BOP’s Got Nowhere to Go But Up – Update for January 3, 2023

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THE BOP’S NEW YEAR RESOLUTIONS

peters220929Director Colette Peters has been at the Bureau of Prisons now for five months. As she begins her first complete calendar year at the agency, she’s not lacking for material when she compiles a list of new year resolutions.

Starting my ninth year of writing about the BOP – and being an average joe who is happier suggesting resolutions to other people than I am adopting resolutions of my own – I have some suggestions for Director in the unlikely event her list is too short.

(1) Change the Culture: The BOP has nowhere to go but up. Last year, the Partnership for Public Service‘s 2021 rankings of the best places to work in the federal government ranked the BOP in 431st place. This was out of 432 agencies. The BOP ranked dead last in 8 of 15 categories, including “effective leadership,” “innovation” and “teamwork.”

BOPad230103(2) Hire people: Walter Pavlo observed last week that “hiring new staff in this environment is difficult.” National Council of Prison Locals president Shane Fousey called it, “a staffing crisis of epic proportions.” Staffing issues lead to inconsistent and nonexistent programming, poor healthcare, loss of opportunities for sentence credit and community confinement, and institutional safety issues.

Of course, you cannot hire the people you need to work at an agency that is feeding at the bottom of the federal employment hierarchy.  No leadership, no teamwork, no innovation… no employees.

Just last week, Pavlo wrote that an FCI Miami inmate died choking on his own blood while in a COVID quarantine. His cellmate (apparently, quarantine was in the SHU), pounded and screamed for help for 90 minutes before a CO – who was responsible for multiple housing units, came along for count. Kareen Troitino, the local CO union president, said of the incident, “As a cost savings initiative, the Agency is jeopardizing lives by forcing one officer to supervise two units. This loss of life would have never happened if we had one officer in each building as we had in the past.”

(3) Clean Up Internal Investigations: Last month, the Senate Permanent Committee on Investigations found that BOP employees had abused female prisoners in at least 19 of the 29 federal facilities over the past decade. In June 2021, the Dept of Justice revealed that as of 2018, inmates reported 27,826 allegations of sexual victimization, or a 15% increase from 2015. Of the 27,826 allegations, over half were staff-on-inmate sexual abuse. The BOP has over 8,000 internal affairs misconduct allegations that haven’t been investigated.

SIS230103The misconduct ranges from BOP leaks and lies that placed Whitey Bulger in general population at USP Hazelton (where he survived for under 12 hours) to ”corruption at the US Penitentiary Atlanta in Georgia to the Dept of Justice’s failure to count almost 1,000 deaths in custody across the country, to abusive and unnecessary gynecological procedures performed on women in Dept of Homeland Security custody,” according to Sen. Jon Ossoff (D-GA).

(4) Use the Tools Congress Gave You: Stephen Sady, Chief Deputy Federal Public Defender for the District of Oregon, recently wrote in the Federal Sentencing Reporter that the Sentencing Commission should fulfill its statutory obligation to make recommendations regarding correctional resources and programs. He told Walter Pavlo that “the BOP has failed to adequately implement critical legislation to improve the conditions of people in prison” and since the BOP hasn’t acted, the Sentencing Commission should.

The BOP could address staff shortages and morale problems by getting more people to home confinement, halfway house and early release with the need for USSC oversight, Pavlo also suggests the BOP could expand eligibility and availability of RDAP sentence reductions, “eliminate computation rules that create longer sentences… Implement broader statutory and guideline standards to file compassionate release motions any time extraordinary and compelling reasons exist… [and f]ully implement the First Step Act’s earned time credit program.’ Pavlo notes that “[n]o new legislation would be required for any of these reforms.”

nothingtosay230123(5) Practice Openness: There’s an old admonition about not picking a fight with someone who buys ink by the barrel. It’s not so much ink these days, but a blemish on Peters’s honeymoon as director is the BOP’s continued awkward of the Ft. Worth Star-Telegram’s questions about allegations of systemic abuse at the women’s FMC Carswell.

Although the Star-Telegram rated its reports of Carswell mismanagement and misconduct as one of its most important stories in 2022, the newspaper complained again this week that BOP “administrators have declined interview requests, given blanket statements in answer to questions and failed to provide detailed plans about how the Bureau of Prisons intends to address the problems.”

