Supreme Court Decides What Congress Really Meant on Safety Valve – Update for March 19, 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.

A CONSPIRACY OF DUNCES…
This website was down all day yesterday due to a dark conspiracy of the people at Bluehost, LISA’s web provider, who decided to all become incompetent at once. Not really. Incompetence has been Bluehost’s theme for years…

TEXTUALISM TAKES IT ON THE CHIN

The Supreme Court on Friday narrowly interpreted 18 USC § 3553(f), the “safety valve” provision that was rewritten as part of the First Step Act, to “den[y] thousands of inmates a chance of seeking a shorter sentence,” according to NBC News.

caterpillar240319Many Supreme Court observers believed the Court would approach Friday’s case – Pulsifer v. United States – textually. “Textualism” is the interpretation of the law based exclusively on the ordinary meaning of the legal text. You know, like “and” means “and” and not “or.”  But the Court surprised the parties and observers in more ways than one.

Justice Elana Kagan’s opinion at first blush seems to be something only your high school English teacher could love. The case concerned the “safety valve” provision, which exempts some drug defendants from mandatory minimum sentences if they meet a list of conditions. One of those (3553(f)(1)) says the defendant can’t have “more than 4 criminal history points… a prior 3-point offense… AND a prior 2-point violent offense…” (I emphasized “AND” for reasons that will become apparent).

Mark Pulsifer had a prior 3-point felony, so his sentencing judge said he was ineligible for the safety valve. Mark, however, argued that the way (f)(1) is written, a defendant is ineligible only if he fails all three conditions. That is, Mark said, he was qualified for the safety valve unless he had all three of “more than 4 criminal history points AND a prior 3-point offense AND a prior 2-point violent offense.

grammar240319The Court’s lengthy ruling was little more than an English grammar lesson. In a decision surprising for scrambling ideological alliances on the Court, liberal Justice Kagan wrote for a 6-3 majority made up of traditionally conservative justices, while conservative Neil Gorsuch was joined by two traditionally liberal justices, Sonia Sotomayor and Ketanji Brown Jackson. The holding essentially holds that in the case of the safety valve, “and” means “or.”

SCOTUSBlog.com reported that

Kagan’s acceptance of the government’s argument relies squarely on a problem of superfluity.” The opinion focused on the fact that under Pulsifer’s reading of the provision, to be ineligible a defendant would have to have a prior 3-point conviction and a prior 2-point conviction. If that were so, the first requirement – that he or she have more than 4 points – was meaningless because to meet conditions two AND three, the defendant would already have to have 5 points. “In addressing eligibility for sentencing relief, Congress specified three particular features of a defendant’s criminal history — A, B, and C,” Kagan wrote. “It would not have done so if A had no possible effect. It would then have enacted: B and C. But while that is the paragraph Pulsifer’s reading produces, it is not the paragraph Congress wrote… [I]f a defendant has a three-point offense under Subparagraph B and a two-point offense under Subparagraph C he will always have more than four criminal-history points under Subparagraph A.

In other words, if reading the plain text of a statute yields a result that seems at odds with what Congress must have intended, the Supreme Court’s interpretation of what Congress must have intended prevails.

To prove her grammatical point, Kagan cites both The Very Hungry Caterpillar and Article III of the Constitution. She notes that Article III extends the “judicial Power… to all Cases… arising under this Constitution, the Laws of the United States, and Treaties.” This, she says, plainly applies to cases arising under any one of the three listed bodies of law but does not require that the cases arise under ALL three.

and-or240319In his dissent, Gorsuch complained that the decision significantly limits the goals of the First Step Act. “Adopting the government’s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance—just a chance—at an individualized sentence. For them, the First Step Act offers no hope. Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result,” Gorsuch wrote. “Ordinary meaning is its first victim. Contextual clues follow. Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering.”

Besides dramatically limiting those eligible for a safety valve non-mandatory drug sentence, Friday’s decision dashes the hope of some seeking a zero-point retroactive Guidelines 4C.1 2-level reduction. One of the conditions to qualify for that reduction is that a “defendant did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC 848.” Some read this as being that a defendant has to have both a 3B1.1 aggravating role AND a 21 USC 848 conviction. Other courts have read this as disqualifying all defendants having either a 3B1.1 enhancement OR an 848 conviction.

The decision stamps “denied” on the 5 pct of defendants annually getting a USSC § 3B1.1 leader/organizer/manager/supervisor enhancement.

Writing in his Sentencing Policy and Law blog, Ohio State University law professor Doug Berman observed that the Pulsifer “serves as still more evidence that SCOTUS is no longer one of the most pro-defendant sentencing appeals courts. I got in the habit of making this point for a number of years following the Apprendi/Blakely/Booker line of rulings during a time when most federal circuit courts were often consistently more pro-government on sentencing issues than SCOTUS… But we are clearly in a different time with different Justices having different perspectives on these kinds of sentencing matters.”

Pulsifer v US, Case No 22-340, 2024 U.S. LEXIS 1215 (March 15, 2024)

Reuters, US Supreme Court says thousands of drug offenders can’t seek shorter sentences (March 15, 2024)

Sentencing Law and Policy, In notable 6-3 split, SCOTUS rules in Pulsifer that “and” means “or” for application of First Step safety valve (March 15, 2024)

SCOTUSBlog.com, Supreme Court limits “safety valve” in federal sentencing law (March 15, 2024)

NBC, Supreme Court denies ‘thousands’ of inmates a chance at shorter sentences (March 15, 2024)

– Thomas L. Root

10th Circuit Finds 7-Year Old Inmate Suit Suddenly “Moot” – Update for March 15, 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.

