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Criminal Justice Reform Wonders Where the President Is – Update for August 5, 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.

I PROMISE…

promise210805Every week, I get dozens of emails asking about new criminal justice laws that have passed (zero) and the status of the EQUAL Act or First Step Implementation Act or the Safer Detention Act or any of a dozen really good criminal reform bills pending before Congress.

What, you think I’m not going to cover any progress or, better yet, the passage of the bills in this blog? I promise – if there’s significant progress on any criminal justice bill (or even insignificant progress), I will cover it. Right away.

I mention this because more and more articles are being written about President Biden as a disappointment on criminal justice reform. Last week, Law 360 said, “One of President Joe Biden’s most powerful tools for advancing criminal justice reform is his voice and yet, despite his campaign promises, he has been mostly silent on the issue while in office, frustrating criminal justice reform advocates.”

The criminal justice reform people “would have liked Biden to do more than just talk about criminal justice reform in his first six months in office, but they are even more frustrated by the fact that he isn’t loudly advocating for reform and isn’t letting people know when he will act on his reform promises.”

biden210805Andrea James, a former criminal defense attorney, said she attended a White House virtual discussion in May about reducing mass incarceration, shortly after Biden’s first 100 days in office. James has been fighting for clemencies through her organization, the National Council for Incarcerated and Formerly Incarcerated Women and Girls, a group that sought clemency for 100 women within Biden’s first 100 days.

Biden promised during his presidential campaign that he would use his presidential clemency power to secure the release of individuals facing unduly long sentences for certain nonviolent and drug offenses. “The president can do this with the stroke of a pen and there is absolutely no reason to wait,” James said.

Meanwhile, AP reported last Thursday that while Biden took quick action after his inauguration to shift federal inmates out of privately run prisons, promising it was “just the beginning of my administration’s plan to address systemic problems in our criminal justice system,” the President is overlooking a prime — and, in some ways, easier — target for improving the conditions of incarcerated people: the federal Bureau of Prisons.

The administration has full power to control staffing, transparency, health care, most of all, BOP leadership, the article says. BOP Director Michael Carvajal, “a Trump holdover… who has been in charge as the coronavirus raged behind bars, infecting more than 43,000 federal inmates, still runs the agency. Administration officials have been mulling whether to replace him, but no decision has been made, according to officials who spoke to The Associated Press.

First Step Act programs to reduce recidivism are hampered because there are not enough workers to facilitate them. Nearly one-third of federal correctional officer jobs in the United States are vacant, forcing prisons to use cooks, teachers, nurses and other workers to guard inmates. “There need to be enough people working in a prison to keep people housed in a prison safe. And they must be able to get access to the programs that should allow their release,” said Maria Morris of the American Civil Liberties Union’s National Prison Project.

A key part of Biden’s agenda racial justice, and nowhere is racial equity a more pressing issue than inside prison, where the inmate population is “still disproportionately filled with Black people.”

Advocates say that while Biden “has talked a good game, his actions tell a different story, particularly because the Justice Department has refused to reverse a legal opinion requiring inmates released during the pandemic to return to prison.”

return161227“There isn’t an appetite in the administration to act,” said Inimai Chettiar of the Justice Action Network.

The Hill reported last week that the White House continues to say nothing about whether Biden will do something to permit people on CARES Act home confinement to stay on home confinement. The Administration has been under pressure for months to revoke the Trump era legal memo, which concludes that CARES Act people have to go back to prison when the COVID emergency ends.

Some have proposed Biden use clemency to immediately end the sentences for those who have been living outside prison walls or push for the expanded use of compassionate release for the inmates.

“With a new rise in COVID-19 cases across the country, it’s unlikely the pandemic will be declared over any time soon,” The Hill said. “But as it currently stands, thousands will have to return to prison when it ends, and the Biden administration has not offered any public guidance on whether that could change.”

Law 360, Advocates Frustrated By Biden’s Silence On Justice Reform (July 25, 2021) 

Associated Press, Is Biden overlooking Bureau of Prisons as reform target? (July 29, 2021)

The Hill, Inmates grapple with uncertainty over Biden prison plan (July 30, 2021)

– Thomas L. Root

Biden Says Trump Got It Right on CARES Act Home Confinees Going Back to Prison – Update for July 29, 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.