Associated Press, Biden signs bill forcing the federal Bureau of Prisons to fix outdated cameras (December 27, 2022)

Partnership for Public Service, 2021 Best Places to Work in the Federal Government rankings

Forbes, A Federal Public Defender Challenges U.S. Sentencing Commission To Help Fix The Bureau Of Prisons (December 28, 2022)

Forbes, Federal Inmate Dies Choking On His Own Blood While Locked In Cell At FCI Miami (December 29, 2022)

Amsterdam News, Senate committee finds widespread employee on inmate sex abuse in federal prisons (December 26, 2022)

Business Insider, Inside the federal West Virginia prison where gangster Whitey Bulger was beaten to death (December 31, 2022)

Ft Worth Star-Telegram, Fort Worth’s biggest stories of 2022: What will you remember most about this year? (December 31, 2022)

– Thomas L. Root

‘Peeping Tom’ Crime Not Necessarily Child Porn, 8th Circuit Says – Update for December 30, 2022

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8TH CIRCUIT HOLDS VOYEURISM IS NOT NECESSARILY CHILD PORN

I’ll get this out of the way right now: child pornography is creepy. What’s more, it can scar the innocent victim for life. No thinking person can see it as a harmless albeit deviant pastime.

pervert160728But feeling the need to wash your hands after even just discussing the topic is different from opposing the draconian sentences for child porn mandated by federal law. Matthew McCoy got such a sentence, 210 months (17 years plus) because he hid a video camera in a bathroom closet to record his 15-year-old niece taking a shower.

After a jury trial, Matt was convicted of two counts of producing child porn, a 15-year mandatory minimum offense. But two weeks ago, the 8th Circuit reversed.

Matt was convicted under 18 USC § 2251(a), which prohibits using a “minor to engage in… any sexually explicit conduct for or the purpose of producing any visual depiction of such conduct.” For the conduct to be “sexually explicit,” it must be “lascivious.”

The statutes define “sexually explicitly conduct” as including “actual … lascivious exhibition of the anus, genitals, or pubic area of any person[.]” 18 U.S.C. § 2256(2)(A)(v). Both McCoy and the government focus our attention on the meaning of “lascivious exhibition.”

The Circuit applied the well-known “Dost factors” – so named because they were originally used in United States v. Dost (a 36-year-old California district court case) – to Matt’s video. Those factors include

(1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

While the child was unclothed, the Court said, the camera was fixed and thus could not focus on any particular body parts. Nothing the child did in showering constituted suggestive posing or was overtly sexual.

None of that mattered, the government argued, because the issue of how the video turned out was irrelevant. Matt intended the video depiction “to elicit a sexual response in the viewer,” the prosecutor argued, and that was all that mattered.

pornC160829The 8th Circuit rejected this subjective standard. “The statute does not ask whether the videos were intended to appeal to the defendant’s particular sexual interest,” the 8th said. “Instead, the inquiry is whether the videos, on their face, are of a sexual character.”

No question that secretly recording kids in the bathroom is creepy. The issue is whether it is a 17-year-plus sentence worth of “creepy” “Congress… defined sexually explicit conduct as the lascivious exhibition of genitals — not mere nudity,” the Circuit said. “Applying this statute to the evidence presented at trial, we conclude no reasonable jury could have found McCoy guilty beyond a reasonable doubt.

Voyeurism is disgusting. But it is not necessarily child pornography.

United States v. McCoy, Case No 21-3895, 2022 U.S.App. LEXIS 34588 (8th Cir., December 15, 2022)

– Thomas L. Root

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No Clemency from Santa Biden This Year – Update for December 29, 2022

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CHRISTMAS CLEMENCIES ARE A BUST

Congress is not the only underperforming branch of government this year. So far this month, President Biden granted traditional year-end clemencies to the following:

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clemency170206That’s right… to no one.

Last week, sentencing law experts (and law professors) Mark Osler and Rachel Barkow took Biden to task for using the tool of clemency for symbolism rather than substance, while ignoring clemency’s official process.” Saying that he has acted like former President Trump, Osler and Barkow – writing in the New York Daily News – complained that while 17,000 petitions (it’s closer to 18,000) have piled up — a “historic backlog — and many petitioners have been waiting for answers for five years or more.”

Osler and Barkow wrote that “like Trump, Biden has simply ignored those thousands of people waiting for consideration of their heartfelt pleas for clemency; in fact, he has failed to deny a single petition by presidential action even as the pile has grown into a tower. While many clemency petitions are worthy, many others are obviously not, and it shouldn’t be hard to say “no” to the weakest petitions. Like Trump before him, Biden seems either frozen in inaction or just doesn’t care.”

Biden’s commutation so far of 82 people for nonviolent offenses (and the vague pardons to unnamed marijuana possessors) “are more about signaling and politics than helping real people,” Barkow and Osler said.

clemency220418For all of the Biden Administration’s hand-wringing over retroactively remedying the crack-powder sentencing disparity that was embraced by the failed EQUAL Act (S.79), MSNBC reported last week, “Biden, who supported the proposed legislation, could remedy these past injustices with clemency, but he hasn’t done so, despite issuing pardons ahead of the midterm elections for cannabis possession.”

