Circuits Go 1-1 In Wrestling Match with Taylor – Update for March 16, 2023

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ONE UP, ONE DOWN ON § 924

Two Circuits checked in last week on crimes of violence and 18 USC § 924, the statute that mandates a consecutive mandatory minimum sentence when a gun is possessed or used during drug or violent offenses. When the dust settled, defendants went one-and-one.

gunknot181009If 924(c) Is Vacated, 924(j) Must Be, Too: In 2018, Dwaine Colleymore pleaded guilty to four criminal charges stemming from an attempted robbery, during which he fatally shot a man. Dwaine pleaded guilty to (1) conspiracy to commit Hobbs Act robbery in violation of 18 USC § 1951; (2) attempted Hobbs Act robbery in violation of 18 USC § 1951 and 2; (3) discharging a firearm during and in relation to a crime of violence in violation of 18 USC § 924(c); and (4) murdering a person with a firearm during and in relation to a crime of violence in violation of 18 USC § 924(j)(1). The judge sentenced him to 525 months (43+ years).

Dwaine was still on appeal when the Supreme Court decided United States v. Taylor last June. Last week, the 2nd Circuit reversed his §§ 924(c) and 924(j) convictions.

The Circuit ruled that after Taylor, attempted Hobbs Act robbery no longer qualifies as a crime of violence under § 924(c)(3)(A) “and therefore cannot serve as a predicate for Dwaine’s conviction under § 924(c)(1)(A). Furthermore,” the 2nd said, because an element of a § 924(j) murder offense is that the defendant killed someone ‘in the course of a violation of [924(c)],’ attempted Hobbs Act robbery also cannot serve as a predicate for Dwaine’s conviction under § 924(j)(1).”

“Having given due consideration to Taylor,” the Circuit held, “we vacate Colleymore’s convictions on Counts Three and Four.” The case was remanded to the district court for resentencing.

hobbs230316Beating the ACCA Like a Rented Mule: The 7th Circuit last week embarked on an exercise in pretzel logic to conclude that Hobbs Act robbery itself is crime of violence under the Armed Career Criminal Act.

Lavelle Harley argued that while § 924(c) defined a crime of violence as physical force against a person or property, the ACCA (18 USC 924(e)(2)) defined a crime of violence as physical force against a person only.

That should have ended matters. After all, a Hobbs Act robbery can be committed “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to [a victim’s] person or property” 18 USC § 1951(b)(1). So it’s pretty clear that Hobbs Act robbery is not a crime of violence under the ACCA (although it is under 924[c]).

That wasn’t the result the 7th Circuit wanted. “We have to look beyond the force clause,” the 7th said, “to determine if Hobbs Act robbery committed using force against property qualifies as a violent felony under some other provision of ACCA.”

Under the ACCA‘s “enumerated clause,” extortion is listed as a crime of violence. “The question,” the Circuit explained, “then becomes whether a conviction of Hobbs Act robbery for using force against property fits within ACCA extortion.”

hobbes230316The Circuit halfway admitted it was using smoke and mirrors, noting that “a careful reader may be pausing at this point and questioning why we are using the generic definition of extortion to interpret ACCA’s enumerated clause when the Hobbs Act provides its own, similar definition… But remember the question we are trying to answer and the analysis that the categorical approach requires. We look to the Hobbs Act only to understand the elements of Hobbs Act robbery, the prior conviction at issue here. Once we understand those elements, our focus turns to ACCA… We assess whether each way of committing Hobbs Act robbery fits within ACCA’s definition of ‘violent felony’ in § 924(e)(2)(B). Put most simply, the Hobbs Act does not tell us what constitutes extortion under ACCA. That answer has to come from ACCA itself.”

But the Hobbs Act does define extortion, saying it is “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

Nevertheless, the 7th Circuit managed to conclude that “generic extortion encompasses Hobbs Act robbery using force against property. Make no mistake, the analysis is difficult, and the issue is close.”

hobbestiger230316The decision flies in the face of the rules of statutory construction, which say that when one definition in a single statute’s subsection differs from a definition in another subsection, Congress must be presumed to have intended the distinction. But the 7th Circuit intended to hold that a Hobbs Act robbery was a crime of violence for purposes of the ACCA, and through an intellectually dishonest opinion, did exactly that.

