Nine Justices Get Back to Work – Update for September 27, 2022

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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.

SCOTUS ‘ENDLESS SUMMER’ ENDS

The Supreme Court brings its three-month recess to an end tomorrow, when the Justices will hold the Court’s annual “long conference.”

vacationSCOTUS180924Throughout the year, the Justices meet on a nearly weekly basis to consider pending petitions for certiorari. But that practice ends in late June when the Court breaks for the summer. Then, petitions pile up over the summer.

At the annual “long conference,” held the week before the Court begins its next term, the Justices will typically dispose of about 2,000 pending petitions. A research paper published seven years ago in the Law and Society Review found that the petitions arriving over the summer had a 16% worse chance of being accepted by the Court.

Gregory Garre, Solicitor General during the George W. Bush administration, told The New York Times, “Given the numbers, as counsel, you really have to try your best to avoid the summer list, though sometimes it is unavoidable,” Garre said. “Fortunately, as tough as the odds are, the cream can still rise to the top.”

The Court convenes to begin October Term 2022 (the name of the nine-month term ending June 30, 2023) next Monday.

49 Law and Society Review, Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions (August 27, 2015)

New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (August 31, 2015)

– Thomas L. Root

District Court Decision Questions Everything in 18 USC § 922 – Update for September 26, 2022

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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.

BEGINNING OF THE END FOR 18 USC 922?

Notguns170330A remarkable district court decision from Western District of Texas last week held that 18 USC § 922(n), a subsection that prohibits people who are under indictment  from possessing guns or ammunition that have traveled in interstate commerce, is unconstitutional.

District Judge David Counts dismissed an 18 USC § 922(n) charge against Jose Quiroz, who was facing a Texas burglary indictment when he tried to buy a .22-caliber version of the Colt Model 1911 handgun.

In a 25-page opinion filed in Pecos, Texas, Counts ruled that in the wake of the Supreme Court’s June decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, despite “valid public policy and safety concerns,” the statute had to be considered under a historical analysis alone. He held that “[a]lthough not exhaustive, the Court’s historical survey finds little evidence that § 922(n) — which prohibits those under felony indictment from obtaining a firearm — aligns with this Nation’s historical tradition. As a result, this Court holds that § 922(n) is unconstitutional.”

gun160711The Court said that the “Second Amendment is not a ‘second class right.’ No longer can courts balance away a constitutional right. After Bruen, the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition.”

What makes the decision interesting is not just the detailed historical analysis that argues against the constitutionality of § 992(n). In addition, the decision casts substantial doubt on whether 18 USC § 922(g) – which prohibits people convicted of felonies from possessing guns or ammo – is still constitutional in light of Bruen.

Bruen held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government… must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms….”

manyguns190423Judge Counts reviewed the history of laws prohibiting felons from possessing guns: “By the mid-1920s, only six states had laws banning concealed carry by someone convicted of a crime involving a concealed weapon. And zero states banned possession of long guns based on a prior conviction… Whether this Nation has a history of disarming felons is arguably unclear—it certainly isn’t clearly “longstanding.” And what’s even more unclear—and still unproven—is a historical justification for disarming those indicted, but not yet convicted, of any crime.”

The Quiroz opinion is only a district court holding and is not binding precedent on other courts (even in its home 5th Circuit). However, the decision is written with detail that is extraordinary for a district court case and may have a lot of persuasive authority for other district courts (and even courts of appeal). The case also suggests that Bruen, only three months old, could have a major effect on 18 USC § 922.

Even before Bruen, Supreme Court Justice Amy Barrett – when she was still on the 7th Circuit – argued in her dissent in Kanter v. Barr that the felon-in-possession statute could not constitutionally applied to people with nonviolent felony convictions:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons… In 1791 — and for well more than a century afterward — legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

Anyone filing direct appeals or post-conviction motions in cases where they were convicted of 18 USC § 922 offenses should seriously consider raising a constitutionality issue in light of Bruen.

United States v. Quiroz, Case No 22-cr-00104, 2022 U.S. Dist. LEXIS 168329 (W.D.Tex., September 19, 2022)

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

Associated Press, Judge holds gun ban for felony defendants unconstitutional (September 19, 2022)

Sentencing Law and Policy, District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional (September 20, 2022)

Kanter v. Barr, 919 F.3d 437 (7th Cir., 2019)

– Thomas L. Root

Compassionate Release Numbers: Data Without Benefits – Update for September 23, 2022

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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.

