Government Tries to Cabin 5th Circuit on Felon-In-Possession Ruling – Update for December 3, 2024

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5TH CIRCUIT REVERSES DISTRICT COURT ON 922(g) DISMISSAL

mustread241203Just last week, I had someone send me a forgettable decision by a backwater Federal district court in a circuit a thousand miles away from where the prisoner had been convicted. Suggesting that the case made his pending motion a dead-bang winner, he demanded, “You have to read this case!”

No, I don’t. The only court whose opinions are binding everywhere is the Supreme Court. A court of appeals decision is binding only in its own circuit and then only when the court publishes the decision. A district court’s opinion binds no one outside of the case it was issued in (called the law of the case doctrine, something we’ll take up at another time).

That doesn’t keep people from touting the latest LEXIS case from the Jerkwater, Kansas, federal district court as though Moses had carried it down the slopes of Mt. Sinai. Judges themselves don’t help: a district court especially is all too glad to cite some nonbinding case in support of its own conclusion without taking care to note that the other opinion is what lawyers call “persuasive authority.”

peppermintmocha24120A good “persuasive authority” decision and $6.25 will get you a Peppermint Mocha at Starbucks for a limited time. In fact, a Court of Appeals decision – if it is not “published” – is nonbinding on other panels of the same court. A “published” decision, on the other hand, cannot be reversed unless the court does it on an en banc rehearing (or it’s nullified by a Supreme Court case).

So what? The 5th Circuit, which has become notorious at the Dept of Justice for anti-922(g) decisions, last week reversed a decision by US District Court Judge Carlton Reeves – whose opinions on federal criminal law are especially important because his side gig is serving as chairman of the U.S. Sentencing Commission – that defendant Jesse Bullock’s 18 USC § 922(g) felon-in-possession indictment should be dismissed because of the Supreme Court’s 2022 New York State Rifle & Piston Association v. Bruen decision. Judge Reeves found that in the wake of Bruen, prohibiting felons from having guns violated the 2nd Amendment.

guns200304The 5th held that Jesse’s many prior felony convictions, which included aggravated assault and manslaughter (for shooting an unarmed bar bouncer and “firing a ‘barrage of bullets’ into a nearby crowd,” killing a 19-year-old passerby) meant that he could be banned from possessing guns in light of last summer’s SCOTUS opinion in United States v. Rahimi (an appeal from this Circuit’s holding that the defendant could have a gun despite a domestic protection order and a violent history). The 5th found that “a ban on Bullock’s ability to possess a firearm ‘fits neatly’ within our Nation’s historical tradition of firearm regulation.”

Last week’s decision was unpublished, meaning that it would not bind another Circuit panel considering the same issue (or even the same person if he possessed a gun on another occasion). However, the day after the unpublished opinion was issued, the Dept. of Justice filed a motion asking the 5th to publish the case, arguing that an opinion identifying “aggravated assault and manslaughter as among the predicate offenses that district courts may look to in assessing whether a defendant’s use of a firearm may be prohibited… has potential significance in other cases for which these previous offenses serve as § 922(g)(1) predicates.”

Jesse has opposed the motion, contending that the opinion is a ho-hum application of Rahimi, not worth the ink figuratively needed to publish. “This Court addressed the merits of the district court decision without requesting supplemental briefing” after Rahimi was decided. “No oral argument was held. If published, the panel’s decision would preclude other panels from considering the issue with the benefit of more robust briefing and argument.”

boxedin241203Jesse’s last argument is most to the point. The government fears the 5th, with the benefit of a lot of briefing and focus, might issue another Rahimi-type decision. Getting a summary holding that violent prior convictions disqualify someone from gun possession would box in the Circuit, requiring another Rahimi-type decision to be en banc.

United States v. Bullock, Case No. 23-60408, 2024 U.S. App. LEXIS 29938 (5th Cir., November 25, 2024)

– Thomas L. Root

Joe Biden Does a Father’s Duty… Now Who Might Be Next? – Update for December 2, 2024

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BIDEN PARDONS HUNTER… WHO MIGHT BE NEXT?

