BOP’s Ambitious “Framework for the Future’s” Overshadowed Launch – Update for February 22, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

IG REPORT RAINS ON DIRECTOR’S PARADE

rainparade240222The tsunami of the Inspector General’s bad news (which I reported on Monday) threatened to wash away BOP Director Colette Peters’ rollout earlier last week of the agency’s “Framework for the Future,” an ambitious and obese plan “encompassing seven goals and over 180 unique initiatives… set to redefine the Bureau’s operations,” according to the BOP press release, which gushed:

The Executive Team, consisting of Regional Directors, Assistant Directors, and key figures from within the Director’s office, is personally overseeing these initiatives. Their unwavering commitment is geared towards propelling the agency forward, fostering a humane and secure environment, and preparing individuals for successful reentry into communities.

The BOP told employees in a video message last week that Peters had introduced the “Framework for the Future” and “engage[d] and empower[ed] the agency’s dedicated workforce with details about the seven goals.”

somebull240222C’mon, Ms. Peters, please empower your dedicated PR flacks to spare us the bureaucratic happy talk BS, And while we’re at it, seven goals?  One hundred eighty unique initiatives? Let’s keep it simple.

Writing in Forbes, Walter Pavlo said, “Peters was given a mandate by Congress to improve the BOP but many of those needed improvements have been problems for years. Office of Inspector General and Government Accountability Office have both authored scathing reports on the BOP. Peters, who appeared on 60 Minutes earlier this month, understands that the BOP cannot continue to operate inefficiently, and in some cases inhumanely, as it has for decades.”

Pavlo says many believe that Peters is “the agent of change needed to overhaul the BOP… which has been plagued by employee misconduct… increases in healthcare costs, understaffing, and infrastructure decay. The BOP has also had difficulty implementing the First Step Act… Delays in implementation have been caused by early misinterpretation of the law, computer glitches and a shortage of halfway house capacity.”

“The BOP has challenges and now Peters has outlined a plan to overcome them,” Pavlo says, but he warns that “it will not be easy.”

listenup240222Peters has taken a deliberate approach to the problems, which are legion. During her first year as Director, Peters conducted “listening sessions,” including the novel but quite reasonable requirement for wardens of the BOP’s 122-odd facilities to listen to former prisoners, crime victims, subordinates in prison management and line workers, and advocates for change in the system. Writing in a Federal News Network story, Pavlo and attorney Alan Ellis predicted that “[i]t will take another year to judge the new direction Peters wants to take the agency, but expect her to double down on her message of a more humane federal prison system.”

Last summer, Senate Minority Leader Mitch McConnell (R-KY) and Senator Charles Grassley (R-Iowa) proposed making the director of the Bureau of Prisons a Senate-confirmed position in S.2284, the Federal Prisons Accountability Act of 2023. The same measure has been filed in the House of Representatives as H.R.4138 by Rep. Glenn Thompson (R-PA), a member of the House BOP Reform Caucus.

Pavlo and Ellis observed that “Director Peters has enjoyed a long honeymoon with lawmakers, but they will be looking for results in 2024 — and so will many prisoners and BOP staff members.”

Bureau of Prisons, Reforming the Federal Bureau of Prisons (February 12. 2024)

Forbes, Bureau of Prisons Director Lays Out Goals For Improving Agency (February 13, 2024)

Federal News Network, The Bureau of Prisons and the challenges going into 2024 (February 21, 2024)

S.2284 – Federal Prisons Accountability Act of 2023

– Thomas L. Root

The Fine Print Counts In A Deal With the Devil – Update for February 20, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘SHUT UP AND SIGN’ LEADS TO A LOT OF BUYER REMORSE

About 95% of all federal indictments end with a plea agreement where the defendant agrees to take a guilty plea in exchange for government promises that often seem evanescent if not illusory. If I had a dime for every prisoner who has told me that he or she only signed because defense counsel said to, I would be writing this on the beach of my private Caribbean island instead of at a desk looking out at February snow in Ohio.

plea161116Two cases decided last week remind all prisoners – including those who have already signed their plea agreements – that in a plea agreement, every promise counts. A defense attorney’s disservice to the client is never greater than when he or she rushes them into signing a “good deal” without first painstakingly walking the defendant through every provision and explaining it in detail.

Eric Rudolph (remember him?) decided to express his political views by blowing up Olympic venues and abortion clinics. The innocents he slaughtered in the process were just icing on his demented cake. After five years on the lam, Eric was caught dining out of a dumpster in Murphy, North Carolina, and was later convicted of one 18 USC § 844(i) arson offense and five companion 18 USC § 924(c) counts for using a firearm (bombs studded with nails qualify under the statute as “firearms”) in the commission of the arson.

Eric’s approach to the plea agreement was unrepentant. He said he had “deprived the government of its goal of sentencing me to death,” and that “the fact that I have entered an agreement with the government is purely a tactical choice on my part and in no way legitimates the moral authority of the government to judge this matter or impute my guilt.”

