Subject-Matter Jurisdiction Ain’t What You Think – Update for February 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.

SUBJECT-MATTER JURISDICTION IS EASY-PEASY

If there is any post-conviction issue that is as often raised as it is without merit, it’s got to be subject-matter jurisdiction.

In second-grade civics, we 7-year-olds learned that federal courts are courts of limited jurisdiction. As my sainted teacher, Minta Newmeyer, explained to my attentive classmates and me, this means that those courts – creatures of statute – may only hear cases on subjects approved by Congress. Want to take your neighbor to federal court because her magnolia tree drops a mess on your yard every fall?  Tough. Trespass and nuisance are perfectly good common-law claims, but Congress has not authorized federal courts to hear such quotidian bellyaches. For you to hail your pesky neighbor into federal court, you have to raise a cause of action that a federal court is allowed to hear.

easypeasy230214The concept is easy-peasy.  Yet, I see a lot of inmate-written post-conviction arguments made that the federal district court that convicted the prisoner somehow lacked subject-matter jurisdiction to hear the underlying criminal case for one wacky reason or another.

Preparing to win a federal conviction may be as as complex as a nine-course meal, but determining subject-matter jurisdiction for a federal criminal action is as easy as boiling water. Has the defendant been accused of violating a federal criminal statute? Is the case filed in federal district court? If the answer to both questions is ‘yes’, the court has subject-matter jurisdiction.

Prisoners screw this simple concept up all the time. But they aren’t the only ones not to get it. Sometimes the court itself can be fooled, as the 5th Circuit reminded us last week.

Daisy Bleuler and Paulo Murta, both Swiss citizens working in wealth-management firms, are charged with running an international bribery scheme in which U.S. businesses laundered bribes to Venezuelan officials through their Swiss firms. Daisy has never been to the USA. Paulo came over once to Miami but not to the Southern District of Texas (where the indictment was handed up).

Eight defendants were indicted for violating the Foreign Corrupt Practices Act. Two of them – Daisy and Paulo – moved to dismiss on the grounds the court lacked subject-matter jurisdiction. The district court agreed, finding that “the FCPA and money-laundering statute did not apply extraterritorially,” that is, could not be applied to non-citizens’ actions that did not take place in the USA.

Because there was no “direct or undisputed evidence” Daisy had an agency relationship in the United States, the district court found that it lacked jurisdiction to adjudicate the FCPA case. The district judge said the money-laundering counts failed because Daisy did not commit any portion of the offenses “while in the United States”; and no one alleged that Paulo was in the USA “at the time the alleged transactions occurred…”

smj230214The 5th Circuit made short work of what appears to have been a complex district court holding. “In the criminal context,” the Circuit held, “subject matter jurisdiction is straightforward.” Noting that 18 USC § 3231 provides that “the district courts of the United States shall have original jurisdiction… of all offenses against the laws of the United States,” the 5th said, “To invoke that grant of subject matter jurisdiction, an indictment need only charge a defendant with an offense against the United States in language similar to that used by the relevant statute. That is the extent of the jurisdictional analysis: ‘a federal criminal case is within the subject matter jurisdiction of the district court if the indictment charges that the defendant committed a crime described in Title 18 or in one of the other statutes defining federal crimes.”

Whether a statute reaches extraterritorial acts is a defense to a criminal charge, the Circuit said, but it is not a challenge to the district court’s subject-matter jurisdiction.

United States v. Bleuler, Case Nos 21-20658, 2023 U.S.App. LEXIS 3097 (5th Cir. Feb 8, 2023)

– Thomas L. Root

Detainers No Longer Disqualify Some FSA Credit Application – Update for February 13, 2023

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FSA CREDIT BLUES

BOP Cries ‘Uncle’ On Detainer FSA Credit: As of a week ago, at least six district courts had granted habeas corpus petitions filed by prisoners denied use of FSA credits because they had detainers.

uncle230213FSA credits, for those folks tuning in late, are credits awarded to federal prisoners under the First Step Act for the prisoners successfully completing Bureau of Prisons programs that have been determined to reduce the risk of recidivism, such as GED classes, anger management, parenting skills, and drug/alcohol rehabilitation.  Prisoners may use the credits to reduce their sentences by up to one year or to get more time in halfway house or home confinement at the end of their sentences.