NUMBED BY NUMBERS

numbersThe U.S. Sentencing Commission recently issued an updated report on compassionate release, covering all of the filings since October 1, 2019 (six months before the pandemic began) through last March.

In 30 months, we learn, 25,416 motions were filed, with 16.7% (4,234) granted. Good to know for this weekend’s cocktail-party chatter, but functionally useless.

Most people currently filing 18 USC § 3582(c)(1)(A)(i) sentence reduction motions – inaccurately but generally known as “compassionate release” motions – don’t care about the 30-month average. What courts were doing in the few months prior to the pandemic – or, for that matter, in the early pandemic when COVID raged and everyone was scared – has hardly any relevance to what they are doing today. People want to know what has been happening in the last few months (last March, for example, 13.4% of 479 motions were granted).

We do learn that over the 30 months studied, Eastern District of Texas (2.6%), Southern District of Georgia (2.2%) and Middle District of Georgia (1.7%) were the worst places to get relief. The best places to be remain locations such as California (except the Eastern District) at 35.8%, Kansas at 41.9%, Connecticut at 37.2%, Massachusetts at 44.8% and Oregon at 59%.

Some districts have even better numbers, but the number of motions filed in those jurisdictions is so small as to make the grant/denial percentage in those districts meaningless.

My problem with the data is this: Given the waning pandemic, the position taken by some circuits that inmate vaccination disqualifies the risk of COVID as a basis for compassionate release, and the decision by almost all circuits that USSG § 1B1.13 does not limit the groups that may be raised in an inmate-filed compassionate release motion, how district courts may be acting on compassionate release motions today may bear scant resemblance to what was being done, say, in April 2020. That being the case, it is tough to take away much from a comparison of a judicial district’s grant rate over a 30-month period. A period of six to 12 months would make a lot more sense.

I am surprised by some commentators bemoaning the fact that there are wide disparities among the districts. That’s what happens when federal judges are permitted to exercise almost unbridled discretion. Ohio State law professor Doug Berman, writing in his Sentencing Law and Policy blog, complained that

perhaps most striking data points are the dramatic variations in grant rates from various districts. As but one of many remarkable examples, I must note again the stark disparities in the three districts of Georgia: the Southern District of Georgia granted only 6 out of 272 sentence reduction motions for a 2.2% grant rate; the Middle District of Georgia granted only 4 out of 238 sentence reduction motions for a 1.7% grant rate; but the Northern District of Georgia granted 80 out of 174 sentence reduction motions for a 46% grant rate.

One commenter to Berman’s post responded, “When you tell judges they can do whatever they care to, without any standards that are going to get enforced, this is what you’re going to get. Any resemblance between this and ‘Equal Justice Under Law’ is strictly coincidental.”

Roybean220923CMaybe so, but “standards that are going to get enforced” sounds a lot like the bad old days of mandatory guidelines. You can’t have it both ways. Judges exercising a lot of discretion can take individual factors into account the way that uniform standards applying across all 94 federal districts cannot. On the other hand, standards can limit the baser instincts of the Judge Roy Beans of the federal judiciary.

Perhaps our newly-reconstituted Sentencing Commission can find a happy (pro-defendant) medium.

U.S. Sentencing Commission, Compassionate Release Data Report (Fiscal Years 2020 to 2022)

Sentencing Law and Policy, US Sentencing Commission releases latest “Compassionate Release Data Report” with detailed data through March 2022 (September 12, 2022)

– Thomas L. Root

BOP Introducing Computer Tablets By Year End – Update for September 22, 2022

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BOP ROLLING OUT TABLET COMPUTERS BY END OF 2022

A reader last week asked about rumors he had heard about the Federal Bureau of Prisons rolling out Android-based tablets.

