Peters Off to a Rocky Start at BOP – Update for August 11, 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.

IT ONLY TOOK TWO DAYS FOR THE NEW DIRECTOR TO STEP IN IT…

stepinit220811Reason reported last week, “We last saw outgoing BOP Director Michael Carvajal running down a stairwell on July 26. He was trying to get away from some Associated Press reporters who revealed systemic dysfunction and corruption within the federal prison system—an apt ending for his tenure.”

But it seems that rather than being gone but not forgotten, Mr. Carvajal may be forgotten but not gone.

The AP reported last week that the BOP “is keeping its former director on the payroll as an adviser to his successor, rewarding him with an influential new role after concerns about his leadership — including from staff, inmates, Congress and the Biden administration — hastened his exit from the top job.”

Carvajal will stay on through the end of the month as a senior adviser to new director Peters, BOP spokeswoman Kristie Breshears told AP. “Critics say that retaining Carvajal, even for a few weeks, could slow that progress,” Corrections1 said. “Some people involved in the federal prison system say Carvajal lacks credibility and that the decision to let him stay on sends mixed signals about the direction of the agency at a pivotal time.”

Unbelievable220811“That is unbelievable. Why would we keep an individual that has left this agency in ruins, and who refuses to take ownership of failures of his administration, from staffing to COVID?” said Jose Rojas, a leader in the federal correctional officers’ union. “What a sad state of affairs.”

The announcement did not please Sen. Richard Durbin (D-IL). The chairman of the Senate Judiciary Committee said last Friday he plans to hold yet another oversight hearing on the BOP after The Associated Press reported that the agency is keeping Carvajal on the payroll as an adviser to Peters.

Durbin, who demanded Carvajal be fired last November amid myriad failings, told the AP in a statement he was dismayed by continuing misconduct within the agency and by its unwillingness to completely cut ties with the former director.

Reason, Biden’s New Bureau of Prisons Director Won’t be Able To Run Away From the Agency’s Corruption (August 1, 2022)

Corrections1, US keeping ex-prison chief as top adviser after rocky tenure (August 5, 2022)

Associated Press, Senate to hold hearing on crisis-plagued federal prisons (August 5, 2022)

– Thomas L. Root

It’s (Not) A Fact! – Update for August 10, 2022

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JUST THE FACTS

justthefacts220810In 2017, Clifton Odie pled guilty to a drug conspiracy. In the plea agreement, Cliff acknowledged that the government would file a 21 U.S.C. § 851 enhancement (which increases the statutory minimum sentence) based on Cliff’s 2000 Illinois state conviction for possession of a controlled substance in violation of 720 Ill. Comp. Stat. 570/402(c). The § 851 notice increased Cliff’s mandatory minimum term of imprisonment from 5 to 10 years. Cliff agreed in the plea agreement not to challenge the enhanced sentence.

But later that year, the 7th Circuit ruled in United States v. De La Torre that 720 Ill. Comp. Stat. 570/402(c) could not serve as a prior felony drug offense under 21 U.S.C. § 851. Although Cliff was way past the basic one-year deadline for a 28 U.S.C. § 2255 motion, he filed anyway, arguing that his motion was timely under § 2255(f)(4), which lets a prisoner file a § 2255 motion within one year of “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

The district court held his motion was untimely, despite Cliff’s argument that De La Torre revealed to him the “new fact” that his prior 2000 Illinois state conviction could not qualify as a prior felony drug offense for purposes of the § 851 enhancement.

On appeal, Cliff acknowledged that a judicial decision itself is not a new fact for purposes of § 2255(f)(4) but he argued that the De La Torre decision revealed the “new fact” that his 2000 Illinois state conviction was categorically overbroad under 21 U.S.C. § 851.

factopinion220810The 8th Circuit didn’t buy it, and last week agreed that Cliff’s § 2255 motion was late. The Circuit said that Cliff was relying on the De La Torre decision as the discoverable fact. The Seventh Circuit, in De La Torre, analyzed federal and state law to reach a legal conclusion about a state statute… [But] De La Torre is a judicial decision that, “unlike a predicate conviction, is a ruling exclusively within the domain of the courts and is incapable of being proved or disproved… To borrow Cliff’s language, the De La Torre holding ‘was a total judicial judgment call. We conclude that Cliff fails to show the existence of a new fact and therefore the limitations period enumerated in § 2255(f)(4) was not triggered by the publication of De La Torre.”

Odie v. United States, Case No 21-2652, 2022 U.S.App. LEXIS 21225 (8th Cir., Aug. 2, 2022)

– Thomas L. Root

Peters Sworn In As Director of ‘Beleaguered’ BOP – Update for August 9, 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.

