Tag Archives: booker

EQUAL Act Now Has Path To Passage – Update for March 28, 2022

Leave a comment

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

EQUAL ACT AND MORE ACT MOVING FORWARD IN CONGRESS

It now looks like the EQUAL ACT (S.79), a bill to equalize crack and powder sentences, may have a ready path to passage.

crackpowder160606Last week, Senate Majority Leader Chuck Schumer (D-NY) signed onto the bill as a co-sponsor, although his plans to bring the bill to a floor vote are still not clear. The bill passed the House, 361-66, in September and President Joe Biden, who campaigned on criminal justice reform, is expected to sign the measure when it reaches his desk.

Ten Senate Republicans, including Sen. Richard Burr (R-NC), who added his name last week, are co-sponsoring the bill, that would eliminate the federal sentencing disparity between drug offenses involving crack and powder cocaine. This paves the way for likely passage in the evenly divided Senate chamber, where 60 votes are required to pass most legislation.

It now “looks like you’d get to 60, really,” said Sen. Rand Paul (R-KY), one of the ten GOP EQUAL Act sponsors. “This is the Democrats’ prerogative, it’d be nice if they would bring it to the floor.”

The bill, primarily sponsored by Judiciary Chairman Richard Durbin (D-IL) and Sen. Cory Booker (D-NJ), lowers the punishment for crack cocaine to match the thresholds for powder cocaine. In 2020, the Sentencing Commission found that 77% of crack cocaine trafficking offenders were black and 6% were white. Yet whites are more likely to use cocaine in their lifetime than any other group, according to the 2020 survey. Current law sets an 18-to-1 ratio between crack and powder cocaine, meaning anyone found with 28 grams of crack cocaine would face the same five-year mandatory prison sentence as a person found with 500 grams of powder cocaine.

crack211102Sentencing disparities between crack and powder cocaine were originally created with a 100-to-1 ratio, but in 2010, Congress reduced the sentencing disparity to 18-to-1 in the Fair Sentencing Act, but advocates have fought to further narrow the sentencing gap.

EQUAL is likely to get a vote in the Senate before the midterms given the support of Schumer and the 10 GOP lawmakers, according to the Washington Times. The GOP support means the legislation is able to overcome a filibuster, provided all 50 Senate Democrats unite behind the effort. Sen. Joe Manchin (D-WV), who has been a maverick so far in this Session, also became a cosponsor last week.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that it now seems the EQUAL Act “may have a ready path to passage.”

If enacted, the EQUAL Act would not only level federal sentences for future crack offenses but would retroactively slash prison time for those already doing time. The U.S. Sentencing Commission, which has analyzed the impact of the bill, estimates about 7,600 prisoners – nearly 5% of the federal prison population – would receive a sentence reduction. In most cases, overall crack prison sentences would be cut by at least one-third.

Meanwhile, a marijuana reform newsletter last week reported that a bill to federally legalize marijuana may be coming up for another House floor vote next week, The newsletter’s sources said that “nothing is yet set in stone, despite recent calls to bring the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act to the floor again this month.

marijuana160818Nevertheless, rumors of a floor vote – the second time that the MORE Act reached the full chamber after being approved in 2020 – are rife after congressional Democrats held a private session at a party retreat that included a panel centered on the reform legislation. The bill, which would remove cannabis from the list of controlled substances, cleared the House Judiciary Committee last September.

Bloomberg, GOP Support Clears Senate Path for Bill on Cocaine Sentencing (March 23, 2022)

Washington Times, Schumer joins bipartisan push to cut federal prison time for nearly 7,800 crack cocaine traffickers (March 22, 2022)

Sentencing Law and Policy, Is Congress finally on the verge of equalizing crack and powder cocaine sentences? (March 23, 2022)

Marijuana Moment, Federal Marijuana Legalization Bill May Receive House Floor Vote Next Week, Sources Say (March 23, 2022)

– Thomas L. Root

Weed, Yes; Washington, No? – Update for November 4, 2021

Leave a comment

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

BUT WAIT, THERE’S MORE…

An opinion piece in The Hill last week (admittedly written by the political director of NORML, who certainly has no particular point of view) argued that because marijuana is popular, but Congress is not, the Senate should quickly take up and pass the Marijuana, Opportunity, Reinvestment, and Expungement (MORE) Act, H.R. 3617, which would repeal marijuana prohibition by removing cannabis from the Controlled Substances Act, ending the existing state/federal conflict in cannabis policies.

marijuana-dc211104

The bill passed the full House in the last Congress with a bipartisan vote of 228-164, but died at the end of December when the two-year Congress ended without a Senate vote on the measure.