10th CIRCUIT GIVES “STRATEGIC PRISONER TRANSFERS” A LIFT

whoopass240315Just yesterday, I wrote about the BOP buying a whole crate of whoop-ass from a federal judge by shipping a prisoner beyond the court’s jurisdiction while a civil action was going on.

The 10th Circuit takes a much more sanguine view of the practice, it seems.

Michael Bacote has spent seven years litigating claims that the Federal Bureau of Prisons violated his 8th Amendment rights at ADMAX Florence by acting with deliberate indifference to his mental disability. Michael’s retained psychiatrist concluded that he had both an intellectual disability and a mental disorder. After BOP psychologists examined Michael in response to his psychiatrist’s report, they agreed. BOP policy forbids placing prisoners with Mike’s condition at Florence, so the BOP transferred him to the mental health unit at USP Allenwood.

Before the transfer, the district court dismissed Mike’s case, holding that he had not established that the BOP was deliberately indifferent. Michael appealed, but the transfer occurred while the appeal was pending.

medical told you I was sick221017Last week, the 10th Circuit tossed out his case as being moot. The Court said that “the doctrine of mootness rests on a simple principle: the controversy that existed at litigation’s commencement may dissipate before its conclusion.” The Court held that while Michael’s case was not constitutionally moot, it was “prudential[ly]” so. Prudential mootness concerns “not the power to grant relief but the court’s discretion in the exercise of that power.” Under this doctrine, the 10th said, “If the circumstances of a controversy become too attenuated, prudence counsels us not to reach the merits of the appeal.”

Because Mike was not at Florence anymore, Florence could no longer be deliberately indifferent to him. He had not sued in Pennsylvania for whatever he said Allenwood was doing to him, and there was nothing in the record that would let the 10th decide whether there was a constitutional violation there. “Finally, even if Mike has requested relief that could have a continuing effect,” the Circuit said, “this relief requires us to restrict the conduct of officials outside of this circuit. As a general principle, opinions handed down in one circuit do not bind other circuit courts.”

“We recognize Plaintiff’s concern that some could misinterpret this holding as a license for the BOP to concoct mootness by transferring litigant inmates.” But because Michael had not provided evidence the Bureau acted with an eye toward dismissing the case, the 10th said, “we need not answer” how to treat a strategic prisoner transfer.

habeasB191211Michael’s attorneys warned the precedent-setting opinion did not fully recognize the frequency of strategic prisoner transfers. “Functionally, publishing this decision gives prisons a roadmap for defeating the 10th Circuit’s jurisdiction during the litigation of an appeal,” Mike’s lawyers with the University of Denver’s Civil Rights Clinic said in a statement. “We’re very concerned that the court’s decision will negatively impact incarcerated persons’ ability to have their cases heard on the merits, as it’s difficult — sometimes impossible — for incarcerated litigants to prove that a prison transferred them due to litigation.”

Bacote v. BOP, Case No 22-1325, 2024 USApp LEXIS 5239 (10th Cir, March 5, 2024)

Colorado Politics, 10th Circuit opens door wider for courts to dismiss prisoners’ civil rights lawsuits (March 7, 2024)

– Thomas L. Root

‘The Rape Club’ Front Door Gets Kicked In – Update for March 14, 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.

FBI EXECUTES SEARCH WARRANT AT FCI DUBLIN

And you thought your Monday mornings were lousy.

tigerseat240314Art Dulgov, the warden selected by the Federal Bureau of Prisons Central Office to clean up the sexual abuse cesspool that is FCI Dublin, started his week with over a dozen FBI agents armed with a search warrant swarming over his prison, seizing computers, documents and other evidence and seeking to interview employees, according to an Associated Press report.

The FBI said its agents were conducting “court-authorized law enforcement activity.” But it looked a lot like one agency of the Dept of Justice was raiding another agency of the Dept of Justice. As Rodney Dangerfield might have put it, ‘a tiger eating its young.’

Before the day ended, Warden Dulgov, Associate Warden Patrick Deveney, a captain and the executive assistant who oversaw the prison’s minimum-security satellite camp, were all unceremoniously walked off the compound by their employer.

Dulgov, only three months into his warden gig at Dublin, was the third leader of the low-security female prison since Warden Ray J. Garcia and a half dozen of his underlings were convicted of sexually assaulting multiple prisoners at the institution, which was known by BOP employees and prisoners there as the “rape club.”

Garcia was sentenced to 70 months. BOP records suggest that he is being housed in a non-BOP prison, with a release date set for 2028.

hitroad240314Dulgov and staff are not accused of sexual abuse, but rather of retaliating against an inmate who testified in January in a class-action lawsuit that alleges “horrific abuse and exploitation” at the prison, with rampant sexual assault of incarcerated persons, according to a court filing. However, it is not clear that this was the basis for the FBI search. That search warrant and the affidavit supporting it have not been made public.

After inmate Rhonda Fleming, herself a storied and frequent pro se litigator, accused a BOP lieutenant of retaliation in January testimony before US District Court Judge Yvonne Gonzalez Rogers, the prisoner was transferred to MDC Los Angeles despite the Court’s order that none of the inmate witnesses be removed from Dublin.