PETERS TAKES BOP HELM

Colette S. Peters was sworn in as the Bureau of Prisons 12th director last week, as the Biden administration looks to reform what the Associated Press called a “beleaguered agency.”
petersgarland220810Peters, the former director of the Oregon state prison system, replaced Michael Carvajal, who submitted his resignation in January but stayed in his post until a new director was named. Carvajal announced his retirement amid mounting pressure from Congress, after AP investigations by exposed widespread corruption, misconduct, and sexual abuse of female inmates.

Citing the Benedictine principles of love of neighbor, service, stewardship, justice and peace, Peters said at her investiture that “our mission is twofold: to ensure safe prisons and humane and sound correctional practices so that people reenter society as productive citizens. Our job is not to make good inmates; it is to make good neighbors… I believe in good government, I believe in transparency, and I know we cannot do this work alone. We must come to this work with our arms wide open.”

Peters replaces Carvajal as BOP director only a week after a Senate Permanent Subcommittee on Investigations hearing on BOP mismanagement of USP Atlanta. After being forced by subpoena to appear, Carvajal “refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years, angering both Democratic and Republican senators,” AP reported.

Dumpster220718Writing in Forbes, Walter Pavlo said, “Often frustrated by Carvajal, the subcommittee insisted that Carvajal stop talking about the organization chart in the BOP that prevented important information from reaching his desk.” Subcommittee chairman Sen Jon Ossoff (D-GA), told Carvajal that issues plaguing the BOP “are deeper than your leadership personally. This is clearly a diseased bureaucracy, and it speaks ill to our national values and our national spirit that we let this persist year after year and decade after decade. And if this country is going to be real about the principles at the core of our founding, and our highest ideals, then it can change at the Bureau of Prisons… And it has to happen right now. And with your departure and the arrival of a new director. I hope that moment has arrived.”

During her 10 years at Oregon DOC director, Peters built a reputation as a reformer, vowing to reduce the use of solitary confinement and even banning the use of the term “inmate” in favor of “adult in custody.” Like her counterparts in California and North Dakota, Peters visited Norway five years ago, hoping tobringing a gentler model of incarceration back to the United States.

But as The Marshall Project observed last week, “American prisons are still a long way from Europe’s, and even the most innovative corrections leaders here have overseen horrific living conditions in their prisons and abuse from their staff. In picking Peters to run the Bureau of Prisons, the Biden administration has brought local and state debates to a national stage: Can this new generation of prison leaders, who use words like “dignity” and “humanity,” actually make lives better for the men and women under their control?”

Kevin Ring, president of FAMM, said last week that worrying about who runs the BOP r may be focusing on the wrong problem. “I’m less concerned about who the BOP director is than whether we have an independent oversight mechanism in place,” Ring told The Marshall Project. Although the BOP has an inspector general to perform audits, FAMM has been pushing for legislation to create an oversight body with the authorization and funding to do regular site visits and unannounced inspections.

transparancy220810“During Carvajal’s tenure, the BOP has been a black box,” Ring said in a news release last month. “When COVID began spreading in federal prisons and families’ fears were at their greatest, Carvajal and the BOP somehow became less transparent. The BOP’s opaqueness felt like cruelty. We hope the incoming secretary is prepared to make significant changes to a system badly in need of them.”

Sen Richard Durbin (D-IL), chairman of the Judiciary Committee and Carvajal’s harshest Senate critic, said after meeting with Peters last week, “I’m more hopeful than ever that with Director Peters, Attorney General Garland and Deputy Attorney General Monaco have chosen the right leader to clear out the rot and reform BOP.”

Fox News, AG Garland swears in new director of the federal Bureau of Prisons, pushes for reform (August 2, 2022)

Forbes, Bureau Of Prisons Director Carvajal Leaves Behind A Tainted Legacy Void Of Accountability (July 31, 2022)

The Marshall Project, She Tried to ‘Humanize’ Prisons in Oregon. Can She Fix the Federal System? (August 4, 2022)

Reason, Biden’s New Bureau of Prisons Director Won’t be Able To Run Away From the Agency’s Corruption (August 1, 2022)

Shaw Local News, Durbin meets with newly sworn-in director of federal prisons (August 3, 2022)

– Thomas L. Root

How Many Angels with Guns Can Fit on the Head of a Pin? – Update for August 4, 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.

‘WAIVING’ DAVIS RETROACTIVE RELIEF GOODBYE

Robber160229Deandre King was convicted of conspiracy to rob a bank and using or carrying a gun while doing so (an 18 USC § 924(c) violation). He signed a plea deal that, among other things, included a waiver giving up “the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding unless the sentence exceeded the statutory maximum.”  The waiver language included waiving post-conviction motions filed pursuant to 28 USC § 2255.