President Joe Biden pardoned his son, Hunter, last night, saving him prison time for gun possession offenses and tax crimes.

pardonme190123I will not listen to criticism for his action, regardless of the fact that the President recklessly claimed last summer he would never do such a thing. What father would not spare his son’s conviction and prison if it was in his power to do so? Even if Joe’s rationale – that no one is ever prosecuted for the 18 USC § 922(g)(3) and 18 USC § 922(a)(6) offenses that Hunter faced, and for his son to be indicted was raw political theater – is bullshit on stilts.

And it is. Somehow Joe omitted mention of Hunter’s tax convictions, those being of a nature and severity that are brought every day. As for the gun offenses, look at United States v. Daniels at Note 6, where a concurring judge chronicles other cases in that Circuit alone where (g)(3) offenses were brought against people who blew a little dope but were not intoxicated when they bought their guns.

Yes, Hunter’s gun offense was pretty pedestrian (but the (g)(3) conviction was probably unconstitutional, as Daniels explains). Still, if I were elected president (an event unlikely to happen), I would pardon any of my kids or siblings or parents or cousins in a heartbeat. It’s family.

In a statement released Sunday, Biden said, “I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice.”

No reasonable person who looks at the facts of Hunter’s cases can reach any other conclusion than Hunter was singled out only because he is my son,” Biden said. “I hope Americans will understand why a father and a President would come to this decision.

On Twitter (now inexplicably called “X”) last night, New York University law professor and clemency expert Rachel Barkow said, “This pardon of Hunter Biden better be the first of a huge flurry of commutations. There are so many cases even more deserving than this one that the Pardon Attorney has recommended granting, and they’re just waiting for Biden’s signature.”

pardonturkey231121There were others just earlier last week. On Monday, Peaches and Blossom became the 7th and 8th turkeys to be pardoned by Joe Biden in his presidential career. Law professor and clemency expert Mark Osler has noted that presidents could apply lessons from the annual Thanksgiving week event to their clemency practices:

First, it occurs regularly. Turkeys are pardoned every year, not just in the waning days of an administration. Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation… responsible for managing a thorough selection process… Third, there are defined criteria. The finalists are selected based on their willingness to be handled, their health and their natural good looks. Fourth, attention is paid to making sure they thrive after their grant of clemency. After the ceremony, they are sent to Virginia Tech’s “Gobbler’s Rest” exhibit, where they are well cared for… This contrasts sharply with the process of giving clemency to humans… [The] procedure through which clemency is granted is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release.

That does not lessen the optimism that in the next 49 days, Biden will hit a home run, pardoning or commuting sentences for everyone from Jack Smith and Merrick Garland to people on death row, CARES Act prisoners and those left behind by the First Step Act’s nonretroactivity.

Democrats and criminal justice reform advocates continue to pressure Biden to use his presidential authority to pardon those currently in federal prison fng from drugs to tax evasion—particularly those awaiting execution for more serious charges. Last week, 54 people who received clemency over the past five presidential administrations asked Biden to be “bold and compassionate during your remaining time in office and grant clemency to the deserving applicants referred to you by the Office of the Pardon Attorney.”

The clemency recipients wrote that they each had received long, unjust sentences before they finally regained their freedom.

death200330Prior to last Monday’s turkey pardoning, the group Prison Policy Initiative blasted Biden for reneging on his campaign promise to end the federal death penalty. “More turkeys have been pardoned from dinner plates in the US than people have been granted clemency from death row,” PPI said in an Instagram post. “Biden’s days left in office are limited, but it’s not too late for him to spare everyone from federal death row (and cement his legacy for the better).”

The Quaker organization Friends Committee on National Legislation said last week that “since 1973 there have been 200 exonerations from death row and over 1,600 people killed, with 50 executions at the federal level.” The group is not asking Biden to pardon all 40 people awaiting capital punishment but instead to commute their sentences to life in prison.