Despite the fact that Congress wrote detailed instructions into the law about what prisoners were to be excluded from earning FSA credits, the BOP took it upon itself to decide that other classes of prisoners – specifically those with detainers on file from state authorities or federal immigration officials – could not earn FSA credits. Unsurprisingly, a number of inmates filed petitions for habeas corpus with federal courts challenging the BOP’s unauthorized tinkering with the statutory scheme.

Last week, facing the reality that the detailed eligibility requirements Congress wrote into the FSA credit program prevents the BOP from adding its own spin to the standards as a matter of law, the Bureau abandoned its efforts to deny people with detainers the right to reduce their sentence length with FSA credits.

In a supplement to the November 2022 program statement on FSA credits issued last Monday, the BOP issued an updated P.S. 5410.01 deleting requirement that inmates have no detainers or unresolved pending charges, to include unresolved immigration status, in order to use FSA credits to shorten their sentences. Prior to the BOP program statement on FSA credits issued last November, the BOP had ruled that people with detainers or unresolved state charges were ineligible for any FSA credits. In November, the BOP moderated its position, holding that people with detainers could earn FSA credits but not spend them unless they cleared up the detainers.

Last week’s announcement wipes out any BOP resistance to people with detainers getting to apply up to 365 FSA credit to reduce their sentence length by up to a year. The only people ineligible now because of detainers are noncitizens “subject of a final order of removal under immigration laws.” And that is practically no one in the system.

A detainer will still prevent inmates from using FSA credits for halfway house or home confinement. Whether First Step’s detailed exclusions from credit override the BOP’s traditional refusal to give halfway house and home confinement to people with detainers has yet to be decided.

elsa230213PATTERN Recidivism Score Frozen on Prerelease Custody: Last week’s changes also clarify that if a prisoner has had two regular program reviews (which occur annually or more often as a prisoner approaches the end of the sentence) at which the PATTERN score was reviewed before going to halfway house or home confinement, he or she will not be reassessed again. In other words, the recidivism score you take out the prison door with you will remain yours as long as you’re in BOP custody (which you are at halfway house or on home confinement… If you go to prerelease custody before you’ve had two reassessments, however, you’ll be reassessed while you’re in halfway house or home confinement.

This should not be terribly significant unless the BOP is gearing up to start awarding FSA credits for programming and productive activities while in halfway house or on home confinement. The BOP promised this over a year ago, but nothing has happened yet to implement it.

Look Ma, No Hands!: The changes also provide that “FSA Time Credit Assessments (FTC Worksheets) will be automatically uploaded to the Inmate Central File during each auto-calculation. Inmates will be provided a copy of the most recent FTC Worksheet during regularly scheduled program reviews.”

There’s some advantage to taking the input and uploading away from case managers, in that it assures uniformity and correct calculation. On the other hand, as a lot of people have already experienced, it complicates and extends the process for getting errors corrected.

Groundhog Day at DSCC: Speaking of errors, a memorandum from the BOP’s administrator of the Residential Reentry Management Branch issued last week announced yet another nationwide re-calculation of FSA credits over the past weekend.

groundhogday230213The memo predicts “several hundred immediate releases affecting community placements, as well as the need to advance [halfway house and] home confinement dates and initiate new referrals to the Residential Reentry Office.”  Those releases should be happening between this morning and Wednesday.