Uh-huh. Eric’s statement brings to mind old Gus McRae (Lonesome Dove) addressing outlaw Dan Suggs, who was about to be executed with his brother but expressed only hatred and contempt:

Gus McCrae: I’ll say this, Suggs; you’re the kind of man it’s a pleasure to hang. If all you can talk is guff, you can talk it to the Devil.

supermaxcell240220I’m no fan of mandatory life sentences and even less of the death penalty, but it’s amazing how malleable our principles can be when we’re punched in the face with pure-D evil. Eric undeservedly got a life sentence, which he’s spending in the mountains of Colorado (although he never gets to see them from his concrete cell at ADX Florence).

As part of the plea deal he was proud of for depriving the Feds of the death penalty, Eric waived the right to collaterally attack his sentence in any post-conviction proceeding, including under 28 USC § 2255. But because of what the Court disapprovingly calls “the evergreen litigation opportunities introduced by the categorical approach” to § 924(c) litigation,” Eric – who has apparently decided that freedom some day isn’t such a bad goal – has filed two § 2255s so far. Last week, the 11th Circuit turned down his second one as barred by the plea agreement and, in so many words, told Eric to enjoy his place in the mountains for the rest of his life.

In the last few years, courts have applied the Supreme Court’s “categorical” approach to determining whether an offense is a “crime of violence” within the meaning of 18 USC § 924(c)(3)(A), that is, “an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Even Eric’s district court agreed that after the Supreme Court’s decision in United States v. Davis, his arson offenses were no longer crimes of violence under the federal statute (because one can be convicted of arson for burning down his or her own property). But that didn’t matter, the district court said, because Eric had given away his right to bring a § 2255 motion to correct the error.

Last week, the 11th Circuit agreed. It held that “a plea agreement is, in essence, a contract between the Government and a criminal defendant. And because it functions as a contract, a plea agreement should be interpreted in accord with what the parties intended. In discerning that intent, the court should avoid construing a plea agreement in a way that would deprive the government of the benefit that it has bargained for and obtained in the plea agreement.”

Eric’s plea deal, the 11th said, contained the common waiver of the right to bring a collateral attack on his sentence. But Eric argued that the plea deal only prohibited collateral attacks on the sentence, while his collateral attack was on the § 924(c) convictions.

dumpsterfire249220Eric’s argument was a dumpster fire, the Circuit said. “The text of 28 USC § 2255, the history of that same statute, and the habeas corpus right that it codified, all point in the same direction: 2255 is a vehicle for attacking sentences, not convictions.” Starting with the origins of English habeas corpus through the codification of 2255 up to last summer’s Supreme Court Jones v. Hendrix decision (where SCOTUS said “Congress created 2255 as a separate remedial vehicle specifically designed for federal prisoners’ collateral attacks on their sentences”), the 11th concluded that the history, the plain text of the statute “shows the same, as does Rudolph’s requested relief… [His] motions are collateral attacks on his sentences, so his plea agreements do not allow them.”

Winning his § 2255 would have been a huge deal for Eric. The 18 USC § 844(i) conviction carries a maximum 10-year sentence. Each of the § 924(c) convictions carries a maximum of life. Had Eric been allowed to bring the § 2255, he would have gone from his concrete cell straight to walking the streets (something most of his victims would never enjoy again).

*     *     *

Meanwhile, over in Louisiana, Keesha Dinkins – a front-office worker at Positive Change healthcare clinic – was swept up in a Medicaid billing fraud. She didn’t make a dime from the fraud beyond her normal salary, but her lawyer had her sign a plea agreement for 24 months and restitution of $3.5 million.

positivechange240220Despite the deal she made, she argued that she should not be on the hook to share the restitution equally with Positive Change’s owner (who got a lot more time than she did). Last week, the 5th Circuit told her that it was Positive that it would not Change her restitution:

The criminal justice system in this country relies on plea agreements to provide efficient resolutions to criminal cases. Indeed, over 95 percent of federal criminal cases are resolved without trial. It would undermine the principle that plea bargains are contracts to hold that a party can agree to a specific amount of restitution, supported by record evidence, and then in the next breath, challenge an order imposing that exact amount of restitution.

The 5th observed that her plea agreement provided that “Dinkins — not Positive Change — was responsible for the $3.5 million loss.” That is how the judgment will remain.

Rudolph v. United States, Case No 21-12828, 2024 U.S. App.  LEXIS 3278 (11th Cir., February 12, 2024)

United States v. Johnson, Case No 22-30242, 2024 U.S. App. LEXIS 3487 (5th Cir., February 14, 2024)

– Thomas L. Root

BOP Negligence Causes Inmate Deaths, DOJ Says – Update for February 19, 2024

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DEPT OF JUSTICE BLASTS BOP NEGLIGENCE IN PREVENTING INMATE DEATHS

fail200526Chronic failures by the Federal Bureau of Prisons have contributed to the deaths of hundreds of inmates, the Dept of Justice’s Inspector General concluded last Thursday in a report that CNN called “blistering.”