Writing in The Hill last week, former Bureau of Prisons Director Hugh Hurwitz urged Biden to commute the sentences of people currently on CARES Act home confinement. “Now that President-elect Donald Trump is returning to the White House,” Hurwitz wrote, “those remaining in home confinement are again concerned that his administration will reverse course and send them back to prison. Only this time, they have been quietly living at home and working in our communities for almost five years. This uncertainty is creating a lot of anxiety among these people and their families… We do not know what a new Trump administration will do, but there is no reason for us to wait and see. Until Jan 20, Biden has the unique power to grant clemency. This group of people has proven to be trustworthy and safe in our society. If ever there was a case for clemency, this is it.”

compassion160124Whether any of these pressure tactics will be enough to motivate Biden to move on clemency is not clear. But with less than two months left in his presidency, the only real strategy clemency advocates have is to stress how history will view him if he does nothing at all. And that will be effective only to the extent that he cares at all about that.

Associated Press, Biden pardons his son Hunter despite previous pledges not to (December 1, 2024)

United States v. Daniels, 77 F.4th 337 (5th Cir. 2023)

White House, Statement from President Joe Biden (December 1, 2024)

TwitterX, @RachelBarkow (December 1, 2024)

CNN, The process to pardon turkeys is more rational than the one used for humans (November 19, 2018)

Natl Criminal Justice Assn, Hunter Biden Defense Hints That President Should Pardon Him (November 30, 2024)

Tag24, Biden Urged to Take “Last Opportunity” for Positive Legacy in Letter from Over 50 Clemency Recipients (November 26, 2024)

Politico. Biden pardoned turkeys. Will he pardon more people? (November 26, 2024)

Prison Policy Initiative, More turkeys have been pardoned from dinner plates in the US than people have been granted clemency from death row (November 26, 2024)

The Hill, Biden’s easy case for clemency: prisoners in home confinement (November 26, 2024)

NCJA.Org, Death Penalty Opponents Seeking Commutations From Biden (November 26, 2024)

Friends Committee on National Legislation, Recommendations for Executive Action for the Remainder of President Biden’s Term (November 26, 2024)

– Thomas L. Root

Thanksgiving Week: What to Have for Dessert? – Update for November 29, 2024

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DESSERT

pumpkinpie241129It can be hard to pick which traditional Thanksgiving pie – pumpkin or apple – to eat as a finish to the feast. But a tough choice like this one usually ends with eating both, not a decision to just forget dessert altogether and go home.

The 7th Circuit had a problem last week deciding whether a prisoner appealing the denial of his 18 USC § 3582(c)(1)(A) compassionate release motion should be given a court-appointed attorney. Ultimately, the Circuit decided not to decide.

The 7th took only three pages to deny the appeal but needed another 43 pages to express the differing views of the three-judge panel.

The inmate had an appointed attorney in district court, but when the lawyer withdrew, the Circuit provisionally appointed a replacement to argue whether the appeals court had the authority under 18 USC § 3006A “to appoint counsel at public expense—whether in an individual case or through a general order—for defendants… seeking a reduction of their sentences under 18 USC 3582.”

The 7th has previously held that district courts are not required to appoint counsel in compassionate release proceedings, “but it does not prohibit them from doing so.”

The panel found that the district judge did not abuse his discretion in denying the compassionate release motion, so it did not reach the issue of whether it had the power to appoint counsel: “In Judge Lee’s view… the principle of judicial restraint counsels that we not reach the issue, because we can affirm the district court’s denial… on narrower grounds… Judge Hamilton has doubts about whether the panel should address the merits, but explains why he believes the language of the Criminal Justice Act gives federal courts discretion to make such appointments… Judge Scudder believes it appropriate to resolve the merits question, and he would hold that the plain language of § 3006A does not authorize appointments of counsel in § 3582(c) proceedings.”

applepie241129One judge wanted pumpkin pie, one wanted apple pie, and one wanted both. So the panel decided on no dessert at all. However, with inmates frequently asking courts to appoint counsel, it is worthwhile noting that serious legal questions may make appointment impossible.

United States v. Bonds, Case No. 24-1576, 2024 U.S.App. LEXIS 29690 (7th Cir., November 21, 2024)

– Thomas L. Root

Thanksgiving Week: A Heaping Serving of Yams – Update for Thanksgivng Day 2024

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YAMS

A true yam (as opposed to a sweet potato) is a monocot, a vigorous herbaceous, perennially growing vine related to lilies and grasses.

yams241128Speaking of “grass,” the marijuana kind, reports last week suggest that Biden’s promise to reclassify marijuana as a Schedule III drug – his latest promise to undo the war on drugs – might be in trouble .

