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Biden Orders More CARES Act Placement – Update for June 1, 2022

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

BIDEN EXECUTIVE ORDER BREATHES NEW LIFE INTO CARES ACT HOME CONFINEMENT

President Biden last week instructed the Dept of Justice to “continue to implement the core public health measures, as appropriate, of masking, distancing, testing, and vaccination in federal prisons,” an order which specifically includes CARES Act home confinement.

home210218The Executive Order as well directs DOJ to update the BOP’s COVID-19 testing procedures, update “protocols with alternatives to facility lockdowns and restrictive housing to prevent the spread of COVID-19; and determine how many individuals who meet the requirements to be released on home confinement.”

The BOP directives came as a virtual footnote to an executive order President Biden signed on the second anniversary of George Floyd’s killing by Minneapolis police.

The Executive Order declared in Section 1 that the Administration’s policy is to ensure that “no one should be required to serve an excessive prison sentence.” To that end, the Order states, “My Administration will fully implement the First Step Act, including by supporting sentencing reductions in appropriate cases and by allowing eligible incarcerated people to participate in recidivism reduction programming and earn time credits.”

DOJ has been directed to update its “regulations, policies, and guidance in order to fully implement the provisions and intent of the First Step Act, and shall continue to do so consistent with the policy announced in section 1 of this order.”

PATTERNB190722

The Order also requires DOJ to adopt “a strategic plan and timeline to improve PATTERN, including by addressing any disparities and developing a needs-based assessment system.”

E0 14074, Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety (May 25, 2022)

Government Executive, Biden Moves to Improve Public Health Conditions in Federal Prisons and Jails (May 26, 2022)

– Thomas L. Root

Home Confinement Removal Without Hearing Challenged – Update for May 11, 2022

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

CONNECTICUT SUIT ARGUES HOME CONFINEMENT REVOCATION VIOLATED DUE PROCESS


homeconfinement220511Under the CARES Act, the Federal Bureau of Prisons was authorized to place inmates in extended home confinement as a means of getting medically vulnerable people out of the path of the coronavirus. Under this authority, the BOP has sent about 9,000 inmates to home confinement, where they remain in their residences except for work and a very few tightly-controlled exceptions (weekly groceries, medical appointments, church services and the such).

BOP Director Michael Carvajal has touted the success of the program. He told the Senate Judiciary Committee that only 289 inmates had been returned to prison after being on CARES Act home confinement, and only three of those were returned because of new criminal conduct.

The flip side of that coin is that the BOP sees home confinement as just another prison designation, meaning that the BOP can pull someone at home back to prison for the flimsiest of reasons, or for no reason at all. The government has argued that because inmates have no due process right to placement in any particular prison facility, they have no grounds to challenge a decision to revoke home confinement.

Now, three FCI Danbury inmates have filed a habeas corpus action in U.S. District Court in Connecticut claiming their release to home confinement under the CARES Act was revoked without due process.

“There’s no due process for resolving these cases or real consideration whether the person should be pulled back to prison,” said their attorney Sarah Russell, director of the Legal Clinic at Quinnipiac University School of Law. “There is no opportunity for a hearing or an argument even when children are being impacted.”

On home confinement for over a year, the lead petitioner, Nordia Tompkins, had been able to regain custody of her daughter, enroll in vocational classes and hold down a job. She was sent back to prison after the halfway house supervising her could not reach her by phone because she was in class at an approved time.

The government has argued that because the inmates remained in BOP custody, they had no “protected liberty interest” in remaining on home confinement. Such an interest is necessary in order to trigger a right to procedural due process.

home190109However, the inmates – represented by Yale and Quinnipiac University law school professors – argue that other factors, “such as whether one can form close family and community ties, seek and obtain employment”, are “markers of a liberty interest. It does not matter that someone is serving sentence or is technically in the ‘custody’ of prison authorities. Because Ms. Tompkins has been able to reside with her children and take care of them, attend a community school to further her education, and seek employment, she has a liberty interest in remaining on home confinement under the Due Process Clause [and] was entitled to basic due process protections…”

Danbury News-Times, Danbury prison inmates file lawsuit over home confinement getting revoked (May 5, 2022)