NY Daily News, Biden’s cowardice on clemency (December 20, 2022)

MSNBC, Racist war on drugs is the real winner of Congress’s massive spending bill (December 23, 2022)

– Thomas L. Root

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Unfair Sentence is Not Extraordinary, 6th Says – Update for December 28, 2022

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6TH CIRCUIT SAYS NOTHING IS ‘EXTRAORDINARY’ ABOUT CHANGES IN THE LAW

The 6th Circuit last week delivered a lengthy en banc decision that seems to fly in the face of last summer’s Supreme Court Concepcion v. United States opinion.

6thConcepcion221228Concepcion held by a 5-4 majority that “Federal courts historically have exercised… broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”

Because Congress did nothing in the First Step Act to “contravene this well-established sentencing practice,” Justice Sotomayor wrote for the Concepcion majority, “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.”

But last week, the 6th Circuit overcame that tradition right handily, ruling that in weighing a compassionate release motion, a district court may not consider non-retroactive changes in sentencing statutes or Guidelines, even when those changes mean that if the defendant were sentenced for the same offense today, the sentence would be much shorter.

David McCall, who has prior drug convictions aplenty, was convicted of serving as a middleman in a sprawling Cleveland, Ohio, drug-trafficking conspiracy. The government, emphasizing Dave’s extensive criminal history, urged the district court to sentence him to 235 months as a Guidelines career offender.
 compassionlimit221228Five years into the sentence, Dave moved for an 18 USC § 3582(c)(1)(A)(i) compassionate release, based on his risk of COVID, his rehabilitation and the fact that under the 6th Circuit’s United States v. Havis decision, attempted drug-trafficking offenses like Dave’s priors are not controlled substance offenses under the Guidelines career offender provision.

Dave’s district court denied the compassionate release, holding that a nonretroactive change in the law like Havis was not an “extraordinary and compelling” reason for a sentence reduction under the statute. A year ago, a 6th Circuit panel agreed. Last week, the 6th Circuit sitting en banc upheld the panel decision:

The 1st, 9th, and 10th Circuits have held that nonretroactive legal developments can contribute to a finding of extraordinary and compelling reasons when viewed in combination with a defendant’s unique circumstances. The 4th Circuit’s position goes a step further… Different around the edges, all three of these decisions seem to rest on the common goals of ‘alleviating unfair and unnecessary sentences as judged by today’s sentencing laws… and of promoting ‘individualized, case-by-case’ sentencing decisions… We cannot reconcile this approach with the plain text of the compassionate-release statute. Congress prospectively amends or updates its criminal-penalty scheme. The nonretroactivity of judicial precedent like Havis is the rule, not the exception. That a defendant might receive a different sentence today than he received years ago represents the routine business of our legal system. These ordinary happenings cannot supply an extraordinary and compelling reason to reduce a lawful sentence whose term Congress enacted, and the President signed, into law.

The only good news is that within a month, the U.S. Sentencing Commission should issue a proposed USSG 1B1.13 – a new compassionate release policy statement – for public comment.  The proposal should harmonize the rules followed by the different Circuits, and do so in a way favorable to prisoners.

United States v. McCall, Case No 21-3400, 2022 U.S. App. LEXIS 35473 (6th Cir, Dec 22, 2022)

– Thomas L. Root

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Blue Christmas for Criminal Justice Reform – Update for December 27, 2022

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SENTENCE REFORM DIES WITH 117TH CONGRESS

Sentencing reform is dead for another two years.

bluechristmas221227Of all the criminal justice reform bills in Congress – the First Step Implementation Act (S.1014), the Smarter Sentencing Act (S.1013), the COVID-19 Safer Detention Act (S.312), the Prohibiting Punishment of Acquitted Conduct Act (S.601), the EQUAL Act (S.79) and the Marijuana Opportunity Reinvestment and Expungement Act (H.R. 3617) – exactly none made it past the Senate during the two-year Congress that ends in a week. Zero. Zip. Bupkis.
With both the House nor Senate closed for a Christmas-Passover-Kwanzaa-New Year’s vacation until next Tuesday, the 117th Congress is done. It’s the legislative equivalent to taking a knee in the final minute of a football game. The clock’s running out.

runoutclock221227It was clear last summer that the First Step Implementation Act, the Smarter Sentencing Act, the COVID-19 Safer Detention Act (and the Prohibiting Punishment of Acquitted Conduct Act were going nowhere. But some marijuana and cocaine reform – even though it was not quite what was in the MORE Act and EQUAL Act that passed the House – looked likely as late as last week. However, despite bipartisan support for both bills, Senate Republicans shot them down, but with plenty of help from Senate Democrats and the Biden Administration.

As for marijuana, the Senate’s failure to act comes as a repudiation of Biden’s efforts for pot reform. In October, the president pardoned thousands of people convicted of simple marijuana possession (although no one pardoned was in federal prison) and said his administration would review how the drug is categorized.