United States v. Collymore, Case No 19-596, 2023 USAppLEXIS 5388 (2d Cir, Mar 7, 2023)

United States v. Hatley, Case No 21-2534, 2023 USAppLEXIS 5290 (7th Cir, Mar 6, 2023)

– Thomas L. Root

Drugs, Guns and Rockin’ Appeals – Update for March 14, 2023

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

SPEAKING OF GUNS…

iloveguns221018… as we were yesterday (at least obliquely) you may recall that last month an Oklahoma district court threw out an 18 USC § 922(g)(3) indictment against a man for possessing a gun along with some personal-use marijuana. The district court dismissal was based on the 2022 Supreme Court New York State Rifle & Pistol Ass’n v. Bruen decision.

Last Friday, the government filed a notice of appeal, asking the 10th Circuit to review the case.

Another case, Cooper v. Attorney General, brought by three Floridians using medical marijuana, is currently being briefed in the 11th Circuit. That case also questions § 922(g)(3)’s constitutionality.

Order (ECF 36), United States v. Harrison, Case 5:22-cr-00328, 2023 US DistLEXIS 18397 (WDOkla, February 3, 2023)

Marijuana Moment, Justice Department Appeals Federal Court Decision That Struck Down Gun Rights Ban For Marijuana Consumers (March 6, 2023)

New York State Rifle & Pistol Ass’n v. Bruen, 597 US —, 142 SCt 2111 (2022)

Cooper v. Attorney General, Case No 22-13893 (11th Cir)

– Thomas L. Root

DOJ Called Out On Two-Faced Acquitted Conduct Position – Update for March 13, 2023

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DOJ SPEAKS WITH FORKED TONGUE

In late January, the Department of Justice got the Supreme Court to place a hold on four petitions for certiorari that, if granted, would have the Court decide whether acquitted conduct can be used in sentencing. DOJ pulled this off by promising SCOTUS that the proposed Guidelines amendments were going to fix the problem.

Then, DOJ showed up at the Sentencing Commission to tell it that it lacked the power to make the acquitted conduct change. Last week, the Supreme Court petitioner cried foul.

Acquitted conduct sentencing is a district court’s use of conduct a jury had acquitted a defendant of in setting Guidelines and deciding whether to depart from those Guidelines in sentencing a defendant.

Real-life example: Last week, the 7th Circuit upheld Phillip Robinson’s sentence. Phil was charged with a drug distribution conspiracy and an 18 USC § 924(c) for using a gun during a drug transaction. The jury convicted him of the drug conspiracy but acquitted him on the § 924(c). At sentencing, the district court pumped up Phil’s Guidelines for possessing a gun “in connection with the cocaine conspiracy.” The Circuit said that under the Supreme Court’s 1997 United States v. Watts decision, using the acquitted conduct to enhance Phil’s sentence is fine.

The petitions in front of SCOTUS, led by McClinton v United States, argue that sentencing defendants based on conduct a jury acquitted them of violates the 6th Amendment. The Supremes have relisted McClinton multiple times (“relisting” meaning the justices have considered the petitions at their weekly conference and then deferred a decision to the next conference, a “relist” meaning that the petition have substantial support).

On January 12th, the Sentencing Commission rolled out its draft proposed Guidelines amendments for public comment. One of them would ban the use of acquitted conduct in setting Guidelines levels. If adopted, the change would mean that Phil’s Guidelines would be set based only on the coke conspiracy without reference to the gun.

nothingtosee230313In response, DOJ told the Supreme Court that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.”

A few weeks later, DOJ told the Sentencing Commission that it could not amend the Guidelines to curtail the use of acquitted conduct at federal sentencing. DOJ argued that USSC lacked the power to adopt the amendment. The proposal “would be a significant departure from long-standing sentencing practice” because the Supreme Court “has continued to affirm [in Watts] that there are no limitations on the information concerning a defendant’s background, character, and conduct that courts may consider in determining an appropriate sentence.”