BOP Office of Public Affairs spokesman Donald Murphy told me that the BOP “is in the process of migrating to a next-generation media device, the Keefe SCORE 7c. This next-generation media device may be purchased by the incarcerated population through our commissary sales program. Currently, it is anticipated full migration will be complete by the end of the calendar year.”

score7220923The Keefe SCORE 7c is an Android-based tablet with security modifications to the OS for prison use. The Keefe Group says the tablet includes access to will have more than two dozen personal growth and reeentry tutorials, over 51,000 public-domain digital books, free preloaded game, over 7,000 instructional videos in 2,000 categories covering a broad range of common-core subjects and provide a foundation for high school equivalency testing, free FM radio and access to music purchase or subscription plans, and access to over 200 movies for rental.

Keefe says users will be able to communicate with family and friends using fee-based text, photo and videogram messaging.

keefegroup.com, SCORE 7c Tablet

– Thomas L. Root

Congress is Back, Criminal Justice Reform Is Not – Update for September 20, 2022

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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.

LEGISLATORS GENERATING HEAT BUT NOT LIGHT

Both Houses of Congress are back from summer vacation. Criminal justice reform measures are pending (and may be poised for passage). Except midterm elections are 49 days away, and no one up for re-election is anticipating any traction from being in favor of helping out prisoners.

Anyone who wants to know what the Senate thinks of convicted persons needs look no further than last week’s 47-50 rejection of former Federal Public Defender Arianna J. Freeman as a 3rd Circuit appellate judge. Freeman was criticized by Senate Judiciary Republicans last March, when the Judiciary Committee did not approve her nomination, because of her success in overturning a death row inmate’s sentence. Critics called her a “zealot” for fighting capital punishment.

Freeman said that her office represented the man “as was our duty… Ultimately, Mr. Williams actually prevailed both in the U.S. Supreme Court as well as the Pennsylvania courts because of unlawfulness that took place during the course of his conviction. My colleagues and I pursued those available arguments under the law and we did prevail.”

Winning cases matters to the Senate – unless you represent criminal defendants. To the Senate, her success was her failing.

dema160222Nothing is easier to demagogue than being tough on crime.

The two criminal justice reform measures most likely to pass are the EQUAL Act (S.79) and the MORE Act (HR 3617). Last week, the Washington Post expressed pessimism over whether the EQUAL Act – which would equalize sentences for crack and powder cocaine – could pass. “The measure has stalled over concerns that Republicans could push for divisive amendments,” the Post said. “As the Senate juggles a number of measures ahead of November’s midterm elections, advocates worry that the window for action is closing. Democrats should continue to push for the Equal Act — but also be open to compromise if necessary. A possible middle ground might involve a 2.5-to-1 ratio, achieved entirely by increasing the quantities of crack that trigger mandatory minimums. This ratio could be further reduced or brought to parity in the future, and a deal could be supplemented with funding for research on the addictiveness and deadliness of these substances, as Mr. Grassley has pushed for.”

marijuana-dc211104

Meanwhile, the cannabis industry is lobbying hard for marijuana reform “before midterm elections that could reshape the political landscape on Capitol Hill,” according to a Canadian newspaper:

In April, the House passed the Marijuana Opportunity Reinvestment and Expungement Act (MORE Act), which would effectively remove cannabis from the U.S. list of controlled substances and provide sentence relief to people serving marijuana sentence.

The MORE Act’s prospects in the Senate are less certain. Senate Majority Leader Chuck Schumer (D-NY), the most powerful Democrat in the upper chamber, has already introduced the Cannabis Administration and Opportunity Act. The CAOA also includes criminal sentence reform, but contains provisions regulating the cannabis industry that are much different than MORE.

What may happen is that the SAFE Banking Act, a more incremental step that does not include sentence reform but one with more bipartisan support in Congress than either MORE or CAOA, may be substituted. “We know right now, if SAFE were to come up, it would be a 65 to 70 vote,” an industry spokesman says. “We know the votes are there for SAFE, so our focus is on getting SAFE over the finish line.”

Good news for the industry, but bad news for marijuana defendants.

The Prohibiting Punishment of Acquitted Conduct Act of 2021 (S.601) has gone nowhere in the Senate since being passed out of the Judiciary Committee in June 2021. But supporters may get what they want from an unexpected quarter.

hammer160509In Shaw v. United States, the Supreme Court has been asked to hear a case where the district court used conduct of which the defendant was acquitted to increase his sentence (although still within the statutory maximum). The Supremes have not yet ruled on the petition for certiorari, but the petition has collected amicus briefs urging its grant from the conservative Cato Institute to the liberal Americans for Prosperity, as well as from Prof. Doug Berman and The National Association of Federal Defenders.