The MORE Act would have allowed cannabis companies to open bank accounts and would have retroactively permitted changes in pot-based sentences. But efforts were severely hobbled last fall when Senate Majority Charles Schumer (D-NY), Sen Cory Booker (D-NJ) and Sen Ron Wyden (D-OR) introduced their own version of weed reform, the Cannabis Administration and Opportunity Act (S.4591).

Either MORE or CAOA would have been good for prisoners, but Democratic leadership’s push of an alternative bill diluted the groundswell of support needed to get MORE passed. By last week, the only hope was for banking reform – nothing for federal prisoners – but even that was exempted from last week’s giant end-of-year spending bill, the last chance it had for passage.

congressgradecard221227If anything, the EQUAL Act’s failure was a bigger disappointment. Aimed at reducing the disparity in sentencing for crack versus powder cocaine offenses by making crack and powder sentences the same, it would have benefitted thousands of prisoners with retroactive relief. EQUAL passed the House with bipartisan support and had what seemed to be a veto-proof majority of 50 Democrat supporters and 11 Republican Senate co-sponsors.

Then, Sen Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee and introduced his SMART Cocaine Sentencing Act (S. 4116), which watered down EQUAL and put retroactivity in the hands of the Dept of Justice.

Still, EQUAL had a chance until Sen Tom Cotton (R–AR) single-handedly stopped the Senate from considering the bill last Wednesday. EQUAL, like the marijuana-friendly SAFE Banking Act was proposed as an addition to the catch-all spending package, an effort that Cotton frustrated.

Sen. Booker then sought unanimous consent to release the stand-alone version of the EQUAL Act from the Senate Judiciary Committee. Sen. Cotton, a hardline prohibitionist described by Beforeitsnews.com as someone “who has never met a drug penalty he thought was too severe,” objected. Sen. Booker’s “hail Mary” fell short.

Still, it appeared up until a week ago that some crack cocaine relief would be jammed into the giant end-of-year spending bill. Reuters reported a week ago that Senate negotiators had reached a potential compromise.

timing221227But then, Attorney General Merrick Garland picked the middle of the negotiations to issue a memo directing federal prosecutors to “promote the equivalent treatment of crack and powder cocaine offenses” in two ways. If they decide that a mandatory minimum should be charged, they should “charge the pertinent statutory quantities that apply to powder cocaine offenses.” And at sentencing, “prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine.”

Grassley was enraged, blasting the Garland memo as demanding that “prosecutors ignore the text and spirit of federal statutes [and] undermining legislative efforts to address this sentencing disparity.” And just like that, when the text of the 4,000-page, $1.7 trillion spending bill was released, the watered-down EQUAL Act was nowhere to be found.

“It is a searing indictment of a broken Beltway when a bill that passed the House with an overwhelming bipartisan vote, endorsed by law enforcement and civil rights leaders alike, with 11 Republican co-sponsors and filibuster-proof majority support in the Senate, and an agreement between the relevant committee Chairman and Ranking Member for inclusion in the end-of-year package, fails to make it to the President’s desk,” Holly Harris, president and executive director of the Justice Action Network, said. “The American people deserve better.”

FAMM vice president Molly Gill wants to see the EQUAL Act reintroduced next session. The politics are hard to predict: Democrats have one more seat in the Senate, while Republicans will take narrow control of the House.

The fact that a large number of House Republicans joined Democrats in passing the EQUAL Act last year is not reassuring: the trick will be getting a Republican speaker – who controls what comes up for a vote – put the bill in front of the chamber.

Any bill now pending in the House or Senate that has not passed will disappear on Jan 3, when the new 2-year Congress – the 118th – convenes. And we will start all over again, but with a much unfriendlier House of Representatives.

New Republic: Three Incredibly Popular Things That Congress Chose to Leave Out of the Spending Bill (December 20, 2022)

Reason, Congress Yet Again Fails To Pass Crack Cocaine Sentencing Reforms (December 20, 2022)

Marijuana Moment, Schumer’s “last ditch” cannabis banking push (December 19, 2022)

Reason, Merrick Garland’s New Charging Policy Aims To Ameliorate the Damage His Boss Did As a Drug Warrior (December 19, 2022)

Beforeitsnews.com, The Failure To Enact Marijuana Banking and Crack Sentencing Reforms Is a Window on Congressional Dysfunction (December 22, 2022)

Filter, The Limits of AG’s Guidelines Against Crack-Powder Sentencing Disparity (December 21, 2022)

– Thomas L. Root

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Criminal Justice Reform Efforts Die In 117th Congress With a Whimper – Update for December 20, 2022

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SENATE CRACK COMPROMISE AND POT REFORM ARE DEAD

As of last Thursday, negotiators in the Senate had reportedly reached a tentative deal to narrow sentencing disparities between crack and powder cocaine from 18:1 to 2.5:1. Then, enter Merrick Garland…

congressbroken220330First, the compromise: Reuters reported that its sources said senators planned to tuck the measure into a bill funding the government. Under the deal reached, the crack/powder weight disparity would be narrowed to 2.5 to 1, but the change would not be retroactive. The Senate would attach the change to a year-end spending bill, which has been delayed for another week.