The Report found that

a combination of recurring policy violations and operational failures contributed to inmate suicides, which accounted for more than half of the 344 inmate deaths reviewed. We identified deficiencies in staff completion of inmate assessments, which prevented some institutions from adequately addressing inmate suicide risks. We also found potentially inappropriate Mental Health Care Level assignments for some inmates who later died by suicide. More than half of the inmates who died by suicide were single-celled, or housed in a cell alone, which increases inmate suicide risk.

DOJ Inspector General Michael Horowitz said, “Today’s report identified numerous operational and managerial deficiencies, which created unsafe conditions prior to and at the time of a number of these deaths.

The media were more savage: “A combination of negligence, operational failures and a blundering workforce has contributed to hundreds of inmate deaths in federal custody,” The Washington Post wrote.

CNN said that

For years, the embattled Bureau of Prisons has been the subject of accusations by politicians, prisoner advocacy groups for mistreating or neglecting inmates.

The Justice Department itself has issued scathing rebukes against BOP, outlining serious mistakes that have led to the deaths of high-profile inmates like notorious Boston gangster and convicted murderer James “Whitey” Bulger, who was killed shortly after being transferred to a new prison, and financier Jeffrey Epstein, who died by suicide in his jail cell.

But the circumstances that led to Bulger and Epstein’s deaths are emblematic of wide-ranging and recurring issues within the federal prison system that affect hundreds of inmates across the country, the DOJ’s Office of Inspector General found in its report that outlined a system in crisis failing to protect its charges.

NPR was terser: “The BOP is a mess.”

Many of the Report’s findings have applicability beyond the suicide issue. The IG said that “some institution staff failed to coordinate efforts across departments to provide necessary treatment or follow-up with inmates in distress.” Staff deficiencies in responding to medical emergencies “ranged from a lack of urgency in responding, failure to bring or use appropriate emergency equipment, unclear radio communications, and issues with naloxone administration in opioid overdose cases.”

failuretocommunicate221027The Report found deficiencies extended to after-action documentation. “The BOP was unable to produce documents required by its own policies in the event of an inmate death for many of the inmate deaths we reviewed,” the Report said. “The BOP requires in-depth After-Action Reviews only following inmate suicides but not for inmate homicides or deaths resulting from accidents and unknown factors. The BOP’s ability to fully understand the circumstances that led to inmate deaths and to identify steps that may help prevent future deaths is therefore limited.”

The Report examined four categories of BOP non-medical deaths between 2014 and 2021, suicide, homicide, accident, and unknown factors (where the BOP could not determine the cause of death). Of the 344 non-medical deaths during that time period, 54% were suicides, 26% were homicides, 16% were accidents. Under four percent were from unknown factors. Most of the suicides occurred when inmates were locked up in single cells.

The BOP’s non-medical death count climbed 68% between 2014 and 2021 while the prison population fell 27%. In 2014, there were 38 inmate deaths by unnatural causes. In 2021, that number was 57 inmates.

The Report noted that the BOP has policies in place to prevent inmate suicides. But it found “numerous instances of potentially inappropriate” mental health assessments for inmates who later killed themselves. What’s more, BOP staff “did not sufficiently conduct required inmate rounds or counts in over a third of inmate suicides,” and they sometimes “failed to communicate with each other and coordinate efforts across departments to provide necessary treatment or follow-up with inmates in distress,” the Report found.

Many BOP facilities failed to run suicide drills mandated by policy (required three times a year, once for each shift), the Report said. Thirty-five percent of BOP facilities “were unable to provide evidence that they conducted a single mock suicide drill from 2018 through 2020.”
inmatesuicidedeath240219In one suicide case cited by the Report, BOP staff claimed to have searched a cell three times — including the day before the suicide — but found no contraband. After the prisoner died by a self-inflicted overdose, a search of the cell he had been in turned up 1,000 pills, the IG said.

The BOP continues to grapple with a severe staffing shortage, ‘which has a ripple effect across the agency’s institutions,” NBC said. Correctional Officers work multiple shifts and healthcare workers are “augmented” to serve as COs, being pulled from their regular duties. “That translates into less mental health care for inmates,” NPR reported.

“At one facility,” Government Executive reported, “psychiatric staff were reassigned daily for two months straight. In another case, a facility did not have any psychological services personnel on staff… Half of [one] facility’s nursing positions were unfilled. At another facility, employees worked double shifts for three consecutive days. Personnel on staff are often undertrained, the IG found, with the bureau’s after-action reviews identifying insufficient training as an issue in 42% of deaths. They are also improperly disciplined, with employees themselves telling the IG the process was too lengthy and ineffective.