Tompkins v. Pullen, Case No. 3:22cv339 (D.Conn, filed Mar 2, 2022)

– Thomas L. Root

Emergency Continues, And So Does CARES Act Home Confinement – Update for February 22, 2022

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

BOP CARES ACT AUTHORITY EXTENDED

caresbear210104The BOP’s CARES Act authority to place inmates in home confinement expires, according to the law, 30 days after the end of the national pandemic emergency. That emergency was originally declared by President Trump and extended by President Biden. Biden’s last extension was set to expire March 1, 2022, by operation of 50 USC § 1622(d).

Last Friday, Biden extended the national emergency for another year. He said, “The COVID-19 pandemic continues to cause significant risk to the public health and safety of the Nation. For this reason, the national emergency declared on March 13, 2020, and beginning March 1, 2020, must continue in effect beyond March 1, 2022.”

Section 12003(b)(2) of the CARES Act provides that

During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.

So the BOP authority continues as long as there’s a national emergency and the Attorney General “finds that emergency conditions will materially affect the functioning of the Bureau.” Attorney General William Barr made that finding on March 26, 2020, and again a week later.

home210218What this means is the BOP’s authority to place people in home confinement under the CARES Act will continue for another year unless Attorney General Merrick Garland would decide the BOP no longer needs to decrease population. Given that the BOP must still absorb another 6,085 federal prisoners from private prisons, that inmate totals are trending upward again, and that the BOP is still understaffed, it is unlikely that the AG will abandon the CARES Act any time soon.

The White House, Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-⁠19) Pandemic (February 18, 2022)

– Thomas L. Root

‘Statistics Don’t Lie’ on BOP’s CARES Act Failings – Update for February 15, 2022

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

FORBES DRILLS INTO BOP’S CARES ACT RESPONSE TO COVID

Hanlon’s razor may have started as a joke, but humor reveals truth that straight exposition often obscures.

incompetent220215Ironically, given the 7th Circuit’s Barbee holding (see yesterday’s post), Forbes magazine last week published the deepest dive into BOP COVID data yet, and asked whether the agency’s “reaction to COVID-19 and the implementation of the First Step Act… can be attributed to the government wanting to keep prisoners locked down and maintain jobs or a deeper, underlying problem.”

A CDC study at FCI Texarkana last summer, Forbes notes, “demonstrated the potential for COVID-19 outbreaks in congregate settings including correctional and detention facilities, even among resident populations with high vaccination rates. It turns out that even those who are vaccinated are prone to being reinfected if they are in tight living quarters with those who become infected and are not vaccinated. Prisons present an environment where people are exposed to higher doses of infection that can overwhelm their dose of vaccine protection.”

Relying on data from Mark Allenbaugh (a former Sentencing Commission attorney) at SentencingStats.com, Forbes found that while there was an uptick in home confinement to about 5,400 prisoners in early summer 2020, “since then, that number has remained relatively flat, meaning that the elderly or sick inmates, who could be transferred to home confinement, have stayed in prison. In fact, the overall prison population, which bottomed in early 2021, has increased by more than 20,000 in the past year.”

What’s more, Forbes said, “the BOP’s COVID infection rates among inmates are also far worse than what the BOP is reporting and their own figures reflect that.” Allenbaugh said, “The BOP simply is not testing prisoners to determine if or when they are recovered. Rather, they are just assuming recovery after approximately 10 to 14 days. The rate of drop in infection among prisoners cannot be otherwise explained, particularly if you compare the trends between prisoners and staff. The problem, therefore, is that infectious prisoners are being returned to the general population spreading the infection even more.”

COVIDTesting220215Want proof? The BOP itself admits to only testing 13,537 times since last July. That’s about one out of every ten inmates once in 7-1/2  months.