Judge Gonzalez Rogers later admonished an Assistant US Attorney representing the BOP for the transfer in defiance of her order, but accepting the excuse that the BOP misunderstood her directive. The Judge said she would have levied sanctions against the attorney earlier in her career as a federal judge, but settled on the warning instead: “I’ve been around long enough to know that lawyers make mistakes,” Gonzalez Rogers told the AUSA, who apologized for the transfer. “The point is: You need to follow my orders.”

I feel for the AUSA, who didn’t ask for the BOP as a client and probably was as shocked to learn Fleming had been transferred as was the Judge. After the Court learned of the transfer, the BOP got Fleming back to Dublin in record time.

After a January hearing at which Dublin inmates were among the witnesses, Judge Gonzalez Rogers made an unannounced inspection of FCI Dublin on Valentine’s Day. During this inspection, she spoke to about 100 inmates outside of the presence of BOP minders. Later, in an order, she said that the “first-hand communication will prove critical to resolving the pending motions (which will be done after full briefing).”

doitnow240314(The visit also resulted in a virtually unprecedented court order requiring that some physical conditions of the facility – including lack of hot water and the presence of mold and asbestos – be resolved “IMMEDIATELY,” with the Court itself employing the word “immediately” in all capital letters. The Court undoubtedly means it and is not to be trifled with).

The FBI search and management massacre are the latest developments in what the Los Angeles Times calls a “years-long scandal “ surrounding the facility:

Legal experts say what has happened at the federal prison is indicative of the worst aspects of institutions with abusers in their midst.

“There is no accountability with some public entities, and the sexual abuse keeps festering and festering until it blows up,” said attorney David Ring, who has handled high-profile sexual assault litigation involving schools, facilities and Hollywood studios.

“They tend to shuffle the offenders,” he said. “Officials in prisons can be the worst because they are so jaded that all the complaints fall on deaf ears about the guards.”

The Times reported that “a dozen new lawsuits” were filed against the BOP in Oakland federal court last week “alleging more mistreatment and sexual misconduct by staff.”

fbidublin240314
A BOP statement issued Monday characterized the removal of top Dublin staff as being “consistent with unprecedented and ongoing actions” to reform Dublin’s culture, and said that recent unspecified developments “have necessitated new executive employees be installed at the institution.” BOP Regional Director Nancy T. McKinney was installed on Monday as interim warden.

Kara Janssen, an attorney representing some Dublin inmates, said that the leadership changes at Dublin prison haven’t changed much. “This is not a proactive change in leadership,” said Janssen. “The only changes in leadership seem to come through criminal investigations.”

Associated Press, Warden ousted as FBI again searches California federal women’s prison plagued by sexual abuse (March 11, 2024)

Los Angeles Times, Warden is ousted as FBI raids California women’s prison known as the ‘rape club’ (March 12, 2014)

San Jose Mercury News, Warden ousted amid FBI raid at scandal-plagued FCI Dublin women’s prison (March 12, 2024)

KGO-TV, FBI raids Dublin prison plagued by sex abuse; pattern of immigrant women being targeted, lawyer says (March 12, 2024)

SFist, FBI Raids Dublin Women’s Prison, Warden and Three Others Ousted (March 11, 2024)

Forbes, Troubled Women’s Federal Prison Raided By FBI (March 12, 2024)

– Thomas L. Root

Congress Stiffs BOP Employees and Prisoners – Update for March 12, 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.

CONGRESS MAKES BOP RIDE THE BACK OF THE “MINIBUS”

Moneyspigot200220The $460 billion spending bill that funds about half the federal government through September 30th was sent to President Biden last Friday, averting (yet another) government shutdown.

The bill includes six federal appropriations bills – the so-called “minibus” (as opposed to “omnibus”) provisions covering agriculture, energy, transportation and justice programs – must make Federal Bureau of Prisons Director Colette Peters wonder why she shouldn’t just skip the next congressional hearing to which she’s called in favor of a game of pickleball.

After she has explained, the employees’ union bosses have explained, the Government Accounting Office has explained, and the Dept of Justice Inspector General has explained that the BOP’s severe staffing shortfall and crumbling infrastructure can only be fixed by the application of money, Congress cut the BOP’s maintenance budget by 38%, from $180 million down to $110 million, well below the 2023 level.

What’s as bad, the budget leaves salaries flat “despite mounting concerns about safety and staffing at BOP,” according to Fed Manager. The minibus includes $8.4 billion for the agency — on par with fiscal 2023 and about $250 million below the White House’s initial proposal for 2024. 

AFGE Union Council of Prison Locals National President Brandy Moore White promptly condemned the bill: “Failing to provide the Bureau of Prisons with the funding it desperately needs to address staffing, safety, and security issues will make it even harder for employees to do their jobs and make our prisons more dangerous environments both for employees and inmates.”

bloodturnip240312Certainly, this doesn’t make any BOP resolution to its staffing shortfall any easier. The staffing crisis affects everything from lockdowns to FSA credit programs. The maintenance budget cut will give Peters a chance to do more for less. Maybe get blood from a turnip. But more likely  just let her get chastised by Congressional grandstanders at hearings for not have the tools needed to get the job done. Tools that Congress refuses to provide.