The Hill piece argued, “Given that Senate Majority Leader Charles Schumer (D-NY) along with Sens Cory Booker and Ron Wyden (D-Ore) have released their own draft proposal to repeal prohibition, which largely includes the MORE Act, it would be prudent for House Speaker Nancy Pelosi (D-CA) along with Leader Steny Hoyer (D-MD) and Whip James Clyburn (D-SC) to again pass the act and demonstrate to the American public that congressional leadership can be responsive to the public’s overwhelming desire to see cannabis legalized.”

potscooby180713That may be overly rosy. Morgan Fox of the National Cannabis Industry Assn, said last week that while the House will probably pass MORE this year, “it doesn’t look like any sort of comprehensive de-scheduling and regulation bill is going to be able to get through the Senate this year, just because of the politics at play. Democrats want something that’s very robust and contains a very strong social and restorative justice provisions. Republicans are not on board with that, even the ones that are pretty staunch supporters of ending federal prohibition.”

He said that watering down the bill would be required to get the 10 Republican votes needed to pass a filibuster in the Senate. “So I think that at this point, we’re really just trying to feel out where lawmakers are and see where we can compromise in terms of bigger legislation,” he said.

The Hill, Reforming marijuana laws before the holidays: A three-pronged approach (October 27, 2021)

Cannabis Administration and Opportunity Act (July 2021)

Insurance Journal, Takeaways from Our Conversation on Federal Legalization (October 26, 2021)

– Thomas L. Root

Biden Administration Promises a Fix for CARES Act Home Confinees – Update for November 1, 2021

Leave a comment

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

ATTORNEY GENERAL PLEDGES TO SEEK CARES ACT PATCH

return161227By now, everyone knows that a Dept. of Justice Office of Legal Counsel opinion issued in the last days of the Trump Administration ruled that the CARES Act requires that anyone the Bureau of Prisons sent to home confinement under the Act must return to prison when the COVID-19 emergency ends. A few months ago, the Biden DOJ agreed that the opinion was correct.

Since then, there has been a hue and cry from elected officials, advocates, and celebrities that no inmates on home confinement should be forced back to prison if they have complied with home confinement terms. Last Wednesday, Attorney General Merrick Garland made the most solid commitment yet from the Biden Administration that a way out of the legal thicket will be found.

During a Senate Judiciary Committee oversight hearing on DOJ, Garland said “it would be a terrible policy to return these people to prison after they have shown that they are able to live in home confinement without violations, and as a consequence, we are reviewing the OLC memorandum… [and] all about other authorities that Congress may have given us to permit us to keep people on home confinement.” Garland told Sen Cory Booker (D-NJ) that while he doesn’t know how long the DOJ review might take,

but we can be sure that it will be accomplished before the end of the CARES Act provision which extends until the end of the pandemic, and so, we’re not in a circumstance where anybody will be returned before we have completed that review and implemented any changes we need to make.

At the opening of the session, Committee Chairman Richard Durbin (D-IL) complained that he was “frustrated by DOJ’s handling of COVID and prison issues.” He complained to Garland that he’d written to DOJ multiple times about home confinement with no reply, and that the Department had supported only 36 of over 31,000 compassionate release requests filed with it.

hear211101We’re only a little more than nine months into the Biden Administration, but I already have this disconcerting feeling that Joe has overpromised but underperformed. We’ll see whether Garland – by all accounts a careful and thoughtful lawyer – was hinting at a significant DOJ effort to solve the CARES Act home confinement problem, or was just saying what he thought the Judiciary Committee wanted to hear.

Senate Committee on the Judiciary, Oversight Hearing on Dept of Justice (October 27, 2021)

Josh Mittman, FAMM, on Twitter (October 27, 2021)

Interrogating Justice, AG Garland Gives Hope to Those on COVID-19 Home Confinement (October 28, 2021)

– Thomas L. Root

Compassionate Release Gets Uglier – Update for September 3, 2021

Leave a comment

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

THE UNSTRUCTURED AND ARBITRARY WORLD OF COMPASSIONATE RELEASE, IN WHICH DISCRETION ONLY WORKS ONE WAY…

Someday, legal scholars may look back on COVID-era compassionate releases granted under 18 USC § 3582(c)(1)(A)(i) as having introduced more disparity and inconsistency in sentencing than any event in federal criminal law.

chaos210903A Sentencing Commission study last month tallied compassionate releases by district, released last month, reported that 22.3% of the 12,885 compassionate release motions filed in 2020 were granted. But if you filed one, your chances were not one out of 4.5, Instead, if your case came from the District of Oregon, your chances of a grant were 69.8%. If, however, your case came from the Western District of North Carolina, your chances were a lousy 1.5%.