The automatic calculation of FSA credits was first promised August 1, 2022, then was effective October 1, 2022, only to collapse in a heap of withdrawn credits and miscalculated dates. It was then to be fixed by January 9, and then January 23, and then February 6…

I keep hearing Sonny and Cher singing…

P.S. 5410.01CN, First Step Act of 2018 – Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) (February 6, 2023)

BOP, Retroactive Application of First Step Act Time Credits (February 9, 2023)

– Thomas L. Root

11th Circuit Calls One for the Batter – Update for February 10, 2023

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SUMMARY JUDGMENT LOSS NOT A ‘STRIKE’

A prisoner unable to pay court fees may proceed in forma pauperis, that is, without prepaying fees. The Prison Litigation Reform Act, however, bars a prisoner from proceeding in forma pauperis if he or she has brought three or more actions or appeals in a federal court that were dismissed as frivolous, malicious, or for failing to state a claim upon which relief may be granted. This is called the “three-strikes rule.”

Jeremy Wells had filed three prior actions against state prison officials. One was dismissed for failing to state a claim.  A second was dismissed for failure to exhaust remedies, and the third was denied on summary judgment for the same reason. When he filed a new case, he was denied in forma pauperis status under the “three strikes rule.”

strikethree2302310Last week, the 11th Circuit allowed Jeremy to proceed in forma pauperis. “Summary judgment based on evidence outside the face of the complaint or on something other than the allegations in the complaint is not a dismissal for failure to state a claim,” the Circuit ruled. “A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. Summary judgment, on the other hand, asks whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

Wells v. Brown, Case No 21-10550, 2023 U.S. App. LEXIS 2582 (11th Cir., February 1, 2023)

– Thomas L. Root

House Task Force on Prisoner Reentry Formed – Update for February 9, 2023

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HOUSE GROUP TO TACKLE REENTRY

Two dozen House of Representatives members met a week ago to form a new Bipartisan Second Chance Task Force focused on aiding former inmates’ reentry into society.

massrelease161208The task force — with an equal number of Democrats and Republicans – is headed by Reps David Trone (D-MD), John Rutherford (R-FL), Kelly Armstrong (R-ND) and Lisa Blunt Rochester (D-DE). Trone said the group’s goal is to introduce “common sense” legislation on issues such as employment and automatic expungement.

At its meeting last week, the group heard from BOP Director Colette Peters and National Institute of Corrections acting head Alix McLearen about challenges the BOP has faced in maintaining successful reentry programming for the roughly 50,000 people who are released from federal prisons each year.

Trone introduced the Fresh Start Act in the last Congress, and reportedly is doing so again in the 119th Congress.  The Fresh Start Act would create funding for automatic record-clearing so people with qualifying records who have completed the terms of their sentences and have remained crime-free would automatically get their records expunged. Currently, federal law does not provide for expungement or record sealing.

Law360, House Task Force Aims To Help Ex-Cons Thrive After Prison (February 2, 2023)

Justice Action Network, News From Congress: Creation Of Second Chance Task Force Draws Praise From Nations Largest Bipartisan Criminal Justice Group (February 1, 2023)

– Thomas L. Root

Senators Consider Sexual Assault (And How to Stop It) – Update for February 7, 2023

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GRASSLEY, DURBIN, PADILLA MEET WITH BOP DIRECTOR PETERS TO FURTHER INVESTIGATE SEXUAL MISCONDUCT

Senate Judiciary Committee Chairman Richard Durbin (D-IL) and Senators Charles Grassley (R-IA) and Alex Padilla (D-CA) met with Bureau of Prisons Director Colette Peters last Wednesday to discuss sexual misconduct by BOP personnel and the Dept of Justice’s efforts to root it out.

sexualassault211014The meeting followed letters that Grassley, Durbin, Padilla, and Senator Dianne Feinstein (D-CA) sent to DOJ last year seeking information about sexual misconduct allegations against BOP staffers.