The compromise is the death knell for the EQUAL Act (S.79), which would have made crack and powder equal in sentence severity and would have been retroactive. EQUAL, which passed the House last year, has been in trouble in the Senate since Sen. Charles Grassley (R-IA), the highest-ranking Republican on the Judiciary Committee, introduced the SMART Cocaine Sentencing Act (S.4116), which embodied the 2.5-to-1 ratio. proportion instead.

Then, the Dept of Justice: The compromise was shaky even before the DOJ announced relaxed crack charging policies last Friday. Those changes angered Sen. Grassley, who warned that “it undermines legislative efforts to address this sentencing disparity.” Yesterday, the compromise seems to have gone to hell.

Two sources told Reuters yesterday that even the 2.5:1 negotiations have stalled. After Friday’s DOJ announcement, Senate Minority Leader Mitch McConnell (R-KY) joined Sen. Grassley in opposing the compromise. One source told Reuters that last-minute negotiations to tuck the measure into the year-end spending bill continued yesterday morning, but “inclusion was no longer seen as likely.”

nochance221220At this point, neither the EQUAL Act nor retroactivity nor even the watered-down SMART Cocaine Sentencing Act has any chance to pass in this Congress. Why the Attorney General had to choose Friday to stick his thumb in Chuck Grassley’s eye is anyone’s guess.

Marijuana reform this year is equally dead. Last Thursday, Sen Sherrod Brown (D-OH), who chairs the Senate Banking Committee, signaled that marijuana reform might be on hold until the next Congress in 2023. The modest changes being considered now do not address any criminal justice reform. Brown told Marijuana Moment he is interested in the “expanded SAFE Plus bill that Senate leadership has been finalizing because it’s expected to go beyond simple banking reform and also contain other provisions dealing with expungements and more.”

Today, Marijuana Moment reported:

Congressional staffers confirmed to Marijuana Moment that cannabis banking language is not being included in the omnibus appropriations bill despite a final push by Senate Majority Leader Chuck Schumer (D-NY) and other supporters from both parties. Advocates will now look ahead to 2023 and the possibility of advancing the cannabis reform in a divided Congress.

marijuana220412Sen Cory Booker, (D-NJ) said last week that Sen. McConnell is standing in the way of the lame-duck Congress passing any marijuana-related bills before the end of the year. NJ Advance Media reports that McConnell’s opposition to any marijuana bill “is giving Senate Republicans who support the measure cold feet, said Booker, who is helping to lead the effort to enact legislation before Republicans take control of the House in January and most likely prevent any bill from passing in the next two years.”

Congress is not completely impotent when it comes to prison and criminal justice reform. Last Wednesday, the House passed The Prison Camera Reform Act (S.2899) – approved by the Senate last year – and sent it to President Biden for signature. The bill requires the Bureau of Prisons to fix broken surveillance cameras and install new ones, “providing upgraded tools to fight and investigate staff misconduct, inmate violence and other problems,” according to industry publication Corrections1.

Reuters, U.S. Senate set to address cocaine sentencing disparity in funding bill (December 15, 2022)

Reuters, U.S. Senate Talks on Cocaine Sentencing Reform Hit Roadblock (December 19, 2022)

SMART Cocaine Sentencing Act (S.4116)

Marijuana Moment, Key Senate Chairman Signals Marijuana Banking Will Wait Until 2023, Says There’s ‘Interest In The Republican House’ (December 15, 2022)

Marijuana Moment, Cannabis banking left out of omnibus (Newsletter: December 20, 2022)

NJ.com, Mitch McConnell is blocking all marijuana legislation in Congress, N.J.’s Booker says (December 15, 2022)

Prison Camera Reform Act of 2021 (S.2899)

Corrections1, Congress passes Prison Camera Reform Act (December 16, 2022)

– Thomas L. Root

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DOJ Uses Guidance Memos to Try to Effect Crack Cocaine Reform – Update for December 19, 2022

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CRACK REFORM COMETH… BUT IT’S TEMPORARY AND DOESN’T HELP ANYONE ALREADY LOCKED UP

Attorney General Merrick Garland has instructed federal prosecutors to end disparities in the way they charge offenses involving crack cocaine and powder cocaine.

crackpowder160606The change, outlined in two internal memos released by the Dept of Justice on Friday, is a “win for criminal justice reform advocates, who point out that the current sentencing regime has led to the disproportionate incarceration of Black Americans since the policy was adopted nearly 40 years ago,” Reuters said.