There is no federal court district in the country with a poorer track record for compassionate release than Western District of North Carolina. During 2020, Western District judges heard 337 compassionate release motions. The judges denied all but five. By comparison, the Eastern District of North Carolina approved release in 25% of its 224 compassionate-release requests. The Middle District of North Carolina had an approval rate of 6.2%, granting 10 of 162 requests.

(The U.S. Virgin Islands had a 0% approval rate, but that court heard just six requests, the report says. By contrast, the Western District of North Carolina handled the sixth-highest number of compassionate release cases in the country last year.)

“The numbers are jarring,” one defense attorney said. “Your geography remains one of the most relevant factors in determining the sentence you receive or the severity of the punishment. In a country that guarantees equal protection under the law, I think that should raise some constitutional questions.”

That’s because appellate courts afford district judges a lot of discretion in deciding compassionate release motions, and – from time to time – confound things by issuing questionable decisions that tie up their district courts in procedural knots.

Case in Point #1: Take Jessica Ward, for example. She is around a third of a way through a 200-month drug sentence, and sought compassionate release in the Northern District of Texas due to chronic kidney failure. The government’s opposition argued that she did not meet Section 1B1.13 of the Sentencing Guidelines, in that the BOP was adequately managing COVID, but neither mentioned her kidney disease nor argued that 18 USC § 3553(a) sentencing factors should be relied on to deny her compassionate release motion.

The district court denied her motion because she did not meet USSG 1B1.13 and because § 3553(a) factors did not support a reduction. Jenny appealed.

crystalball210903Last week, the 5th Circuit denied her appeal. It agreed that the district court was wrong to rely on USSG 1B1.13, because that Guideline does not apply when a prisoner files a compassionate release motion herself. But while the Government made no mention of the § 3553(a) factors, the Circuit “gives deference to the district court’s determination… We see no reason to hold that the Government’s failure to make arguments about the factors cancels the court’s statutory obligation to consider them.”

The 5th said the burden falls on the defendant to convince the court to grant compassionate release after considering the § 3553(a) factors. If the defendant fails to convince the district court to exercise its discretion, then the court may deny the motion, assuming it considers the § 3553(a) factors, for reasons the government may have never argued. 

Lesson: Not only does a compassionate release movant have to address the arguments raised by the government, but he or she should address arguments that the court might raise on its own in the ultimate denial. The prudent defense attorney should thus have both a LEXIS/Westlaw account and a crystal ball.

Case in Point #2: Consider Ron Hunter, a one-time drug trafficking organization hitman convicted 21 years ago of murdering a 23-year-old woman outside a nightclub. As we like to say, Ron has kind of a tough fact pattern to argue… So tough that his sentencing judge sentenced him to life in prison.

Twenty-one years later, a different judge granted Ron’s motion for compassionate release. Based upon the fact that Ron did not get the benefit of the non-retroactive United States v. Booker ruling that Guidelines are not mandatory, on certain facts that existed at sentencing, and Ron’s rehabilitation efforts (which were far from perfect), the district court held the factors amounted to the “extraordinary and compelling reasons” required by 18 USC § 3582(c)(1)(A)(i).

compassion210903Should be no problem. right? After all, don’t circuits “give[] deference to the district court’s determination,” like the 5th Circuit said in Jessica Ward’s case? Makes sense, doesn’t it? But it turns out that it’s not necessarily so.

Last Monday, the Sixth Circuit reversed Ron’s compassionate release, holding that his new district judge abused his discretion.

The Sixth Circuit had already ruled last June in United States v. Jarvis that a “non-retroactive changes in the law [can]not serve as the ‘extraordinary and compelling reason’ required for a sentence reduction,” a holding at odds with most other circuits that have considered the issue. That meant that going in to oral argument, Ron was in trouble, because one of the grounds relied on his district court was that Booker would permit a sentence imposed today to vary from the Guidelines.

Now, the Sixth has built on the Jarvis blunder, ruling that “facts that existed when the defendant was sentenced cannot later be construed as “extraordinary and compelling” justifications for a sentence reduction.”