BIDEN DOJ AGREES CARES ACT REQUIRES HOME CONFINEES TO RETURN TO PRISON, BUT ALL IS NOT LOST

comeback201019In a dying gasp last January, Donald Trump’s Dept of Justice Office of Legal Counsel interpreted § 12003 of the CARES Act to mean that anyone sent to home confinement during COVID-19 had to return to prison a month after the official state of emergency for the pandemic ends, according to officials.

Since taking office, President Biden’s administration has come under pressure from FAMM, other activists, and lawmakers – including Senate Judiciary Committee Richard Durbin (D-Illinois) and Sen Charles Grassley (R-Iowa) – to revoke the memo. But last week, The New York Times reported the Biden DOJ has concluded that the January memo correctly interpreted the law.

The COVID state of emergency is not expected to end this year, in part because of the rise of the Delta variant. “But the determination means that whenever it does end,” The Times said, “the department’s hands will be tied.”

The Times said several Administration officials “characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.” But that didn’t slow the barrage of criticism.

backstab160404“We took President Biden at his word that he wanted to reduce mass incarceration, but this choice, to send thousands back to prison, would be doubling down on the worst parts of his legacy,” Holly Harris, president of Justice Action Network, said. “It’s time for President Biden to keep his promise, and keep these people home.” The Hill complained that “Biden and Attorney General Merrick Garland could have rescinded that policy.” Lauren-Brooke Eisen, director in the Brennan Center’s Justice Program, said, “No public interest is served in having this group of individuals reincarcerated.”

The Justice Action Network and the Brennan Center both noted that Biden campaigned heavily on criminal justice reform last year.

“On the campaign trail, President Biden vowed to take bold action to reduce our prison population, create a more just society, and make our communities safe. He said he believed in offering second chances,” Eisen said.

Forbes said, “The position of both administrations seems odd when the program has been such a success… Of the 20,000 on home detention (CARES Act plus those on home confinement because they were near the end of their prison term) there had only been 20 individuals returned to prison institutions as a result of violations. That’s a 99.9% success rate.”

interpretation210729I think the critics are missing the point. The fact that the Biden DOJ thinks the prior OLC legal analysis of the CARES Act is solid has no effect on what policy the Administration will follow. If anything, the criticism Biden is taking over last week’s Times story makes it more likely than not that Biden or Congress will find some means of keeping CARES Act people on home confinement.

The New York Times, Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency (July 19, 2021)

The Hill, Biden administration criticized over report that it is not extending home confinement for prisoners (July 20, 2021)

Forbes, Biden Administration Signals That Federal Inmates On Home Detention Will Return To Prison (July 20, 2021)

The Crime Report, Prisoners Freed During COVID are ‘Twisting in the Wind,’ say Reformers (July 23, 2021)

– Thomas L. Root

Some Short Notes From the News – Update for July 15, 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.

THE SHORT ROCKET

rocket190620
A couple of short takes from last week’s news (and one update to yesterday:

Pardon Me: The June 2021 Federal Sentencing Reporter was devoted entirely to the presidential pardon power. In one essay, the authors found that of President Trump’s 238 clemency grants, only 25 (11%) were recommended by the DOJ Pardon Attorney.

New York magazine reported last week that Trump’s 238 clemency grants was a 50-year low. While Biden has hinted he’ll started granting clemency next year (before the midterm elections), the magazine was skeptical:

“The appearance of being “soft on crime,” and the possibility that someone you free re-offends in some politically inopportune way, makes it hard for presidents to rationalize pardoning people or commuting sentences with any regularity… The effect is that clemency has become really unusual. And when something is unusual, each decision becomes freighted with dramatic significance and scrutinized to the nth degree.”

Meanwhile, law professors Rachel Barkow (New York University) and Mark Osler (University of St. Thomas School of Law) sounded the alarm this week that contrary to its campaign pledges, the Biden Administration is poised to resume the errors of the past.

Inexplicably, however, the Biden administration… wants to leave clemency under the control of the Justice Department. Doing so will undermine the administration’s stated hope of achieving criminal justice reform and reducing racial bias in the federal system….