The new policy will take effect within 30 days. It does not apply retroactively. This means anyone sentenced under the harsher 18;1 ratio has no way to have his or her sentence adjusted to reflect what Congress now believes is fair.

The memos argue that “the crack/powder disparity in sentencing has no basis in science, furthers no law enforcement purposes, and drives unwarranted racial disparities in our criminal justice system.” Garland instructed prosecutors to treat “crack cocaine defendants no differently than for defendants in powder cocaine cases” when charging defendants and making sentencing recommendations.

They also instruct prosecutors to reserve charges involving mandatory minimums to situations with certain aggravating factors, such as leadership, possession of a gun, gang membership, or a history of violence.

“Today’s announcement recognizes this injustice and takes steps to finally strike parity between powder and crack cocaine sentences,” Sen Cory Booker (D-NJ), a sponsor of the EQUAL Act (S.79), said in a statement.

grassley180604But Sen. Charles Grassley (R-IA), whose SMART Cocaine Sentencing Act (S.4116) – introduced last summer – is responsible for derailing the EQUAL Act, was displeased. “A bipartisan group of lawmakers, including myself, just recently came to an agreement on statutory changes that could possibly be included in the year-end funding bill,” Grassley said in a statement. “That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands. The administration could have engaged in the real and lasting legislative process, but opted for flimsy guidance that will disintegrate when this administration leaves office.”

Although Garland’s new charging policy has no retroactive effect, Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that “federal law does provide at least one possible means for Garland’s memo to retroactively apply to some previous crack convictions: AG Garland could have prosecutors bring, and vocally and consistently support, motions for sentence reductions under 3582(c)(1)(A) for crack offenders who are still serving unduly long and unfair crack sentences based in the unjust disparity.”

Reuters, U.S. Justice Department moves to eliminate cocaine sentencing disparity (December 16, 2022)

Washington Post, Garland moves to end disparities in crack cocaine sentencing (December 17, 2022)

Dept of Justice, General Department Policies Regarding Charging, Pleas, and Sentencing (December 16, 2022)

Dept of Justice, Additional Department Policies Regarding Charging, Pleas, and Sentencing in Drug Cases (December 16, 2022)

BBC, US to end crack and powder cocaine sentencing disparity (December 16, 2022)

Press Release, Grassley Statement On Justice Department’s Usurpation Of Legislative Authority, Disregard For Statutes As Written On Cocaine Prosecutions (December 16, 2022)

Sentencing Law and Policy, US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine (December 16, 2022)

– Thomas L. Root

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Some § 2255 Motions Are Less Successive than Others, 6th Circuit Says – Update for December 16, 2022

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NOT ALL SECOND 2255s ARE SECOND-OR-SUCCESSIVE, 6TH CIRCUIT SAYS

mulligan190430Generally (a word that is employed dangerously where the law is concerned), every federal prisoner is entitled to file one post-conviction habeas corpus motion challenging his or her conviction under 28 USC § 2255. To file a second one – called a “second-or-successive” 2255 – a prisoner must first petition the court of appeals having jurisdiction over his or her district court for permission to do so.

Permission is only granted if the Supreme Court has handed down a retroactive constitutional decision that would affect the prisoner’s conviction or sentence, or if newly-discovered facts would convince a jury the petitioner was not guilty. These standards – set out in 28 USC § 2244 – are daunting.

Fortunately, while all men may be created equal, not all second-and-successive 2255s are.

rodeo221216In 2007, Ronald Jones was convicted of meth distribution. It was not Ron’s first rodeo – he had two California drug distribution priors. Under 21 USC § 841(b)(1)(A), a defendant with two prior drug convictions would see his or her mandatory minimum set at 300 months. Ron got 360 months.

In 2016, Jim lost a 28 USC § 2255 post-conviction motion raising a Johnson claim. Then, last year, Jim got one of his prior state cases dismissed under California’s Proposition 47. He then filed a 28 USC § 2244 motion with the 6th Circuit, asking permission to file a second § 2255 motion raising a sentencing issue because he no longer qualified for the “two priors” § 841(b)(1)(A) enhancement, and his mandatory minimum dropped to 180 months.

Last week, the 6th Circuit denied Ron’s § 2244 as “unnecessary” and sent his § 2255 to the district court for consideration.

The Antiterrorism and Effective Death Penalty Act limits courts’ authority to hear “second or successive” § 2255 motions. But not all successive § 2255s are “successive” in the eyes of the law.