As Ohio State University law prof Doug Berman observed in his Sentencing Law and Policy blog, this holding “seems especially problematic and an especially misguided policy invention.” After all, the Sentencing Commission – which was given the duty by Congress to “describe what should be considered extraordinary and compelling reasons for sentence reduction” – held in Note 2 to Guideline 1B1.13, that

For purposes of this policy statement, an extraordinary and compelling reason extraordinary and compelling reasons need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

So while the Sentencing Commission has said facts known at sentencing can nevertheless be “extraordinary and compelling,” the Sixth Circuit says they cannot. It may well be that the Circuit was just put off at the idea of a hitman doing life going home after serving less time than a porn downloader. But there are ways to force the conclusion the judges wanted to see without pronouncing such a transparently wrong interpretation of the statute.

Lesson: Discretion is a rachet, in which the district court has free rein to deny but substantial restraint to grant, compassionate release.

Raleigh, North Carolina, News & Observer, Inmates seeking release from COVID-hit prisons have next to no chance in this NC district (August 27, 2021)

Ward v. United States, Case No 20-10836, 2021 U.S.App. LEXIS 25808 (5th Cir. Aug. 26, 2021)

United States v. Hunter, Case No. 21-1275, 2021 U.S. App. LEXIS 26115 (6th Cir. Aug. 30, 2021)

Sentencing Law and Policy, Sixth Circuit invents another extra-textual limit on what can permit a sentence reduction under 3582(c)(1)(A), including one in contradiction of USSC guidelines (August 30, 2021)

– Thomas L. Root

SIZZLE BUT NO STEAK YET IN WASHINGTON – UPDATE FOR AUGUST 13, 2021

Leave a comment

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

LAST WEEK IN WASHINGTON

oddcouple210219The news website Axios reported last week that Sens. Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa) – the Senate’s criminal-justice reform “odd couple” – “are working to win Senate passage of a big criminal justice reform package this Congress.”

Axios cited approval of three bills by the Senate Judiciary Committee, the COVID-19 Safer Detention Act, the First Step Implementation Act, and the Prohibiting Use of Acquitted Conduct Act as being “three measures, Grassley told Axios, they ‘hope to package along with potentially other proposals to pass the Senate sometime this Congress’.” Durbin separately told Axios in his own statement that he’s “committed to bringing these bills to the Senate floor this Congress.”

Axios predicts the final package also may include a measure for CARES Act confinees who otherwise may be forced to return to prison, a Republican Senate staffer told Axios, as well as the EQUAL Act. One challenge will be the crime spike, Axios said, which has the potential of sapping support from senators afraid of being branded soft on crime.

I like Axios, which is a pretty even-handed service, albeit more of a news aggregator than a news reporter. (Nothing wrong with news aggregators – LISA is largely one itself). But because it’s an aggregator, I am not sure whether Axios’s report represents something new, or is just a survey of what we already know.

caresbear210104In other developments, a coalition of five civil rights groups last week urged the Dept of Justice to reconsider its position on sending back to prison thousands of federal inmates transferred to home confinement during the pandemic, offering a legal analysis they believe would justify keeping them out from behind bars.

They argued that the Trump-era legal memo that concluded BOP is required by law to revoke home confinement for those transferred during the pandemic as soon as the emergency period is over, contending the Office of Legal Counsel memo is based on a flawed interpretation of the CARES Act.

Update: Yesterday, Senators Richard Durbin (D-Illinois) and Cory Booker (D-New Jersey) wrote to President Biden, urging him to act on keeping CARES Act home confinees at home. They suggested, in part, that the Bureau of Prisons could “provide relief for certain individuals through prerelease home confinement, under 18 USC § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 USC § 6054l(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 USC 3582(c)(l)(A). Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.”

So far, the President has resisted by inaction such calls to address the looming home confinement crisis.

Axios, Senate plans barrage on crime (August 1, 2021)

The Hill, Civil rights groups offer DOJ legal strategy on keeping inmates home after pandemic (August 4, 2021)

Letter to Dawn E. Johnsen, Acting Asst Attorney General (August 4, 2021)

The Hill, Top Senate Democrats urge Biden to take immediate action on home confinement program (August 12, 2021)

Letter to President Biden from Sens. Durbin and Booker (August 12, 2021)

– Thomas L. Root

Senate Judiciary Committee Takes a Crack at Crack Disparity – Update for June 24, 2021

Leave a comment

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

COMMITTEE HEARING BRINGS HOPE TO PRISONERS WITH CRACK SENTENCES

The big news this week was the Senate Judiciary Committee’s Tuesday lovefest on scrapping the disparity between crack cocaine and powder cocaine.

crackpowder160606The Committee conducted a hearing on S.79, The EQUAL Act (an acronym for “Eliminating a Quantifiably Unjust Application of the Law”). The Act, sponsored by Sen. Cory Booker (D-New Jersey), would correct mandatory minimum sentences in 21 U.S.C. § 841(b) so that a like amount of cocaine base (“crack”) and cocaine hydrochloride (“powder”) would dictate a like minimum sentence.