Last week, a Bloomberg Law opinion piece argued for the Court to hear it:

Taking up the issue of acquitted conduct sentencing this next term will give the court another opportunity to tackle a criminal justice issue that unites people from across the spectrum… At least three current justices have questioned or called for an end to this unjust practice… There is reason to hope other members of the court would also agree acquitted conduct sentencing is unconstitutional given their professional backgrounds and experience on the front lines working in the criminal justice system.”

Washington Times, Biden judicial nominee loses Senate confirmation vote (September 13, 2022)

Washington Post, The powder vs. crack cocaine disparity still exists, and it’s still unfair (September 15, 2022)

Chronicle-Journal, As midterms approach, Capitol Hill lawmakers push banking reforms for legal cannabis (September 15, 2022)

Shaw v. United States, Case No 22-118 (petition for cert pending)

Bloomberg, US Supreme Court Should Tackle Acquitted Conduct Sentencing (September 14, 2022)

– Thomas L. Root

Circuit Split Deepens on Using Sentence Law Changes in Compassionate Release Motions – Update for September 19, 2022

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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.

9TH CIRCUIT ALLOWS FIRST STEP CHANGE IN § 924(c) STACKING TO SUPPORT COMPASSIONATE RELEASE

In 2007, Howard Chen was busted with a distribution-sized amount of MDMA in his car. Later, the DEA found more MDMA, two guns and cash at his house.

mdma220919A jury convicted Howie of six drug-related counts and two 18 USC § 924(c) counts for possessing a gun during and in furtherance of a drug crime. He got 48 months for the drug counts, 60 more months for the first gun offense and 300 months for the second one: a total of 34 years for a fairly garden-variety non-violent drug case.

In late 2020, Howard filed a motion for sentence reduction, seeking compassionate release for – among other reasons – that the First Step Act changed 18 USC § 924(c) so that he would not have to get a minimum of 300 months for the second gun charge. Although the change was not retroactive, Howie contended that the unfairness of how the 2007 version of the statute mandated 300 months but the current statute did not was an extraordinary and compelling reason for granting him a sentence reduction.

The district court denied the compassionate release motion, holding that because Congress did not make the 18 USC § 924(c) change retroactive, it could not be an extraordinary and compelling reason for grant of compassionate release under 18 USC § 3582(c)(1)(A).

Last week, the 9th Circuit reversed, holding that a district court may consider the First Step Act’s non-retroactive changes to sentencing law – in combination with other factors particular to the individual – when finding extraordinary and compelling reasons for a sentence reduction.

circuitsplit220919Bloomberg said, “The opinion deepens a circuit split on the bipartisan 2018 reform law that has generated much litigation since then-President Donald Trump signed it.”

The 3rd, 7th, and 8th Circuits have ruled that district courts may not consider non-retroactive sentence changes made by First Step, whether offered alone or in combination with other factors, in deciding compassionate release motions. Those circuits reasoned that Congress explicitly made the sentencing changes non-retroactive and that § 3582(c)(1)(A) “should not provide a loophole to get around explicit non-retroactivity.”

For instance, the 3rd Circuit ruled, “We will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.” The 7th held that “the discretionary authority conferred by § 3582(c)(1)(A)… cannot be used to effect a sentencing reduction at odds with Congress’s express determination embodied in… the First Step Act that the amendment to § 924(c)’s sentencing structure appl[ies] only prospectively.” The 8th said, “The compassionate release statute is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy.”

The 3rd and 7th Circuits still allow district courts hearing compassionate release motions to consider First Step’s changes to stacked § 924(c) sentencing when analyzing § 3553(a) sentencing factors.

dontthink220919The 1st, 4rth, and 10th Circuits, on the other hand, have all held that district courts may consider First Step’s non-retroactive changes to penalty provisions, in combination with other factors, when determining whether extraordinary and compelling reasons for compassionate release exist in a particular case. The Circuits have held that the statutes directly addressing “extraordinary and compelling reasons” don’t prohibit district courts from considering non-retroactive changes in sentencing law; and (2) a sentence reduction under § 3582(c)(1)(A)’s “extraordinary and compelling reasons” is “entirely different from automatic eligibility for resentencing as a result of a retroactive change in sentencing law.”