“I appreciate that DOJ convened a Working Group to address sexual misconduct by BOP employees and that BOP has begun implementing reforms to enhance prevention, reporting, investigation, prosecution, and discipline related to staff sexual misconduct,” Durbin said. “DOJ’s report in November was evidence of the desperate need for reform and improved oversight. I will continue pushing BOP and DOJ to ensure that BOP operates federal prisons safely, securely, and effectively.”

The meeting comes as a new report released by the DOJ’s Bureau of Justice Statistics reported that prison and jail staff rarely face legal consequences for sexual assault.

BJS released data on more than 2,500 documented incidents of sexual assault in federal and state prisons and jails between 2016 and 2018. Despite federal laws intended to create zero-tolerance policies for prison sexual abuse, most notably the Prison Rape Elimination Act, the report found that staff sexual misconduct perpetrators were convicted in only 20% of jailhouse incidents and only a 6% of substantiated prison incidents. Fewer than half of the perps lost their jobs.

“Staff sexual misconduct led to the perpetrator’s discharge, termination or employment contract not being renewed in 44 percent of incidents,” the report states. “Staff perpetrators were reprimanded or disciplined following 43% of sexual harassment incidents.”

rape230207Not everyone is sanguine about BOP efforts, nor – according to the report’s findings – should they be. In a recent release, the advocacy group FAMM said, “The Department of Justice (DOJ) is stepping up prosecutions of prison sexual assault. While commendable, jailing the abusers is not enough. It won’t heal survivors’ trauma or stop this from happening in the future. We need independent oversight to make real change. The BOP has shown that it cannot be trusted to mind its own foxes in its own hen houses.”

Sen. Charles Grassley, Grassley, Durbin, Padilla Meet With BOP Director Peters to Further Investigate Sexual Misconduct (February 2, 2023)

DOJ Bureau of Justice Statistics, Substantiated Incidents of Sexual Victimization Reported by Adult Correctional Authorities, 2016–2018 (February 2, 2023)

Reason, New Data Show Prison Staff Are Rarely Held Accountable for Sexual Misconduct (February 3, 2023)

FAMM, How the Department of Justice is Failing Victims of Sexual Assault in Prison (January 24, 2023)

– Thomas L. Root

Courts Blast Away at Constitutionality of Gun Possession Law – Update for February 6, 2023

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APPEALS COURT DECLARES 18 USC § 922(g)(8) UNCONSTITUTIONAL, WHILE ELSEWHERE, DISTRICT COURT OK’S GUN-TOTING POT SMOKERS

The Supreme Court’s June 2022 New York State Rifle and Pistol Ass’n v. Bruen decision claimed another victim last week, as the 5th Circuit held that denying the right to possess guns to people subject to domestic violence protection orders violated the 2nd Amendment.

guns200304“The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” the Circuit said. “The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the 2nd Amendment of the Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen… it is not.”

Bruen held that when the 2nd Amendment’s plain text covers an individual’s conduct, “the Constitution presumptively protects that conduct.” The government must then prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, the 5th Circuit said, “clearly fundamentally changed our analysis of laws that implicate the Second Amendment… rendering our prior precedent obsolete.”

creditcardshooting230206Zack was a bad actor. While under a domestic protection order for stalking an ex-girlfriend, he ran amok in December 2020, shooting up houses, blasting away at bad drivers, firing at a police car, and even loosing off five rounds into the air when a credit card was declined at a Whataburger.

The government argued that the 2nd Amendment applies to only “law-abiding, responsible citizens,” neither of which Zack was. But the 5th rejected that interpretation:

Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people — however expediently defined — from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the 2nd Amendment’s protections…

The Circuit held that the government had not shown that § 922(g)(8)’s restriction of 2nd Amendment right “fits within our Nation’s historical tradition of firearm regulation… As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the 2nd Amendment.”

gun160711Meanwhile, a Western District of Oklahoma court last Friday dismissed an indictment alleging violation of 18 U.S.C. § 922(g)(3) – prohibiting a drug abuser from possessing a gun – based on Bruen. The defendant had moved to dismiss the indictment because 18 U.S.C. § 922(g)(3) was so vague as to violate 5th Amendment due process. But in a 52-page decision that read more like a law review article than an order granting a pretrial motion, the court ignored due process and applied Bruen instead: “Because the Court concludes that 18 U.S.C. § 922(g)(3) violates Harrison’s Second Amendment right to possess a firearm, the Court declines to reach Harrison’s vagueness claim.”