A brief history lesson: About 35 years ago, a senator from Delaware by the name of Joe Biden co-sponsored the Anti-Drug Abuse Act of 1986. That law imposed mandatory minimum sentences for drug offenders and created a 100-to-1 sentencing disparity between crack and powder cocaine. This meant that the poor mutt caught with five grams of crack would get the same mandatory five-year minimum sentence that a dealer walking around with over a pound of cocaine powder would face. This, of course, was because that crack turned every user into a superhuman killer, all crack dealers carried assault rifles and multiple handguns, and the merest sniff of a rock of cocaine base cocaine would turn a nun into a crack whore for life.

None of that is true, of course, but that deterred Congress not in the least. What was true was that crack was much cheaper than powder, and the drug thus became the abuse-of-choice in poorer and minority communities. As a result, the much harsher crack cocaine penalties fell on minority defendants at a rate disproportional to their representation in the general population.

In later years, under pressure from criminal justice advocates who cited the wide racial disparities and massive sentences that resulted, Presidential Candidate Biden reversed his stance. Indeed, part of his 2020 campaign platform included ending the disparity.

sessions170811Congress got there first. In 2010, it passed the Fair Sentencing Act, which reduced the crack-powder disparity from 100:1 to 18:1. The original legislation as passed by the House eliminated the disparity altogether, but – as Judiciary Committee Chairman Richard Durbin (D-Illinois) confirmed during last Tuesday’s hearing – a compromise at 18:1 had to be reached in the Senate to mollify the Dinosaur Caucus, led by then-Senator Jefferson Beauregard Sessions III (R-Alabama). At the same time, the legislation was changed at Sen. Sessions’ gentle urging to eliminate retroactivity.

Retroactivity was granted retroactively in Section 404 of the First Step Act, letting people who had been sentenced under the harsh 100:1 sentencing minimums get relief.

Tuesday, the witnesses and members of the Committee are almost uniformly in favor of finally adopting the 1:1 ratio. I say “almost,” because one witness – Steve Wasserman, an assistant US attorney and vice president for defendant oppression at the National Association of Assistant United States Attorneys (actually, “vice president for policy”, which appears to be the same thing) – argued that because crack defendants tend to have more extensive criminal histories and to carry guns, the ratio should not be changed. Chairman Durbin’s rejoinder to Mr. Wasserman was, “The science is not with you.”

cotton171204On the Committee, Sen. Tom Cotton (R-Mongol Empire)* argued that the ratio should be made 1:1, but to achieve that, powder sentences should be increased to match crack offenses. In other words, his solution is 18:18. To say this was the minority view on the committee would be to give Sen. Cotton’s creative if Draconian solution too much credit.

Most notable was testimony given by Regina LaBelle, acting director of the White House Office of National Drug Control Policy. In what was clearly a position approved in the Oval Office, she said that the Biden administration “strongly supports” eliminating the sentencing disparity between crack and powder cocaine.

“The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color,” LaBelle said. “The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end.”

So what would be the practical effect of such a change? When the Fair Sentencing Act passed, the U.S. Sentencing Commission responded by reducing sentencing ranges across the board for crack offenses, so that a five-year mandatory sentence for a defendant without a prior criminal history possessing 28 grams of crack equaled what the Guidelines said his sentence should be. If the ratio falls to 1:1, and if the Sentencing Commission makes the same adjustments, a hypothetical defendant with no prior record (and no sentencing enhancements) would see the following sentencing range adjustments:

chart210624

These are fairly significant. Of course, there is no assurance that the powder ranges would not be adjusted upward a bit (although that is very unlikely), and the Table above does not consider the effects of Guidelines enhancements or more serious Criminal History Categories. But any way you slice it, the sentencing range changes will be substantial.

slip210624There are many ways for this to slip ‘twixt cup and lip. The EQUAL Act could go nowhere, especially if the new crime wave sweeping America makes reform politically unpalatable. It could be amended. The Sentencing Commission is still out of commission without a quorum, and Biden has not yet appointed anyone new. The Commission, if it is functioning, may not make changes under The EQUAL Act retroactive (although that is unlikely, too). And if it is retroactive, defendants will have to apply to their sentencing judges under 18 USC § 3582(c)(2), and the judges could turn them down.