The 6th Circuit swings both ways. In United States v. Jarvis, the Circuit held that the “district court, moreover, correctly concluded that it lacked the authority to reduce Jarvis’s sentence based on a nonretroactive change in the law.” But in United States v. Owens, the panel said that the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied can be considered, along with other factors, to be an extraordinary and compelling reason for a reduction.

In Howard’s case, the 9th said,

Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission’s policy statement, which does not apply here, and the requirement that ‘rehabilitation alone’ is not extraordinary and compelling. Neither of these rules prohibits district courts from considering rehabilitation in combination with other factors. Indeed, Congress has never acted to wholly exclude the consideration of any one factor, but instead affords district courts the discretion to consider a combination of “any” factors particular to the case at hand… To hold that district courts cannot consider nonretroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done.

United States v. Chen, Case No 20-50333 (9th Cir., September 14, 2022)

Bloomberg, Compassionate Release Gets Another Look Under First Step Act (September 14, 2022)

– Thomas L. Root

Restitution – A Foretaste of Eternity? – Update for September 16, 2022

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DIAMONDS ARE FOREVER… RESTITUTION JUST SEEMS LIKE IT

The 3rd Circuit last week reminded defendants sentenced in the last 25 years (since 1996), that the Mandatory Victims Restitution Act places a very relaxed limitation on how long the Feds can chase them for money.

restitution170508Michael Norwood successfully argued that his liability for bank robbery restitution arose before the MVRA was passed in 1996. In ruling in his favor, the Circuit noted that the MVRA provides that a defendant’s “liability to pay a fine shall terminate the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of the person fined.” 18 U.S.C. 3613(b). The lien on a defendant’s assets persists as long as he or she is liable to pay.

In short, the 3rd reminded readers, “under the MVRA, a restitution lien never becomes unenforceable, and a defendant’s liability to pay expires not twenty years after entry of the defendant’s judgment, but twenty years after the defendant’s release from imprisonment.”

United States v. Norwood, Case No. 20-3478, 2022 U.S. App. LEXIS 25181 (3rd Cir., September 8, 2022)

– Thomas L. Root

You’ve Got Mail, Director – Update for September 15, 2022

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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.

‘WE’VE GOT SOME CONCERNS, DIRECTOR’

The Sentencing Project, which recently reported on the large number of people serving sentences of longer than 10 years (52% of BOP inmates have such sentences, about average for the nation’s prison systems), sponsored a letter last Tuesday to BOP Director Colette Peters.

dungeon180627The letter asked her “to bring the Bureau into compliance with federal law and to lead the Bureau toward a more humane future grounded in transparency and accountability.” It cited “inadequate medical care, overcrowding, staff shortages, unsanitary conditions, violence, and abuse” in facilities across the BOP system. It noted that when “COVID-19 first threatened federal prisons, the Bureau could have embraced compassionate release as a tool to reduce the prison population and protect the most vulnerable people in federal prisons. Instead, the Bureau chose to attempt to use solitary confinement and lockdowns to reduce the spread of COVID-19, a practice internationally condemned as torture. Today, COVID-19 restrictions still define life within federal prisons, including 78 level three facilities which remain under intense modifications with minimal access to rehabilitative programming.”

At the end of last week, the BOP reported 477 inmates and 716 staff sick with COVID, spread over 110 facilities.

The letter called on the BOP to “use its power to file motions for compassionate release in extraordinary or compelling circumstances.” As well, it asked the BOP to step up calculating and applying time credits, complaining that agency foot-dragging was “keeping people from their loved ones months after they should have qualified for release to community corrections.” Ironically, this demand came only two days before the BOP issued its memo (see preceding story).

prisoncorruption2310825Finally, the letter cited FCI Dublin, USP Atlanta and USP Thomson as emblematic of BOP “of corruption and abuse and inaction.” The letter said, “We urge you to set a new standard and lead the Bureau towards transparency and accountability. The men and women incarcerated in federal prisons deserve safety, health, compliance with federal law, and to be treated with dignity.”