United States v Rahimi, Case No 21-11001, 2023 U.S. App. LEXIS 2693 (5th Cir. Feb 2, 2023)

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022)

United States v. Harrison, Case No. CR-22-00328-PRW, 2023 U.S. Dist. LEXIS 18397 (W.D. Okla. Feb. 3, 2023)

– Thomas L. Root

7th Circuit Finds the Jurisdictional ‘Force’ Is With This One – Update for February 3, 2023

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COURT DOESN’T LACK JURISDICTION JUST BECAUSE YOU MIGHT LOSE

Wolfgang Von Vader had some run-ins that resulted in a 2000 conviction in the Western District of Wisconsin for distributing methamphetamine (a Guidelines “career offender” 270-month sentence) and a 2012 federal conviction in Kansas for possessing heroin in prison (a 120-month consecutive sentence).

jurisdiction180410Wolf applied for 18 USC § 3582(c)(1)(A) compassionate release in both Kansas and Wisconsin. Both courts shot him down. The Kansas decision is currently on appeal in the 10th Circuit. In the Wisconsin case, the government argued that the court lacked jurisdiction to consider Wolf‘s compassionate release motion because he had already served all of his 2000 Wisconsin sentence, and is now on his consecutive 2012 Kansas sentence. Section 3582(c) does not authorize release from an expired sentence, the government contended, which makes Wolf’s Wisconsin compassionate release motion moot.

The district court agreed, and dismissed Wolf’s motion for lack of jurisdiction.

Last week, the 7th Circuit disagreed, reversing Wolf’s dismissal. Maybe a retroactive reduction is unauthorized by statute, the Circuit said, “but we do not see how this moots [Von Vader’s] request. If § 3582(c) does not supply authority for the relief Von Vader wants, then he loses on the merits, not for lack of jurisdiction.”

vader230203“The judge in Wisconsin could order the Bureau of Prisons to treat the Wisconsin sentence as if it had expired earlier and to reduce the time remaining on the Kansas sentence accordingly,” the 7th ruled. “Or the court in Wisconsin could make an adjustment in the length of supervised release, on the Wisconsin sentence, tht will follow the conclusion of the Kansas sentence. As long as relief is possible in principle, the fact that a given request may fail on statutory grounds does not defeat the existence of an Article III case or controversy.”

United States v. Von Vader, Case No 22-1798, 2023 U.S.App. LEXIS 1750 (7th Cir., January 24, 2023)

– Thomas L. Root

2255 Win Might Be A Pyrrhic Victory – Update for February 2, 2023

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WINNING A 2255 IS ONLY HALF OF IT

It’s not easy to win a 28 USC § 2255 motion. And if you do win, you may still have nothing coming.

pyrrhic161230Jose Peña found that out. About 13 years ago, he was convicted of three counts of murders for hire (18 USC § 1958) and two counts of using a gun to commit the two crimes of violence (18 USC § 924(c)). Joe was sentenced to five concurrent life sentences. He lost his appeal.

In 2019, the Supreme Court held in United States v. Davis that an offense could qualify as a predicate “crime of violence” for purposes of § 924(c) only if it was a felony that “had as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The district court then granted Jose’s § 2255 motion, throwing out the two § 924 convictions.