New York Times, Senate Clears $460 Billion Bill to Avert Partial Shutdown, Sending It to Biden (March 8, 2024)

Fed Manager, Details on Spending Bills Released, as Congress Works to Avoid Shutdown (March 5, 2024)

Federal News Network, 6-bill minibus rewards some agencies, while slashing budgets for others (March 5, 2024)

AFGE, Budget deal fails to provide agency with needed funding to address staffing, safety, and security issues (March 6, 2024)

– Thomas L. Root

Does Biden Overpromise, Underdeliver on Marijuana Reform? – Update for March 11, 2024

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BIDEN PROMISES ON MARIJUANA HAVE SKEPTICS

marijuana221111Marijuana reform got some billing in President Biden’s State of the Union (SOTU) speech last Thursday, as he highlighted (and perhaps overstated) his Administration’s actions toward pot reform.

Biden noted that he has “direct[ed] my Cabinet to review the federal classification of marijuana” – an action begun in October 2022 and to be completed by the end of this year – and he claimed he is “expunging thousands of convictions for the mere possession because no one should be jailed for simply using or having it on their record.”

The sweep of Biden’s pardons is debatable. “While the pardons have symbolically forgiven convictions, they did not eliminate criminal records entirely,” the Green Mountain Report observed last week. “Additionally, these pardons have not impacted individuals currently serving sentences in federal prisons for marijuana-related offenses that exceed simple possession.”

“Biden made two promises on marijuana reform on the 2020 campaign trail—to decriminalize marijuana use and expunge records—and he has failed to deliver either,” Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance, said in a Friday response the SOTU. “Biden’s pardons haven’t released anyone from prison or expunged anyone’s records.”

potscooby180713Reason magazine noted last week that “in 1972, the same year that Biden was elected to his first term in the US Senate, the National Commission on Marihuana and Drug Abuse recommended decriminalization of marijuana possession for personal use. It also recommended that “casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration, no longer be an offense.”

Fifty-two years later, we’re getting there but slowly. Federal marijuana trafficking cases declined yet again in 2023 as more states legalized the leaf, according to the USSC 2023 Sourcebook of Federal Sentencing Statistics, published last Tuesday. This continues a decade-long trend of pot prosecutions “dropping precipitously amid the state-level reform push and shifting federal enforcement priorities,” Reason said. In 2013, the Feds reported 5,000 cannabis-related prosecutions. Last year, there were under 800.

Last week, The Hill reported on a Pew Research Center finding that more than half of Americans live in a state where recreational marijuana is legal. A full 74% of Americans live in a state where marijuana is legal for medical use.

mcconnell180219Also last week, Senate Minority Leader Mitch McConnell (R-KY) announced he is stepping down from his leadership post in November. McConnell has earned a reputation as an anti-drug senator, despite his work pushing the First Step Act through the Senate and the legalization of hemp in the 2018 farm bill. He has been firmly opposed to even modest marijuana reform. Because the minority leader will run the Senate if his party flips the 51-49 chamber to a Republican majority, the person occupying that position is a hair’s breadth from being able to control what drug reform bills the Senate will take up.

Marijuana Moment, Biden Promotes Marijuana Reform In State (March 7, 2024)

Green Market Report, Biden touts cannabis policy changes in State of the Union (March 8, 2024)

Drug Policy Alliance, The Drug Policy Alliance Responds To The 2024 State Of The Union Address (March 8, 2024)

Reason, Biden’s Inaccurate and Inadequate Lip Service to Marijuana Reform Ignores Today’s Central Cannabis Issue (March 8, 2024)

US Sentencing Commission, 2023 Sourcebook of Federal Sentencing Statistics (March 5, 2024

The Hill, 79% of Americans live in a county with legal cannabis dispensary: report (March 4, 2024)

Marijuana Moment, Is Mitch McConnell Stepping Down Good For Marijuana Reform? It Depends Who Replaces Him (March 5, 2024)

– Thomas L. Root

“Their Verdict Didn’t Matter”: Taming the ‘Acquitted Conduct’ Sentencing Monster – Update for March 8, 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.

ACQUITTED CONDUCT ISSUE ARRIVES WITH A LOT OF BAGGAGE

The U.S. Sentencing Commission completed two days of hearings yesterday on what, if anything, it should do to rein in “acquitted conduct” sentencing, the Guidelines- and Supreme Court-sanctioned practice of relying on evidence that a defendant committed a crime even if a jury had found him or her not guilty of that offense.

acquitted240308Jessie Ailsworth knows what that feels like. During this week’s hearings, he told the Commission he felt relieved when he heard the jury return 28 “not guilty” verdicts in his 1996 trial for crack cocaine distribution. But Jessie said “fairness went out the window” when he got hammered with 30 years for the seven counts on which he was found guilty.

The judge based Jessie’s sentence on all of the counts in the indictment, including the 28 acquitted counts.

“I was very angry for a long time,” Jessie told the Commission. “I felt like the system failed me. I really believe that the jury did their best. They took their time, wrote notes, asked questions, and reached their verdicts. But, when I was sentenced, the court sent me to prison based on the jury’s acquittals. I felt like the system didn’t just fail me, it also failed my jury. We all knew what the jury was trying to do, and when I was sentenced, I wondered why we had even spent all those days with the jury, if at the end of it all, their verdict didn’t matter.”