Not mentioned was FCI Carswell. Last week, Rep. Marc Veasey (D-TX) urged the House Committee on the Judiciary to hold a hearing in North Texas to investigate sexual assaults in federal prisons, in response to a Fort Worth Star-Telegram investigation into systemic sexual abuse and cover-ups at a federal prison in Fort Worth.

The paper reported that its request to interview Director Peters about Carswell had been denied because her schedule “is very full her first few months, but we can re-visit this request in the future.”

busy220915No doubt she’s quite busy, but with all due respect, the issues being complained about are serious and may be system-wide. Being unable to find a few hours to prepare and sit for an interview with a newspaper that is laser-focused on the issue (one which is attracting some Congressional concern) seems somewhat short-sighted, even if only from a public relations angle.

Sentencing Project, How Many People Are Spending Over a Decade in Prison? (September 8, 2022)

Sentencing Project, Formerly Incarcerated People and Advocacy Organizations Urge Reform of US Bureau of Prisons (September 6, 2022)

Ft. Worth Star-Telegram, Congressman calls for federal investigation into ‘horrors’ at Fort Worth women’s prison (September 7, 2022)

– Thomas L. Root

BOP Delivers New Earned-Time Credit Restrictions – Update for September 14, 2022

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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 GOOD, THE BAD, AND THE UGLY

thegood220914One provision of The First Step Act, signed into law in December 2018, allowed eligible inmates to earn credits toward an earlier release from prison, more halfway house or home confinement. The credits, called “earned time credits” or ETCs, were to be granted to prisoners participating in certain needs-based educational programs and productive activities. For every 30 days of successful participation, the prisoners could earn up to 15 days off their sentence up to a maximum of 12 months (365 days). ETCs could also be used to entitle the inmates to more halfway house or home confinement on a 1-1 basis: 30 days of ETC credit would earn 30 days more of home confinement, for instance.

The challenge for the Bureau of Prisons has been to keep accurate track of the credits earned by inmates. It is a multi-step analysis: First, is the inmate eligible to participate in the earned-time credit program? Second, has the inmate’s needs been properly assessed? Third, has the inmate enrolled in programming that addresses that need? Fourth, how many credits has the inmate earned in any given month?

When the BOP adopted the ETC system in January 2022, the system it enacted was 180 degrees opposed to the Draconian proposal the agency had floated previously. The adoption seems to have caught the BOP flat-footed, because it simply threw up its hands (figuratively speaking) and declared that any inmate eligible for the credits as of January 15th was assumed to have participated in eligible programs for every day since December 21, 2018 (or when the inmate arrived in the system, whichever was later).

Sweet deal. As a result, thousands of inmates were released in the days following the January adoption date.

But every Christmastime ends, and so did the BOP’s ETC giveaway. Since January 15, the agency has struggled with how to quickly calculate inmate ETCs on a rolling basis. In April, the BOP revealed in a court case that it was developing a computer program – an “auto-calculation” system – to update each inmate’s ETC credits continuously. The BOP estimated Auto-Calc would be implemented by about August 1.

The BOP finally delivered its Earned Time Credit “Auto Calculation” system last Thursday. “On time and under budget” is not a mantra at the Bureau. Delivery took about 50% longer than the BOP predicted it would. And, as Walter Pavlo said in Forbes last Friday, it “landed with a thud.”

Why the thud? The Auto-Calc system was accompanied by a memo that announced several interpretative rules the BOP is imposing by fiat. You know, rules that interpret other rules. And unlike the adoption of last January’s formal rules, there was no rulemaking proceeding, no “notice and comment” period, and scant indication the changes were coming.

The First Step Act spelled out prisoner eligibility in detail, But that hasn’t stopped the BOP from adding its own bells and flourishes.

The good news in the memo (such as it is) is that

• the BOP’s official stance is that ETCs will be applied first to reduce sentence length, and second to more halfway house and home confinement. The agency had been doing that since last January, but it had never announced that as BOP policy. Given how arbitrary the BOP can be, the announced adoption of the reduction-first approach as policy is a good thing.

• any halfway house or home confinement awarded using ETCs will be granted “in addition to release needs-based recommendations made under the Second Chance Act.” In other words, if the Second Chance Act would have entitled a prisoner to placement in a halfway house for six months even without ETCs, and you have 120 days of ETC credit applied to halfway house, you would be placed for 10 months.