The BOP continues to struggle to keep facilities free of contraband drugs and weapons, which contributed to nearly a third of inmate deaths in the Report.

Sen Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, has scheduled BOP Director Colette Peters and DOJ Inspector General Horowitz to testify on February 28th in a Committee hearing focused on federal inmate deaths.

“It is deeply disturbing that today’s report found that the majority of BOP’s non-medical deaths in custody could have been prevented or mitigated by greater compliance with BOP policy, better staffing, and increased mental health and substance abuse treatment,” Durbin said in a statement. “Accountability across the Bureau is necessary and long overdue.”

The IG recommended several changes to BOP procedure, including developing strategies to ensure that inmate mental health is properly evaluated, that prison staff is taught to use defibrillators and naloxone, and to develop procedures that require inmate death records to be consistently prepared.

bureaucraticgobbledygook24019

A BOP spokesperson told CNN last week that the agency “acknowledges and concurs with the need for improvements” and is “dedicated to implementing these changes to ensure the safety and well-being of those in our custody.”

Sure it is, provided its staff isn’t being asked to make rounds, conduct drills or fill out reports.

CNN, DOJ watchdog report finds chronic failures by Bureau of Prisons contributed to the deaths of hundreds of inmates (February 15, 2024)

Dept of Justice, DOJ OIG Releases Report on Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions (February 15, 2024)

NPR, DOJ watchdog finds 187 inmate suicides in federal prisons over 8-year period (February 15, 2024)

Government Executive, Understaffing and mismanagement contributed to hundreds of deaths in federal prisons (February 16, 2024)

NBC, Bureau of Prisons failed to prevent nearly 200 deaths by suicide, DOJ watchdog finds (February 15, 2024)

Washington Post, IG report finds deadly culture of negligence and staffing issues at federal prisons (February 15, 2024)

– Thomas L. Root

Pay Us More And Everything Will Be Fine – Update for February 16, 2024

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MONEY, THAT’S WHAT I WANT…

moneythatswhat231128Brandy Moore White, president of the union council representing 30,000 BOP employees, wrote in The Hill last week that the crumbling BOP infrastructure, “a rise in inmates deploying more sophisticated methods to smuggle illegal items into prisons,” and a lack of staff together “pose a real and significant threat to the health and safety of the 35,000 federal employees who work at the agency as well as the 158,000 inmates currently in custody.”

“The number of BOP officers and staff has fallen precipitously over the past seven years, from 43,369 staff at the beginning of 2016 to around 35,000 today — a 20% decline,” she wrote. But that only tells half the story, since the Bureau of Prisons can’t even maintain the lower level of staffing that Congress has authorized… One of the agency’s main workforce challenges is that the salaries paid to federal correctional officers pale in comparison to what employees can earn at other federal law enforcement agencies, at state and local agencies, and even some retail chains.”

Ruben Montanez-Mirabal, Patrick Shackelford, Quandelle Joseph, Perry Joyner, Brian Jenkins, Shauna Boatright. These are just a few of Ms. Moore White’s union rank-and-file BOP employees to have been convicted in the past few years of smuggling contraband into federal prisons. She might want to consider her own union members while she’s busy blaming inmates for the rise of contraband.

moneyhum170419Last week, Sens Bill Cassidy (R-LA), Richard Blumenthal (D-CT), and Bob Casey (D-PA) sponsored the Pay Our Correctional Officers Fairly Act, which will redefine BOP employees working in rural areas as being in higher-wage urban areas, thus boosting pay. Cassidy said the bill will “allow[]for competitive pay that better reflects the cost of living, commute times, alternative careers, and the hard work and dedication of BOP employees.”

A companion bill by the same name was filed in the House last May as H.R. 3199.

The Hill, The federal prison system is in crisis. Here are the top 3 reasons why (February 9, 2024 )

H.R. 3199, Pay Our Correctional Officers Fairly Act

S.___ (no number assigned), Pay Our Correctional Officers Fairly Act

– Thomas L. Root

Misconduct Rewarded – Update for February 15, 2024

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PROSECUTOR DISCIPLINE WITH A WET NOODLE

Just last week, I had someone tell me he was going to file a 2255 motion just as soon as he filed a bar complaint against those lyin’ prosecutors.

wetnoodle220906Good luck with that. A report last week illustrates the futility of expecting any favorable result from bar complaints against prosecutors.

A decade ago, the District of Columbia Court of Appeals ruled that the U.S. Attorney’s Office violated Brady v. Maryland by not disclosing exculpatory information to the defense during Carl Morton’s and Alonzo Vaughn’s convictions for aggravated assault and assault on a law enforcement officer. It has only taken 10 years for the same court to decide that the two prosecutors responsible should each get a year of probation plus a stern warning not to commit any further misconduct, or they would be suspended from practicing law for six months.