Others echo this criticism. While data on the medical isolation rate, facility vaccination rate, and community transmission rate are all available on the prison bureau’s website, advocates, including Corene Kendrick (deputy director of the ACLU National Prison Project)and Joshua Manson, a researcher with the UCLA Law COVID Behind Bars data project, say most of the information on how many people have been infected with, or died of, the virus is inaccurate. “They’re not being fully transparent,” Manson told Capital News Service last week. “They’re sort of just asking the public to trust them when they’ve really given the public no reason to trust them. There have been enormous numbers of people who’ve been infected in the Bureau of Prisons’ custody…but we know that the actual number is considerably higher than that.”

Forbes also reported the numbers of prisoners that remain to be fully vaccinated plus those who need booster shots are much higher than the BOP has claimed. “While the BOP touts that its vaccination rates are near 90%, that includes those who have received only one shot, which we all know is not effective enough.” Allenbaugh also cited misrepresentations in BOP vax data (as I have noted in a prior newsletter), that institutions claim more vaccinated inmates than their total population.

Manson agreed, complaining the BOP website has a category for “fully vaccinated” inmates, but that number doesn’t include the number of people who have not yet gotten a booster. “Now, I don’t really think that you can call someone fully inoculated right now if they haven’t received the booster,” he said.

Part of the idea behind the CARES Act was to reduce prison populations. But Forbes reported that BOP facilities were at an average of 94.3% capacity in July 2020, 18 months later, they’re at an average of 98.8% capacity, with 93 institutions over their rated capacity. This is due in part to Biden’s closure of private prisons, resulting in “thousands of prisoners… now being crowded into BOP-run facilities.”

statistics220215Forbes said, “A new BOP director has not yet been appointed, but one cannot be appointed soon enough to change the poor management and deception of those currently in charge. It will take a monumental effort to change an organization that is failing the prisoners it houses and the employees who are becoming increasingly frustrated. The statistics don’t lie.”

The need for a longer-term solution is becoming more obvious, inasmuch as COVID will “continue to be a problem for incarcerated people, even as the world tries to move on,” according to Wanda Bertram of the Prison Policy Initiative. Public officials who have declared COVID endemic are “basically admitting that prisons are going to be more dangerous in terms of health risks than they’ve been before,” Bertram said.

Forbes, Statistics Show Federal Bureau Of Prisons Unable To Implement Key Policies During Crisis (February 7, 2022)

CDC, Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021 (September 24, 2021)

Front Royal, Virginia, Examiner, Lawmakers, families, advocates challenge handling of COVID in federal prisons (February 11, 2022)

North Carolina Health News, Breaking point: What is the future of COVID and incarceration? (February 10, 2022)

– Thomas L. Root

Carvajel’s Subcommittee Swan Song – Update for February 7, 2022

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

BOP DIRECTOR’S FINAL HOUSE OVERSIGHT HEARING LARGELY A MARSHMALLOW FIGHT

Marshmallow220207Bureau of Prisons Director Michael Carvajal dumped numbers on a largely uncritical House Subcommittee on Crime, Terrorism, and Homeland Security last Thursday, in what is likely the retiring Director’s final oversight hearing.

Committee chair Rep. Sheila Jackson-Lee (D-Texas) suggested fireworks to come when she opened the session wondering how the BOP could justify turning down inmates for compassionate release who later died of COVID. But the fireworks were largely a dud, as hard questions about criminal misconduct by BOP staff, lax security, and decrepit facilities – the reasons Associated Press gave for Carvajal’s resignation in the wake of Congressional pressure for his replacement – went unasked.

The Director’s play with numbers went unchallenged as well. His written statement reported that the Bureau has transferred more than 37,000 inmates to community custody, noting parenthetically that only about a quarter of those were transferred pursuant to the authority granted by the CARES Act. In his oral testimony, the Director truncated that to the BOP having “released over or transferred over 37,000 under the CARES Act to home confinement and community placement.”

The BOP has been bandying the 37,000 number about for a long time, used to lull legislators into thinking the agency had vigorously used its CARES Act authority. What it comes down to is that the BOP kept releasing people to halfway house/home confinement as usual but could only find under 7% of BOP inmates in custody who “qualified” for CARES Act placement over a 22-month period. The “qualifications” were those laid down by the Attorney General, with additional gloss (such as the inmate must have served 50% of his or her sentence). That means that 28,000 of that 37,000 number would have gone to halfway house or home confinement under normal end-of-sentence placement, even without the CARES Act.

