar to be jurisdictional, the statute must “plainly show that Congress imbued a procedural bar with jurisdictional consequences.” Absent a clear statement from Congress that any potential bar on the number of motions a defendant may file per amendment is jurisdictional, 3582(c)(2) does not divest a district court of jurisdiction to consider a second motion to modify a sentence under the same amendment.”

As of now, six circuits say that the bar to successive 3582(c)(2) motion filings is jurisdictional. Six say it is not. With a 6-6 split in the circuits, this issue could easily find its way to the Supreme Court.

United States v. Green, Case No. 17-6001 (10th Cir., April 6, 2018)

– Thomas L. Root

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Sentencing Commission May Adopt First Offender Proposal on Thursday – Update for April 9, 2018

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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. 

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 SENTENCING COMMISSION SET TO ADOPT AMENDMENTS

Some of our friends who publish their own newsletters have predicted 17 of the last two United States Sentencing Commission actions on the so-called first offender proposal. They should be glad that the long wait is just about over. The USSC will hold its April meeting on Thursday, April 12, at which time it is expected to adopt proposed amendments for November 2018, including quite possibly some form of first offender relief.

abscissa180319The USSC’s sentencing guidelines are based on a cartesian system with the abscissa being the offense level and the ordinate being the defendant’s criminal history. If you rob a bank, that offense is worth a base offense level of so many points. If you threatened an old lady in the process, that is worth a few more points, but if you confess after being caught, that takes a few points off.

Your criminal history is calculated based on the number, severity and age of prior criminal convictions. A prior drunk driving is not as bad as a felony burglary, and while a 12-year old misdemeanor possession of pot charge isn’t worth anything, a 12-year old felony trafficking in pot is. The result is a Total Offense Level and Criminal expressed in Arabic numbers (such as a Level 22) and a Criminal History Category expressed in Roman numerals (such as a “III”). On the sentencing table that is Chapter 5A of the Federal Sentencing Guidelines, a defendant with a Total Offense Level of 22 and a Crim History Level III would have a suggested sentencing range of  51-63 months.

Oscar180410Now for the “First Offender” proposal: It is entirely possible to have prior convictions galore and yet be a Criminal History I (the best score you can achieve). The Guidelines define a Crim I as someone with zero or one criminal history point, which means you could have had a couple of heroin distribution felonies in the 1980s, a string of misdemeanor domestic violences between 1990 and 2006, and one minor misdemeanor 2014, and – because of the age of the offenses – be a Criminal History I. Such a defendant is far different from the 55-year old guy who has never even gotten a traffic ticket, but ends up with a tax fraud conviction. Both defendants get the best treatment from the Sentencing Table that’s possible, but one is a genuine virgin while the other has simply mastered the talent of not getting caught. In recognition, the USSC proposed  that the Phoebe Snows of the criminal world get bonus points for a prior record that’s purer than Crim I.

Two options for a “First Offender” guideline were floated by the USSC. One was that any defendant with zero criminal history points should be considered a First Offender. The second proposal, a stricter one, was more like an Academy Award for lifetime achievement, and would give bonus points to those with no criminal convictions any time in their past, no matter how old.

virgin180409As for nomenclature, the First Offender guideline would adjust a first offender’s Total Offense Level downward. The Sentencing Commission suggested that either all defendants who qualify as “first offenders” would receive a 1-level reduction from their offense level, or perhaps that  defendants who qualify as “first offenders” would receive a 2-level reduction if their Total Offense Level was below 16 and a 1-level reduction if it’s above. 

After the spate of comments for and against the various proposals (and a few against any First Offender guideline at all) presented to the USSC last month, we’ll see in a few days just how eager the Commission is the Trumpian “law-and-order” atmosphere that overhangs Washington to give any defendant, no matter how deserving, a break.

If it is adopted, the First Offender amendment will not be retroactive – that is, not apply to people already sentenced – unless the USSC holds an additional proceeding to declare it so. In other words, current federal inmates are urged not to fall for pitches from anyone (be it an outside service or a guy in the law library who wants some commissary) to prepare a filing to claim your sentence reduction. While it could happen, it will not be happening soon.

knuckles180409And, as we all know, the President has nominated some genuine knuckle-draggers to serve on the Commission. If they are confirmed by the Senate, you can likely kiss any chance for retroactivity goodbye.