Jessie was one of 15 witnesses testifying over the two days. Others included judges, probation officers and advocates. Judge Deborah Cook of the 6th Circuit Court of Appeals drew a distinction between “the important distinction in the proof necessary for convicting versus sentencing… That is, so long as the defendant receives a sentence at or below the statutory maximum set by the jury’s verdict, the district court does not abridge [a] defendant’s right to jury by looking to other facts, including acquitted conduct, when sentencing within that statutory range.”

Proof140424Ohio State University law professor Doug Berman, writing in his Sentencing Policy and the Law blog yesterday, explained how the question is stickier than either Jessie or Judge Cook might think. Prof Berman wrote that “rights directed at a balanced and thorough process — in other words, rights that support accuracy concerns or that tend to put the prosecution and defense on a more even playing field — do apply at sentencing. Rights that offer the defendant special protections — such as those that automatically resolve errors in the defendant’s favor or primarily protect the defendant’s autonomy — do not apply at sentencing. Framed only a bit differently, one might see concerns for sentencing “accuracy” to be a kind of Crime Control concern, and one that would counsel against preventing judicial consideration of acquitted conduct. But the jury trial right is fundamental to our nation’s vision of Due Process and our commitment to “defendant special protections,” and that’s surely why many are troubled by any judicial sentencing process that functionally disregards a jury’s decision to acquit on certain charges.”

Prof Berman suggests (without endorsing this outcome) that if factual accuracy is paramount at sentencing, the judge will consider acquitted conduct in all its glory. This, of course, is a slippery slope. How about evidence that the judge suppressed and the jury thus never heard? How about proffers (attorneys telling the judge what their witnesses would have said if allowed to testify)?

If due process (protecting a defendant’s rights) is the correct model, then a jury’s acquittal on any particular count is ‘game, set, match’ for sentencing. This is at the expense of accuracy and the core legal principle, first enunciated by Marcus Tullius Cicero two millennia ago, to “let the punishment fit the crime.”

The “due process” model, too, is a slippery slope. After all, “acquitted conduct” sentencing is only a concern in the 2-3% of federal prosecutions that actually go to trial. We’re talking about elephants when the issue should be all animals that are not elephants. For the overwhelming 97% of cases in which the defendant pleads guilty, the Guidelines permit sentencing on “related conduct.” Related conduct can be found by the court only by a fairly squishy “preponderance of the evidence” standard, and the government may meet that standard with hearsay evidence and fuzzy math from witnesses the defendant has no right to confront. In drug and fraud prosecutions especially, where the amount of drugs or amount of loss drives the Guidelines sentencing range, a “due process” model should demand that standards for determining facts at sentencing provide the same “reasonable doubt” and 6th Amendment right of confrontation that a defendant enjoys during the conviction phase.

Prof Berman observed that as he watched the Commission’s hearing “explore[] many of the devilish details, it was clear how acquitted conduct’s intricacies may largely explain why past Commissions have avoided these issues as a policy matter and why the US Supreme Court avoided these issues as a constitutional matter since its 1997 Watts decision.”

can230407Speaking at a symposium at Ohio State last Monday, Judge Carlton Reeves, chairman of the Sentencing Commission, said that the Commission took up acquitted conduct “out of deference to the Supreme Court” after it denied certiorari in McClinton v. United States and said, “Well maybe the Sentencing Commission ought to look at it.”

Earlier, in a Sentencing Commission news release, Judge Reeves said, “When the Supreme Court tells us to address an issue, the commission listens. From continuing the use of acquitted conduct to restricting (or even eliminating) its use in sentencing, all options are on the table.

Sentencing Commission, Public Hearing on Acquitted Conduct (March 6-7)

Sentencing Policy and the Law, USSC hearings on acquitted conduct: the devilish details amid a fundamental criminal process debate (March 6)

Kansas Reflector, Kansas man says prison sentence based on acquitted conduct was ‘ultimate betrayal’ (March 6)

– Thomas L. Root

Senators Denounce BOP-ACA ‘Pas de Deux’ (Which Is A More Refined Way To Describe a ‘Circle Jerk’) – Update for March 7, 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.

THREE SENATORS DEMAND BOP CUT TIES WITH ACA

I agonized over this story. Not because of the content, which is as unsurprising as it is deplorable. But rather, as I asked my wife of 45 years, is it appropriate to use the term “circle jerk” in the LISA Foundation posts?

circlejerk240307I mean, the term really fits. The Federal Bureau of Prisons pays the American Correctional Association to inspect its facilities. Well, not really. The BOP pays ACA to give glowing accreditations to its facilities. As a report issued by the Dept of Justice Inspector General last November found, the BOP doesn’t really want its prisons inspected by outsiders, even friendly outsiders like ACA inspectors. Rather, the BOP is quite happy to inspect itself and then report the results to the ACA, which issues its seal of approval based on the BOP’s self-evaluation.

Sort of like giving yourself a physical, telling the doctor the results, and having the physician issue a clean bill of health based on your evaluation. Or a highly choreographed pas de deux. Or maybe… yeah, sort of like a circle jerk. The BOP pays the ACA, the ACA lets the BOP OK itself, the BOP trumpets its accreditation to the public, and pays the ACA.

As my wife says, “You couldn’t make this s*** up.” A little salty, but a spot-on observation.

wobegon240307The IG’s report said that instead of providing an independent evaluation of BOP, the ACA “relied on the prisons’ own internal reports during reaccreditation reviews.” In other words, as the DOJ put it, “it appears the BOP is, in effect, paying ACA to affirm the BOP’s own findings.”