As you may recall the § 924(c) count is the darling of the prosecution set. A § 924(c) count (for using, carrying or possessing a gun during and in relation to a drug offense or a crime of violence) carries a mandatory sentence of at least five years. Plus, the law requires the mandatory sentence be imposed consecutively to any other sentence imposed. So while the conspiracy to rob might carry an 51-month sentence (as Deandre’s did), piling a § 924 count on top ensured another 84 months (the mandatory minimum where the gun is “brandished”), for  a 135-month stay.

deal160516Deandre’s plea deal probably didn’t seem too bad to him, because the government dropped some other counts, including another § 924(c) count that would have added another five years. Besides, the law was clear: bank robbery was a crime of violence, and all the Circuits had long since agreed that a conspiracy to commit a crime of violence was itself a violant crime.

However, four years after Deandre’s conviction, the Supreme Court held that all the Circuits were wrong. In United States v. Davis, the Supreme Court held that conspiracy to commit a violent offense could not be used as an underlying crime of violence supporting a § 924(c) conviction.

The Davis holding has since been held to be retroactive, so Deandre jumped on it, filing a § 2255 asking his district court to throw out the § 924(c) conviction.

His district court refused, however, holding that Deandre’s plea agreement waiver prevented such a filing. Last week, the 11th Circuit agreed, holding that the mere fact that no one foresaw a change in the law that would nullify a conviction did not invalidate a waiver.

angels170726Deandre argued that the Davis change was the equivalent to his being sentenced in excess of his stastutoery maximum. The argument has some appeal. After all, if he was not guilty of the § 924 count, then the statutory maximum sentence would be zero, and any § 924(c) sentence in excess of zero would exceed the statutory maximum (at least in some metaphysical way).

But the 11th Circuit was uninterested in counting the angels on the head of the pin:

Forcing constitutional claims into the statutory-maximum exception would render the promise of waiver virtually meaningless, robbing defendants of a powerful bargaining tool,” the Circuit held. “Defendants who agree to waive their appeals receive the immediate benefit of reduced penalties in return—as King’s case shows. But if that waiver becomes contingent, whether the defendant wishes it to be or not, a bargain will be much harder to strike… We are not the only circuit court to recognize the value of enforcing appeal waivers against claims based on new constitutional rules… Two of our sister circuits have recently held that such waivers prohibit § 2255 motions based on Davis. The 7th Circuit explained that a Davis challenge did not “satisfy any of its recognized bases for avoiding a valid collateral-attack waiver…” and the 6th Circuit interpreted an explicit carve-out in an appeal waiver for sentences exceeding “the statutory maximum” to refer to “the maximum sentence at the time of sentencing, not to maximum sentences throughout a defendant’s prison term based on future changes to the law.

What this means is that while Deandre is not guilty of the § 924(c) conviction, he’ll do the time for it.

King v. United States, Case No 20-14100, 2022 US App LEXIS 20910 (11th Cir Jul 28, 2022)

– Thomas L. Root

Peters Due to be Sworn In This Morning, Honeymoon’s Due to End This Afternoon – Update for August 2, 2022

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change220802Incoming BOP Director Colette Peters will have her choice of fires to put out after today’s swearing in. What she will not have is much of a honeymoon in which to do so.

At last week’s hearings, Sen. Jon Ossoff (D-GA) said that with Carvajal departing, and a new director coming in, change at the Bureau of Prison needs to happen and it needs to happen now.

With a fall COVID surge anticipated, she might want to look first at the BOP’s COVID management. Others certainly are. At last week’s Subcommittee hearings, Sen Alex Padilla (D-CA) said his office has received reports that FCI Mendota had not been following COVID-19 protocols, leading to frequent outbreaks at the facility.

Padilla and Sen. Dianne Feinstein (D-CA) sent the Dept of Justice a letter in April asking about the lack of COVID-19 safety precautions, but did not receive an adequate response. In response to Carvajal’s assurance that the BOP “takes these allegations seriously,” Padilla said, “We sent you a letter saying that we’re hearing that protocols are not being followed. We communicated to you months ago that we understand they aren’t being followed.”

Fourteen other senators last week demanded that the BOP explain its scant use of Covid-19 therapeutics.

The letter is based on press reports that the BOP used just a fraction of the COVID-19 drugs allotted by the federal government. It urges Bureau leadership to revamp its approach toward Covid-19 testing to catch more infections that could benefit from these drugs (which need to be given early in a person’s illness).

Druck“The experience of the pandemic for the federally incarcerated population remains starkly worse than for non-incarcerated individuals,” the letter said. “This discrepancy can only be addressed through affirmative, comprehensive changes from the Bureau of Prisons … to improve the availability of COVID-19 vaccines, testing, and therapeutics. We write to urge you to make those improvements as soon as possible.”