U.S. Sentencing Commission, Public Meeting – April 12, 2018

– Thomas L. Root

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We’ve Got the Shorts – Update for April 4, 2018

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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. Today, we’re posting some short features from Monday’s inmate newsletter.

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JUDGE POSNER OPENS LEGAL CENTER FOR PRO SE ASSISTANCE

Retired Judge Richard Posner of the 7th Circuit Court of Appeals last week announced the opening of the Posner Center of Justice for Pro Se’s, a continuation of his prior pro bono project. The Center’s vision is to assist pro se litigants  – which constitute up to 50% of federal courts’ workload – behind the scenes to help them to successfully represent themselves.

prose161209“Representing oneself in court is often the best way for a pro se to obtain justice,” Posner said in news release. “Unlike judges, juries tend to be impressed by a lone litigant standing up against a gaggle of lawyers.”

The center already has about 80 lawyers and non-lawyer advisors spread across 27 states, and expects eventually to have representatives in all 50 states as well as U.S. territories. All staff are currently unpaid—though the center says that could change.

“There are reliably believed to be at least a million pro se’s in the United States,” Posner said. “Many of those pro se’s, however, don’t realize they can obtain legal assistance. Therefore, I will continue to work to get the message out that our organization exists, and then try to assist as many deserving pro se’s as possible.”

Posner resigned from the 7th Circuit last fall after more than three decades on the bench. He said he left in part because of disagreements with colleagues over how the court handles pro se litigants, many of whom are prison inmates.

The Posner initiative does not yet have an Internet presence, and no contact information is available. But we’re looking…

Litigation Daily, Introducing The Posner Center of Justice for Pro Se’s (Mar. 28, 2018)

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HEY, KIDS, DON’T TRY THIS RDAP HACK AT HOME

Who wouldn’t like a year off his federal sentence? The Bureau of Prisons operates an intensive Residential Drug Abuse Program, as directed by Congress, which consists of nine months of classes and treatment while incarcerated and further treatment during the prisoner’s transition through halfway house. Inmates lucky enough to get into the program and to complete it may receive up to one year off their sentences.

lawyer15170317When RDAP started, every defense lawyer quickly learned that he or she should ask the judge to recommend RDAP for a defendant being sentenced. The judges were compliant, because, after all, the recommendation didn’t cost them anything. But the BOP wised up, and began requiring substantial evidence that the inmate had a substance abuse issue in the year prior to his or her arrest.

So getting into RDAP (and getting that year-off carrot the BOP dangles to encourage successful completion) can be tough. But, federal prosecutors say, not if you’re lawyer is hard-charging Brooklyn attorney Scott Brettschneider.

whitey180405As alleged in a criminal case filed last week in the Eastern District of New York, Scott – known to denizens of the EDNY courts as “Mighty Whitey” – drafted a letter to the BOP for one of his clients, falsely recounting the client’s history of substance and alcohol dependence.  The letter was signed by Mighty’s non-lawyer assistant, who said he was the inmate’s treatment provider. Mighty Whitey sent the letter to the BOP to win his client’s admission into RDAP.

The Feds tumbled to the scheme somehow, and wiretapped Mighty Whitey talking to the inmate on a smuggled cell phone in prison, discussing the letter. One of Mighty’s sidekicks allegedly said on a call that he doubted the BOP would be “scrutinizing it that much.”

He appears to have been mistaken. Quite mistaken.

U.S. Attorney E.D.N.Y. News Release, Queens Criminal Defense Attorney and Three Other Individuals Indicted for Conspiracy and Making False Statements (Mar. 26, 2018)

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WITHER DIMAYA?

The most common question we get from readers is ‘how do I get up out of prison?’ The second most common question we hear is ‘when is the Supreme Court going to decide Lynch v. Dimaya (now known as Sessions v. Dimaya)?’

violence160110Dimaya, which relates in part to whether the Johnson v. United States declaration that part of the “crime of violence” definition was unconstitutional, was argued on the first day of the current Supreme Court term (last October 2nd). This was after the case was held over from the prior term for reargument (suggesting the Court was split 4-4 after the prior argument, which occurred before Justice Gorsuch was confirmed). Of the nine cases argued in October 2017, four of them (including Dimaya) remain undecided. Only Dimaya has any criminal law impact.

Last week, Supreme Court observer Amy Howe predicted that either Justice Kagan or Gorsuch would be writing Dimaya. She did not guess as to when that opinion would issue.

SCOTUSBlog, Reading the Tea Leaves (Mar. 26, 2018)

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– Thomas L. Root