Last week, three US senators wrote to the Attorney General and BOP Director Colette Peters complaining that BOP reliance on the ACA for accreditation “has proven to be little more than a rubber stamp, and the BOP’s contract with the ACA has been a waste of taxpayer dollars. We urge the BOP not to renew its ACA accreditation contract when it expires.” The ACA contract, covering all of the BOP’s 122 facilities, is worth $2.75 million.

ACAaward240307The senators, Elizabeth Warren and Edward Markey (both D-MA) and Jeff Merkley (D-OR), complain that while “the ACA claims that ‘[a]ccreditation is awarded to the ‘best of the best’ in the corrections field,’ in practice, ACA accreditation is awarded to virtually every facility that pays the accreditation fee.” The letter argues that “given the critical need for meaningful oversight of BOP facilities and the ACA’s complete failure to provide it, the BOP should not renew its ACA contract after it ends in March 2024. The ACA’s accreditation system is ineffective at best, and at worst misleads the public to believe that a failing facility’s operations are adequate. We urge you to identify alternative means of oversight that involve genuinely independent, rigorous audits of each BOP facility.”

They are too polite to call it one big circle jerk. Which it is.

The Appeal, Nonprofit Prison Accreditor Perpetuates Abuse And Neglect, Senators Say (February 29, 2024)

Letter from Senator Warren et al. to Atty General and BOP Director (February 28, 2024)

Dept of Justice OIG, Audit of the Federal Bureau of Prisons’ Contract Awarded to the American Correctional Association (November 2023)

– Thomas L. Root

Peters May Be The One – Update for March 5, 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.

PETERS BLUNT WITH SENATORS ABOUT BOP TROUBLES

No one who’s ever had a beef with what I publish in this blog – and there surely are a lot of people who have complaints – has ever accused me of being an apologist for the Federal Bureau of Prisons. But here goes…

cucumber240305Watching BOP Director Colette Peters testify before the Senate Judiciary Committee last week was a refreshing departure from her previous appearances and a downright treat after enduring years of painful appearances by her clueless predecessor Michael Carvajal.

“The Feds survey says the Federal Bureau of Prisons is the worst place to work in federal government, so we have a lot of work to do,”  Peters candidly told the Committee last Wednesday during the hearing Committee Chairman Richard Durbin (D-IL) called in response to a DOJ Inspector General report on inmate deaths in federal prison.

That report, issued two weeks before, found that systemic and operational failures contributed to scores of prisoner deaths over the years. Durbin convened the hearing to underscore the report findings that – among others – suicide accounted for over half of the deaths reviewed by the IG.

Sharing the witness stand with DOJ IG Michael Horowitz, Peters was the target of most of the senators’ questions. But unlike her stumbling performances in prior Congressional hearings, Peters was confident, direct and armed with facts and numbers during the 2-hour session. And when Sen John Kennedy (R-LA) hectored her in one of the most bizarre barrage of questions in recent memory, she cooly stared him down while undoubtedly controlling the urge to ask him who tied his shoes for him every morning.

But back to the hearing.

Paters laid most of the blame for the issues raised in the report on BOP’s chronic staffing shortages. She told the senators that the data on BOP correctional officers are “startling,” rattling off the stats:

One in three have symptoms of PTSD. That means more anxiety, more depression, [and] that means more reliance on substance abuse and higher levels of divorce. Over 90% are obese or in the overweight category, over 90% have hypertension or pre-hypertension… What we’re finding across the country, in some places they can leave the [BOP] and work for state corrections and make two to three times more, let alone the bonuses that we’re battling against at fast food organizations. So it is incredibly difficult… I also want to remind the committee that the average onboarding for law enforcement in this country is 21 weeks [of training] and our officers receive about six. It’s truly unfortunate.

psy170427The IG report found that a shortage of psychiatric services employees “strained the ability of staff” in facilities where prisoners died “to provide adequate care to mentally ill inmates.” This has been a chronic BOP problem, where a dearth of mental health resources has led to many people being underdiagnosed, a 2018 Marshall Project investigation found. In the Senate hearing, Horowitz noted that over 60% of people who died by suicide in federal prisons had been on the Mental Health Care Level 1, meaning the BOP had determined that they did not need regular care mental health care.

Peters and Horowitz both pointed to staffing shortages as a key driver of the problems. A lack of clinical staff like psychologists and corrections officers has been an endemic challenge in many BOP facilities, the Marshall Project reported last weekend.

Horowitz also suggested that the BOP’s problems may be more than just staffing. Talking about contraband, he that “we’ve had a staff search policy recommendation open for years that has not been implemented, the basic search policy for staff coming into the facility, that hasn’t happened, either…” Several senators cited a GAO report last month that the BOP has failed to implement 58 of 87 recommendations on improving restrictive housing (also known as Special Housing Units, or SHUs) practices.

Kennedy tried to beat up Peters with a theatrical performance accusing her of using the First Step Act to release 30,000 criminals, 12% of whom have been recidivists (as though the decision when to release prisoners is her responsibility). Punctuating his questions with dramatic eye rolls and sighs of “Wow,” Kennedy sought to blame Peters for releasing thousands of violent criminals to prey on helpless civilians.

