Can You Hear Me (and My Lawyer) Now? – Update for April 9, 2021

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NPR REPORTS ON PUSH FOR ATTORNEY-CLIENT PRIVILEGE IN BOP EMAIL

NPR reported last week on congressional efforts to protect inmate email to lawyers from BOP snooping.

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In February, the House of Representatives approved the Effective Assistance of Counsel in the Digital Era Act by a vote of 414 to 11. The bill, now referred to the Senate Committee on Crime, Terrorism, and Homeland Security, would require the BOP to refrain from monitoring the contents of emails between inmates and their lawyers without a warrant.

The bill’s sponsor, Rep. Hakeem Jeffries (D-New York), said the vote garnered a large bipartisan majority at a time when lawmakers don’t agree on much.

wiretap210409The Congressional Budget Office predicted that if the legislation passed the Senate, the Federal Bureau of Prisons would have to build a new email system and create a registry of approved lawyers — measures it expects could cost $52 million through 2025.

A BOP spokesman told NPR that inmates and their contacts who use the email system “voluntarily consent to having all system activity monitored and retained.” He said that prisoners and their lawyers can communicate through phone, letters, or visits, which he said are not monitored by staff.

NPR, When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased (March 31, 2021)

H.R. 546, Effective Assistance of Counsel in the Digital Era Act

– Thomas L. Root

Patience, People, on Criminal Justice Reform – Update for April 8, 2021

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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.

WHEN WILL BIDEN TACKLE CRIMINAL JUSTICE REFORM?

The most common question I have gotten from inmates since January is when Congress will pass criminal justice reform. It brings to mind the old variation on the serenity prayer: “Lord, grant me patience… and I want it NOW.”

Reform200819But patience is what everyone needs. There’s the infrastructure, the racial reckoning, and now the gun control push (which will probably prevent a minuscule number of gun crimes, but looks all shiny and robust). I am convinced we will get to criminal justice reform, but it will take a bit.

Still, there are some encouraging signs. First, President Biden’s Dept of Justice followed up on its letter to the Supreme Court a few weeks ago with a brief filed last week in Terry v. United States, arguing that Section 404 of the First Step Act covers low-level crack cocaine offenders sentenced under 21 USC § 841(b)(1)(C), “a dramatic reversal that comes more than three decades after a Biden-crafted bill helped to fuel disproportionately harsh penalties for Black drug offenders,” according to The Hill.

But Biden promised more. During his campaign, he promised to address mandatory minimums. Nkechi Taifa, a Washington-based criminal justice reform advocate, believes that will change soon. Taifa said last week that he has been in touch with the Biden administration. “With respect to drugs,” he said, “it’s only about the weight of drugs and amount of drugs that dictates the time you serve. It doesn’t matter what the judge thinks, doesn’t matter what your characteristics are. Biden has said he’ll do away with it.”

return161227Cynthia Roseberry of the ACLU said on NPR last week that Biden could do a lot with a stroke of a pen, such as reverse the DOJ legal opinion in January that people on CARES Act home confinement had to return to prison when the pandemic ended. Last week, NPR reported, “prisoner rights groups asked Biden and Attorney General Merrick Garland to intervene, citing their comments about the need to reduce the prison population.”

And just today, FAMM – which has been active in urging the Dept. of Justice to reverse the legal opinion – is urging people to call the Attorney General to lobby him to take action.

Biden has proclaimed April a second chance month for people involved in the justice system. Roseberry told NPR she wants to see Biden use his sweeping power to grant clemency during the month.

The Hill, Biden urges leniency for harsh crack sentences fueled by his crime bill (March 31, 2021)

WTVR-TV, When will President Biden address criminal justice reform? (April 1, 2021)

NPR, Criminal Justice Reform Advocates Say They’re Anxious To See More Action From Biden (April 2, 2021)

– Thomas L. Root

A Sentencing Commission Phoenix? – Update for April 7, 2021

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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.

SENTENCING COMMISSION REVIVAL NEAR?

phoenix210408The seven-member United States Sentencing Commission, which hasn’t had a quorum since 2018 and is now down to one member, may be about to experience a rebirth.

Rollcall reported last week that the Biden administration has solicited lawmakers and criminal justice advocates for guidance on a slate of appointments, a move that could influence congressional efforts of criminal justice reform.