In conversations with activists, the administration has, at most, expressed some desire to use the pardon power before the 2022 midterm elections. That tells us two things, both dispiriting: that this is a low priority for the president, and that the administration does not yet have a handle on how this all could work. That’s far too long for reforms that don’t need congressional approval and when there is a backlog of petitioners who have waited too long for justice.

Federal Sentencing Reporter, Vol 33, Issue 5, After Trump: The Future of the President’s Pardon Power

Lawfare, Trump and the Pardon Power (July 6, 2021)

New York Magazine, When Will Joe Biden Start Using His Clemency Powers? (July 5, 2021)

The New York Times, We Know How to Fix the Clemency Process. So Why Don’t We? (July 13, 2021)

DOJ Inspector General Calls Out BOP on Faith-Based Support: A report issued last week by the DOJ Office of Inspector General found that a 30% shortage in BOP chaplains as well as “a lack of faith diversity” among the chaplaincy staff “leaves some inmate faith groups significantly underrepresented,” causing “many institutions to rely on alternative religious services options, such as inmate-led services.”

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The IG said “One particular concern was the potential for an inmate to use a religious leadership role to engage in prohibited activities or as a method to obtain power and influence among the inmate population.” The report concluded that “in the absence of a fully staffed and diverse chaplaincy, BOP institutions are unable to adequately administer their religious programs, prompting many BOP institutions to turn to alternatives that pose enhanced risks, such as inmate-led services and reliance on minimally vetted volunteers.”

DOJ, Audit of the Federal Bureau of Prisons’ Management and Oversight of its Chaplaincy Services Program (July 7, 2021)

readup210715Read Up on EBRRs: The BOP has issued a Program Statement on how staff is to determine inmate programming needs. This is important, because – contrary to the rumor mill, so-called inmate.com – earned time credits (ETCs) are only awarded for completion of approved programs that address needs previously identified by BOP staff. The new program statement guides you on how to get needs identified that will lead to ETCs.

PS 5400.01, First Step Act Needs Assessment (June 25, 2021)

– Thomas L. Root

Biden to Ask Fox To Advise on Emptying Henhouse – Update for May 26, 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.

GOOD AND BAD NEWS ON CLEMENCY

clemencypitch180716The New York Times reported last week that Biden Administration officials have begun evaluating clemency requests and have let activists know that President Biden may start issuing pardons or commutations.

That’s the good news. The bad news is that White House officials have indicated privately that it is working with the Department of Justice’s Office of the Pardon Attorney to process clemency requests with the intent of issuing some clemencies the president sign some before the 2022 midterm elections in. The White House has indicated that it will rely on the rigorous application vetting process overseen by the OPA, an office that most clemency advocates see as an impediment to clemency, not a facilitator.

henhouse180307Several pretty influential commentators, including NYU law prof and former Sentencing Commission member Rachel Barkow, have urged White House officials to consider moving the clemency process out of DOJ, “noting the paradox of entrusting an agency that led prosecutions with determining whether the targets of those prosecutions deserve mercy,” as The Times put it. But the Biden administration is not inclined to circumvent the OPA, according to the paper, instead following the approach adopted by President Barack Obama, who issued more than 1,900 clemency grants, mostly to people recommended by the DOJ and who had been serving drug trafficking sentences.

Biden’s team has hinted it is establishing a deliberate, systemic process geared toward identifying entire classes of people who deserve mercy. The approach could allow the president to make good on his campaign promise to use his authority to address racial equity. Given that 70% of federal prisoners are nonwhite, and 48% of all inmates are convicted of drug offenses, a focus on racial equity could have substantial impact.

pardon160321An April push by the National Council for Incarcerated and Formerly Incarcerated Women and Girls, called on Biden to grant pardons or to commute the sentences for 100 women during his first 100 days of office. Nothing came of it.

As of May 10, there were 3,211 pardon and 11,804 clemency petitions pending, according to DOJ statistics. Of those, 14 pardons and 461 clemency petitions were “closed without presidential action.”

New York Times, Biden Is Developing a Pardon Process With a Focus on Racial Justice (May 17)

US Sentencing Commission, Quick Facts – Offenders in Federal Prison (March 2021)

CNN, Advocates push for Biden to use his executive powers to grant clemency for hundreds of women in federal prisons (May 19)

DOJ, Clemency Statistics (May 23)

– Thomas L. Root

Can Clemency Save CARES Act Home Confinees? – Update for May 11, 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.