The Dept of Health and Human Services has reported that BOP consistently declines additional COVID-19 drugs. “We have… reached out multiple times to BOP asking them why they do not want their allocations offered by HHS. They consistently say they have enough to meet demand/their demand is low,” DHHS wrote in a May 4 email to Congress. Last week’s letter demands information from the BOP by Sep 9, including data on the turnaround time for Covid-19 tests and the policies governing when incarcerated people are tested.

numbers180327As of yesterday, BOP COVID numbers – which are stunningly untrustworthy most of the time – reported 479 inmates and 509 staff with COVID, with COVID in 115 facilities (the most since March 1st). The total number of COVID tests performed on inmates fluctuates inexplicably but suggests no testing being done since January 25th. Peters might want to start by requiring BOP COVID stats to be meaningful.

Florida Phoenix, ‘Stunning, long-term failures’ found in probe of Atlanta penitentiary (July 26, 2022)

Stat, Senators demand answers about federal prisons’ scant use of Covid therapeutics (July 26, 2022)

Letter to Michael Carvajal from Sen Benjamin Cardin (July 25, 2022)

– Thomas L. Root

Outgoing Director Carvajal Beaten Up by Gang of Senators – Update for August 1, 2022

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FORMER BOP DIRECTOR GETS SENATORIAL KICK IN THE PANTS ON HIS WAY OUT THE DOOR

Widespread drug abuse, substandard health care, violence and horrific sanitary conditions are rampant at USP Atlanta, according to a Senate Permanent Investigations Subcommittee investigation revealed last week.

riot170727The dysfunction at USP Atlanta is so notorious within the BOP that “its culture of indifference and mismanagement is derisively known among bureau employees as ‘the Atlanta way’,” the New York Times reported last week. Witnesses at the Subcommittee hearing last week “describe[ed] dozens of violent episodes — and the systematic effort to downplay and cover up the crisis — over the past few years,” The Times reported.

The prison’s conditions reflect wider problems in the BOP’s network of 122 facilities housing about 158,000 inmates, The Times said. The system has suffered from chronic overcrowding, staffing shortages, corruption, sexual violence and a culture that often encourages senior officials to minimize the extent of the problems.

The Associated Press reported that outgoing BOP Director Michael Carvajal, who testified under a Subcommittee subpoena, “faced a bipartisan onslaught Tuesday as he refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years.”

schultz220801Carvajal argued that “he had been shielded from problems by his underlings — even though he’d been copied on emails, and some of the troubles were detailed in reports generated by the agency’s headquarters.” He blamed the size and structure of the BOP for his ignorance on issues such as inmate suicides, sexual abuse, and the free flow of drugs, weapons and other contraband that has roiled some of the BOP’s 122 facilities. His attempts to deflect responsibility for his leadership failings sat well with neither Subcommittee chairman Sen Jon Ossoff (D-GA) nor its ranking member, Sen Ron Johnson (R-WI).

Colette S. Peters, the longtime head of Oregon prisons, assumes the BOP director’s post on Tuesday. Carvajal finally will get the retirement he announced seven months ago, but not before the Subcommittee made it clear that it was fed up with his blandishments.

“Inmates hanging themselves in federal prisons, addicted to and high on drugs that flow into the facilities virtually openly,” Ossoff told Carvajal, “and as they hang and suffocate in the custody of the US government, there’s no urgent response from members of the staff, year after year after year… It’s a disgrace. And for the answer to be ‘other people deal with that. I got the report. I don’t remember’. It’s completely unacceptable.”

“It’s almost willful ignorance, and that’s what I find disturbing,” Johnson said. “‘Don’t want to know what’s happening below me. Don’t want to hear about rapes. Don’t want to hear about suicides’.”

rapeclub220801In one of the hearing’s most heated moments, Ossoff pressed Carvajal on rampant sexual abuse at FCI Dublin, a federal women’s prison in California’s Bay Area known to staff and inmates as the “rape club.” Among the Dublin employees charged criminally so far is the prison’s former warden.

“Is the Bureau of Prisons able to keep female detainees safe from sexual abuse by staff?” Ossoff asked. “Yes or no?”

“Yes, we are,” Carvajal replied. “In those cases when things happen, we hold people appropriately accountable.”

“You are the director at a time when one of your prisons is known to staff and inmates as a ’rape club,” Ossoff shot back. Carvajal had no response.

Rebecca Shepard, a staff attorney for the Federal Defender Program Inc., said USP Atlanta subjects inmates to inhumane and substandard conditions:

I have seen clients routinely locked down and allowed out of their cells for extremely limited periods of time, such as only 15 to 30 minutes, three to four times a week, or only an hour each day. And these lockdowns persist for months. Clients are treated as though they are in solitary confinement, not because of their behavior, but because of their misfortune and being placed at USP Atlanta.