The commission must include three federal judges and no more than four members from any one political party. The Senate must approve the members. The last confirmation vote was four years ago, for Senior U.S. District Judge Charles Breyer (who is the only remaining USSC member).

Sen. Charles E. Grassley (R-Iowa), ranking Republican on the Judiciary Committee, said last week that the Biden administration is working to avoid Senate confirmation problems for its slate of USSC nominees “because both they – the White House – and this senator, and I’m sure a lot of other senators, want to get the commission up and running so it can do its work.”

Breyer said he anticipates that the White House will put forward a slate of six nominees. Until then, he said, “I think we’re in crisis.” The sentencing structure was designed to change over time and be guided by experience, he said. “And it’s an understandable tendency that if the guidelines don’t reflect reality that they’re ignored or given less weight,” Breyer added.

The Commission’s last Guidelines amendments became effective in November 2018.

Rollcall: Help wanted – Revived commission could spark criminal justice changes (March 29, 2021)

Sentencing Law and Policy, Might we be getting closer to (needed) new nominees for the “frozen” US Sentencing Commission? (March 31, 2021)

– Thomas L. Root

BOP Cooks Books, Congress Stirs Pot – Update for April 6, 2021

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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 COOKING THE COVID BOOKS, ACLU SAYS

White-collar crime inmates could learn something about slick accounting from the BOP.

cookbooks210406Up until five weeks ago, the BOP reported the total number of inmates who had tested positive for COVID-19, adding to the tally daily as new cases arose. As I reported last week, since February 24, the BOP has been changing the number daily by not just adding new cases, but by subtracting inmates who had tested positive in the past but who were no longer in custody. This accounting legerdemain has let the BOP understate the number of inmate cases by at least 1,115 through the end of March, which has reduced the positivity rate by a point, from 43.77% (had those inmates remained on the rolls) to 42.75% without them.

The Marshall Project reported the trickery last week, noting its weekly COVID prison “data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. As a result, we cannot accurately determine new infections in federal prisons.”

The ACLU and other prison watchdog groups contend the BOP’s testing procedures are inadequate. According to the Riverfront Times, Sharon Dolovich, the director of the UCLA Law COVID-19 Behind Bars Data Project, said, “We know that those are under-counts because there are many facilities that are reporting zero, or under ten or under twenty infections,” Dolovich says. “And both because of what we know from COVID, and from what we’ve seen in countless facilities a year into the pandemic, we know that if you’re a prison with twenty infections, you have many more than twenty people who are infected.”

Maria Morris, director of the ACLU’s National Prison Project, said that BOP officials are motivated to under-test and therefore to under-count infections. “And then they can say COVID isn’t a problem in our facilities. ‘Look at how low our numbers are,'” she told the Riverfront Times.

A BOP spokesperson responded that BOP employees work closely with local health departments to ensure priority testing is provided to staff who are in close contact with COVID-19-positive personnel, while the federal prison agency has obtained a national contract to perform all staff testing.

battleplan210406“Whatever policies they have on paper aren’t actually being implemented,” Dolovich replied. “So they could tell you things that actually sound good in theory. But when you actually talk to people incarcerated in the various facilities, they will tell you that the reality is very different.”

Even before the BOP’s latest numbers game, Senators Elizabeth Warren (D-Massachusetts) and Cory Booker (D-New Jersey) reintroduced the Federal Correctional Facilities COVID-19 Response Act (S.328 in the Senate) to address inadequacies in the BOP’s COVID response.

The legislation would require correctional facilities to begin providing free, weekly COVID-19 testing and vaccines to both the incarcerated and their employees and assure that they offer free medical care to those who test positive for it. Oversight would include requiring these facilities to submit weekly testing data to the Department of Justice, the Centers for Disease Control and Prevention (CDC), and state public health officials. CDC officials would be dispatched to sites where outbreaks emerged within 72 hours.

BOPCOVID-19-200622“The Department of Justice’s response to the COVID-19 pandemic has been unacceptable and has placed nearly 2.3 million incarcerated people in danger,” Booker said. “It is well known that people in prison and jail tend to have much higher rates of underlying health issues than the general public, and the conditions of confinement make social distancing virtually impossible. As a result, people in prison and jail are disproportionately contracting and dying of COVID-19.”