But the district court refused to resentence Jose. The life sentences for his three 18 USC § 1958 murder-for-hire counts, the Court said, were not affected.  So before the § 2255 Jose was serving life.  After the § 2255, he was still serving life.

hammer160509On appeal, Jose argued that when a conviction on one or more charges is overturned and the case remanded for resentencing, the “constellation of offenses of conviction has been changed and the factual mosaic related to those offenses that the district court must consult to determine the appropriate sentence is likely altered.” In a December ruling amended last week, the 2nd Circuit disagreed.

“Section 2255’s plain text,” the Circuit said, vests a district court “with the discretion to determine first the nature of the relief that may appear appropriate.” Extending the automatic resentencing rule from the direct appeal context to grant of a § 2255 motion “would be in tension with the narrow scope of Section 2255,” the Circuit said. “At least in the context of a ‘truly interdependent sentence’ such as where a mandatory consecutive sentence affects the applicable offense level under the guidelines, the language of § 2255 provides sufficient statutory authority for a district court to exercise its jurisdiction to resentence defendants ‘as may appear appropriate.'”

United States v. Peña, 55 F.4th 367 (2d Cir. 2022) (amended January 27, 2023)

– Thomas L. Root

Biden Pulls the Plug on CARES Act – Update for January 31, 2023

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CARES ACT HOME PLACEMENT TO END JUNE 10 JUST AS NEW BOP MEMO SURFACES

CARES Act To Expire:  President Joe Biden informed Congress yesterday that he will end the twin national emergencies declared by President Donald Trump 35 months ago.

pullingplug230131The end of the national emergency and the separate public health emergency will restructure federal coronavirus response, treating COVID-19 as an endemic threat to public health that can be managed through agencies’ normal authorities.

Biden’s announcement came in a statement opposing a House of Representatives resolution to be voted on later this week (H.J.Res. 7) to bring the national emergency to an end. Congress has the power to end a National Emergencies Act emergency declaration at any time by joint resolution under 50 USC § 1622(a)(1).

A similar resolution sailed through the Senate last November, suggesting that this one could have done the same, embarrassing the Administration. Biden’s announcement just about assures that the Congressional push against the national emergency will fizzle.

Among the myriad of federal responses mandated by the bloated Coronavirus Aid, Relief, and Economic Security (“CARES“) Act, a $2.2 trillion response to COVID-19 that runs some 324 pages in Volume 134 of the United States Statutes, the Bureau of Prisons was given authority to “lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.” Practically speaking, this gave the BOP the right to place prisoners on home confinement indefinitely, despite the old 18 USC 3624(c)(2) limitation of 10% of the sentence up to a maximum of six months.

home190109The BOP has placed 52,815 inmates, almost of third of its normal population, on home confinement since CARES passed. The agency has always pumped up the number by including people who would have been sent to home confinement at the conclusion of their sentence regardless of the CARES Act. Nevertheless, there are over 5,600 CARES Act home confines right now.

The CARES Act authority continues during what § 12003(a)(2) calls the “covered emergency period.” This period ends “on the date that is 30 days after the date on which the national emergency declaration terminates.” In other words, with the national emergency ending on May 11, the “covered emergency period” ends on Saturday, June 10th.

So will the BOP continue CARES Act placement until then? It makes economic sense for an agency struggling with an employee shortage, especially where inmates with low-security risk and high maintenance costs (read “costly medical care”), to unload as many prisoners as it can. The BOP’s inmate load has increased since hitting a low in 2020, even before having to absorb some 14,000 federal prisoners from private prisons after Biden ended contracting with private prison operators in his first days as president.

welcomeback181003What will become of the 5,600 on home confinement now? The Administration has taken the position that those on CARES Act home confinement will not necessarily be ordered to return to prison. The BOP, in its typical ham-handed way, issued a memorandum in December 2021 saying it intended to develop a plan to evaluate “which offenders should be returned to secure custody.” It clarified that to say it would propose rules governing the factors to be evaluated in calling people back to prison, but the proposed rules have not yet been announced.