• the Auto-Calc system will update ETCs monthly.

• the BOP verified that ETCs may be applied toward early release in addition to the early release benefit for RDAP graduates. In other words, RDAP now double counts toward early release, up to 12 months off for successful completion of the program as well as an additional credit of up to 150 days ETC credits for finishing RDAP.

• In order to earn 15 days credit for every 30-day period instead of 10 days for every 30-day period, inmates need to (1) start out with a low- or minimum-risk PATTERN level; OR (2) have dropped to a low- or minimum-risk PATTERN level and maintained it for two consecutive assessment periods. This is good news, because a number of inmates who entered the system with low or minimum scores have been told in the past few months that they have to have two consecutive assessment periods under their belts before getting 15 days of ETC credits in a month.

thebad220914But there is bad news in the memo, too:

• The memo codifies what I first learned last month. The BOP will not credit ETCs toward early release for inmates who are 18 months from release. At 18 months, the BOP says, “the release date becomes fixed, and all additional ETCs are applied toward” halfway house or home confinement.

This is a slight improvement over what the BOP was saying a month ago. In a declaration the BOP filed in Marier v. Bergami, the BOP manager said the cutoff was 24 months. But it still means, practically speaking, no inmates with sentences of less than 42 months will have enough time to collect ETCs entitling them to 12 months off their sentence (the maximum allowed by law).

This also means that unless an inmate can complete the in-custody portion of RDAP with at least 18 months left, the RDAP ETCs will apply to more halfway house or home confinement, not more time off.

Pavlo complained in Forbes last week that “with this more restrictive condition, BOP is even going against the Department of Justice’s intent of FSA which was to ‘transfer eligible inmates who satisfy the criteria in § 3624(g) [awarding of FSA credits] to supervised release to the extent practicable, rather than prerelease custody [halfway house and home confinement]’… In Fiscal Year (FY) 2019, the cost of incarceration fee for a federal prisoner at a federal facility was $107.85 per day; in FY 2020, it was $120.59 per day. It costs less than half that to place a minimum security prisoner on home confinement and it costs nothing if the prisoner is not in custody at all. Thousands of prisoners will be affected by this unilateral decision by the BOP. For many prisoners, their date for returning to society has been prolonged by a memorandum that is both unfair and arbitrary.”

• The memo states that “inmates who refuse or fail to complete any portion of the needs assessment and/or refuse or decline any program recommended to address a specific identified need area, are considered “opted out” and will not earn ETCs.” This hardly seems to be bad news, except that it assumes that the failure to complete needs assessment or refusal or declining to take a program is intentional.

More than one inmate has already reported that he or she was marked “refused” for not taking a program that simply was not available at the time. One inmate only saved from being marked “refused” by proving that he had sent the staff member responsible for the program a request to be put on the “wait list.”

• Starting eight months ago, the memo says, “all components of the SPARC-13 needs assessment must be complete to be eligible to earn ETCs. Failing to do so is considered ‘opted out.’ In other words, if an inmate fails to complete a required survey to enroll in a recommended program which addresses a specified need, the inmate will not be eligible to earn FTCs.”

The SPARC-13 is the Standardized Prisoner Assessment for Reduction in Criminality, a battery of surveys mandated by the BOP’s Initial Review of the SPARC-13 Needs Assessment System, issued last March. Judging from inmate reports, few have been given the surveys to complete. Even if they are asked to do so now, it is not clear whether any programs completed between January 15 and September 8 will count if the SPARC-13 was not done prior to that time.

• the memo states that “while inmates continue to earn FTCs, inmates can only apply the FTCs if they have no detainers, unresolved pending charges, and/or unresolved immigration status issues.”

These restrictions do not appear in the First Step Act and make little sense. It is logical that the BOP would not send inmates to detainers to halfway house or home confinement. That is a long-standing limitation. But there is no security issue in letting inmates with detainers benefit from shortened sentences. If an inmate gets a year off, the BOP simply lets the detaining agency know to pick up the inmate on Sep 12, 2022, instead of Sep 12, 2023, for instance.