Nevertheless, The EQUAL Act seems to have bipartisan support (Tom Cotton notwithstanding), and the winds – for now at least – are favorable.

—————-

* Sen. Cotton is really from Arkansas, and I mean no disrespect to the people of that great state. I would say that Sen. Cotton – aptly described by one writer as a “bobble-throated slapstick from the state of Arkansas” – has done all the disrespecting of his constituents any group of citizens should have to endure.

—————-

S.79, The EQUAL Act

Senate Judiciary Committee, Examining Federal Sentencing for Crack and Powder Cocaine (June 22, 2021)

Reason, Biden Administration Endorses Legislation to End Crack Cocaine Sentencing Disparity (June 22, 2021)

Washington Post, Biden administration endorses bill to end disparity in drug sentencing between crack and powder cocaine (June 22, 2021)

– Thomas L. Root

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

Leave a comment

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

Great Clemency Idea Or Stupid Political Stunt? – Update for March 18, 2021

Leave a comment

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

WASHINGTON WEEK: SEEKING CLEMENCY FOR SOME LADIES
"I won!"
“I won!”

Congresswomen Cori Bush (D-Missouri) and Ayanna Pressley (D-Massachusetts) last Friday joined with the National Council for Incarcerated & Formerly Incarcerated Women and Girls’ initiative calling on President Joseph Biden to grant 100 women clemency in his first 100 days in office. Speaking at an event held outside the White House, Pressley told the President “to exercise his clemency authority,” adding he can grant clemency to the 100 women “by the stroke of a pen.”

Vox said several weeks ago that “advocates want Biden to act quickly” on clemency. “They point to epidemics of Covid-19 in jails and prisons, which could be eased if there were fewer people in those settings to spread the coronavirus. And they argue that acting too slowly would repeat the mistakes of Biden’s predecessors, who, if they moved on clemency at all, did so too late during their terms to do the long, hard work of broader reforms.”

clemencyjack161229Acting quickly on clemency is a great idea, but “100 women in 100 days” is nothing but a political stunt. The greatest danger in a proposal like this one is that if Biden knuckles under, 100 inmates get clemency, and then the Administration will check clemency off its “to-do” list, moving on to the next domestic issue. The problem with the clemency system – beyond the obvious, that 14,000 petitions are pending, many for years – is that the arbitrariness and bias of a system that relies on mercy from the very people who make their careers locking up defendants has a systemic infirmity that must be addressed. A political stunt that relies on an alliterative label – ‘100 in 100…’, like there’s something significant about the base-10 number system – simply detracts from the serious work to be done while delivering commonsense mercy in a scattershot and ineffective way.

The well-meaning people behind this have little idea of the effect of their Lafayette Park theatre on the inmates. I have had several emails this week from women inmates informing me that a list of 100 inmates was handed to the President in the Oval Office, and that he was ready to act. They wondered if they were on the list. Oh, if life only imitated rumor…

Why not simply distribute 151,703 scratch-off cards to the BOP population, with only 100 winners among them? That approach would make as much sense, while adding a bit of drama and excitement to the event.

crackpowder160606Last Tuesday, Representatives Hakeem Jeffries (D-New York), Bobby Scott (D-Virginia), Kelly Armstrong (R-North Dakota), and Don Bacon (R-Nebraska) introduced the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act in the House. The bipartisan legislation would eliminate the federal crack and powder cocaine sentencing disparity and retroactively apply it to those already convicted or sentenced.

The measure is identical to the measure introduced in the Senate by Cory Booker (D-New Jersey) and Richard Durbin (D-Illinois) five weeks ago.

USA Today, ‘No justice in destroying lives’: Pressley, Bush call on Biden to grant clemency to 100 women in 100 days (March 12, 2021)

Vox, Biden’s secret weapon for criminal justice reform (March 1, 2021)

Atlanta Daily World, Congress Introduces Bill to Eliminate Sentencing Disparity Between Crack and Powder Cocaine (March 10, 2021)

– Thomas L. Root

Third COVID Wave Breaking Over BOP – Update for November 16, 2020

Leave a comment

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

BOP TRANSFEREES BRING COVID TO FORT DIX, SENATORS SAY

The third wave of COVID-19 sweeping the country apparently does not intend to exempt the Federal Bureau of Prisons. Active inmate cases, which have averaged 1,900 a day since September 1, have shot up last over the last two weeks, hitting 3,163 last Friday. That’s the highest number of BOP cases since the end of July. At the same time, BOP staff cases hit an all-time high of 1,049. The virus is present in 119 of 122 BOP facilities.