McClinton has fired back that DOJ’s “expansive reading of Watts” in front of the Sentencing Commission “is deeply at odds with the far more limited understanding the government has presented to this Court… And contrary to its assurances to this Court, DOJ now contends that the Sentencing Commission lacks authority to promulgate amendments addressing the practice.”

two-faced230313Reuters said last week that DOJ’s position on this issue “does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration.”

True, but what is more notable is that DOJ can tell the Supreme Court to deny McClinton review because the USSC is going to fix the acquitted conduct problem while at the same time telling USSC that it is not allowed to fix the problem. The government has prosecuted people for less duplicity than that.

Letter of DOJ to Supreme Court, Case No 21-1557, January 18, 2023)

United States v. Robinson, Case No 22-1472, 2023 USAppLEXIS 5625 (7th Cir, March 9, 2023)

Supplemental Brief of Dayonta McClinton, Case No 21-1557 (Supreme Ct, March 7, 2023)

United States v. Watts, 519 US 148 (1997)

Reuters, U.S. Justice Dept takes a hard line on sentencing reform (March 7, 2023)

Sentencing Law and Policy, DOJ testimony to Sentencing Commission on acquitted conduct sentencing generates notable responses (March 8, 2023)

– Thomas L. Root

A 2255 Wolf in Compassionate Release Sheep’s Clothing – Update for March 10, 2023

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A COMPASSIONATE RELEASE MOTION CANNOT BE A 2255, 10TH CIRCUIT SAYS

wolf-CR-2255motion230310More than one federal prisoner has sought a compassionate release under 18 USC § 3582(c)(1)(A) on the grounds that he or she should never have been convicted in the first place. While perceived unfairness has its uses in acompassionate release motion, a 10th Circuit decision last week reminds everyone that a movant must tread carefully in raising it.

Monterial Wesley, convicted of drug trafficking, filed and lost a motion to set aside his conviction brought under 28 USC § 2255. Over 10 years later, he filed a compassionate release motion arguing that the “extraordinary and compelling reasons” justifying the time cut he sought included sentence disparity and the alleged fact that his prosecutor suborned perjury about the drug quantities attributable to him.

The district court concluded that the claim of prosecutorial misconduct must be interpreted as a challenge to the constitutionality of his conviction and sentence, which can only be brought under 28 USC § 2255. Recall that under 28 USC § 2255(h) and 28 USC § 2244, a § 2255 motion is pretty much a one-and-done deal: getting permission to file a second or successive § 2255 is pretty tough to do. Because Monterial had previously brought a § 2255 motion attacking the same judgment and because the 10th Circuit had not authorized him to file another one under 28 USC § 2244, the district court dismissed that portion of the compassionate release motion for lack of jurisdiction.

Last week, the 10th Circuit agreed that Monterial’s motion included a successive § 2255 claim because it attacked the validity of his sentence. After all, the Circuit said, if Monterial was right about the prosecutor, his conviction was unconstitutional. Nothing in the compassionate release statute – which tells a district court to focus on 18 USC § 3553(a) sentencing factors – or in the existing Guidelines policy statement (which is being changed in the next few months) suggests that Congress or the Commission ever anticipated rolling an attack on the conviction into a  compassionate release  motion.

Finally, the 10th said, the district court can only shorten a sentence, not invalidate a conviction, in response to a compassionate release motion. Even if Monterial was right that his conviction was unconstitutional, there was nothing at this point that the district court can do about it.

mulligan190430The Circuit ruled that Monterial’s prosecutorial misconduct claim was a successive § 2255 and had to be cut out of his compassionate release  motion.

Ironically, one of the proposed § 1B1.13 Guidelines amendments options now being considered would hold that an extraordinary and compelling reason could include that “[a]s a result of changes in the defendant’s circumstances [or intervening events that occurred after the defendant’s sentence was imposed], it would be inequitable to continue the defendant’s imprisonment or require the defendant to serve the full length of the sentence.”

While this might not have saved Monterial’s claim, it would help people whose sentences were imposed based on Guidelines factors – such as “career offender” – that could not be imposed now.