Pavlo quotes a retired BOP employee as saying of the memorandum, “BOP is creating their own language and leaving the discretion in the hands of case managers to interpret who is eligible and who is not. They have completely disrespected the intent and FSA law states.”

theugly220914Finally, the ugly. The memo notes that “as a reminder, the unit team will determine an inmate’s eligibility to earn FTCs based on the current conviction and prior criminal convictions.” This means that basic decisions applying the statute are decentralized among close to a thousand unit teams. Given some of the errors already made by unit teams unschooled in the FSA, the amount of administrative remedy and judicial review such decision-making decentralization will spawn is likely to be quite significant.

A final thought: The Administrative Procedure Act (5 USC § 552), with its “arbitrary and capricious” standard, governs just about all federal agencies. However, Congress specifically stated in 18 USC § 3625 that the APA does not “apply to the making of any determination, decision, or order under this subchapter.”

The catch here is that § 3625 is specific to 18 USC Chapter 229, Subchapter C. The portion of the FSA establishing ETCs is set out in the newly-created Subchapter D. Congress either decided not to exempt the BOP’s implementation of the ETC from the APA, or it just forgot to do so. Either way, the ETC program appears to be subject to APA challenges, something new for BOP management.

Forbes, Bureau of Prisons’ Interpretation of First Step Act Will Leave Thousands of Inmates Incarcerated (September 9, 2022)

BOP, Memo on Implementation of Auto-Calculation (September 8, 2022)

BOP, Initial Review of the SPARC-13 Needs Assessment System (Mar 2022)

Declaration, ECF 10-1, Marier v. Bergami, Case No 21C50236 (ND Ill, Aug 9, 2022)

– Thomas L. Root

Phooey on Lawyers… Hire NPR To Get a Quick Compassionate Release – Update for September 12, 2022

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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 TALE OF TWO RELEASES

caresbear210104A lot of people wish they could get this kind of press. Hours after a story aired on NPR’s Morning Edition last week about CARES Act home confinee Eva Cardoza being sent back to prison for a positive marijuana test, a federal judge found “extraordinary circumstances” that called for her immediate release from FCI Danbury. “Petitioner’s family is currently experiencing a dire, urgent situation,” ruled US District Judge Sarala Nagala, citing five kids being supervised by her fiancé, who has heart disease and colon cancer.

NPR had reported that Eva was one of 230 CARES Act people released during the pandemic only to be sent back after small infractions. The BOP told NPR that 442 CARES Act people have been returned to prison. More than half allegedly violated rules about alcohol or drug use. The BOP says only 17 people out of 11,000 released were returned for committing new crimes. Ten committed drug crimes, while the rest of the charges included smuggling non-citizens, nonviolent domestic disturbance, theft, aggravated assault, and DUI.

Not everyone gets NPR-level attention. Judge Micaela Alvarez (SDTX) last month denied compassionate release to an inmate with a terminal cancer diagnosis, in part because he did not show that he “is not receiving proper medical care” and “does not claim that his cancer will go into remission if released from prison, or even that his prognosis will improve.”

medicalcare220912Last week, Kevin Ring, president of FAMM, wrote to the judge to invite her to participate in FAMM’s #VisitAPrison campaign, to visit a prison to learn more about the living and working conditions (including access to medical care) of incarcerated people and correctional officers). Ring suggested that the inmate’s family’s “devastat[ion] at the prospect of not being with him at the end of his life” was a genuine concern. Beyond that, he described Judge Alvarez’s implication that the inmate was receiving proper medical care from the BOP as “chilling, given all we know about the substandard medical care in federal prisons, especially during the COVID-19 pandemic. The Inspector General of the Department of Justice made disturbing findings in a 2021 audit of the Butner Federal Medical Center, where Mr. Chapa is housed. Indeed, one of the most notoriously dangerous prisons for women, is the Federal Medical Center at Carswell, is located in your home state of Texas.”

It is not likely that Judge Alvarez will accept the invitation or change her position.

NPR, A sudden homecoming for one of the people sent back to prison with no warning (August 31, 2022)

Reason, 11,000 Federal Inmates Were Sent Home During the Pandemic. Only 17 Were Arrested for New Crimes (August 31, 2022)

Order, United States v. Chapa, Case No 7:18cr960 (S.D.Tex., August 25, 2022)

Letter from FAMM to Judge Alvarez, Aug 29, 2022

– Thomas L. Root