The problems were “stunning failures of federal prison administration,” Ossoff said. But despite “unequivocal internal reports of abuse and misconduct, the situation continued to deteriorate.”

sexualassault211014Attorney General Merrick Garland appears to be moving more decisively, especially on the issue of sexual violence against female inmates and staff members. On July 14, Deputy Attorney General Lisa Monaco announced a task force to establish a policy aimed at “rooting out and preventing sexual misconduct” by prison employees over the next 90 days. Ms. Monaco said she was also instructing frontline prosecutors to make all misconduct cases at facilities a top priority, The New York Times said.

Last week, Forbes reported that Peters will take over an agency in disarray:

Relations between management and labor is at an all-time low, the agency is failing at implementing the First Step Act and COVID-19 continues to ravage its institutions. A recent survey by Partnership for Public Service, which ranks best places to work within the US government, ranked the BOP near last among 432 federal agencies. It ranked dead last in Effective Leadership category. This comes at a time when the BOP is trying to recruit new workers to make up for many veteran BOP employees who are leaving the agency.

Dumpster220718Hyperbole?  Well, just last week:

•      An independent arbitrator found the management at the Bureau of Prisons Federal Correctional Center Yazoo City in Mississippi guilty of violating the civil rights of the American Federation of Government Employees’ (AFGE) local President Cyndee Price at the facility, as well as retaliating against her in violation of the union contract.

     In 2020, Price was the first Black woman elected to serve as the local union president at any Federal Correctional Complex in the nation. But after that, the arbitrator ruled, prison wardens prohibited Price from using 100% official time to perform her union work, although previous Local President Vincent Kirksey had been granted 100% official time for the past seven years, and male local presidents at other BOP facilities also are on 100% official time.

     Bankston ordered the agency to pay Price overtime pay for the 1,080 hours of union work she performed on her own time that should have been performed during duty hours under the approved contract and past practice. Price was also awarded $300,000 in compensatory damages, as well as attorney’s fees and expenses.

•    A former BOP employee from FMC Lexington was sentenced last Friday to 80 months in federal prison after pleading guilty to committing five counts of sexual abuse of a ward. The employee, Hosea Lee, was a correctional officer serving as a drug treatment specialist. Between August and December 2019, Lee engaged in sexual acts with four separate female inmates who were in his drug classes.

•    A Mississippi woman, Tarshuana Thomas, was arrested Monday after being indicted by a federal grand jury for alleged fraud involving federal COVID-19 Paycheck Protection Program loans. The US Attorney said Thomas, who worked as a CO at FCC Yazoo City at the time of the alleged fraud, devised a scheme to obtain PPP funds by filing fraudulent loan applications.

The Atlanta Voice, Senator Ossoff grills Federal prison officials over deplorable conditions at Atlanta Penitentiary (July 28, 2022)

The New York Times, Prison Personnel Describe Horrific Conditions, and Cover-Up, at Atlanta Prison (July 26, 2022)

Forbes, Outgoing Federal Bureau Of Prisons Director Carvajal Subpoenaed By Senate Subcommittee (Jul 19)

WRDW-TV, Ossoff leads hearing on troubled Georgia federal prison (July 26, 2022)

WJTV, Arbitrator finds Yazoo County federal prison guilty of violating civil rights (July 26, 2022)

Dept of Justice, Former BOP Employee Sentenced to 80 Months in Prison for Sexual Abuse of a Ward (July 29, 2022)

Mageenews.com, Former BOP Correctional Officer Charged with COVID-Relief Fraud (July 29, 2022)

– Thomas L. Root

Musings on a Slow Month – Update for July 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.

THE GOOD, THE BAD, AND THE WEIRD

summertime220725In the only good news to come from Washington so far this sleepy July, Senate Democrats have introduced a bill to decriminalize marijuana at the federal level this week, although the legislation faces long odds in the evenly divided chamber.

Majority Leader Charles Schumer (D-NY) worked with Sen Cory Booker (D-NJ) and Ron Wyden (D-OR) on the measure. The senators circulated a draft of the bill last year and made tweaks after feedback from Senate committees.

The Cannabis Administration and Opportunity Act (S.4591) would remove marijuana from the list of drugs covered by the Controlled Substances Act. States, however, can still maintain and create prohibitions on producing and distributing marijuana.

marijuana160818The CAOA is the Senate’s answer to the MORE Act (H.R. 3617), passed in the House last spring on a 220-204 vote. Like the MORE Act, the CAOA will require all federal non-violent marijuana-related convictions and arrests be expunged within a year. Some lawmakers on both sides of the aisle have criticized Schumer for trying to push through a broad cannabis reform bill at the expense of a marijuana banking bill that has greater bipartisan support.

The bad is that the EQUAL Act (S.79), which passed the House (361-66) last September, remains stalled in the Senate. The Act, which would equalize sentences for crack and powder cocaine (and offer retroactivity to anyone serving a crack offense now) has well over 60 votes in the Senate. The Senate Majority Leader – the guy who schedules votes on bills – is a cosponsor. So what’s the holdup?