The Dept of Justice did not help matters. Last June, DOJ issued a Notice of Proposed Rulemaking, seeking public comment on a rule that delegated authority to the BOP to decide who would return and who would not. Those rules have not yet been finalized, but you can bet that they will be soon.

New  Memo Is Released:  Meanwhile, yesterday, in response to a Freedom of Information Act request, I received the memo issued last month that gave assistant US attorneys (AUSAs) a say in some CARES Act home confinement decisions. The memo, issued December 21 (not December 19, as a BOP administrative remedy response erroneously stated), “supersedes the Home Confinement memorandum dated April 13, 2021.” I have posted a copy of the memo.

One reference to AUSA approval relates to inmates referred for CARES Act home confinement who have 5 years or more remaining on their sentences. It provides that the BOP’s Residential Reentry Management Office – which manages inmates in halfway houses and on home confinement – will contact the AUSA’s office “in the respective Court of Jurisdiction to solicit input regarding the request for Home Confinement. The input from the AUSA is to be considered among the factors used by the RRM Office in making a Home Confinement decision.”

fox230131The second is if the warden refers an inmate who does not fit the CARES Act criteria for placement. In that case, the referral is sent to the “Home Confinement Committee (HCC)… for further review.” The HCC will contact the AUSA’s office for input regarding the request, and any “input from the AUSA is to be considered among the factors used by the HCC in making a Home Confinement decision.”

Writing in Forbes last week, Walter Pavlo observed that “prosecutors have a role in court proceedings, such as when prisoners apply for compassionate release. In those instances, and based on our adversarial justice system, prosecutors rarely support compassionate release cases. However, those are court proceedings where prisoners, defendants, have an opportunity to support their position and them considered by a judge who makes a decision.”

His point is clear: the new CARES Act memo lets AUSAs dump on inmates without the prisoner knowing what was said, let alone having a chance to refute it. What is more, the BOP has issued no criterion to its staff on how to weigh what the AUSA says.

“To inject prosecutors into what is clearly a BOP decision is unfair,” a former federal prosecutor told Pavlo. “To inject the continued adversarial nature between inmates and prosecutors into what is clearly within the sole purview of a BOP decision can lead to unfair or skewed results.”

On March 26, 2020, and April 3, 2020, Attorney General William Barr set criteria for the BOP Director’s exercise of the power granted by the CARES Act to place inmates in home confinement. Pavlo points out that “nowhere in those memos does it state the role that federal prosecutors have in this process.”

AUSAs may have trouble squaring their complaints about inmates being sent to CARES Act home confinement with the government’s position in the Connecticut habeas corpus case, Tompkins v. Pullen, two months ago. There, the government argued that home confinement was nothing special and gave a prisoner no due process liberty interest.

At all times – whether on HC, at the RRC, or in secure custody… Petitioner has remained a “prisoner.” Although she was in a “community custody” status while designated to HC and supervised by the RRC, Petitioner remained a federal inmate and subject to redesignation to a secure facility if necessary to accommodate her security and programming needs… The halfway house is simply one of the facilities operated by the BOP. It is a different kind of imprisonment than maximum security, just as a supermax facility is different than a prison camp, but it is still imprisonment. The restrictions, although less than in some other facilities, remain onerous.

So CARES Act home confinement is a big deal that needs to be run past the AUSA, or it’s nothing different than any other designation decision. The BOP and AUSA may choose whichever argument is preferred at the time.CARESEnd230131

Unfortunately, it’s clear they only have to choose for the next 130 days. Then, while COVID-19 will still be with us, the CARES Act home confinement program is history.