Maybe the number misdirection doesn’t seem like such a big deal, but it’s emblematic of BOP culture. If the BOP’s professional judgment is that the CARES Act should be no more than the 7% solution, why not tell Congress “we released 9,000 people under the CARES Act, and if you wanted us to release more, you should have written the law differently.” Instead, the BOP leads with the 37,000 number, hoping that Congress doesn’t listen that carefully, and will think the BOP has done much more than it has. It is a tacit admission by the BOP that it knows it has been unreasonably chary in applying the CARES Act, and it hopes Congress doesn’t tumble to it.

pigfly220207Perhaps the next BOP director will be candid enough to own what his agency has done or not done with its authority. (See flying pig).

Carvajal also assured the Subcommittee that the BOP “continue[s] to screen inmates for appropriate placement on CARES Act” and that while the 50%-of-sentence standard is one of the “four hard criteria,” the BOP has “discretion – there usually is a higher-level review if the staff of the institution feels that it is appropriate outside of the CARES Act, we have procedures in place to review cases such as that…”  Call this the Manafort exception. Unfortunately, but for Paul Manafort’s CARES Act release in May 2020 (and former congressman Chaka Fattah in July 2020), the BOP has been steadfast in refusing to waive the 50% rule. It should be called the “who-you-know” exception.

who201229Responding to questions from Rep. Karen Bass (D-California), Carvajal said that 80% of the BOP staff was vaccinated, but only 95,000 out of 135,100 in-custody inmates had gotten the jab. His numbers are way off the BOP’s own website, which reports that 119,500 inmates are vaccinated – 78% – but only 70.4% of the BOP’s 36,739 employees have gotten the shot.

[Note to Mike: it’s easier to fudge the numbers when you’re not simultaneously making the real data available to anyone with a smartphone.]

Rep. Thomas Massie (R-KY) said the BOP had told his staff that 4,738 BOP employees (12.9% of the workforce) had gotten exemptions – mostly religious – from taking the vaccine, and groused that “it’s kind of it’s interesting that the inmates have more rights [to refuse vaccines] than the officers themselves.” No one knows what the Congressman might think if he knew the numbers Director Carvajal had given him were wrong. For what it’s worth, Congressman, if the BOP is getting rid of staff who refuse the vaccine, inmates would happily accept the same fate. 

One of the only tense moments in the hearing came when Rep. Cori Bush (D-MO) braced Carvajal on conditions brought to her attention by the National Council for Incarcerated and Formerly Incarcerated Women and Girls. Bush said:

In these emails, women in federal custody detail horrifying accounts of not being allowed to get out of their beds all day because of COVID lockdowns, being forced to eat expired food, having little to no access to medical services to treat cancers and other underlying conditions, having to pay $2.00 to file a sick complaint. This is all happening under your watch. These are complaints coming from not one or not two facilities but five different facilities, which makes clear that these issues are not isolated… These women cannot hold you accountable, Mr. Carvajal, they cannot, but we can, and I would like to use this opportunity to ask you questions that they cannot directly ask you out of fear of retaliation.

schultz220207The Director responded, “I’m not aware of those particular complaints, but I’m certainly interested in hearing from you and your staff so that we can look into them, because I find that – if that happened – I find it unacceptable.” He assured Bush that “we take all allegations seriously…” Not that I disagree – I would never dispute what the BOP director says – but I have hundreds of emails from inmates who beg to differ.

Carvajal explained to the legislators, “I’d like to stress something – we’re not here for punishment, the taking of their time by the courts and the criminal justice system, that’s the punishment, we’re here to house people that are remanded to our custody and more importantly to prepare them to reenter society, keep them safe while they’re here. We’re not here as punishment, that’s not how we look at this agency.”

The hearing had a few other bumps. Rep. Steve Cohen (D-TN) complained that the BOP “has unfortunately failed to protect the health of those within their custody and their staff from COVID-19 or address chronic understaffing [and] the BOP has also lacked transparency and vigor and implementing important criminal justice reforms such as the First Step Act.”