In a long article on a crack cocaine defendant who finally got compassionate release, the Mississippi Free Press last week reported, “FAMM President Ring told the Mississippi Free Press more about what he sees as the senators’ political calculations. ‘The problem is that lawmakers are scared that if this bill comes up, Republicans will be allowed to offer amendments to it because that’s usually how the process works,’ he said.

Ring said that votes on amendments unrelated to the bill can be “weaponized by political opponents… As a result, the political calculation has been made to shelve the bill in the Senate.”

crackpowder160606In addition, Dream Corps JUSTICE Policy Director Kandia Milton, in June 23, 2022, letter, indicated that the group is concerned about a competing Senate bill sponsored by Sen Charles Grassley (R-IA) — the SMART Cocaine Sentencing Act, S.4116 – that “maintains a disparity between these two forms of the same drug (2.5-1), lower the mandatory minimum threshold to 400 grams from 500 grams and, worst of all, mandates that the U.S. Attorney must approve all petitions for retroactivity.” Milton wrote. “Our sense of urgency is driven by the reality that if we do not pass [EQUAL] by the August recess, we won’t get another clean shot until after the midterm elections, an unpredictable two-month window at the end of the year,” he added. “We are very close to eliminating the disparity between crack cocaine and powder cocaine, and we recognize there is more work to be done.”

The weird: Two weeks ago, the Senate Judiciary Committee whiffed for a second time on approving the nomination of the seven candidates for the Sentencing Commission. At the beginning of last Thursday’s work session, Durbin said, “We have decided on a bipartisan basis to hold over for a second time the Sentencing Commission nominees while members are in… we’re going to try to find a path for all seven nominees to move together, which I think would be a positive thing and maybe even historic around here.”

The terse statement suggested some substantial pushback on one or more nominations. Laura Mate, who signed a 2014 letter to Congress supporting more reasonable mandatory minimums for sex offenders, and former federal judge John Gleeson, whose criticism of the Guidelines while on the bench was legendary, were both pilloried by several Republicans during their June nomination hearing.

Nevertheless, last week the Committee finally got the job done. It advanced the slate of seven nominees to the floor of the full Senate for its approval, bringing the Commission one step closer to being able to amend the Sentencing Guidelines.

noquorum191016The USSC has been unable to implement the First Step Act or, for that matter, do anything else after losing its quorum just as the bill was enacted in December 2018.

The Senate Judiciary Committee voted to send to the full Senate four Democrat and three Republican candidates nominated by President Joe Biden to revitalize the Commission.

Committee chairman Durbin told the Committee that while he had reservations about some nominees, it was important to move them forward as a group to “enable the commission to get back to doing its work.” He said, “[T]he Sentencing Commission has not had a quorum for three years. With no quorum, the Commission—created in 1984 and tasked by Congress to promote transparency and consistency in sentencing—has been unable to update the sentencing guidelines to provide guidance to judges. Today, we make an important step to rectify the situation… [and] enable the Commission to get back to its work.”

Cannabis Administration and Opportunity Act (S.4591)

Seeking Alpha, Senate Democrats-backed marijuana legalization bill coming next week (July 14, 2022)

Bloomberg, Pot Gets Senate’s Attention in Long-Shot Decriminalization Bill (July 14, 2022)

Politico, Schumer’s legal weed bill is finally here (July 21, 2022)

KYFR, North Dakota lawmakers, advocates push for equal sentencing in federal cocaine and crack crimes (July 12, 2022)

Senate Judiciary Hearing (July 14, 2022)

Mississippi Free Press, ‘Model Inmate’: Father Finally Has Crack Sentence Reduced as U.S. Senate Shelves Reform Bill (July 22, 2022)

Independentcloud.com, Cannabis Bill Senate: US Democrats Demand Senate Pass Its Own Marijuana Banking Bill (July 21, 2022)

Reuters, US Senate committee advances nominees to restock sentencing panel (July 21, 2022)

Sen Richard Durbin, Judiciary Committee Advances Ten Nominees, Including Two Judicial Nominees, Seven Sentencing Commission Nominees, And An Assistant Attorney General (July 21, 2022)

– Thomas L. Root

“Supreme Court – Meh,” 7th Circuit Says – Update for July 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.

‘CONCEPCION’? WHAT ‘CONCEPCION?’ 7TH CIRCUIT ASKS

When the Supreme Court handed down the Concepcion v. United States decision a few weeks ago, I thought that the holding – that district courts’ discretion to consider any relevant information in resentencing is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence – would resolve a circuit split surrounding what factors can serve as the basis for compassionate release.

Sentencestack170404I was especially focused on cases in which courts were asked to rely on non-retroactive changes in sentencing law – such as the First Step Act’s ban on § 924(c) “stacking” – as a basis for compassionate release. After all, nothing in the text of 18 USC § 3582(c)(1)(a) supports the notion that non-retroactive changes are excluded from being “extraordinary and compelling.”