Marijuana reform advocates last week asked an Administrative Law Judge (ALJ) to remove the DEA from its own hearing. They argue the agency has improperly communicated with antimarijuana groups in a bid to torpedo the Biden administration’s proposal. The advocates contended that “prominent doctors, researchers and state regulation experts are not being allowed to testify in a hearing” that will enable the ALJ to recommend whether rescheduling is appropriate.

Last week, the Washington Post reported, ALJ “signaled he will side with the DEA, writing the advocates’ request “adds nothing” and “presents little more than an ad hominem distraction.”

Under the reclassification proposal, marijuana would not be legalized federally like alcohol or tobacco, but would move to Schedule III, a category including prescription drugs such as ketamine, anabolic steroids and testosterone. That could lead to a lessening of Guidelines sentencing ranges, but even if that happens, it won’t happen immediately.

The ALJ pushed back the hearing from December 2nd to some time in January or February because it was unclear whether the 25 witnesses submitted by the DEA favored or opposed reclassification, or even why they should be allowed to testify, according to the ruling.

fail200526Reason magazine last week chronicled Biden’s criminal justice failures: “His voluminous 2020 criminal justice platform (now scrubbed from his website) advocated eliminating mandatory minimum sentences, cash bail, and the federal death penalty.” Another article noted that besides the death penalty, Biden “promised to “eliminate mandatory minimums”; “end, once and for all, the federal crack and powder cocaine disparity”; “decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions”; and “use the president’s clemency power to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.”

So far, Joe’s 0 for 5, and number 6 – use of clemency – hangs in the balance, with 54 days left.

Washington Post, DEA faces legal challenge as uncertainty clouds plan to reclassify marijuana (November 19, 2024)

Reason, Biden Failed To Deescalate the Drug War (November 22, 2024)

– Thomas L. Root

Thanksgiving Week: Please Pass the Gravy – Update for November 27, 2024

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GRAVY

gravy241127Many see supervised release as gravy on the mashed potatoes of incarceration. While it may not be very good, it sure beats more potatoes without gravy. What courts don’t agree on is whether supervised release is intended to be for rehabilitation, extra punishment, or both.

Last week, the 4th Circuit came down on the punishment side of the equation, ruling that after a prisoner got his sentence vacated on appeal, being resentenced from 72 months down to 69 months but with an increase in supervised release from 4 years to 10 years, the new sentence was presumptively and unconstitutionally vindictive.

Years ago, the Supreme Court ruled in North Carolina v. Pearce that resentencing after a successful appeal or collateral attack to a higher term is presumptively vindictive and a violation of the 5th Amendment. Since Pearce, however, the Supreme Court has tempered the Pearce presumption, noting in Alabama v. Smith that it was not designed to prevent an increased sentence on retrial for some valid reason “associated with the need for flexibility and discretion in the sentencing process but was premised on the apparent need to guard against vindictiveness in the resentencing process” Smith limited the Pearce presumption to cases where there was a “reasonable likelihood that the increase was the product of actual vindictiveness.”

Last week, the 4th said, “When the same judge, in the same posture, imposes a harsher sentence following a successful appeal, the “presumption of vindictiveness applies to any unexplained increase in the sentence.”

clementines241127Comparing prison time to supervised release time, the Circuit said, “likens clementines to kumquats and likely draws on subjective choice.” Still, because the district court reduced [the] term of incarceration by only three months and increased his term of supervised release by six years, the “second sentence was indeed harsher than the first. Because the prisoner’s second sentence was harsher than his first and he was sentenced ‘by the same judge, in the same posture, following a successful appeal… a presumption of vindictiveness applies to any unexplained increase in his sentence.”

kumquats241127Because the district court considered the same factors – alcohol abuse and medical condition – in the second sentencing as it did in the first, the 4th “conclude[d] that Pearce’s presumption of vindictiveness arose and was not rebutted… In these circumstances, we vacate the sentence and remand for resentencing.