The BOP ended yesterday claiming only 371 sick inmates. The number of sick staff, however, remains stubbornly at about where it was a week before, 1,268. COVID is still present in 116 facilities. While the BOP claims generally to have delivered 110,489 shots in arms, its detailed listing as of last Friday reveals only 19.2% of the inmate population has been vaccinated.

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 2, 2021)

The Riverfront Times, Why Did a St. Louis Man Die in a Federal Prison Coronavirus Hotspot? (March 24, 2021)

Homeland Preparedness News, Legislation to provide greater oversight of federal prisons’ COVID-19 efforts reintroduced to Congress (April 5, 2021)

S.328, Federal Correctional Facilities COVID–19 Response Act 

– Thomas L. Root

10th Circuit Greenlights Compassionate Release for Over-Long Sentences – Update for April 5, 2021

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PEELING THE COMPASSIONATE RELEASE ONION

peelingOnion210405A trio of appellate decisions last week – two from the 10th and one from the 4th – continue to peel away the uncertainty from the scope of 18 USC § 3582(c)(1)(A)(i) sentence reduction and the factors relevant to whether a reduction will be granted or denied.

You recall that 18 USC § 3582(c)(1)(A)(i) permits the district court that sentenced a defendant to reduce the sentence at any time if the defendant can show “extraordinary and compelling” reasons for doing so, if the reduction is consistent with Sentencing Commission policy statements, and if the reduction is not too much of an affront to the factors listed in 18 USC § 3553(a) that a court is to consider at sentencing.

First, the 10th Circuit joined the 4th in holding that district courts are entitled to broadly interpret “extraordinary and compelling” reasons for granting compassionate release. In two decisions, the 10th reversed district court holdings that the fact Congress had not made First Step Act drug and § 924(c) sentencing changes retroactive does not mean that those changes cannot figure in a compassionate release motion.

Malcom McGee was sentenced to mandatory life back in 2000 for a drug trafficking offense, the stratospheric minimum sentence because he had prior state convictions for drug use and sale. Section 401 of the First Step Act cut the mandatory life minimum in 21 USC § 841(b)(1)(A) to 25 years, but Congress decided against making the change retroactive (a sop Senate Majority Mitch McConnell (R-Kentucky) threw Sens Ted Cruz (R-Texas), Tom Cotton (R-Klingon Empire) and their fellow troglodytes who thought there was nothing wrong with forcing someone sentenced on December 20, 2018, to get life while someone being sentenced two days later to get 25 years).

klingons210405Because First Step did not make the mandatory minimum change retroactive, Malcom found himself in the middle: Congress didn’t cut him a break, and the district court said it could not use compassionate release to grant him a sentence reduction because of Congress’s refusal to apply retroactivity.

The 10th Circuit disagreed:

“The plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A). But nothing in § 401(c) or any other part of the First Step Act indicates that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants…The possibility of a district court finding the existence of “extraordinary and compelling reasons” based, in part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.”

Two days later, the 10th Circuit shut down government arguments in another compassionate release case. Kepa Maumau was convicted of three stacked § 924(c) convictions, receiving a 55-year sentence. The district court granted him compassionate release based on the First Step Act’s change of § 924(c) which was to not impose the 25-year sentence for a subsequent § 924(c) conviction unless the defendant had already been convicted of a prior one. The court also considered Kepa’s youth at the time he committed the crimes and his rehabilitation in prison.

But Kepa stayed in prison because the government appealed, arguing that the U.S. Sentencing Commission alone, not the courts, has power to determine what constitutes an extraordinary and compelling reason for compassionate release. What’s more, the government complained, a district court has no authority to grant compassionate release based on its disagreement with the length of a mandatory sentence.

Sentencestack170404The Circuit bluntly rejected these arguments, holding that the government’s “underlying premise is incorrect. Nothing in the district court’s decision indicates that the district court granted relief to Maumau based upon its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions. Nor was the district court’s decision based solely upon its disagreement with the length of Maumau’s sentence in particular. Rather, the district court’s decision indicates that its finding of “extraordinary and compelling reasons” was based on its individualized review of all the circumstances of Maumau’s case and its conclusion “that a combination of factors” warranted relief, including: “Maumau’s young age at the time of” sentencing; the “incredible” length of his stacked mandatory sentences under § 924(c); the First Step Act’s elimination of sentence-stacking under § 924(c); and the fact that Maumau, “if sentenced today… would not be subject to such a long term of imprisonment.”