The Circuit held that “some second-try § 2255 motions are not ‘second or successive’ within the meaning of 2255(h).” Where “the events giving rise to a 2255 claim have not yet occurred at the time of a prisoner’s first 2255 motion, a later motion predicated on those events is not second or successive… A motion based on changes to a prisoner’s eligibility for parole, for example, is not ‘second or successive’ if the changes occurred after the prisoner took his first shot at 2255 relief. Section 2255 is strict, but (in this context at least) it does not demand clairvoyance – that prisoners predict their claims before they arise.”

For Ron, “the events giving rise” to his second § 2255 claim came about in 2021, when California dismissed and vacated his prior California conviction, well after the 2016 § 2255 petition.

circuitsplit220516Not every Circuit agrees with the 6th on this. So far, only the 4th, 7th, 10th and 11th concur that petitions like Ron’s are not successive. The decision could set up a Supreme Court review, but the government would have to be the one to appeal, and that’s unlikely.

In re Jones, Case No. 22-5689, 2022 U.S.App. LEXIS 33759 (6th Cir., December 8, 2022)

– Thomas L. Root

Santa’s Bringing Lumps of Coal for the BOP – Update for December 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.

COAL IN THE BOP’S STOCKING


forcedsex161202Senate Subcommittee Blasts BOP Response to Sexual Assault on Inmates: The Federal Bureau of Prison’s clunky and backlogged system for investigating sexual assault has provided protection to a vulnerable population. That’s the good news. The bad news is that those protected have been BOP employees who commit sexual assault, while the inmates – who, of course, are seldom if ever believed – suffer the indignity of being thrown to the curb after suffering the violence and degradation of sexual assault.

Reduced to its essence, that was the conclusion of a bipartisan report issued Tuesday by the Senate Permanent Subcommittee on Investigations.

The investigation found that the BOP has utterly failed to implement the Prison Rape Elimination Act, and that its ineffectual investigation protocol has led to an 8.000-case backlog of sexual assault complaints. The report says that BOP management failures have “allowed serious, repeated sexual abuse in at least four facilities to go undetected.”

“BOP’s internal affairs practices have failed to hold employees accountable, and multiple admitted sexual abusers were not criminally prosecuted as a result,” the report concluded. “Further, for a decade, BOP failed to respond to this abuse or implement agency-wide reforms.”

The investigation found that BOP employees sexually abused female inmates in at least two-thirds of federal women’s prisons over the last decade. The report focused on four prisons — MCC New York, MDC Brooklyn, FCC Coleman, and FCI Dublin — where it says multiple BOP employees abused multiple women.

sexualassault211014Three former inmates testified before the subcommittee, describing “years of horrific abuse by prison staffers who used their unfettered access to vulnerable inmates and threatened them with retaliation if they reported the attacks,” USA Today reported. All three accused the BOP of “often shielding attackers from accountability.”

BOP Director Colette Peters testified that “[a]s an agency, and through the ranks of its dedicated employees, the Bureau continuously works to ensure the safety and wellbeing of our employees, those in our care and custody, and our surrounding communities,” a statement that Ms. Peters should be grateful has not been submitted to the Washington Post Fact Checker.

“As I have said before,” Ms. Peters testified, “I welcome accountability and oversight; and I welcome this hearing.” One suspects she welcomes root canals without novocaine as well.

Senate Permanent Subcommittee on Investigations, Sexual Abuse of Female Inmates in Federal Prisons (December 13, 2022)

Reason, Senate Investigation Finds Federal Prisons Fail to Prevent or Investigate Rapes (December 13, 2022)

USA Today, ‘A living hell’: Former federal inmates describe years of sexual abuse by prison officers (December 13, 2022)

Written Testimony of Colette S. Peters before Senate Permanent Subcommittee on Investigations (December 13, 2022)

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Associated Press Documents BOP “Mess Up and Move Up” Culture: AP’s report last Friday on the Bureau of Prisons “Mess Up and Move Up” employee culture, is resonating.

On Tuesday, Sen. Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, said he plans to question Director Peters about an Associated Press investigation that found the agency has repeatedly promoted and continues to stand by Thomas R. Hinkle, a high-ranking official who beat  inmates in the 1990s.

hinkle221215“I am very concerned about the allegations in this article and whether BOP will address abuses, prioritize safety, and improve their flawed approach to misconduct investigations,” Sen. Durbin tweeted in the wake of the story.

The AP reported that the BOP had repeatedly promoted Hinkle, 57, Deputy Western Regional Director, “despite numerous red flags, rewarding him again and again over a three-decade career while others who assaulted inmates lost their jobs and went to prison.”

Responding to the AP’s questions, Hinkle “acknowledged that he assaulted inmates in the 1990s but said he regrets that behavior and now speaks openly about it ‘to teach others how to avoid making the same mistakes.’” BOP Director Colette Peters defended Hinkle, telling reporters he’s a changed man and a model employee, according to AP.

According to AP, those “mistakes” included inmate beatings, sexual assault, and a public drunkenness arrest in Houston that was later dropped.