United States v. Chang, Case No. 23-4615, 2024 U.S.App. LEXIS 29484 (4th Cir. November 20, 2024)

North Carolina v. Pearce, 395 U.S. 711 (1969)

Alabama v. Smith, 490 U.S. 794 (1989)

– Thomas L. Root

Thanksgiving Week: Stuffing Goes With Turkey – Update for November 26, 2024

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STUFFING

Walter Pavlo reported in Forbes last weekend that the Bureau of Prison – despite being told by Congress in the First Step Act almost six years ago to expand halfway house capacity to accommodate prisoners using FSA credits, has increased contracted-for halfway house bed space by a paltry 1% in the last 6 years.

stuffedturkey241126The BOP Office of Public Affairs reported that as of January 1, 2019, the BOP was contracting for 10,408 halfway house beds. As of two months ago, the BOP contracted for 10,553 halfway house beds. Pavlo wrote that “the BOP is now telling some halfway house providers… that they are canceling some solicitations for additional capacity because of ‘budgetary and staffing considerations.’”

Pavlo reported, “Many prisoners and their families are telling me that case managers are telling them that there is no room at halfway houses, and the result is that many minimum security prisoners spend a greater portion of their sentence in prison rather than in the community… BOP notes that ‘many of the unfilled beds in a halfway house are at locations that are hard to fill or are outside of the release residence area of individuals requesting community confinement placement’.”

So the Bureau argues to prisoners that the halfway houses are stuffed without room for people, who therefore lose the benefit of their FSA credits. Pavlo says that’s a myth. He and former BOP Director Hugh Hurwitz surveyed halfway houses and BOP usage of them, finding that only 82% of the BOP’s contracted halfway house capacity is being used. What’s more, the halfway houses have even more space open than that, space the halfway houses would like to fill but is not under BOP contract.

halfwayhouse241126“BOP could look to modify those existing contracts to increase the number of beds available,” Pavlo wrote.

For now, it appears that the halfway house shortage has less to do with stuffed beds and more to do with BOP unwillingness to fill them.

Forbes, Bureau of Prisons Halfway Houses Must Change Due to First Step Act (November 23, 2024)

– Thomas L. Root

Thanksgiving Week: Pardon Me If I Serve Up Turkey – Update for November 25, 2024

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TURKEY TIME FOR JOE BIDEN

Today, Minnesota turkey farmer John Zimmerman and his son Grant visited the White House to see two of their prize turkeys, Peach and Blossom, receive presidential clemency, something that thousands of human federal prisoners would happily take the birds’ place in order to receive.

turkeypardonme241125President Joe Biden pardoned the 7th and 8th turkeys to receive clemency in his Administration. The spectacle is an annual Thanksgiving ritual that this year is being staged amid a clamor for Biden to issue a veritable feast of real pardons and commutations in the waning days of his Administration.

In the nearly four years he has been in office, Biden has granted 25 pardons and 132 commutations out of the thousands of applications filed. He has also pardoned two classes of people who were not incarcerated, people convicted of simple marijuana possession and members of the military who were court-martialed because of their sexual orientation.

Nearly all of the commutations have involved drug offenses. They number 38 more commutations than his predecessor, Donald Trump, granted in his first term, but fewer than one-tenth of the sentences Barack Obama commuted in his second term. About 8,002 petitions for clemency are pending (including for the two turkeys).

turkeyprison161114Last Wednesday, a gobbling flock of advocates, former prisoners, and families joined 67 congressional leaders in a joint letter urging President Biden to grant clemency to non-violent federal cannabis prisoners before his term ends.

Among federal prisoners, “90% of people are convicted of non-violent offenses. Now is the time to use your clemency authority to rectify unjust and unnecessary criminal laws passed by Congress and draconian sentences given by judges,” the letter says. “We urge you to use your executive clemency power to reunite families, address longstanding injustices in our legal system, and set our nation on the path toward ending mass incarceration.”

Reps Ayanna Pressley (D-MA), James Clyburn (D-SC), and Mary Gay Scanlon (D-PA) were lead signers of the letter.

pardonturkey231121Also, in a briefing last week, Prison Policy Initiative stated, “Although he’s extended pardons and commutations during his term, President Joe Biden has yet to use his clemency powers for a person facing the federal death penalty, despite openly opposing capital punishment at one time. Biden can still heed increasing calls from advocates to improve his minimal clemency record and clear federal death row of all 40 current death sentences… Given that president-elect Donald Trump enthusiastically supports the death penalty — and has historically abused the pardon power — President Biden could spare 40 lives immediately and reclaim the true function of clemency by commuting all federal death sentences.”