Kepa went home last Friday.

Finally, the 4th Circuit handed Ryan Kibble a loss, but in an opinion interesting for its concurring opinion discussing § 3553 factors. Ryan was locked up at FCI Elkton, a notorious BOP COVID-19 hotbed, for 87 months after a conviction for soliciting sex from a female cop (whom Ryan thought was a 14-year old girl).

One of the sentencing factors set out in § 3553(a) is that the sentence be “just punishment” for the offense. District courts have grappled with § 3582(c)(1)(A)’s directive that they “consider[]” the § 3553(a) factors, and more than one has said it already applied the factors at sentencing, and it would stand on its previous position.

lockdowncovid210405But “[s]ection 3582(c)(1) necessarily envisions that the § 3553(a) factors may balance differently upon a motion for compassionate release than they did at the initial sentencing,” Chief Judge Roger Gregory wrote in his concurrence. “An individual requesting compassionate release will, in all cases, be serving a sentence that a district court once held was ‘sufficient but not greater than necessary’. If a district court’s original § 3553(a) analysis could always prove that a sentence reduction would intolerably undermine the 3553(a) factors, then 18 U.S.C. § 3582(c)(1) would, in effect, be a nullity. There is good reason to believe that, in some cases, a sentence that was “sufficient but not greater than necessary” before the coronavirus pandemic may no longer meet that criteria. A day in prison under the current conditions is a qualitatively different type of punishment than one day in prison used to be. In these times, drastically different. Some facilities house inmates who now serve their sentences knowing that they are not equipped to guard against a virus that may result in serious illness or death. Other facilities keep COVID-19 at bay by placing inmates in solitary confinement, ending prison programs, restricting visitation, and limiting access to nonessential medical care… These conditions, not contemplated by the original sentencing court, undoubtedly increase a prison sentence’s punitive effect.”

United States v. McGee, Case No. 20-5047, 2021 U.S. App. LEXIS 9074 (10th Cir. March 29, 2021)

United States v. Maumau, Case No 20-4056, 2021 U.S. App. LEXIS 9510 (10th Cir.  April 1, 2021)

United States v. Kibble, Case No 20-7009, 2021 U.S. App. LEXIS 9530 (4th Cir.  April 1, 2021)

– Thomas L. Root

Lawsuits and Voodoo Accounting: Last Week in the BOP COVID Wars – Update for April 1, 2021

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INMATE COVID CLASS ACTION SUITS GO 1-1

habeas_corpusThe class-action suit brought by FCI Waseca inmates challenging that institution’s inadequate response to COVID-19 sputtered to an end two weeks ago, as the U.S. District Court in Minneapolis ruled the women could not “assert a constitutional claim relating to the conditions of confinement” in a 28 USC § 2241 habeas petition.” A circuit split exists on this issue, but the 8th Circuit is on the wrong side of the split, at least insofar as the Waseca inmates are concerned.

The court ruled that if the FCI Waseca petitioner wanted to seek any remedy based on conditions of confinement, they had to bring a civil rights complaint, which would be subject to the Prison Litigation Reform Act. That Act, of course, requires that the inmates exhaust administrative remedies first, a fancy term meaning that they would have to work their way through the Bureau of Prisons byzantine remedy process, presenting their complaints to three different levels inside the BOP (and having those claims rejected, as is the BOP’s habit). The quickest way through the administrative remedy process takes about six months or so, which is a lifetime when inmates are dropping like flies from COVID.

The difference between the circuits is clear in the pending FCI Lompoc suit. Last week, the U.S. District Court in Los Angeles ordered FCC Lompoc to let Dr. Homer Venters, a court-appointed prison epidemiology expert, back into the institution within the next month for a second inspection, with a deadline of May 12 to file his report with the court. In so ruling, the court rejected the BOP’s argument that Venters – who has been unstintingly critical of the BOP’s response to the coronavirus epidemic – is not a neutral expert.