United States v. Wesley, Case No. 22-3066, 2023 U.S. App. LEXIS 4894 (10th Cir, February 28, 2023)

US Sentencing Commission, Sentencing Guidelines for United States Courts, 88 FR 7180 (February 2, 2023)

– Thomas L. Root

SCOTUS To Determine Whether “And” Means “Or” – Update for March 9, 2023

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SCOTUS TO REVIEW “DRUG SAFETY VALVE”

The Supreme Court last week granted review to Pulsifer v, United States  to decide an 18 USC § 3553(f) “drug safety valve” question.

The “safety valve” provides a second chance for nonviolent offenders who do not have “more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense… (B) a prior 3-point offense… AND (C) a prior 2-point violent offense, as determined under the sentencing guidelines.” (The emphasis is mine, not the statute’s).

words221110If an offender qualifies, he or she can be sentenced without regard to statutory mandatory minimum sentences and with a special 2-level Guidelines “discount” on his or her total offense level.

The question is whether the “and” in 18 USC § 3553(f)(1) means “and” or just “or.” In other words, do defendants qualify for the “safety valve”: as long as they do not have ALL of (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense, or do defendants satisfy the provision only so long as they do not have (A) more than 4 criminal history points OR (B) a 3-point offense OR (C) a 2-point offense.

The interpretation is currently subject to a deep circuit split. Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that resolution of Pulsifer “will impact thousands of drug defendants sentenced in federal courts every year.”

Pulsifer v. United States, Case No. 22-240 (certiorari granted February 27, 2023)

Sentencing Law and Policy, SCOTUS grants certiorari to review reach of First Step Act’s expansion of statutory safety valve (February 27, 2023)

– Thomas L. Root

7th Circuit Does Violence to Taylor In Hobbs Act Decision – Update for March 8, 2023

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7th CIRCUIT STRAINS TO FIND AIDING AND ABETTING HOBBS ACT ROBBERY IS VIOLENT

It’s been pretty clear – at least clear to me – ever since the Supreme Court’s United States v. Taylor decision last June that the aiding-and-abetting doctrine was due for a “crime of violence” makeover.

violence181008A little explainer here: If a person commits a crime of violence while possessing, carrying or using a gun, he or she can be committed not just of the crime of violence but also of an add-on gun offense under 18 USC § 924(c). Prosecutors love § 924 counts, because the offense carries a mandatory consecutive sentence of at least five years (more if the perp brandishes or fires the gun).

But what exactly is a “crime of violence?” The definition is not as easy to understand as one might think. The latest entry in cases trying to parse the meaning was last June’s Taylor decision.

Taylor held that attempted Hobbs Act robbery was not a crime of violence, because one could attempt a Hobbs Act robbery without actually attempting, threatening or using violence. If, for example, Dexter Defendant is arrested in a jewelry store parking lot with masks and a gun as he approaches the front door, he could have been convicted of an attempted Hobbs Act robbery without trying to threaten or employ violence at all. In fact, the people inside the store might not even be aware that they were about to be robbed. Sure, Dexter can go down for an attempted Hobbs Act robbery (and get plenty of time for that), but he could not be convicted of a § 924 offense.

The same can be argued for aiding and abetting a crime.

violence161122Dejuan Worthen and his brother robbed a gun store. His brother shot and killed the proprietor. Dejuan was convicted of aiding and abetting the Hobbs Act robbery by being the getaway driver. He was also convicted of a § 924(c) offense for using a gun during a crime of violence (the Hobbs Act robbery).

Dejuan argued that aiding and abetting a Hobbs Act robbery was not crime of violence after Taylor. Dejaun contended that he could have aided or abetted his brother’s crime by providing the gun to his brother the night before the robbery, not even knowing when the crime was to happen.

Last week the 7th Circuit disagreed, suggesting that the question may end up at the Supreme Court.

The 7th said that the “question becomes whether accessory liability changes the analysis” that a Hobbs Act robbery is a crime of violence The Circuit said aiding-and-abetting is not a separate offense under 18 USC § 2, but instead “just establishes that someone who aids and abets a federal crime has committed the federal crime itself.” That is so, but 18 USC § 2 does the same for “attempting” a crime, a fact that didn’t stop Taylor from holding that attempting a crime of violence  is not a crime of violence  itself.