Jackson-Lee raised the reports filed by epidemiologist Homer Venters, M.D., on MDC Brooklyn and FCC Lompoc. She noted that “his investigation revealed [a] disturbing lack of access to care when a new medical problem is encountered…” Venters noted that at MDC Brooklyn, “it quickly became apparent that not only were many people reporting that their sick call requests, including COVID-19 symptoms, were being ignored, but that the facility was actually destroying their original request which violates basic correctional standards. [T]his is an accountability hearing… these are human beings deserving of respect and dignity, men and women…”

Carvajal said he was “aware of the report, we looked into it, we followed up, I won’t discuss that specific incident, but I will reassure you that each of our institutions has an outpatient health clinic that’s overseen by a board-certified physician and a medical director. We have outside oversight… If there’s a mistake made or something of that nature, we’re going to look into it and do something about it correct the issue.”

potemkin220207He did not mention and the Subcommittee did not note that the BOP’s “follow-up” consisted of vigorously contesting every aspect of Venters’ report in litigation over MDC Brooklyn.

It may not be much of a plan to testify before a subcommittee hoping that the legislators haven’t done their homework. But Director Carvajal seems to have capped his career doing just that, and with some success.

Statement of Michael Carvajal, House Committee on Judiciary (Feb 3, 2022)

Hearing, Oversight of the Federal Bureau of Prisons (Feb 3, 2022)

Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323 (S.D.N.Y. 2020)

– Thomas L. Root

2021 So Far a Downer for Criminal Justice Reform – Update for December 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.

THE YEAR BEGAN WITH SUCH HOPE, TOO…

At the end of the first 11 months of President Biden’s administration, a combination of his lack of action on criminal justice reform, a razor-thin majority in Congress, and an ill-timed spike in crime is rapidly undercutting hope of criminal reform.

fail200526As New York magazine put it last week, “The president is now facing a new political context. In the previous two years, cities across the United States have seen historically large spikes in multiple categories of crime, including homicides in many places… The sense that things are terrible — even if they are happening during a multi-decade downward trend in crime rates and have likely been exacerbated by a global pandemic — seems to be costing the president politically as well. The results of an ABC/Ipsos poll published on Monday showed that just 36% of Americans approve of Biden’s handling of crime, down from 43% in late October.

Critics working to overhaul the criminal justice system say they’re frustrated with the Biden administration after waiting nearly a year for the White House to take significant clemency and sentencing reform steps. “I think we’re at a point where we’re saying mere lip service isn’t enough,” said Sakira Cook, senior director of the justice reform program at the Leadership Conference on Civil and Human Rights. “We want to see some concrete action.”

“To me, it’s a bellwether,” said FAMM President Kevin Ring. “Because if the administration won’t address this, and address it immediately, I don’t know what hope we can have that other things are going to get done.”

A White House spokesman defended Biden’s record, arguing that he had restored the Dept of Justice’s Office for Access to Justice, implemented new restrictions on chokeholds and no-knock warrants for federal law enforcement, ended contracts with private prisons, and expanded access to re-entry services for released inmates. And critics admit DOJ’s rescission of the Trump-era memo that directed prosecutors to pursue the most serious charges they could for any crime. And just this week, DOJ walked back the Trump-era Office of Legal Counsel opinion that CARES Act home confinees had to return to prison after the national pandemic emergency ends.

Still, there’s no denying that the federal prison population dropped under Presidents Obama and Trump but has increased by some 5,000 people during Biden’s 11 months in office.

confusion200424To be sure, Biden’s plans were never well thought out. As Ralph Behr pointed out last week in the South Florida Criminal Defense Lawyer Blog, Biden’s campaign last year called for passage of the Safe Justice Act, a bill killed by the House in 2017. He also called for abolishing mandatory minimums, which would require amending hundreds of statutes, something that “would require bipartisan support for an issue that has historically proven controversial. This is unlikely to gain enough support even to be drafted. The more likely and admirable implementation would be to allow judicial discretion in sentencing below the minimum mandatory sentence.”

As the Leadership Conference on Civil and Human Rights demanded last week, Biden and his DOJ could expand CARES Act and compassionate release access. Or, as the Daily Caller suggested, he could demand that the BOP and its union clear up the logjam on implementing First Step Act earned time credit programs.