Not that President-elect Trump is anti-pardon. He loves them… for the right people.

Last week, a Trump-appointed federal judge said it would be “beyond frustrating and disappointing” if Trump grants sweeping clemency to most of the defendants charged in the January 6, 2021, attack on the Capitol. Federal Judge Carl Nichols (District of Columbia) blasted the prospect of “blanket pardons” or “anything close” during the sentencing of a defendant facing eight assault charges.

Politico said, “Nichols’ comments were a surprise from the typically restrained judge and came at the end of a hearing in which he and federal prosecutors grappled at length with the potential impact of Donald Trump’s election on ongoing Jan 6 cases. He added that “anything close to blanket clemency would be similarly frustrating.”

This American Life: America’s Next Top Gobble (November 15, 2024)

Guardian, Biden must Trump-proof US democracy, activists say: ‘There is a sense of urgency’ (November 24, 2024)

Letter to President Biden (November 20, 2024)

The Appeal, U.S. Reps Urge Biden to Use Clemency to Correct “Extreme Use of Incarceration” (November 20, 2024)

Prison Policy Initiative, Talking turkey about the death penalty: outgoing governors and the president must use their clemency power now (November 18, 2024)

Politico, Trump-appointed judge opposes ‘blanket pardons’ for Jan. 6 defendants (November 19, 2024)

– Thomas L. Root

A Win for FSA Statutory Clarity – Update for November 21, 2024

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COURT HANDS BOP LOSS ON FSA CREDIT COMMENCEMENT

In a detailed and lengthy decision, a Middle District of Alabama district court ruled on November 4th that otherwise eligible prisoners must start earning First Step Act time credits from the moment they are sentenced rather than when the BOP says they can.

prisoners221021As first blush, the issue seems pretty clear. Section 3632(d)(4)(A) of Title 18 says that a “prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits…” Section 3635(4) defines a “prisoner” as “a person who has been sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense, or a person in the custody of the Bureau of Prisons.”

You don’t have to be a lawyer to figure out that an eligible prisoner, therefore, is anyone who has been sentenced to prison for a federal crime (we’ll leave the other category, “a person in the custody of the Bureau of Prisons,” for another day), provided he or she has not been convicted for one of the 63 exempt crime categories — such as sex offense or using a gun in a crime in violation of 18 USC § 924(c), to name only two of the myriad of exclusions — and is not an alien with a final order of deportation. The exclusions leave about half of the people in BOP facilities eligible for FSA credits.

The BOP denied Sohrab Sharma 122 days of FSA credit, finding that he was not an “eligible prisoner” from the commencement of his sentence until he was finally delivered to FPC Montgomery and again when he was locked up and transferred for an unspecified violation of prison rules. Under 28 CFR § 523.42(a), a BOP-adopted rule, “[a]n eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served).”

ambiguity221128The Court held that “the statute unambiguously addresses the question of when an inmate is eligible for FSA credits,” to which 28 CFR § 523.42 “adds a layer of eligibility not found in the statute [that] conflicts with its express language.”

The District Court ruled that an eligible inmate is entitled to FSA credits from the date the sentence commences under 18 USC § 3585(a) which “specifies ‘the date the defendant is received in custody awaiting transport to’ his initial BOP-designated facility as the date his or her ‘sentence to a term of imprisonment commences’ for purposes of determining whether he can begin to earn FSA time credits.”

The Court said, “The BOP must apply time credits to eligible prisoners who have earned them and cannot categorically make prisoners ineligible for such credits in a manner that contravenes the statutory scheme set forth in 18 USC § 3632.”

Sohrab’s case was sent back to the BOP to determine whether he was an “eligible prisoner” for the purpose of those 122 days, instead of being categorically excluded because he was riding a bus or sitting in segregation.

While the decision is welcome, it is a district court opinion that has no binding precedential value in its own circuit, let alone anywhere else. The government being the government, count on the opinion having utterly no impact on how the BOP applies 28 CFR § 523.42 in any case other than Sohrab’s.