Both Mary Chris Dobbie and Reagan Taylor are still DOJ prosecutors. In 2021, the D.C. Board On Professional Responsibility unanimously recommended that each receive a six-month suspension from law practice. However, the Board “ratcheted down the sanction to probation based on ‘one overriding mitigating circumstance’,” according to a report last week in The Intercept. That circumstance was the “deficient conduct” of their supervisors, Jeffrey Ragsdale and John Roth.

wetnoodle240215Neither Ragsdale nor Roth was subject to any ethics charges or misconduct findings. Roth was later promoted to be inspector general for the Department of Homeland Security. And Ragsdale? He’s now in charge of the DOJ Office of Professional Responsibility, which oversees investigations into alleged prosecutorial misconduct.

The Intercept, Prosecutors Buried Evidence and Misled the Court. Ten Years Later, They Got a Slap on the Wrist. (February 5, 2024)

– Thomas L. Root

Back In The Trenches, A Couple of 922(g) Decisions… – Update for February 13, 2024

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THE 10TH GIVETH, THE 10TH TAKETH AWAY

gunfight230919In the world of gun restrictions, all eyes are on the Supreme Court, which will decide United States v. Rahimi – and maybe the future of the 2nd Amendment – sometime between now and June. But litigation over 18 USC § 922(g), the laundry list of people who the government says should not have guns or ammo, in the lower courts continues unabated.

Out in the wild, wild west, the 10th Circuit last week handed down a pair of 18 USC § 922(g) decisions, giving defendants a mixed bag.

In one case, Colorado defendant Kenneth Devereaux was convicted of being a felon in possession of a gun (violation of 18 USC § 922(g)(1)). He received a 2-level enhancement in his Guidelines range because the district judge considered a prior conviction for assault under 18 USC § 113(a)(6) to be a crime of violence.

doggun240213Last week, the 10th Circuit disagreed. A “§ 113(a)(6) assault can be committed recklessly,” the Circuit observed, but since the 2021 Supreme Court decision in Borden v. United States, “a reckless offense categorically does not have as an element the use, attempted use, or threatened use of physical force against the person of another.”

Section 113(a)(6) “sets forth a single indivisible assault offense, to which only the categorical… approach [applies],” the 10th ruled. “Because an assault resulting in serious bodily injury under § 113(a)(6) can be committed recklessly, after Borden it cannot qualify as a crime of violence…”

Things did not go so well for Jonathan Morales-Lopez. He and a buddy were caught stealing guns from a Utah gun store. When he was frisked, the police found a loaded Smith and Wesson he had previously stolen from the same store stuffed in his pants and a personal-use amount of meth in a plastic bag.

The State of Utah did its number on Jonathan for the theft, but the Feds picked up the gun case. He was charged as an unlawful drug user in possession of a gun under 18 USC § 922(g)(3). After he was convicted, Jon argued that § 922(g)(3) was unconstitutionally vague, violating his 5th Amendment rights. The district court agreed with Jon, and the government appealed.

“When the validity of a statute is drawn in question, and even if a serious doubt of constitutionality is raised,” the Circuit wrote, “it is a cardinal principle that courts]will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” To avoid the vagueness problem, the 10th said, courts have interpreted § 922(g)(3) to convict a defendant only if the Government “introduced sufficient evidence of a temporal nexus between the drug use and firearm possession.”

knifegun170404Here, the appeals court said, that wasn’t even a close call. Jon was carrying his personal meth stash in his pocket and told the police after his arrest that he couldn’t remember much because he was high on the controlled substance at the time. “The facts presented at trial, coupled with reasonable inferences drawn from those facts, could support the conclusion that Morales-Lopez was an “unlawful user” of methamphetamine,” the Circuit held, “one whose use was ‘regular and ongoing, while in possession of a stolen firearm.”

What is puzzling is that Jon’s lawyer did not argue that § 922(g)(3) violated the 2nd Amendment, a claim that has already gotten traction in at least one other court of appeal. Hunter Biden plans that defense. Jon’s lawyer’s failure to raise it may be a subject for his § 2255 motion.

United States v. Devereaux, Case No. 22-1203, 2024 U.S. App. LEXIS 2751 (10th Cir., February 6, 2024)

Borden v. United States, 141 S. Ct. 1817, 210 L. Ed. 2d 63 (Supreme Court, 2021)

United States v. Morales-Lopez, Case No. 22-4074, 2024 U.S. App. LEXIS 3051 (10th Cir., February 9, 2024)

– Thomas L. Root

There Once Was an Inmate Who Lived in a SHU – Update for February 12, 2024

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GAO EXCORIATES BOP FOR INEFFECTIVE AND POORLY MANAGED SPECIAL HOUSING UNITS

The Federal Bureau of Prisons says restrictive housing – that is, Special Housing Units (SHUs) – is not an effective deterrent for bad behavior and can even increase future misconduct. So guess who still keeps 12,000 of its “persons in custody” locked up 23 hours a day in SHUs around the country?

shucell240212A Government Accountability Office report wondered that last week, complaining that “while the BOP was previously called out for the practice of SHU placement of prisoners, little has changed.” The GAO criticized the BOP for its “slow progress toward taking action on longstanding recommendations, partly because the Bureau hasn’t established roles or time frames for doing so.” In fact, how the BOP monitors and evaluates all of its programs is such a problem that the GAO added the agency to the GAO’s High-Risk List annual update issued last April. It’s unlikely to be dropped from the 2024 list, due out in two months.