AP said its investigation showed “that while the BOP has vowed to change its toxic culture in the wake of Dublin and other scandals — a promise recently reiterated by the agency’s new director, Colette Peters — it has continued to elevate a man involved in one of the darkest, most abusive periods in its history… Hinkle’s rise is a stark example of what BOP employees call the agency’s ‘mess up, move up’ policy — its tendency to promote and transfer troubled workers instead of firing them.”

My prediction:  Hinkle’s last day at the BOP is only a few weeks away at most.

AP,  U.S. Senators demand answers after BOP investigation (December 13, 2022)

AP, The story so far: AP’s investigation into federal prisons (December 9, 2022)

AP, AP Investigation: Prison boss beat inmates, climbed ranks (Dec ember 9, 2022)

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Ex-Warden Garcia Convicted: The former warden of FCI Dublin was convicted in Oakland federal court last week of sexually molesting female inmates and forcing them to pose naked in their cells.

Ray Garcia was found guilty of all eight charges and faces up to 15 years. He was among five workers charged with abusing inmates at Dublin, who claimed they were subjected to rampant sexual abuse including being forced to pose naked in their cells and suffering molestation and rape. The trial was noteworthy for the government arguing to jurors that they should believe inmates and former inmates over Garcia, a position diametrically opposed to Bureau of Prisons policy to not accept uncorroborated inmate testimony under any circumstances.

rapeclub221215Garcia, 55 years old, retired from the BOP last year after the FBI found nude photos of inmates on his government-issued phone. Garcia was charged with abusing three inmates between December 2019 and July 2021.

“Instead of ensuring the proper functioning of FCI Dublin, he used his authority to sexually prey upon multiple female inmates under his control,” U.S. Attorney Stephanie Hinds said, calling Garcia’s crimes a betrayal of the public trust and his obligations as a warden.

Santa Rosa Press-Democrat, Ex-Dublin prison warden convicted of sexually abusing inmates (December 8, 2022)

– Thomas L. Root

Supreme Court Adds Two Criminal Cases to Docket – Update for December 13, 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 GRANTS REVIEW ON TWO CRIMINAL CASES

Last Friday, the Supreme Court agreed to review two federal criminal cases.

In the first case, the Court will consider the constitutionality of 8 U.S.C. § 1324(a)(1), which makes it a crime punishable by up to 10 years in prison to encourage or cause unauthorized immigrants to enter or reside in the United States.

freespeech221213Helaman Hansen was convicted for running a program that promised to help adult unauthorized immigrants become US citizens through adoption. On appeal, the 9th Circuit agreed that the statute violated the 1st Amendment because it is so broad that it would also apply to protected speech – for example, voicing support to a young illegal immigrant (OK, “undocumented” is the politically correct term, but then, if the immigrant were not here illegally, we wouldn’t be writing about this) that she not return to, say, Iceland, but instead fight to qualify for DACA is a federal criminal offense under § 1324(a)(1).

Maybe not the best illustration: stopping hordes of blond-haired blue-eyed people sneaking across our undefended borders is not our problem. Some, like a former President, even liked the idea.

Back to Mr. Hansen: The government appealed the 9th Circuit decision invalidating his conviction. 

Last week the Supreme Court granted review.

In a second case, the high court agreed to take an 18 USC § 924(c) case. Section 924(c) mandates a consecutive sentence of a certain minimum term when a gun is possessed or used in a drug trafficking offense or a violent crime.

carriefgun170807Under 18 USC § 3584(a), a district court may impose either consecutive or concurrent sentences unless a statute requires otherwise. Section 924(c)(1)(D)(ii) of Title 18 requires consecutive sentences but only for sentences imposed “under this subsection.” Efrain Lora was convicted and sentenced under § 924(j), a different subsection that sets punishments where “a person… in the course of a violation of subsection (c), causes the death of a person through the use of a firearm.”

Curiously, § 924(c) includes no requirement that the sentence must be consecutive. This suggests that if an offender is going to use a gun in a violent crime, he should be sure to kill someone (and thus get a possibly better sentence).

Lora argued a district court has the discretion to impose concurrent sentences because § 924(j) creates a separate offense not subject to § 924(c)(1)(D)(ii).

The 2nd Circuit disagreed, holding that the district court was required to impose consecutive sentences because a § 924(j) counts as being “under” § 924(c).

The 3rd, 4th, 8th and 9th Circuits agree with the 2nd Circuit. The 10th and 11th do not. The question the Supreme Court granted review is whether § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed… under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is sentenced under § 924(j).

Both cases will be argued this term and decided by the end of June.

United States v. Hansen, Case No. 22-179 (certiorari granted December 9, 2022)

Lora v. United States, Case No 22-49 (certiorari granted December 9, 2022)

– Thomas L. Root