Sharma v. Peters, Case No. 2:24-CV-158 (M.D. Ala., November 4, 2024), 2024 U.S.Dist. LEXIS 199823

– Thomas L. Root

Matt Gaetz: Mere Anarchy at the Dept of Justice – Update for November 19, 2024

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THINGS FALL APART

thingsfall241119I tuned out the poetry we studied in high school English, which makes me wonder why President-elect Donald Trump’s announcement last week that Matt Gaetz would be his Attorney General made me recall W.B. Yeats’ work, The Second Coming:

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world;

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned…

Trump has vowed to execute every prisoner on federal death row, to expand the federal death penalty to include drug traffickers and migrants who kill U.S. citizens, to use the military to round up and run out immigrants, and to grant all law enforcement officers immunity from criminal prosecution.

Writing in The Watch last week, Radley Balko observed that Trump “of course promised to weaponize federal law enforcement to settle grudges, exact retribution, and protect his interests.”

Congressman Matt Gaetz (R-FL) is slated to serve as Attorney General. Gaetz, whose legal career spans about three years as a junior associate in a small Florida law firm, has never tried a case nor managed an enterprise, but he’s intended to run the Dept of Justice, of which the Bureau of Prisons is a part.

pervert160728In 2020, Gaetz was accused of child sex trafficking and statutory rape over claims that he paid a 17-year-old high school student for sex. Following an investigation, DOJ decided not to seek charges, concerned that it might not be able to prove the charge beyond a reasonable doubt. Gaetz resigned from the House last week just before the House Ethics Committee was to release a report on the sex charges, alleged drug use and other misconduct.

One DOJ official said of the nomination, “What the f— is happening?!” Another said that Gaetz is the “least qualified person ever nominated for a position in the Department of Justice.”

MSNBC admitted that “in a sense, everybody is unqualified” to serve as Attorney General, because DOJ “is so deep, broad and complex that no one can come in truly prepared for all of it. Nobody comes in knowing everything about tax or antitrust or civil rights or criminal or civil or environmental work. They do not know the intricacies of the work of its many divisions, from the Federal Bureau of Prisons to the Federal Bureau of Investigation.” But, MSNBC argued, AGs need “three qualities: integrity, judgment and independence. With those qualities, you can handle the job… [W]ith Gaetz, you might end up with somebody who is wholly unqualified for the job coupled with somebody who lacks integrity, judgment and independence.”

But why should federal prisoners care? It might be beneficial to have a man who had once been a DOJ target running things.

dungeon180627Don’t count on it. As a state legislator, Gaetz sponsored a bill requiring the Florida governor to sign death warrants for prisoners on death row as soon as their appeals were exhausted. Last July, Gaetz toured El Salvador’s notorious Terrorism Confinement Center where, CNN reported, “convicts and pretrial detainees “spend 23½ hours a day in bleak group cells, eat a bland meatless diet and have just 30 minutes a day for exercise or Bible class.”

“There’s a lot more discipline in this prison than we see in a lot of the prisons in the United States,” Gaetz said at the time. “We think the good ideas in El Salvador actually have legs and can go to other places and help other people be safe and secure and hopeful and prosperous.”

In other transition news, Sen. John Thune (R-SD) will serve as Majority Leader—the person who will control which bills are voted on—in the new Senate, which convenes on Jan 3, 2025. Thune has consistently opposed even modest marijuana reform proposals, once calling legalization a “dangerous path.”

In 2021, Thune acknowledged that marijuana is an “area that’s still evolving, and our country’s views on it are evolving,” adding that “how we deal with it nationally, is still an open question.”

President Biden promised in 2022 that rescheduling marijuana from Schedule I to Schedule III – which could lead to the easing of criminal penalties – would be done by the end of 2024. A DEA hearing on the matter is set for December 4. It’s not clear that final rules can be rolled out before a new and possibly hostile Congress is seated.