The Lompoc class action habeas corpus action is set for a hearing on summary judgment motions on June 15th.

numbers180327The BOP’s COVID numbers continued to fall last week. As of Friday, the BOP reported 394 inmate and 1,265 staff COVID cases systemwide. It’s still everywhere, with active cases in 119 BOP facilities. With 72% of the inmate population tested, the positivity rate is still over 43%.

The BOP reported that as of the end of last week, 15.3% of inmates and 45.4% of staff have been vaccinated, while at the same time claiming in other stats that it has delivered over 99,000 doses into arms.

The numbers don’t add up, but paying too much attention to BOP COVID numbers simply confuses. For instance, last week, The Marshall Project, which has reported weekly on COVID in prisons for months, noted that “while new infections in prisons have dropped in recent months from their highest peaks in mid-December, this data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the Bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. As a result, we cannot accurately determine new infections in federal prisons.”

unperson210401It’s pretty slick. Up until February 24, the BOP reported the total number of inmates who had tested positive for COVID-19, a running number that has only increased over time. But since February 24, the BOP has been changing the number daily by adding new cases while subtracting inmates who had tested positive in the past but who were no longer in custody. This accounting legerdemain has let the BOP understate the number of inmate cases by 1,115 through the end of March, which has changed the positivity rate by a point, from 43.77% (had those inmates remained on the rolls) to 42.75% without them.

Inmates become uninmates. How Orwellian…

And sometimes, the BOP doesn’t get to count COVID cases as active at all. Last week, an inmate at USP Florence died of COVID, but never tested positive for the disease in life. Only after his death did pathology determine he had died of undiagnosed COVID. No one knows for sure how many inmate COVID cases were simply never accounted for.

The BOP has not yet reported on how many inmates being offered the vaccine have not received it. However, a Kaiser Health News report last week, noting that 38% of Danbury inmates offered the vaccine rejected it, suggested that inmate reluctance might be because inmates believe that institutions have done a poor job of pandemic: “Inmates pointed to numerous COVID deaths they considered preventable, staffing shortages and guards who don’t wear masks. While corrections officials defended their response to COVID, [one inmate] said he’s apprehensive about how the department handles ‘most everything here recently,’ which colors how he thinks about the vaccines.”

Malcom v. Starr, Case No 20-2503, 2021 U.S. Dist. LEXIS 45387 (D. Minn. March 11, 2021)

Order, ECF 191 in Torres v Milusnic, Case No CV 20-4450 (C.D. Cal. March 22, 2020)

Mankato Free Press, ACLU lawsuit against Waseca prison dismissed (March 23, 2021)

Lompoc Record, Trial date approved in Lompoc prison COVID-19 class-action lawsuit; second inspection authorized (March 27, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (March 26, 2021)

BOP, Inmate Death at USP Florence (March 24, 2021)

Kaiser Health News, Inmate Distrust of Prison Healthcare Fuels Distrust of COVID Vaccines (March 25, 2021)

– Thomas L. Root

Procedural Snares Trip Up Compassionate Release Movants – Update for March 30, 2021

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SANDBAGGED

sandbag161214Too many prisoners are already familiar with Anders v. California, a Supreme Court holding which roadmaps a way for appellate counsel to roll on his or her client by filing a brief (called an “Anders brief,” of course) telling the court of appeals that the defense has no non-frivolous arguments to make on appeal, so the lawyer – who in all likelihood is court-appointed and is thus being paid by the public fisc) should collect his $200.00 and be allowed to go home.

Vladimir Manso-Zamora found out that it’s even easier for appellate counsel to quit when appealing the denial of a compassionate release motion. Vlad’s district court appointed a lawyer to represent him on his 18 USC § 3582(c)(1)(A)(i) motion to be released due to COVID-19. When Vlad lost at the trial court, he demanded that his lawyer appeal. His lawyer did so, but – believing Vlad’s appeal to be meritless, and filed an Anders brief saying so.

vlad210330Last week, Vlad got impaled by the 6th Circuit. The Circuit accepted the lawyer’s brief and let him withdraw, but went beyond that, explaining that counsel had done more than necessary. Because the 6th Amendment right to appointed counsel extends to the first appeal of right and no further, the 6th held, the Anders procedure is not required except in a direct appeal. In cases other than direct appeals, “Courts may ask lawyers to represent prisoners, and many lawyers do so willingly, but having opted in as a service, counsel has not locked the door behind himself.”