Kennedy: “How many criminals have you released under the First Step Act?”

Peters: “We have about 30,000 individuals that have been released since the passage of the First Step Act.”

Kennedy: “All right, so you’ve released 30,000 criminals under the First Step Act, okay? . . . Before you released them, did you contact any of their victims to say, ‘We’re about to let this guy out’?”

Peters: “Senator, it’s my understanding that that notification happens through the U.S. Attorney’s Office, but I will check into that and get back to you.”

Kennedy: “You don’t know?”

Peters: “Senator, I don’t.”

Kennedy: “Wow. Okay, of the 30,000 criminals you let free, how many of them have come back, have committed a crime again, hurt somebody else?”

Peters: “So, that number is one that we’re still looking at as it relates to the recidivism rate for those that were released on the First Step Act.”

Kennedy: “You don’t have any idea?”

Peters: “No, Senator.”

The implication that Peters and the BOP should be responsible for victim notification – a duty of the US Attorneys offices – or maintaining recidivism records is risable. It’s like asking the Veterans Administration how much ammo the Defense Dept has.

tieshoes240305Beyond that, suggesting that somehow Peters was releasing BOP prisoners on her whim, rather than in response to the court-ordered sentences ending or statutory mandates requires a special kind of ignorance of the law unbecoming of a man who was Phi Beta Kappa and with years of experience as a lawyer. That makes his embarrassing performance all the more puzzling.

He did not embarrass Peters, who was calmly unfazed by his attack. Committee Chairman Richard Durbin (D-IL) finally braced Kennedy: “Don’t put your head in a bag… The First Step Act was a constructive reform of the penal system and I think it was a good idea and I stand by it.”

Sen Cory Booker (D-NJ) said the BOP has simply not been provided enough resources. “I have a lot of frustrations obviously with what’s going on. But I’ve watched you now as a professional struggle mightily to meet the demands that are put on you in a moment where Congress is not giving you the resources necessary to do your job,” Booker said.

Sen Chris Coons (D-DE) told Peters that she has “inherited a deeply troubled institution and I suspect you some days feel like your job is more akin to trying to change the direction of an aircraft carrier than lead an agile and well-resourced organization because the BOP is frankly neither and I appreciate the determination, openness and vigor with which you’ve approached this task.”

Almost half of the suicides took place in a “restrictive housing setting,” the IG Report said. Durbin told Peters that “despite the decrease in Bureau of Prisons total population since you were sworn in as director in August of 2022 the percentage and total of number of individuals and restricted housing is actually higher than it was at that time…”

shucell240212Peters said that almost 40%t of those who lived in restrictive housing did so by their own choice. Nevertheless, she admitted that “everyone who is in restrictive housing has or will suffer from some form of mental or physical damage. I think even those that are agreeing or wanting to be in restrictive housing need to be educated on the fact that that isn’t where they belong and that we need to be able to safely house them in [general population]. Just because they’re volunteering to be there doesn’t mean that the physical and mental wear and tear isn’t happening for them as well.”

“It’s time for solutions and change,” Durbin agreed. “The lives of hundreds of Americans in Bureau of Prisons custody are at risk.”

Roll Call, Federal prison director tells senators about staffing ‘crisis’ (February 28, 2024)

Capital News Service, Deaths in federal prisons draw fire from Senate panel (February 29, 2024)

DOJ, Office of Inspector General, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

The Marshall Project, How Federal Prisons Are Getting Worse (March 2, 2024)

WHBF-TV, Senate Judiciary Committee grills Bureau of Prisons chief on staffing, inmate deaths (February 28, 2024)

Sen John Kennedy, Kennedy questions Bureau of Prisons on early release of criminals: “You don’t have the slightest idea how many of them committed another crime and came back?” (February 28, 2024)

– Thomas L. Root

Private FSA Tool To Provide Prisoners Data the BOP Won’t – Update for March 4, 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.

LOOKING FOR THE MAGIC DATE

Maybe the sweetest acronym a federal prisoner has ever heard – LDI – is at the heart of a new tool intended to provide all of the information (and more) that the Federal Bureau of Prisons promised with the PRD (projected release date) calculation it has now apparently abandoned.

wise240304LDI – shorthand for “Last Date Inside” – is “the date on which a federal prisoner should be released to pre-release custody (halfway house or home confinement),” according to Wise First Step. Based on an inmate’s most recent sentence computation and First Step Act time credit assessments, Wise says it “will develop a detailed report that outlines key dates you need to be aware of for you to advocate for your referral to pre-release custody.”

Complaints about BOP management of FSA credits – awarded for completion of programs that reduce recidivism – are legion. One prisoner said in an email that an Excel spreadsheet tool was released to case managers last week, but

it is problematic because the calculation tool must be updated every 30 days due to 10-15 FTC earned over that time cycle. This does nothing to ease the burden on Case Managers or help inmates plan accordingly. Even more problematic is the fact that the calculator does not take into account any of the days that will be earned while in pre-release custody… [What’s more,] RRM offices are not accepting “projected days” earned while waiting for the RRM submission to come back.

Another inmate said, “We were also told that sometime in January 2024, we would have access to the PRD on Trulincs [inmate computer system]. Of course, none of that has happened. Now the case managers are telling us that the FSA projected release would NOT help you once you received your 1 year off AND we are not going to have access to the PRD. It has been ‘shelved indefinitely’.”