Radley Balko – Substack, The “broligarch” threat to criminal justice reform (November 13, 2024)

NBC, Justice Dept. employees stunned at Trump’s ‘insane,’ ‘unbelievable’ choice of Matt Gaetz for attorney general (November 10, 2024)

MSNBC, An attorney general needs 3 qualities to be successful. Matt Gaetz doesn’t even have one. (November 14, 2024)

CNN, Matt Gaetz would oversee US prisons as AG. He thinks El Salvador’s hardline lockups are a model (November 14, 2024)

Marijuana Moment, Every GOP Senate Majority Leader Candidate Opposes Marijuana Legalization (November 12, 2024)

– Thomas L. Root

Senators Push for Massive Biden Clemency Push – Update for November 18, 2024

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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.

SENATORS URGE BIDEN TO COMMUTE THOUSANDS OF SENTENCES

President-elect Trump may accomplish something this month that no one has yet been able to do yet: get President Biden to wield his clemency powers.

release161117Senate Democrats are pressuring Biden to shorten the sentences of thousands of federal drug prisoners incarcerated before he leaves office. In a letter sent to Biden October 21st but only surfacing last week, seven Senate Judiciary Committee members plus an eighth Senator urged Biden to commute drug mandatory minimums that were shortened by the First Step Act but not retroactively.

The FSA cut mandatory life under 21 USC § 841(b)(1)(A) for one prior drug conviction from 20 to 15 years and for two priors from life to 25 years. The change started out in the legislative process to be retroactive, but retroactivity was amended out of the bill before passage to secure Republican votes.

The group of Democrats, led by Senate Judiciary Committee chairman Richard Durbin (D-IL), is urging Biden to categorically lower the sentences of people sentenced under § 841(b)(1)(B) mandatory minimums so they match what they would have received under the First Step Act amendment. In some cases, sentences would be cut to time served.

“[O]ver 8,000 federal clemency petitions are awaiting decision,” the letter notes. “You have granted only 25 pardons and 131 commutations thus far, denying nearly 8.000 petitions.’ We respectfully request that your Administration act with urgency to grant relief to deserving individuals and further reduce the clemency backlog… One significant step in the right direction would be to grant categorical relief to incarcerated individuals who were sentenced under harsh mandatory minimums that the bipartisan First Step Act substantially reduced.”

Sen Peter Welch (D-VT), one signer, said, “President Biden should heed our call and use the power of executive clemency while he has it.”

crackpowder160606The letter also urges Biden to use clemency to cut the sentences of people convicted for crimes related to crack cocaine who would face less time in prison if crack and powder cocaine were punished at a one-to-one ratio and urged him to restart Obama’s clemency initiative, which granted clemency to nearly 1,700 people – mostly for drug offenses – who met certain qualifications.

“The letter came just weeks before Election Day,” Politico noted last week. “But it reflects concerns that have only intensified since Trump won the White House.”

At the same time, pressure is intensifying to convince Biden to commute the death sentences of the 40 people on federal death row. Their crimes range from drug-related murders to murder in a national park to terrorist killings and the fatal shooting of a bank guard during a robbery.

Of 50 federal executions in the past century, Trump carried out 13 of them in six months beginning in July 2020. Trump has promised to execute everyone on death row in his next Administration.

The ACLU last week called on Biden to “act now to finish the death penalty reform work his administration began in 2020. He must commute the sentences of all people on federal death row to stymie Trump’s plans and to redress the racial injustice inherent to capital punishment.”

The Atlantic last week called on Biden to offer pardons to Liz Cheney, a former Republican Congresswoman who served on the House January 6th Committee, Chairman of the Joint Chiefs of Staff Mark Milley, prosecutor Jack Smith, and “to all of Trump’s most prominent opponents.” Trump and his allies have promised to prosecute them for imagined crimes arising from prosecuting, investigating or just criticizing him since the January 6, 2021, riot.

Politico, Biden faces pressure from Hill Democrats to grant clemency for drug crimes (November 13, 2024)

Letter to President Biden from Sen Durbin et al (October 21, 2024)

Slate, Joe Biden Can Preemptively Halt One Brutal Trump Policy (November 12, 2024)

ACLU, Biden Must Use Final Months in Office to Commute Federal Death Sentences (November 14, 2024)

The Atlantic, Pardon Trump’s Critics Now (November 13, 2024)

– Thomas L. Root