BOPCOVID201116

Last week, Government Executive magazine reported that the BOP “has experienced perhaps the worst outbreak of any federal agency per capita, with about 7% of its workforce contracting the virus. All told, more than 2,500 bureau employees have tested positive. Nearly 20,000 federal prisoners have also contracted COVID-19, or about 14% of the federal inmate population.”

The death toll has mounted as well. Three more federal inmates deaths were reported since November 6th, one at USP Tucson and two at the Springfield medical center. Citing a National Commission on COVID-19 and Criminal Justice study, the Washington Post reported last week that “when adjusted for age, sex and ethnicity, the mortality rate in federal prisons is twice that of the general population.”

The BOP has reported that as last Friday that it has tested half of all inmates at least once. The number testing positive inched up a point last week to 26%. One out of four tests has been positive ever since the BOP began reporting testing last spring.

reinfection200831The hottest BOP facilities for COVID-19 last week were USP Tucson (Arizona) with 363 inmate cases, and FCI Fort Dix, New Jersey (233 cases). These were followed by FCI Beaumont Low (Texas), USP Thomson (Illinois), FCI Bastrop (Texas), the FMCs at Butner, North Carolina, and Springfield, Missouri, USP Marion (Illinois), FCI Yazoo Medium (Mississippi), FCI Gilmer (West Virginia), FCI Greenville (Illinois) and FCI Jesup (Georgia), all with 100 or more cases.

The Fort Dix epidemic is especially troublesome, with Congressional criticism raining down on the BOP even as employee unions finger-point. Senators Robert Menendez and Cory Booker (both D-New Jersey) wrote to BOP Director Michael Carvajal last Monday, accusing the BOP of negligently transferring COVID-19 infected prisoners from FCI Elkton to Fort Dix, thus introducing the disease to Fort Dix. The senators said, “It is clear that BOP does not have an effective plan to ensure COVID-19 positive inmates are not transferred between facilities…”

The Philadelphia Inquirer reported last week that “as recently as mid-October, US Attorneys opposing compassionate release motions by Fort Dix prisoners argued that ‘the BOP has taken effective steps to limit the transmission of COVID-19’.” Now, the paper said, “videos purportedly taken by a prisoner inside Building 5812 and circulating among family members show a unit in chaos — debris scattered and trash overflowing — a byproduct of a shortage of staff and healthy inmate workers, according to family members.”

The BOP says all prisoners are quarantined for 14 days and tested prior to being moved. The receiving prison is also to test and quarantine new prisoners for two weeks, which is what Brian Kokotajlo, a BOP union official at Fort Dix, says happened there. He’s skeptical about how things were handled at Elkton. “They said the inmates were tested when they left Elkton, but personally I don’t believe that to be true,” Kokotajlo said. “If they tested them at Elkton, how they made it on the bus and how they made it to us and became positive in a six-hour drive across the state of Pennsylvania, nobody seems to be able to figure that out.”

fingerpoint201116But Joseph Mayle, the Elkton union chief, blamed false negatives produced by COVID-19 rapid testing for infected prisoners being sent to Fort Dix. “My staff here, they’re not going to throw inmates on a bus without testing them,” Mayle said. “If that’s what they’re saying, that’s not what’s happening.”

BOP spokesman Justin Long issued a statement denying that Elkton transfers caused the Fort Dix outbreak. “Contact investigations indicate the infections were not the result of this inmate movement but rather may have originated from the community,” Long said.

In Pekin, Illinois, local residents protested this past weekend, complaining that the BOP is failing to protect inmates from coronavirus and asking the agency to release eligible inmates to home confinement. Dozens of protesters gathering Saturday, “demanding inmate get proper medical care, nutrition and hygiene needed to keep safe from the virus,” a local TV station reported.

The group also alleged that “the BOP’s website is not keeping up-to-date information, saying the 66 confirmed cases within the Pekin prison is a false number,” WMBD-TV reported. “They believe that number is well over 100.”