The 7th admitted that “because an aider and abettor does not need to participate in each element of the offense, a defendant can aid and abet a Hobbs Act robbery without personally using force — say, for example, by serving as the getaway driver from a violent robbery.” But because the Supreme Court rejected a similar argument in Gonzales v Duenas-Alvarez, a 2007 case in which aiding and abetting a state theft offense was a “theft offense” subjecting a noncitizen to removal under the immigration laws and because the Taylor decision did not overrule the 15-year-old decision, the same reasoning applied here.

violent170315The Circuit’s reasoning is flawed. No one questions whether Dejuan was guilty of the Hobbs Act robbery as an aider and abettor, just like no one questions whether Taylor was guilty of Hobbs Act robbery because of his attempt. The issue is different: was Dejuan’s aiding and abetting enough to make him liable under the § 924(c) statute, too?

When Taylor was decided, it was pretty clear that the same reasoning suggested that aiding and abetting a crime of violence was not a crime of violence itself. Until Taylor, almost all of the circuits had ruled the other way. The same could happen to liability for aiding and abetting a crime of violence.

United States v. Worthen, Case No. 21-2950, 2023 U.S. App. LEXIS 5133 (7th Cir., March 2, 2023)

– Thomas L. Root

Drug Crime Reform Lurches Forwards a Very Little Bit – Update for March 7, 2023

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BIDEN SUPPORTS EQUAL ACT, NEW POT POLICY NEARS

In a Presidential “Fact Sheet” issued last week, President Joe Biden  again called on Congress “to end once and for all the racially discriminatory crack-powder cocaine sentencing disparity and make the change fully retroactive. This step would provide immediate sentencing relief to the 10,000 individuals, more than 90% of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity. The Administration has urged the swift passage of the EQUAL Act.”

The EQUAL Act has been introduced in the House of Representatives as H.R. 1062 and in the Senate as S. 524.

marijuana221111Attorney General Merrick Garland told the Senate Judiciary Committee last Wednesday that the Dept of Justice is “still working on a marijuana policy” and that federal health officials are currently taking the lead on a broader review of marijuana’s federal scheduling status that President Joe Biden called for last October 6th.

The policy will “be very close to what was done in the Cole Memorandum,” Garland said, referring to an Obama-era policy that directed federal prosecutors generally to not interfere with state pot laws but which was later rescinded by the Trump administration. “We’re not quite done” with the marijuana policy review, Garland said, telling the Committee that finalizing a memo on crack cocaine prosecutions was a more pressing priority.

Garland also said that the process surrounding pardons that Biden granted to people who have committed cannabis possession offenses is “still working its way through the system to get the final certificates” to people so they can demonstrate they were given the presidential relief.

Two days later, DOJ announced that people eligible for the Biden pardon can now begin applying for a “certificate of proof” showing that they have been forgiven for the offense. The online application is run through the DOJ Office of the Pardon Attorney web page.

White House, Fact Sheet: The Biden-⁠Harris Administration Advances Equity and Opportunity for Black Americans and Communities Across the Country (February 27, 2023)

Marijuana Moment, Biden’s Attorney General Says DOJ Is ‘Still Working On’ Federal Marijuana Policy Approach (March 1, 2023)

CNN, Biden administration officially opens pardon request application for federal offenses of simple marijuana possession (March 3, 2023)

– Thomas L. Root

Supremes Skeptical About Identity Theft Policy – Update for March 6, 2023

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AGGRAVATED IDENTITY THEFT HAS ROUGH RIDE AT SCOTUS

identitytheft230306The government’s habit of using the two-year mandatory consecutive minimum sentence for aggravated identity theft provided by 18 USC § 1028A as a cudgel against simple fraud took its own beating during last week’s Supreme Court oral argument.

The case concerned David Dubin, who was convicted of healthcare fraud. Dubin was accused of bilking Medicaid by misrepresenting who had conducted medical testing and rounding up the time spent carrying out each test from 2.5 to 3 hours, so that a bill submitted for services to Peter Patient was higher than it should have been.