That’s not the only place a § 3582(c)(1)(A)(i) movant can get procedurally sandbagged. Vickie Sanders filed for compassionate release motion last summer, arguing she was at risk from COVID-19. The government filed its response, attaching new medical records showing that Vickie had already tested positive for COVID-19 and her symptoms had subsided a week later. Before Vickie could reply, the district court denied her motion, holding her criminal and medical history, not to mention the sentencing factors of 18 USC § 3553(a), weighed against her release.

Vickie argued she had a right to file a reply under the district court’s local rules, and the court wrongly denied her that opportunity. Last week, the 7th Circuit disagreed.

defendantgag210330District courts have “considerable discretion in interpreting and applying their local rules,” the Circuit held, provided they don’t violate litigants’ due process right “to respond to an argument or evidence raised as a basis to dismiss his or her claims.” But those rights are not violated until the district court’s dismissal order relies on the new arguments and evidence raised in the opposition.

Here, the district court “did not rely on a finding that Sanders is asymptomatic. Rather when considering Sander’s history and characteristics, the Court balanced her severe medical conditions with her ‘decades-long history of crime’… Thus, the district court’s denial of relief did not rely on new evidence, so it could not constitute a basis to dismiss Vickie’s claims in violation of her due-process rights.”

United States v. Manso-Zamora, Case No 20-1665, 2021 U.S. App. LEXIS 8227 (6th Cir. March 22, 2021)

United States v. Sanders, Case No 20-2561, 2021 U.S. App. LEXIS 8606 (7th Cir. March 24, 2021)

– Thomas L. Root

Drug and 924(c) Sentence Reduction, Retroactivity Bills Introduced – Update for March 29, 2021

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1000post210328

TWO BILLS CUTTING MANDATORY MINIMUMS, PROPOSING RETROACTIVITY, INTRODUCED IN SENATE

The important but piecemeal work of criminal justice reform continued last week with two significant bills being introduced in the Senate.

smart210328Sens. Richard Durbin (D-Illinois), Mike Lee (R-Utah), and 11 cosponsors introduced S.1013, the Smarter Sentencing Act of 2021, seeking once again to reform some drug mandatory minimums. At the same time, Durbin and Sen. Charles Grassley (R-Iowa) introduced S.1014, the First Step Implementation Act of 2021.

The Smarter Sentencing Act, an updated version of the Smarter Sentencing Act of 2019 (which went nowhere), continues the mandatory minimum adjustments to 21 USC § 841(b), the sentencing section of the drug trafficking statute begun by the First Step Act. First Step adjusted mandatory life in § 841(b)(1)(A) to 25 years, and mandatory 20 years in the same subsection to 15 years. The Smarter Sentencing Act proposes similar adjustments:

(b)(1)(A): The 15-year mandatory minimum for a prior drug offense would drop to 10 years, and the 10-year mandatory minimum floor would drop to 5 years.

(b)(1)(B): The 10-year mandatory minimum for a prior drug offense would drop to 5 years, and the 5-year mandatory minimum floor would drop to 2 years.

Smarter Sentencing would also create a new category of `courier’ for a defendant whose role was limited to transporting or storing drugs or money. The mandatory minimum for a courier under 21 USC § 960, the importation statute, would essentially be cut in half. It would not affect mandatory minimums in 21 USC § 841(b).

Importantly, the bill makes its changes retroactive, enabling people who now have mandatory minimum sentences changed by the bill to ask their judges for a sentence reduction.

mandatory170612Lee and Durbin first introduced the Smarter Sentencing Act in 2013. Several of its provisions made it into the First Step Act, which was enacted into law in 2018, but the changes in mandatory minimums for most drug offenses would not.

“Mandatory minimum penalties have played a large role in the explosion of the U.S. prison population, often leading to sentences that are unfair, fiscally irresponsible, and a threat to public safety,” Sen. Durbin said in a press release. “The First Step Act was a critical move in the right direction, but there is much more work to be done to reform our criminal justice system. I will keep fighting to get this commonsense, bipartisan legislation through the Senate with my colleague, Senator Lee.”