Washington Post, Prisons and jails have become a ‘public health threat’ during the pandemic, advocates say (November 12, 2020)

Government Executive, Coronavirus Cases Are Spiking at Federal Agencies (November 12, 2020)

Philadelphia Inquirer, COVID-19 outbreak infecting hundreds at Fort Dix is ‘escalating crisis,’ N.J. senators warn (November 10, 2020)

VICE NEWS, Federal Prisons Keep Turning Into COVID Nightmares: ‘Everyone Looks Like Death’ ( November 12, 2020)

WMBD-TV, Pekin community members say federal prison system isn’t taking COVID-19 seriously (November 14, 2020)

– Thomas L. Root

First Step Touted While Good-Time Adjustments Languish – Update for October 29, 2019

Leave a comment

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

FIRST STEP: TRUMP FIDDLES WHILE BOP BURNS

angrytrump191003President Donald Trump touted the First Step Act in a speech last Friday at the 2019 Second Step Presidential Justice Forum in South Carolina, talking about how the Act helped African Americans by releasing thousands of non-violent offenders to gain early release from federal prison.

“In America, you’re innocent until proven guilty and we don’t have investigations in search of that crime,” he said while accepting an award at historically black Benedict College for his role in passage of First Step.  “Justice, fairness and due process are core tenets of our democracy. These are timeless principles I will faithfully uphold as president.”

Much of what was said at the conference was overshadowed by Democratic presidential hopeful Sen. Kamala Harris (D-California), who refused to attend the conference because Trump was included on the list of speakers. Harris, whose record as a take-no-prisoners prosecutor has caused some to be skeptical of her 11th-hour conversion to the cause of criminal justice, flip-flopped on the boycott threat and agreed to show after all, after winning a window-dressing removal of one of the sponsors for its sin of giving an award to Trump.

During the hour-long address, Trump called on several people who had been released from prison under the First Step Act to the stage to offer testimonials.

Many of Trump’s Democratic presidential rivals spoke over the weekend, and took turns slamming Trump. Sen. Cory Booker, D-New Jersey, argued, “The fact of the matter is Donald Trump was given an award for the 10 seconds it took him to sign a bill into law that contradicts every one of his instincts and history of promoting racist criminal justice policies.”

I’m no Trump fan, but Sen. Booker needs to be fact-checked on this assertion.

All was not bliss for implementation of First Step last week. Filter magazine, launched in September 2018 to advocate for rational and compassionate approaches to drug use, drug policy and human rights, blasted the Bureau of Prisons for its “incompetent” application of the star-crossed additional 7 days-a-year good time.

Citing long-time prisoners who would be camp-eligible if they were granted the additional good time to which they are entitled, Filter said that due to “a potential failure, attributable to administrative inadequacy, to apply a much-anticipated reform to… federal prisoners until over a year after it was supposed to be implemented in July 2019.

screwup191028

Filter reported that as of September 16th, the Designation and Sentence Computation Center “had made First Step Act updates only for incarcerated people with previously projected release dates that fell before October 2020.” The magazine quoted a response to an August 22 administrative remedy request for recalculation filed by an anonymous inmate, in which the BOP gave no clear date for when the inmate could expect an updated GCT calculation, only explaining their prioritization of projected release dates and stating that “there may be some variance in the speed with each DSCC team completes the recalculations for the inmates assigned to them.” The BOP said “this process may take up to a year.”

A BOP official told Filter that implementing the change in good time is “complex” due to the “various federal statutes and BOP policy” with which recalculations must be “carried out in accordance.”

The BOP’s information technology systems are “dinosaurs,” Kara Gotsch, the director of strategic initiatives for The Sentencing Project, told Filter, citing explanations she’s heard from BOP staffers. Gotsch said that even this description “is generous,” adding that “it’s like they don’t have the right kind of computer” to perform the recalculations in time.

The BOP denied this claim, calling Gotsch’s explanation “speculation based on hearsay,” and added that “the computers and technology utilized by our staff are not outdated and incompetent. They use commercially-available and fully-supported technology.

Speculation it may be, but the BOP has known since last Christmas it would have to recalculate inmate good time. It’s failure to get the process in place, which would require  the use of a simple formula that any high school math geek could write with a Texas Instruments nine-buck calculator, is equally explainable as institutional arrogance or institutional incompetence.

The Columbia, South Carolina, State, Trump’s Columbia visit wraps with praise of HBCUs and reform, peaceful demonstrations (Oct. 26)

Filter, The Consequences of an Incompetent First Step Act Rollout (Oct. 15)

– Thomas L. Root