RUMBLINGS OF FIXING CLEMENCY AND HOME CONFINEMENT

biden210511White House officials are signaling that President Biden is prepared to “flex his clemency powers” as officials wade through the 14,000+ clemency requests on file.

I reported last week on a Zoom call the White House held to discuss criminal justice reform with advocates and former inmates. While the White House did not signal any imminent moves, officials indicated that Biden will not hold off until later in his term to issue pardons or commutations, The Hill reported last week.

“It was clear that they are working on something,” Norris Henderson, founder and executive director of Voice of the Experienced, who participated in the call, told The Hill. “They are looking at that right now as an avenue to start doing things.”

Meanwhile, an opinion piece in USA Today suggested Biden grant clemency to people on CARES Act home confinement as a means of thwarting last January’s Dept of Justice opinion that those people would have to return to prison after the pandemic ends.

noplacelikehome200518The Hill reported Saturday that Biden and Attorney General Merrick Garland have been facing mounting calls to rescind the DOJ memo. a policy implemented in the final days of the Trump administration that would revoke home confinement for those inmates as soon as the government lifts its emergency declaration over the coronavirus.

Randilee Giamusso, a Federal Bureau of Prisons spokesperson, told The Hill that the Biden administration had recently expanded the eligibility for home confinement, the clearest admission yet the pressure from above is forcing a renewed emphasis on CARES Act home confinement. Giamusso noted that Biden has extended the national COVID emergency declaration and that the Dept of Health and Human Services expects the crisis to last through the end of 2021.

insincerity210511“The BOP is focused right now on expanding the criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred,” Giamusso said.  

Of course it is. No one who has ever dealt with the BOP can fairly doubt its laser focus on its mission or the helpfulness and professional polish of its staff.

The Hill, Biden set to flex clemency powers (May 5, 2021)

USA Today, COVID-19 concerns sent thousands of inmates home. Give clemency to those who deserve it. (May 5, 2021)

The Hill, DOJ faces big decision on home confinement (May 9, 2021)

– Thomas L. Root

Reform When? – Update for May 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.

WHERE’S CRIMINAL JUSTICE REFORM?

Some advocates are starting to lose patience with the Biden Administration’s lack of a concrete criminal justice reform package.

lips210507Kara Gotsch of The Sentencing Project told NPR last week, “The lip service is good, but we need more, more action.” And Kevin Ring, president of FAMM, said while he is guardedly optimistic that the White House is trying to lay the groundwork for more foundational change. “But there‘s also some skepticism that he was going to have to tear down the house that he built in some ways through the sentencing laws and prison policies he not only sponsored but bragged about,” Ring said.

But last Friday, with “Second Chance Month” running out, White House officials held a virtual listening session with criminal justice advocates who were previously incarcerated to receive input on how to advance prison reform through policy.

White House counsel Dana Remus and domestic policy adviser Susan Rice were among the leaders of the conference, which included leaders from 10 advocacy groups such as Forward Justice, the National Council for Incarcerated and Formerly Incarcerated Women and Girls, and JustLeadershipUSA.

Biden has not yet moved to end the use of the death penalty, despite promising to do so on the campaign trail. And while he has pushed for action on police reform legislation following the conviction of former Minneapolis police officer Derek Chauvin in the murder of George Floyd, Biden has kept a distance from legislative negotiations on Capitol Hill as Democratic and Republican lawmakers try to find common ground.

Friday’s meeting was held to commemorate Second Chance Month, a nationwide effort to highlight the challenges faced by people who have been previously convicted.

“Too many people — disproportionately black and brown people — are incarcerated. Too many face an uphill struggle to secure a decent job, stable housing, and basic opportunity when they return from prison,” the White House said in the readout. “Those who have been through the system have particular insight into its shortcomings and the reforms that are needed.”

actions210507Whether the listening ripens into a criminal justice reform proposal is anyone’s guess, but with Biden focused on his infrastructure proposal, some suspect reform is not a top Biden priority. USA Today last weekend suggested actions speak louder than platitudes. The paper blasted DOJ’s intransigence in opposing virtually every compassionate release motion filed:

But talk is cheap, and while the administration’s rhetoric is promising, second chances remain few and far between in a federal criminal system where the Department of Justice continues to thwart the administration’s goals by opposing the release of individuals who are rehabilitated and do not pose a risk to the public. Making good on his commitment to criminal justice reform requires more than rhetoric. The Biden administration’s Department of Justice must change course.