Meanwhile, S.1014 – the First Step Implementation Act – is equally significant. It would extend retroactivity to anyone sentenced for drug or stacked § 924(c) offenses sentenced prior to the 2018 First Step Act and let judges waive criminal history limitations that keep defendants from getting the 18 USC § 3553 safety value.

Additionally, the bill corrects a weird anomaly in the First Step Act that redefined prior drug cases for which a defendant can get an § 851 enhancement (which increases the mandatory minimum where the defendant has certain prior drug convictions) to limit such priors to crimes punishable by more than 10 years for which the defendant was actually sentenced to more than a year. Under the 2018 bill, the change affected people sentenced under §§ 841(b)(1)(A) and (b)(1)(B), but not people sentenced under the lowest level of sentence, § 841(b)(1)(C). S.1014 applies the same “serious drug felony” definition to all three subsections.

The sleeper in S.1014 is that it would let virtually anyone sentenced under § 841(c) prior to the 2018 First Step Act seek a reduction using a procedure a lot like the Fair Sentencing Act retroactivity motions. The sheer number of motions likely to be filed might be enough to give Congress pause on this one.

usscmembers210328The bill also refines a number of Sentencing Commission goals – such as keeping down the prison population and ensuring that Guidelines don’t have adverse racial impacts. All of that would be great, but – as Supreme Court Justice Sotomayor noted last week – “currently, six of the seven voting members’ seats are vacant. The votes of at least four members are required for the Commission to promulgate amendments to the Guidelines.” The Commission has been paralyzed by lack of quorum since December 2018. The Senate has to confirm at least three new members – and none has yet been nominated by President Biden – before the Commission can do anything.

As for the two new bills, introduction hardly means approval. While Ohio State law professor Doug Berman is skeptical of their chances, he notes that “prior iterations of [the Smarter Sentencing Act] got votes in Senate Judiciary Committee from the likes of Ted Cruz and Rand Paul. Moreover, the current chair of the Senate Judiciary Committee is Senator Durbin and the current President campaigned on a platform that included an express promise to work for the passage of legislation to repeal mandatory minimums at the federal level. Given that commitment, Prez Biden should be a vocal supporter of this bill or should oppose it only because it does not go far enough because it merely seeks to ‘reduce mandatory minimum penalties for certain nonviolent drug offenses,’ rather than entirely eliminate them.

Committee on the Judiciary, Durbin, Lee Introduce Smarter Sentencing Act (March 26, 2021)

Congressional Record, Statements On Introduced Bills And Joint Resolutions (S.1013 and S.1014) (March 25, 2021)

Sentencing Law and Policy, Senators Durbin and Grassley re-introduce “Smarter Sentencing Act” to reduce federal drug mandatory minimums (March 26, 2021)

– Thomas L. Root

The Short Rocket – Update for March 26, 2021

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SOME BRIEF ITEMS FROM LAST WEEK…

rocket190620Senators Want BOP COVID Deaths Investigated: Twenty-two Democrat senators asked the Justice Department inspector general on Thursday to review all of these deaths. “Although BOP investigates each case involving the death of an individual in their custody, these one-off reviews of each individual COVID-19-related death may not be sufficient to determine system-wide failures in care across the entire federal prison system,” they wrote. “A comprehensive review would not only provide a full accounting of the circumstances surrounding each individual loss of life but would also help policymakers establish whether the appropriate BOP policies were in place and being followed in each case, as well as whether new policies or practices should be implemented to reduce risk during the current pandemic and to prevent similar outbreaks in the future.”

Letter to Michael Horowitz from Sen. Elizabeth Warren and others (March 18, 2021)

BOP Launches Newsletter: The BOP Reentry Services Division announced last week it has launched a national inmate newsletter “to enhance communication with the inmate population.” Entitled “Reentry Quarterly,” this publication includes a variety of articles focused on reentry resources for a diverse audience with a goal of providing something meaningful for every inmate. Topics have included post-release housing, inmate discipline, financial responsibility, Medicare, anger management, education, drug treatment, career/work, and parenting.