Dubin’s sentence included a two-year mandatory minimum term for “aggravated identity theft” because the Medicaid submission included the identity of the patient but misrepresented the particulars of the test. As The New York Times put it and countless federal defendants who have been clobbered by § 1028A’s extra two-year consecutive sentence, the statute “does not seem to require identity theft in the ordinary understanding of that phrase.”

Dubin’s lawyer argued that his client had not used a patient’s identity in any meaningful way: “It has to be a lie about who receives services or who obtains services,” he said, “not a lie about how those services were rendered.”

The Supreme Court was generally sympathetic. Justice Neil Gorsuch  said, “If the government’s theory is correct and every time I order salmon at a restaurant I’m told it’s fresh, but it’s frozen, and my credit card is run for fresh salmon, that’s identity theft.” The government’s position in the case, Gorsuch suggested, would transform everyday fraud into identity theft “whether it’s in a restaurant billing scenario, a health care billing scenario, or lawyers who round their hours up.”

Justice Ketanji Jackson appeared to agree. “It’s like every fraud in the world,” she told the government’s lawyer, “And you just admitted in response to Justice Thomas that it could be a teeny, teeny fraud.”

Justice Sonia Sotomayor said “the vagueness” of the statute—a due process issue—”is a problem.” She noted that it is hard to nail down the government’s definition of the crime “because every time you point to something that seems absurd, they come up with a limiting rule.” She complained that “the issue of vagueness permeates this statute,” and mentioned the rule of lenity, which favors a narrow reading of ambiguous criminal laws.

Justice Clarence Thomas asked the government where its position that any fraud, no matter how small, “stand[s] in terms of vagueness, notice to the world, fair notice to the world? I’m not sure most waiters in America appreciate that they’re committing identity theft when they bill for that bottle of wine.”

identitytheft1028A230306Dubin’s lawyer said said § 1028A’s mandatory minimum sentence was “a very strong cudgel to use against people to procure pleas in very low-level fraud cases. And that’s not what Congress [] aimed for in this case. Congress wasn’t trying to create a two-year mandatory minimum all of a sudden for ordinary fraud offenses. It was aimed at a particular new form of misconduct that’s simply not present in the words ‘aggravated identity theft.’”

Dubin v. United States, Case No. 22-10 (Oral argument, Feb 27, 2023)

The New York Times, Supreme Court Seems Skeptical of Broad Sweep of Identity Theft Law (February 27, 2023)

Reason, SCOTUS Questions the Government’s Absurdly Broad Definition of ‘Aggravated Identity Theft’ (March 2, 2023)

– Thomas L. Root

The Legislative Push for Drug Reform Resumes – Update for March 2, 2023

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MEANWHILE ON CAPITOL HILL…

equal220812I reported January 30th that the EQUAL Act was about to be reintroduced. A week ago, Sens Cory Booker (D-NJ), Thom Tillis (R-NC) and others, along with Reps Kelly Armstrong (R-ND), Don Bacon (R-NE) and Hakeem Jeffries (D-NY), the House Democratic Leader, got it done, simultaneously introducing “bipartisan” EQUAL Act bills in the House (H.R. 1062) and the Senate (S.524).

Meanwhile, some Republican lawmakers are excited about a survey released last week by the Coalition for Cannabis Policy, Education, and Regulation (CPEAR). The survey found that 68% of respondents back ending federal marijuana prohibition. The result was 10% higher than a year ago.

“The polling is clear: federal cannabis prohibition is in direct contradiction to the overwhelming will of the American electorate, including a notable majority of conservative voters,” Rep. Dave Joyce (R-OH), co-chair of the Congressional Cannabis Caucus, said. “I hope more of my colleagues on both sides of the aisle will heed the call of their constituents and join me in working towards a safe and effectively regulated legal marketplace.”

Rep. Nancy Mace (R-SC) was not as sanguine. Mace, who filed a comprehensive marijuana legalization bill in the last Congress, said that “it appears the only place where cannabis reform is unpopular is in Washington, DC.”