NPR, Activists Wait For Biden To Take Bold Action On Criminal Justice Reform (April 28, 2021)

The Hill, White House officials meet virtually with criminal justice reform advocates (May 1, 2021)

USA Today, Biden administration needs to walk the walk on second chances for prisoners (May 1, 2021)

– Thomas L. Root

Pressure on Biden Builds On Fentanyl Analog Ban – Update for April 23, 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.

BIDEN FACES EARLY TEST ON COMMITMENT TO MANDATORY MINIMUMS

fentanyl210422In 2018, the Drug Enforcement Agency temporarily placed an entire class of compounds with chemical structures similar to fentanyl on the Schedule 1 list of drugs prohibited by federal law. Fentanyl analogs vary in potency, but even a trace of any of these compounds in a batch of drugs can trigger a lengthy mandatory minimum prison sentence.

Last week, the Government Accountability Office raised concerns that the fentanyl ban could result in people getting long sentences for compounds that are not even harmful or contain trace amounts of fentanyl-related substances. The ban has also made it harder for researchers to study thousands of fentanyl-like compounds, including to make treatments and antidotes for people living with opioid addiction, according to public health groups.

President Biden’s Office of National Drug Control Policy said the administration will work to extend the ban for seven months. Biden likely wants to avoid attacks from conservatives claiming he is “legalizing” a drug that has been so heavily demonized in the media, although allowing the Schedule 1 ban to expire is not really legislation.

Over a hundred justice and public health groups last week urged the White House to let the listing – which enhanced criminal penalties for people involved with the analogS –  expire. Instead, the coalition asked Biden to embrace a public health and harm reduction approach to fentanyl and other opioids, rather than repeating past mistakes of the war on drugs.

warondrug210423“The Biden administration and leaders of Congress are faced with their first major test of criminal justice reform… if they choose to extend this Trump-era policy, it will increase mass incarceration and the over-policing and incarceration of people of color,” said Hilary Shelton, a policy director at the NAACP, during a call with reporters on Monday.

Truthout, Biden Poised to Break a Promise on Mandatory Minimum Sentencing (April 13, 2021)

The Intercept, Biden Looks to Extend Trump’s Bolstered Mandatory Minimum Drug Sentencing (April 12, 2021)

– 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

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

Government Cries ‘Uncle’ on Fair Sentencing Act Retroactivity – Update for March 22, 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.

A MOST SIGNIFICANT CONCESSION

Last week, the Biden Dept of Justice told the Supreme Court that it would no longer argue that the § 404 of the First Step Act – the provision that made the Fair Sentencing Act of 2010 (FSA) retroactive, thus letting people given draconian sentences prior to that date a chance to bring their prison terms more in line with powder cocaine sentences – did not apply to people who did not fall under a mandatory minimum at their pre-2010 sentencing.

crackpowder191216

At first blush, it sounds rather arcane. Section 404 permitted anyone with a “covered offense” to apply to his or her sentencing judge for a sentence reduction. A “covered offense” is defined in § 404(a) as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010.” The Act lowered the ratio of crack-to-powder from 100:1 – which punished 5 grams of crack as though it were 500 grams (over a pound) of powder – to 18:1. This had the effect of requiring a defendant to have 28 grams of crack (instead of 5 grams) before the five-year mandatory minimum sentence of 21 USC 841(b)(1)(B) would apply, and 28 grams of crack before the 10-year mandatory minimum in 21 USC 841(b)(1)(A) would apply.

Essentially, the drug distribution penalties are hierarchical. The people with the most drug are sentenced under 21 USC 841(b)(1)(A), with penalties starting at 10 years and going up. The people with a lesser amount are punished under 21 USC 841(b)(1)(B), with penalties starting at five years. People convicted of having amounts less than the minimum needed for (b)(1)(B) – which is 28 grams for crack under the FSA – are punished under 21 USC 841(b)(1)(C), where the penalties start at zero.