Associated Press, President Biden to end COVID-19 emergencies on May 11 (January 31, 2023)

H.J.Res.7 Relating to a national emergency declared by the President on March 13, 2020 (January 9, 2023)

Bloomberg Law, BGOV Bill Summary: H. J. Res. 7, End Covid-19 National Emergency (January 27, 2023)

Bureau of Prisons, Home Confinement Criteria and Guidance (December  21, 2022)

Forbes, Federal Prosecutors Have Increased Role In CARES Act Home Confinement Transfers (January 24, 2023)

Attorney General, Prioritization of Home Confinement As Appropriate In Response to COVID-19 Pandemic (March 26, 2020)

Attorney General, Increasing Use of Home Confinement At Institutions Most Affected by COVID-19 (April 3, 2020)

Gvt Memo in Support, Motion to Dismiss (ECF 14-1), Tompkins v Pullen, Case 3:22-cv-00339 (DConn, filed April 13, 2022)

– Thomas L. Root

EQUAL Act Rises, Phoenix-Like, In New Congress – Update for January 30, 2023

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EQUAL ACT COMING AROUND AGAIN

People are still asking about the status of various criminal justice bills that have been pending in Congress for the past few years. So let’s review some high school government class notes…

Every Congress lasts two years, beginning in the January of an odd year and ending at the end of the next year (and even year). The last Congress was the 117th Congress since the adoption of the U.S. Constitution. The one that started on January 3, 2023, is the 118th Congress.

phoenix230130Any bill that was pending but not passed when the last Congress ended died on January 2. This included the EQUAL Act, a bill that would have equalized the penalties for crack and powder cocaine. EQUAL passed the House last session, but while declaring its support for the measure, Senate leadership (and I’m talking about Sen. Charles Schumer [D-NY], Senate majority leader) inexplicably failed to bring EQUAL to a vote.

So the EQUAL Act – like marijuana reform, 18 USC 924(c) retroactivity, expungement, and every other criminal justice issue before Congress – now must start over. No new EQUAL Act has yet been introduced in either the House or Senate, but last week, talk of crack-powder equality rose like a phoenix from the ashes of the 117th Congress. FAMM and 20 other criminal justice reform groups wrote to Senate Judiciary Committee Chairman Richard Durbin (D-IL) and the new Ranking Member of the Committee, Sen. Lindsey Graham (R-SC), urging them to have the Committee schedule a markup for the measure as soon as it is introduced (whenever that is).

The letter said

Last Congress, the EQUAL Act was one of only a few pieces of legislation to enjoy clear bipartisan support. The House of Representatives passed the bill in September 2021 with an overwhelmingly bipartisan vote of 361-66. The Senate version of the bill enjoyed the support of more than 60 senators, but never received a vote in committee or on the floor. To ensure this strong bipartisan bill reaches President Biden’s desk, we urge you and your committee to begin work on this urgent piece of legislation immediately.

Signers of the letter included criminal justice rights groups from the left and right, as well as a gallimaufry of organizations including Americans for Tax Reform, the National Association of Criminal Defense Lawyers, Association of Prosecuting Attorneys, the Major Cities Chiefs Association, and the NBA’s National Basketball Social Justice Coalition.

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In his Sentencing Law and Policy blog, Ohio State University law professor Douglas Berman wrote last week that “notably, but not surprisingly, this letter to Congress makes no mention of the fact that… US Attorney General Garland released last month new federal charging guidelines that includ[ed] instructions to federal prosecutors to treat crack like powder cocaine at sentencing. Though these new charging guidelines do not have the legal force of statutory reform, they might readily lead members of Congress to see less urgency in advancing reform or even to be more resistan[t] to reform as we saw late last year. Fingers crossed that EQUAL can gather momentum again and actually finally eliminate the pernicious and unjustified crack/powder disparity once and for all.”

FAMM, Coalition of law enforcement, justice reform, and civil rights organizations urge Congress to pass the EQUAL Act (January 26, 2023)

FAMM, Letter to Senate Judiciary Committee Chairman (January 26, 2023)

Sentencing Law and Policy, New year and new Congress brings a new effort to advance new EQUAL Act (January 26, 2023)

– Thomas L. Root