The lack of serious interest in pot reform shows at the other end of Pennsylvania Avenue, too. Last week, NORML complained that despite President Biden’s announcement last October of a blanket pardon for people convicted of simple federal marijuana possession, “none of the 6,557 Americans identified by the U.S. Sentencing Commission as being eligible for presidential pardons have received them.”

clemency170206Reason said last week that ”Biden, after reaping political benefits by announcing the pardons a month before the midterm elections, has not actually issued any. He got good press and may have helped Democrats in the midterms by motivating voters who care about drug policy reform. But his promise remains just that until he does what he said he would do.”

Candidate Biden promised a wholesale reform of the pardon system with a special White House commission deciding applications. In the first month of his presidency, hopes ran high that he would be taking decisive action to clean up a process that had left over 14,000 clemency applications languishing at the DOJ. But now, with over 18,000 applications awaiting action, we are no closer to a plan for dealing with them.

EQUAL Act (H.R. 1062)

EQUAL Act (S. 524)

Ripon Advance, Armstrong unveils bill to end federal sentencing disparity for cocaine offenses (February 22, 2023 )

Marijuana Moment, GOP Congressional Lawmakers Tout Poll Showing Republican Voters Back Federal Marijuana Legalization (February 23, 2023)

Reason, Four Months After Biden Promised Marijuana Pardons, He Has Not Issued Any (February 16, 2023)

– Thomas L. Root

Here Comes the Easter Bunny – Update for February 28, 2023

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THE EASTER BUNNY’S WORKING FOR THE BOP


bunny230228I still get asked several times a week about the persistent rumor that the Bureau of Prisons or Joe Biden or Congress or someone is going to give every inmate a time cut because incarceration during COVID was so miserable.

The “someone” is probably the Easter Bunny. I hear that the BOP would be asking the EB to deliver the time cut to every inmate in a nice basket with green plastic grass, jelly beans and a big chocolate rabbit.  Except the BOP cannot…

Because there ain’t no Easter Bunny. And there ain’t no COVID time cut, either. Such a cut has never been proposed, never been debated, and is never happening.

Harder to believe than the part about the Easter Bunny is the part about the BOP having any compassion for inmates… and that includes inmates who have been sexually assaulted by the BOP’s own employees. The New York Times reported last Wednesday that the BOP has rejected the first inmate request that it recommend compassionate release because she had been sexually abused by male employees at FCI Dublin. The reason is sobering.

forcedsex161202Last fall, Deputy Attorney General Lisa O. Monaco pressed BOP officials to encourage inmates who have been assaulted by prison employees and might qualify for compassionate release program to apply. Monaco told FAMM that she had ordered the new BOP Director Colette S. Peters, to “review whether BOP’s policy regarding compassionate release should be modified to accommodate female prisoners who had been assaulted by federal employees,” according to the Times.

Ms. Peters has said she has begun to consider requests from inmates who have been abused and are not deemed to be threats to the community if they are granted their release.

In late January, the BOP general counsel denied an application filed by a middle-aged woman who claimed her experience made her eligible for compassionate release. She is among a number of women who have detailed pervasive misconduct during their incarceration. This case – “the first of its kind to make its way through the system — is seen by prisoners’ rights groups as a key test of the department’s commitment to use so-called compassionate release protocols for victims of abuse,” the Times said.

The Times quoted the BOP general counsel as acknowledging that the inmate’s “assertions of being groped and forced to disrobe by male staff members were ‘extremely concerning,’ but described her documentation of those claims as insufficient.”

The Times said that BOP officials familiar with the case have privately said they do not dispute her allegations and think the inmate’s release would not pose a public safety threat.

easterbunny230228The BOP characterized the rejection as “temporary.” The Times said the rejection “reflect[s] a broader struggle by the Justice Department to free inmates abused in federal custody, when appropriate.” 

No doubt the Easter Bunny will be bringing the inmate her approval with the jelly beans.  Except that there is no Easter Bunny. 

New York Times, Justice Dept. Struggles to Carry Out Early Release Program for Abused Inmates (February 22, 2023)

– Thomas L. Root