Who could possibly disagree?

The 7th Circuit, maybe. Last week, that Circuit rejected reliance on non-retroactive changes in statute as a basis for compassionate release. Christopher King was serving a mandatory minimum sentence for drug distribution that had been lowered by the First Step Act. He argued the statutory change – while not retroactive – was an extraordinary and compelling reason for a sentence reduction.

extraordinary220719The 7th disagreed, holding that when deciding whether “extraordinary and compelling reasons” justify a prisoner’s compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions.” The Circuit ruled that “there’s nothing ‘extraordinary’ about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255.”

The 7th observed that

Concepcion… held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing. We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But… the threshold question [is] whether the prisoner is entitled to a reduction under § 3582(c)(1)(A)… The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions. We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants. So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

7thConcepcion220719Writing in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman quite rightly complained, “[T]his new King decision reiterates the misguided notion that district judges are categorically excluded from ever considering ‘non-retroactive statutory changes or new judicial decisions’ even though Concepcion stressed that the ‘only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution.”

Concepcion v. United States, Case No 20-1650 (Supreme Court, June 27, 2022)

United States v. King, Case No 21-3196, 2022 U.S.App. LEXIS 18987 (7th Cir., July 11, 2022) 

Sentencing Law and Policy, Seventh Circuit panel refuses to reconsider its extra-textual limit on compassionate release in light of Supreme Court’s Concepcion decision (July 11, 2022)

– Thomas L. Root

The King is Dead, Long Live the Queen – Update for July 18, 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.

NEW ‘REFORM’ SHERIFF COMES TO BOP

Colette S. Peters, the longtime director of the Oregon Department of Corrections, has been tapped to lead what The New York Times last week called “the chronically mismanaged and understaffed federal Bureau of Prisons.”

Dumpster220718The appointment comes after a 5-month search to replace current BOP Director Michael Carvajal. Carvajal announced his retirement in January under pressure from Senate Democrats – especially Judiciary Committee Chairman Richard Durbin (D-IL) – who questioned his management.

The Times said Peters “was considered the favored candidate for a job seen as one of the Justice Department’s most demanding and thankless assignments.” Kevin Ring, president of FAMM, was blunter:  “Colette Peters is walking into a dumpster fire. From sexual violence and medical neglect to understaffing and years-long lockdowns, the BOP’s leadership has allowed a humanitarian crisis to develop on its watch. Families with incarcerated loved ones have been begging for change.”

The Associated Press reported that “Peters, who championed steeply reducing [Oregon’s] inmate population in the last decade, will inherit a federal agency plagued by myriad scandals. Her hiring comes about seven months after Director Michael Carvajal submitted his resignation amid mounting pressure from Congress after investigations by The Associated Press exposed widespread corruption and misconduct in the agency.”

Those issues include health and safety problems, physical and sexual abuse, corruption and turnover in the top management ranks. Staffing issues, exacerbated by the pandemic, have resulted in a huge shortage of prison guards and health personnel, according to an AP investigation last year, which uncovered a wide array of other shortcomings.

bureaucracy180122When she takes office on Aug 2, Peters will become only the second director in BOP history with no prior experience in the federal prison system. Deputy Attorney General Lisa Monaco, who led the search to replace Carvajal, said DOJ had been looking for someone focused on reforming an agency that has had cultural issues for decades.

Durbin had been especially critical of Carvajal, who started his BOP career as a correctional officer 30 years ago, accusing him of failing to properly implement the First Step Act. Last winter, he called repeatedly for Carvajal’s firing, describing the BOP as rife with abuse and corruption.

The accuracy of that criticism was underscored this week by a Forbes report that 42 months after First Step became law, the BOP is only now beginning staff training on how to apply earned-time credits for inmates, with training set to start next month. Forbes said, “While the training on FSA is a great idea, it also serves as verification that the BOP is way behind on implementing the most important aspect of the law, which is to allow prisoners to earn time off of their sentences. After training, it will take months to coordinate local training at the institution level. Until then, expect the chaos to continue and questions to go unanswered.”

Shane Fausey, national president of the Council of Prison Locals, which represents BOP employees, welcomed the selection of Peters. “We believe that the lessons [Peters] learned while leading the Oregon Department of Corrections can be used to effectively improve the BOP,” he told Government Executive. “Additionally, it is extremely important that officer and employee safety are prioritized in all decisions.”

Rep Fred Keller (R-PA), chair of the House BOP Reform Caucus, said, “I look forward to maintaining an active and productive relationship with Director Peters in her new capacity on BOP priorities such as improving the agency’s operations, increasing correctional officer staffing levels, and ensuring the safety of staff and inmates.”