Legislatively, there’s one bright spot: The Hill reported this past weekend that Congressional Democrats are gearing up for a sweeping set of initiatives aimed at decriminalizing marijuana in spring 2022.

The proposals would, among other things, purge the criminal records of thousands of marijuana offenders and be retroactive for those serving marijuana sentences.

“The growing bipartisan momentum for cannabis reform shows that Congress is primed for progress in 2022, and we are closer than ever to bringing our cannabis policies and laws in line with the American people,” Reps. Earl Blumenauer (D-Oregon) and Barbara Lee (D-California) wrote in a memo to the Congressional Cannabis Caucus on Thursday.

Just last week, Marijuana Moment complained last week that “this is yet another example of legislators taking a demand for reform directly to the president, who has disappointed advocates in his first year in office by declining to take meaningful steps to change the country’s approach to cannabis despite campaigning on a pro-decriminalization and pre-rescheduling platform.”

crackpowder160606On crack cocaine, Biden could push Senate Democrats to pass S.79, the EQUAL Act, which has already passed the House and has cleared the Senate Judiciary Committee. Last week, Sen. Susan Collins (R-Maine) because a co-sponsor.

The Justice Action Network issued a statement saying, “With this level of bipartisan support, the drumbeat grows louder for Senate Majority Leader Chuck Schumer (D-NY) to vote the EQUAL Act. In New York, more than twenty leading New York-based civil rights, racial justice and criminal justice organizations recently sent an urgent letter to Leader Schumer urging him to move the EQUAL Act through the Senate, ‘by any means necessary’…”

New York magazine, Biden’s Low Marks on Crime Are Killing Reform (December 15, 2021)

South Florida Criminal Defense Lawyer Blog, Analyzing President Joe Biden’s Criminal Justice Reform Plan (December 14, 2021)

NPR, Activists wanted Biden to revamp the justice system. Many say they’re still waiting (December 12, 2021)

Leadership Conference on Civil and Human Rights, Letter to Attorney General Merrick Garland (December 17, 2021)

Daily Caller, The First Step Act Is A Giant Leap Toward Meaningful, Bipartisan Prison Reform (December 13, 2021)

The Hill, Congress to take up marijuana reform this spring (December 18, 2021)

Marijuana Moment, GOP Lawmakers Blast Biden And Harris Over ‘Continued Silence’ On Marijuana And Urge Rescheduling (December 16, 2021)

Seattle Medium, It’s Time For The U.S. Senate To Pass The EQUAL Act (December 17, 2021)

Justice Action Network, Senator Susan Collins Joins Bipartisan Sentencing Reform Bill, Positioning Equal Act for Passage (December 15, 2021)

– Thomas L. Root

Biden DOJ Flips, Says CARES Act People Can Stay Home – Update for December 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.

HOME FOR THE HOLIDAYS

holidays211222Eleven months of uncertainty came to an abrupt and welcome end yesterday as Attorney General Merrick Garland announced that the Dept. of Justice’s Office of Legal Counsel had reversed its January 2021 opinion, concluding that inmates sent to home confinement under the CARES Act will not have to return to prison when the COVID-19 national pandemic emergency ends. 

The decision reversed the OLC’s swan song from the last days of the Trump Administration that

the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning. Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2). We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

Last July, things looked dire when the New York Times reported that the Biden DOJ had reviewed the OLC opinion and concluded that it was right. That was perhaps a trial balloon, because DOJ made no official announcement about any review. Nevertheless, the Times story unleashed a storm of criticism.

But yesterday, the Biden DOJ left a shiny gift under the tree for about 4,000 federal prisoners on home confinement. The new OLC memorandum begins

This Office concluded in January 2021 that, when the COVID-19 emergency ends, the Bureau of Prisons will be required to recall all prisoners placed in extended home confinement under section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act who are not otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2). Having been asked to reconsider, we now conclude that section12003(b)(2) and the Bureau’s preexisting authorities are better read to give the Bureau discretion to permit prisoners in extended home confinement to remain there.

gift211222The New York Times said this morning that the OLC’s reversal “was a rare instance when the department under Attorney General Merrick B. Garland reversed a high-profile Trump-era decision. It was also a victory for criminal justice advocates.”