The BOP announced last December that it was releasing a “Conditional Release Calculator” that provided “needed information regarding the potential positive impact of earning Federal Time Credits (FTC) towards advancing an individual’s release date,” but that calculator reflected only time “applied toward advancing the individual’s transfer to supervised release and an earlier release from FBOP custody,” not transfer to halfway house or home confinement. When in halfway house and home confinement, a prisoner remains in BOP custody.

data240304The major issue in FSA credit application right now is halfway house availability. Writing in Forbes last January, Walter Pavlo observed that inmates are being denied the right to spend their credits because “the BOP does not have room in halfway houses to monitor those who have rightfully earned First Step Act credits. The result, thousands of prisoners languish in expensive institutions rather than being placed in community halfway houses.” The First Step Act uses mandatory language, requiring the BOP to place the qualifying inmates in halfway house or home confinement, but agency officials are shrugging their shoulders in feigned helplessness because halfway houses are refusing transfers.

Inmates have been hitting a wall when trying to remedy the denials in court. Just last week, a court threw out a complaint because the petitioner had provided no facts showing that he “has been denied all opportunity to earn time credits, that he has credits to apply, or that he has been denied the ability to apply earned credits to supervised release or another form of prerelease custody.” Another district court ruled against a prisoner, holding that he “fails to include any factual allegations supporting his claim that he was otherwise qualified under Section 3624 of the FSA… for prerelease custody or supervised release.” A decision earlier last month held that “Assuming that petitioner is entitled to a total of 740 days of credits between his prerelease custody and release, his accrued credits are not equal to the remainder of his prison term. He is therefore not eligible to apply FSA time credits at this time…”

itsadate240304Using a proprietary system it has tested over the past six months, Wise will provide a series of dates that tell inmates when to begin advocating for halfway house/home confinement, when to pursue administrative remedies, and when the prisoner’s LDI falls. Wise says in its program description, “The individualized details in this report have enabled hundreds of inmates to accelerate the process for transfer out of prison.”

Wise First Step can be contacted at (202) 921-0200 and email (accepting Corrlinks) at sarah@wisefirststep.org.

Wise First Step Program

BOP, Conditional FSA Release Date Calculator (December 5, 2023)

Forbes, The Bureau of Prisons’ Halfway House Problem (January 16, 2024)

Cuong Mach Tieu v. United States, Case No. 2:23-cv-2858, 2024 U.S. Dist. LEXIS 34442 (E.D. Cal., February 27, 2024)

Cook v. Peters, Case No. 3:23CV2211, 2024 U.S. Dist. LEXIS 32754 (N.D. Ohio, February 26, 2024)

Urenda v Warden, Case No 2:23-cv-1410, 2024 U.S. Dist. LEXIS 22513 (E.D. Cal., February 7, 202e)

Drug Pushers: Advocates Press Biden On Marijuana Reform – Update for March 1, 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.

THE POT PLOT THICKENS

marijuana160818Marijuana advocates last week argued that President Biden is missing an opportunity to sway young voters with his reluctance to take bigger steps to legalize marijuana at the federal level.

The Biden administration has pardoned people convicted of federal simple possession and started a process that may lead to rescheduling marijuana from Schedule I to Schedule III under the Controlled Substances Act. Biden has promised to deliver the rescheduling decision by the end of the year.

However, Biden’s efforts so far have left advocates unimpressed, The Hill reported last week, with the buzz being that he is “falling short of his 2020 campaign promises and failing to address the disparate overcriminalization of the drug that has unduly impacted minority communities.”

Progressives in the Senate are urging Biden to completely deschedule pot, which would effectively decriminalize it federally. “Marijuana’s placement in the [CSA] has had a devastating impact on our communities and is increasingly out of step with state law and public opinion,” twelve Democratic lawmakers wrote to the DEA last month.

And they’re not the only ones. Last week, former heavyweight boxer Mike Tyson, now a marijuana advocate and entrepreneur, sent Biden a letter calling on the Administration to reconcile with communities, including the poor and minorities, who have paid the heavy cost of the War on Drugs.

marijuanahell190918“I write in support of granting clemency to marijuana offenders still incarcerated in federal prison and restoring civil rights to those haunted by a federal marijuana conviction,” the Tyson letter began. “Through a categorical clemency grant you can declare an end to federal warfare on our own people and mark a new era based on peace and prosperity.”

Public opinion is strongly in favor of marijuana legalization. A Gallup poll from November found a record 70 percent of Americans believed marijuana should be legal.

Presidential candidate Trump’s exact stance on pot seems to flip-flop and remain ambiguous. He appointed marijuana-hating Jefferson Beauregard Sessions III as his first Attorney General, but then signed the First Step Act (which he now loves or hates on alternate days).

Biden has not pivoted as dramatically as he claims to have done on marijuana reform. One commentator says, “The people who argue that Biden is “responsible for the most significant marijuana reform in American history”… are right. The people who argue that Biden hasn’t done nearly enough on marijuana reform are also right.”

The Hill, Biden missing opportunity on legalizing marijuana, advocates warn (February 23, 2024)

The Guardian, Mike Tyson urges Biden to free thousands locked up over cannabis: ‘Right these wrongs’ (February 19, 2024)

Harris Sliwoski, Grading the Presidential Candidates on Cannabis (February 20, 2024)

– Thomas L. Root