A SHU is a “housing unit” in name only, a warren of individual cells – some of the barred like old-time jails but more modern ones with solid metal doors with a small port through which food can be passed. The SHU residents – sometimes two to a cell, sometimes only one, are locked down 23 hours a day according to policy and removed from the cells only when handcuffed. A “recreation area” is usually a larger cage, sometimes with a basketball hoop, where often only the sky is visible. Inmates get a shower three times a week. There are no TVs, often no radios, scant reading material, and absolutely nothing to do.

“The management of federal prisons, including the use of restrictive housing, requires immediate attention,” the GAO found. “This issue is so pressing that, in 2023, Addressing these issues will enhance the Bureau’s approach to improving and ultimately reducing its use of restrictive housing.”

The BOP’s problems with its management of SHUs are nothing new. A Dept of Justice study a year ago criticized the BOP’s failure to reduce the number of SHU inmates. In a year, nothing improved.

dungeon180627Writing in Forbes last week, Walter Pavlo said, “The primary purpose of SHU is for disciplinary reasons. Disciplinary segregation is a punitive housing status imposed as a sanction for violating a disciplinary rule… However, SHU has been used for those under investigation for a disciplinary violation, protective custody (fear of being assaulted by fellow prisoners), pending transfer to another institution, or to protect a prisoner at the end of their disciplinary confinement term to prevent them from being assaulted on returning to general population.”

During the pandemic, prisoners testing positive for COVID were often isolated in the SHU, a practice that court-appointed expert Homer Venters, M.D., observed that locking COVID inmates in the SHU “runs counter to CDC guidelines on making COVID-19 responses in detention settings non-punitive” and resulted in prisoners with COVID symptoms to hide those from staff in order to avoid the SHU.”

“Some prisoners can be in SHU for months with little communication with the outside world and hardly a recreation outside of the cell in which they are confined,” Pavlo wrote. “While prisoners may be in SHU for these administrative reasons, it certainly feels like punishment.”

shit240212The GAO recounted that SHU inmates had complained that they felt hungry “because meal portions were insufficient or were smaller than the meals provided in general population.” Others reported that recreation time was much less frequent than policy dictated. “One individual,” the GAO reported, “said that facility staff kept a toilet ‘full of excrement’ in one of the SHU cells to use as a punishment and then directed an orderly to clean it before a visit from the regional director.”

Senate Majority Whip Richard Durbin (D-IL), chairman of the Judiciary Committee, said the GAO report “shows a troubling trajectory for the number of federal prisoners in restrictive housing” and expressed concern that the “BOP has not fully implemented 54 of the 87 recommendations from two prior studies on improving restrictive housing practices.” One of those studies was commissioned at BOP’s own request in 2014, meaning that some of the unmet recommendations are a decade old. Other recommendations are from a 2016 DOJ report that, among other things, recommended that the BOP ensure people with serious mental illness conditions were not put in restrictive housing.

BOP Director Colette Peters responded to GAO’s report by asserting that the BOP knows restrictive housing is not an effective deterrent and can increase future recidivism. Pavlo reported that Peters said the BOP plans to reduce the use of disciplinary segregation – part of a new rule proposed in the Feb 1 Federal Register – and will conduct unspecified “other studies… to address the issues brought forward by GAO.”

GAO, Federal Prisons Haven’t Addressed Longstanding Concerns About Overuse of Solitary Confinement (February 6, 2024)

GAO, High-Risk Series: Efforts Made to Achieve Progress Need to Be Maintained and Expanded to Fully Address All Areas (April 20, 2023)

Dept of Justice, Department of Justice Efforts to Ensure that Restrictive Housing in Federal Detention Facilities is Used Rarely, Applied Fairly, and Subject to Reasonable Constraints (February 2023)

Homer Venters, M.D., COVID-19 Inspection of BOP Lompoc by Dr. Homer Venters, Dkt. NO. 101-1 (filed in Case No 2:20-cv-04450, CD Cal (September 25, 2020)

GAO, Bureau of Prisons: Additional Actions Needed to Improve Restrictive Housing Practices (February 6, 2024)

Forbes, GAO Releases Report On Federal Prisons’ Use Of Restrictive Housing (February 6, 2024)

Senate Committee on the Judiciary, Durbin Statement on GAO Report on BOP’s Continued Failure to Eliminate Overuse of Solitary Confinement (February 6, 2024)

– Thomas L. Root

“A Reason It’s Called Compassionate Release,” Judge Black – Updated for February 9, 2024

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MAN BITES DOG

manbitesdog190318Other than Judge Aileen Cannon (who just yesterday decided that the MAGAverse could know all about government witnesses who are already getting death threats in the Mar-A-Lago documents case), federal judges hardly ever draw media criticism. Judges rage at people, but people hardly ever rage back.