Peters has faced criticism during her stint as ODOC chief. She was accused in a lawsuit of placing underqualified friends in high-ranking positions within the ODOC and creating openings for them by firing other employees or creating a hostile environment causing other employees to quit.

Bobbin Singh, the executive director of the Oregon Justice Resource Center, last week expressed concern about Peters’s appointment given his experience with her. “This appointment is an insult to all those incarcerated in Oregon who are fighting for their civil rights and dignity,” Singh told the online publication Law Dork last Tuesday.

Less than a month ago, his organization sent a report to Oregon lawmakers detailing ongoing problems at ODOC. In the letter to lawmakers accompanying the report, Singh wrote, “Despite a cascade of evidence revealing serious issues within the department, ODOC continues to put forward a misleading narrative that either ignores the issues entirely, profoundly sanitizes the facts, or wrongly shifts blame and responsibility away from itself.”

goodbad220718Law Dork reported, “Another person familiar with Peters’s work helped explain how Singh could have such criticisms and DOJ could nonetheless want Peters for the job: ‘She both runs a bad system and is one of the handful of best DOC heads in the country. She has made some concrete improvements to the system. But the system is still really bad. It says so much about American prisons that ODOC can both be very bad — and be one of the better ones in the country.’”

NY Times, Justice Department Taps Oregon Official to Run Troubled Bureau of Prisons (July 11, 2022)

Associated Press, Justice Dept taps reforming outsider to run federal prisons (July 12, 2022)

Forbes, 42 Months After The First Step Act Was Signed Into Law, The Bureau Of Prisons Starts Training Staff (July 15, 2022)

Govt Executive, A New Federal Prisons Director Has Been Named, and Union Officials and Lawmakers Are Optimistic She Will Bring Positive Reforms (July 12, 2022)

Law Dork, New Prisons Head Comes From Oregon, With Baggage (Jul y 13, 2022)

FAMM, FAMM releases statement on new Bureau of Prisons Director (Jul 12)

– Thomas L. Root

A Dollop of Common Sense on § 2255 Review – Update for July 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.

A DAVIS/TAYLOR ROADMAP

Last week, the 8th Circuit provided a “how-to” instruction manual for people looking to challenge their 18 USC § 924(c) convictions in the wake of United States v. Davis and, more recently, United States v. Taylor. It’s a good read.

robber160523In 2005, Christopher Jones pleaded guilty to conspiracy to commit Hobbs Act robbery (18 USC § 1951) and brandishing a firearm during a crime of violence. Originally, Chris was charged with conspiracy to commit a Hobbs Act robbery and two counts of attempting and aiding and abetting the robbery. Although the § 924(c) count was linked to all three counts, under Chris’s plea deal, the government threw out all of the counts except the conspiracy and § 924(c) charges.

After Chris’s conviction became final, the Supreme Court handed down Davis. Chris promptly moved under 28 USC § 2255 to have his § 924(c) conviction thrown out.

His district court denied the § 2255 motion on the grounds of clairvoyance. It seems Chris’s appeal lawyer could not see into the future. On appeal, he didn’t waste any space in the brief arguing that the Hobbs Act conspiracy was not a crime of violence, because the 8th Circuit – like many others – had always held that it was.

Too bad, the district court said. He should have imagined that someday a case like Davis would reverse what the Circuit said was law. Thus,  Chris had “procedurally defaulted” on the issue and could not raise it in a § 2255.

Last week, the 8th Circuit opted for common sense. It held that Chris had established “cause” for failing to raise the issue that ultimately won in Davis on direct review, “because the state of the law at the time of his appeal did not offer a reasonable basis upon which to challenge the guilty plea.” Chris’s Davis claim was reasonably available only after the Supreme Court in Johnson v. United States held that the residual clause of § 924(e) was unconstitutionally vague.

violence160110Significantly, the 8th held that none of Chris’s predicate convictions supported a § 924(c) charge. “Conspiracy to commit Hobbs Act robbery does not qualify,” the Circuit held, “because conspiracy does not have as an element ‘the use, attempted use, or threatened use of physical force against the person or property of another,’ and the Supreme Court held in Davis that the residual clause is unconstitutionally vague.” And the count for “aiding and abetting an attempted Hobbs Act robbery does not qualify, because no element of the attempted robbery offense requires that the defendant use, attempt to use, or threaten to use force,” the 8th ruled, citing last month’s Supreme Court Taylor ruling.

Finally, the appeals court said, “Davis qualifies as a substantive rule that applies retroactively. By declaring unconstitutional the residual clause of § 924(c)(3)(B), Davis changed the substantive reach of § 924(c), altering the range of conduct or class of persons that the statute punishes… Accordingly, we must apply Davis in this postconviction proceeding.”

Jones v. United States, Case No. 20-2067, 2022 U.S. App. LEXIS 18412 (8th Cir., July 5, 2022)
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– Thomas L. Root