A number of judicial circuits have ruled on whether a person with a pre-2010 (b)(1)(C) sentence had a “covered offense” under § 404. After all, the reasoning went, the FSA did not change the pre-2010 mandatory minimum, which was zero before the FSA and zero after. Unsurprisingly, the DOJ has fought hammer-and-tong against any (b)(1)(C) defendant getting resentenced under the FSA, and it so far has won in four circuits but lost in three.

crackpowder160606Now for Terry: In Terry v. United States, the Supremes are to weigh in on the issue, whether defendants sentenced for low-level crack-cocaine offenses under (b)(1)(C) before the FSA are eligible for resentencing under First Step. This is important for those defendants, because on resentencing, the courts are not bound to merely adjusting the sentence to reflect the FSA. Instead, they can consider post-sentence conduct and rehabilitation, and vary downward rather freely. Even if this were not so, most of those (b)(1)(C) people are nearing the end of their sentences.

The Trump DOJ consistently took positions to limit § 404 crack retroactivity as much as possible, and argued in Terry that unless a defendant had a mandatory minimum, § 404 did not apply. But in a letter to the Supreme Court last week, the DOJ said that following the change in Administration, it “began a process of reviewing the government’s interpretation of Section 404 of the First Step Act. As a result of that review, the Department of Justice has concluded that petitioner’s conviction is a “covered offense” under Section 404, that petitioner is entitled to request a reduced sentence, and that the court of appeals erred in concluding otherwise.”

The letter was filed on the day the Government’s brief was due. The petitioner filed an immediate response, criticizing DOJ for waiting to the last minute and urging the Court to decide the case without any further delay. DOJ, exhibiting the heart of a bureaucrat, noted,

According to the Federal Bureau of Prisons, petitioner is scheduled to complete the remainder of his term of imprisonment, which he will serve almost entirely on home confinement, on September 22, 2021… Were the case not to be decided before September 22, a question of mootness would arise that would need to be addressed before any decision on the merits.

wrong210322Of course, not a word about Tarahrick Terry, whose paltry 3.9 grams of crack netted him a sentence that – had the district court been told by the government that the FSA applied – would have gotten a reduction which nationally was averaging 26%. In other words, Tarahrick and the kids would have been coloring Easter eggs at home two years ago.

The Supreme Court is unwilling to delay a decision on relief for Tarahrick until it no longer matters. Last Friday, it appointed a lawyer to argue the position abandoned by the government (which is common practice when the government refuses to defend a case). Argument had been set for April. The Court postponed that but still promised a decision by the end of June.

The Terry case has drawn a lot of interest. Senators Richard Durbin, Charles Grassley, Cory Booker, and Mike Lee also filed a joint brief, as have several major think tanks and advocacy organizations spanning the spectrum from the American Civil Liberties Union to the American Conservative Union. Groups of retired federal judges, former federal prosecutors, and defense lawyers, have filed as well. None of the amici favors the government.

hope160620The DOJ confession of error is interesting for another reason more based in policy. It is still too early for any comprehensive Biden criminal justice reform legislation to have been introduced in Congress, but the DOJ letter strongly indicates interest at high levels of the Administration to favor maximizing current statutes to reduce federal sentences. Ohio State University law professor Doug Berman said last week the DOJ letter “is big news that the new Administration is open to a broader application of the First Step Act here, and I am hopeful that this kind of Justice Department new thinking may end up being applied in a whole host of other sentencing settings.”

Such as maybe a legislative push for criminal justice reform, perhaps?

Reuters, Biden reverses course in U.S. Supreme Court drug sentencing case (March 15, 2021)

DOJ, Letter to Supreme Court in Case No 20-5904 (March 15, 2021)

Federal Public Defender, Letter to Supreme Court in Case No 20-5904 (March 15, 2021)

Washington Standard, Coalition Calls For Reform Of Drug Laws That Delivered Harsher Prison Sentences By 100–1 Ratio To Minorities For Low-Level Offenses (March 13, 2021)

Sentencing Law and Policy, Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry (March 15, 2021)

– Thomas L. Root