A Cincinnati TV station, however, has done just that. WCPO-TV blasted Southern District of Ohio Judge Timothy Black for “neglecting his criminal cases, keeping a dead person on his docket, and ignoring inmates who filed emergency motions for release during the COVID-19 pandemic for several years.”

denied190109The station has reported that Judge Black “ignored motions filed by many inmates with health problems who urgently asked for release from prison during the peak of the pandemic, for as long as three years.” When the TV station pressed the judge for answers about the delay, Judge Black “finally took action in the days before and after Christmas 2023, denying motions from 15 defendants. Some motions were so old, that they had become moot because the Bureau of Prisons had already released inmates months or years prior.”

delayed200115“The reason it’s called compassionate release is because there’s an immediacy to it. Addressing the immediate need three years later, is just wrong,” said attorney Jay Clark. “There is no timetable, no time limit, no deadline that the judges have to meet, but there has to be some measure of reason.”

WCPO-TV, ‘I simply cannot wait any longer. I am dying’: Inmate waits 3+ years for judge to rule on COVID early release (January 26, 2024)

– Thomas L. Root

4th Circuit Reverses Pill Mill Case on Flawed Jury Instruction – Update for Thursday, February 8, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DOC ‘FEELGOOD’ HAS TO KNOW IT’S WRONG, 4TH CIRCUIT SAYS

feelgood211019Dr. Joel Smithers ran what the government claimed was a pill mill. The government’s witnesses painted a grim picture of the nonstop line of addicted people who drove 5-6 hours to pay Dr. Joel $300 in cash for an opioid prescription. Over the course of a few years, he wrote prescriptions for tens of thousands of doses.

At trial, Joel offered an explanation for every suspicious behavior identified by the government. — “why his patient forms didn’t indicate which pharmacy would fill their prescriptions, why he didn’t order MRIs when they were needed, why he didn’t take insurance, why he had an extremely unusual payment set-up… why he FedExed prescriptions to patients, and why he had a pre-signed prescription pad in the office… He said he believed that the prescriptions he’d written for each patient were for a legitimate medical purpose.”

The trial court refused to instruct the jury that they had to find Dr. Jerry lacked an actual belief that the prescriptions were appropriate. Joel was convicted of hundreds of 21 USC 841(a) counts and sentenced to 480 months.

While Doc Joel’s appeal was pending, the Supreme Court ruled in Ruan v. United States that when a criminal defendant is authorized to dispense controlled substances — such as a doctor who may lawfully prescribe medications — prosecutors can only win a conviction under 21 USC § 841(a) by proving beyond a reasonable doubt that the defendant intended to act or knew he or she was acting in an unauthorized manner.

Last Friday, the 4th Circuit threw out Joel’s conviction.

bugs220701The government argued that, despite the Ruan decision, other instructions – such as willful blindness and “good faith” – were enough to tell the jury that it had to find that Joel knew what he was doing was wrong. The 4th rejected this, noting that the Ruan court had rejected the same claim; Ruan noted that words like “good faith,” “objectively,” “reasonable,” or “honest effort” appear nowhere in the statute and would ‘turn a defendant’s criminal liability on the mental state of a hypothetical ‘reasonable’ doctor, rather than on the mental state of the defendant himself or herself’.”

yellowpill170905Ruan held that “‘good faith’ is an objective test,” not the inquiry into the doctor’s actual state of mind that the statute requires. The “good faith” instruction in Joel’s case “directly contravenes Ruan,” the 4th said. “Far from helping the government, it proves Defendants point.”

Joel will get a new trial with a jury instructed that it must find that he “intended to act or knew he was acting in an unauthorized manner.”

United States v. Smithers, Case No 19-4761, 2024 U.S.App. LEXIS 2399 (4th Cir., Feb 2, 2024)

– Thomas L. Root

BOP Crackdown On Inmates In Rules Changes Dressed in Sheep’s Clothing – Update for February 6, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP SEEKS TO TOUGHEN PROHIBITED ACTS LIST

randompunishment240206There is little about prison life more arbitrary and random than inmate discipline. The offenses – like the infamous “engaging in anti-Soviet agitation” crime in communist Russia – are so general and squishy that virtually any conduct can be shaped and kneaded to fit within some offense confines.

The evidentiary standard that the prison must meet in order to find that an inmate is guilty of an offense is so low that if an inmate is charged, she is as good as convicted. The Supreme Court has declared it to be the “some evidence” standard:

This standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.

Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985),

Still, when the Federal Bureau of Prisons releases a proposed rule changing its list of prohibited acts, it’s a big deal. The BOP did so last Thursday, seeking public comment on a broad updating of its list of Prohibited Acts that sweepingly expands the conduct that is encompassed by some greatest severity category acts but dramatically cutting the use of disciplinary segregation.

Solitary confinement has gotten a well-deserved black eye in the last few years, and the BOP got that memo. Under the prohibited acts proposal, open for public comment until April 1, 2024, maximum first-offense disciplinary segregation would fall from a maximum of 365 days for a first 100-series violation to 60 days and 180 days to 30 days as a maximum punishment for a 200-series shot. No DS time could be assessed for a 300-series shot.

This is good.  It makes the BOP look progressive and forward-thinking, exactly how an outfit that has jettisoned the expression “inmate” in favor of “Adults in Custody” ought to look. Correct. Compassionate. Fair.

However, most of the BOP’s disciplinary decisions don’t include a term in solitary as a sanction. Instead, the BOP has a whole menu of lesser punishments – including forfeiting good time, FSA credits, loss of commissary or phone or visiting privileges. The new proposal doubles down on lesser, more common penalties while looking virtuous for cutting seldom-used disciplinary segregation.

punishmentwheel240206The fun doesn’t stop there. The proposal rolls out “additional examples of privileges that may be removed as a potential sanction: video visits, electronic device(s), and the use of electronic mail and messaging of any kind, including, but not limited to, through the TRULINCS system.”

The proposal expands a number of definitions of what constitutes particular prohibited acts, including

• Code 102 regarding escape will now include any unauthorized departure from the buildings, lands, property or perimeter (inside or outside) of any facility; unauthorized departure from community confinement, work detail, program or activity (whether escorted or unescorted); and unauthorized departure from any authorized location regardless of electronic monitoring devices.

• Code 108, possession of a hazardous tool – the code applied to people caught with cellphones – will now include as hazardous tools “items necessary in the use of these devices. Making these changes would allow for discipline “if telltale evidence of such items as a cellphone, electronic device, or escape paraphernalia were not found,” the BOP says, “but items which could only be used with prohibited items are found to have been used.”

• A new Code 194 is proposed, regarding unauthorized use of social media and fund transfer services. This Code would be applied “for accessing, using, or maintaining social media accounts” such as “Facebook, Twitter, Instagram, Snapchat, TikTok, etc… or directing others to establish or maintain social media accounts on the inmate’s behalf” for the purpose of committing criminal acts or any Greatest category prohibited act. This code would also prohibit inmate use of fund transfer services such as CashApp.

After the public comment period, a final version of the rule will be rolled out.

All of this matters because in text and in practice, the expansive prohibited acts definitions permit BOP employees – largely untrained in the disciplinary system – to write up inmates for conduct that seems far beyond any reasonable interpretation of the regs.  In one case I worked on, an inmate became aware of a large stash of cellphones and other contraband.  She had been trying to get the warden to sign off on a pending recommendation that she be sent to home confinement. When she explained to a BOP secretary that she wanted to talk to her unit manager about it, and hoped she could trade her information for the unit manager pushing the warden to sign off on her home confinement, the secretary accused her of trying to bribe a BOP employee.

The inmate was charged with Prohibited Act 216, which is described in the rules as “Giving or offering an official or staff member a bribe, or anything of value.” 28 CFR § 541.3, Table 1.  Prohibited Act 216 is defined as a “high severity” offense.  She got a hearing, after which the BOP hearing officer ruled that the evidence “shows you are willing to give information as long as you receive something in return. This demonstrates your willingness to bribe staff.”

The unit manager herself testified that she did not feel as though the inmate was trying to bribe her, but in the BOP, the allegation alone is usually treated as presumptive evidence of guilt. The secretary said it sounded like a bribe, so it was a bribe.

But is it bribery? The BOP thinks so.
But is it bribery? The BOP thinks so.

Every defendant who cooperates with the government in hopes of getting a lesser sentence does the same thing this prisoner did, trade useful information for potential benefit. No matter. Providing information that contributed to institutional security was considered to be a bribe. The prisoner lost 21 days of good conduct time, four months of commissary, spent two months locked up in a cell awaiting disposition (this did not include any disciplinary segregation time), and was transferred to a higher-security facility. What’s worse is that the disciplinary record will be paraded in front of her judge as an argument against a sentence reduction, which will adversely affect her recidivism score.

The inmate’s habeas corpus appeal is still pending, but even if she wins and gets her 21 days back, most of the damage has been done.

The BOP already routinely punishes inmates with the Greatest category discipline for just living in a cell or cubicle where a cell phone is found, whether the inmate even knew of its presence.  Expanding the sweep of already expansive Prohibited Acts will only give BOP staff greater opportunity for mischief.  

BOP, Inmate Discipline Program: Disciplinary Segregation and Prohibited Act Code Changes (February 1, 2024), 89 FR 6455

– Thomas L. Root