BOP, Bureau Introduces National Inmate Newsletter (March 18, 2021)

numberone210326Immigration Offenses Are Number 1 in 2020: Immigration offenses, followed by drug trafficking, were the most common crimes sentenced in federal courts last year, according to a US Sentencing Commission issued last week.

Reflecting the Trump administration’s crackdown on undocumented immigrants, immigration violations alone accounted for 41% of the caseload, a slight uptick from 38% the previous year, the USSC said in its annual report.

The majority of those sentenced were Hispanic and just over 46% of the Hispanics were non-US citizens.

The Crime Report, Immigration Cases Took 41% of Federal Caseload in 2020 (March 16, 2021)

COVID News: The BOP vaccinated 2,481 inmates last week, bringing the total to 11.3% of the inmate population. During his testimony on March 18, BOP Director Michael Carvajal told the House Subcommittee on Commerce, Justice, Science and Related Agencies said that 100% of inmates will have been offered the vaccine by July 2021.

According to Carvajal, home confinement has been successful. Only 21 people sent home have been returned to prison, and only one of those for new criminal conduct. The others were sent back for violations of conditions.

House Subcommittee on Commerce, Justice, Science and Related Agencies, COVID Outbreaks and Management Challenges: Evaluating the Federal Bureau of Prisons’ Pandemic Response and the Way Forward (March 18, 2021)

BOP, COVID-19 (March 19, 2021)

– Thomas L. Root

Some Reform Advice for Uncle Joe – Update for March 25, 2021

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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.

HOW BIDEN CAN REFORM CRIMINAL JUSTICE

Sometimes, it’s hard to remember the three things my wife wants me to pick up at the local IGA. For that reason, I have empathy for our septuagenarian President trying to wrap his head around the 14 steps that law professors Mark Osler (a clemency expert) and Rachel Barkow (former Sentencing Commission member) proposed last week that he take to reform criminal justice.

henhouse180307Writing in The Appeal, the profs argued (among other things) that “Biden inherits a clemency crisis. There are currently more than 15,000 petitions waiting for an answer, having piled up over the course of the Trump presidency… The current structure bears not one but two fatal flaws: It is overly bureaucratic and is a captive of the deeply conflicted DOJ.” It’s no secret that the fox has been guarding the henhouse – too much of clemency decision-making is embedded in the Department of Justice, the very institution that sought the too-long sentences in the first place and is thus inclined to say no to requests to overturn its initial judgments.

They also called on Biden to reform how the BOP processes sentence reduction motions filed pursuant to 18 USC § 3582(c)(1)(A)(i), the so-called compassionate release motions. “DOJ needs to shift course,” Barkow and Osler said, “particularly during the pandemic. It should identify elderly and infirm people in prison for release — not merely home confinement — and, at a minimum, it should support their release when requested.”

In addition, they argued the Administration should make CARES Act home confinement permanent for those who have been sent there during the pandemic, and that the DOJ commit to programming that allows people in prison to earn time off their sentence after participating in programming. “During the Trump Administration,” they said, “BOP proposed a rule that would block reduction eligibility for far too many people, make it too difficult to earn credits, and far too easy to lose them. While public comment on that proposal closed on January 25, it is not too late for DOJ to shift course and propose a different rule that makes this programming—and therefore release eligibility—as widely available as possible.”

social210325Most significantly, they argued that “flawed compassionate release and First Step Act implementation are emblematic of larger problems at the BOP. Nearly everyone outside of government who deals with the BOP finds it to be dysfunctional; it’s inefficient, overly bureaucratic, and prone to cruelty.” They propose legislation to shift the BOP to the Department of Health and Human Services. “In the end, the work of the BOP is to not only securely detain people but to prepare them for life after incarceration. They are much better at the first task than the second. A shift to a department dominated by social work would help change the culture that produces the BOP’s current problems.”

Along with that, they argued, the BOP needs to do a better job of the basic “blocking and tackling in their field, and that starts with ensuring adequate staffing throughout the system. There needs to be additional resources for mental health needs, and even for basic issues like ensuring there is a state ID for every person in prison when they are released.”

The Appeal, 14 Steps Biden’s DOJ Can Take Now to Reform America’s Criminal Legal System (March 15, 2021)

– Thomas L. Root