But not completely unexpected. During a Senate Judiciary Committee oversight hearing last October, 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.”

He promised Sen. Cory Booker (D-NJ) that “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 that session, Committee Chairman Richard Durbin (D-IL) complained that he was “frustrated by DOJ’s handling of COVID and prison issues.”

Yesterday, Garland said in a statement, “Thousands of people on home confinement have reconnected with their families, have found gainful employment and have followed the rules. In light of today’s Office of Legal Counsel opinion, I have directed that the Department engage in a rulemaking process to ensure that the Department lives up to the letter and the spirit of the CARES Act. We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”

A White House spokesman said in a statement that President Biden welcomed the change, noting “the relief it will mean for thousands of individuals on home confinement who have worked hard toward rehabilitation and are contributing to their communities.”

christmasunderpants211222Ohio State University law professor Doug Berman had an interesting observation about Garland’s statement in his Sentencing Law and Policy blog: “This statement by AG Garland suggests that DOJ is now going to engage in ‘rulemaking’ that will create a set of requirements or criteria about who may get to stay on home confinement and who might be returned to prison after the pandemic ends. I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the “home confinement cohort” who may need to worry about eventually heading back to federal prison.”

For now, the impetus for prisoners to qualify for CARES Act placement, which can continue as long as the emergency lasts (and if omicron has anything to say about it, it will be awhile) will increase. CARES Act placement will rightly be seen as not just a furlough but as a bus ticket home. And we’ll just have to see whether a DOJ rulemaking wants to turn that shiny gift Biden left under the tree into a pair of underpants.

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

The New York Times, Some Inmates Can Stay Confined at Home After Covid Emergency, Justice Dept. Says (December 22, 2021)

Sentencing Law and Policy, New OLC opinion memo concluding CARES Act “grants BOP discretion to permit prisoners in extended home confinement to remain there” (December 21, 2021)

DOJ, Statement by Attorney General Merrick B. Garland (December 21, 2021)

– Thomas L. Root

Biden Pardons Turkeys But No Prisoners – Update for November 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.

BIDEN ISSUES FIRST PARDONS… NO HUMANS MAKE THE LIST

turkey211122There was no shortage of complaints from criminal justice reform advocates last Friday as President Biden “pardoned” two turkeys with the rather vegan names of “Peanut Butter” and “Jelly” in a White House ceremony.

“Peanut Butter and Jelly were selected based on their temperament, appearance, and, I suspect, vaccination status,” Biden said. “Yes, instead of getting basted, these two turkeys are getting boosted.”

But when a reporter asked whether he would be pardoning “any people in addition to turkeys,” Biden treated the question as a joke. “You need a pardon?” the president quipped. He didn’t reply to a follow-up question about marijuana prisoners as he walked away from assembled journalists.

turkeyb161123The turkeys may not get roasted, but the President isn’t so lucky. Law professor and clemency expert Mark Osler wrote in the Minneapolis Star-Tribune that “those of us who work in the field of clemency are left with a bitter taste in our mouths. Biden’s pardon of those turkeys represents the first time he has shown any interest at all in clemency. The problem isn’t just that Biden isn’t granting any clemency, it’s that he isn’t denying any, either. Following the lead of his predecessor, former President Donald Trump, Biden is just letting requests sit.”

Osler cited the 18,000 pending clemency petitions – 16,000 more than when Obama took office – and the danger CARES Act people may be sent back to prison when the pandemic ends, as “two genuine crises unfolding in federal clemency.”

A few days earlier, Interrogating Justice complained that

President Joe Biden campaigned heavily on justice reform, including with the federal Bureau of Prisons. He acted swiftly after his inauguration by terminating private prisons that housed federal inmates. However, since then, there has been virtually nothing. Various justice-reform groups have called out the president for his apparent lack of action. Points of frustration start with the increased population of federal prisons, the BOP’s inept handling of the pandemic, the failure to apply First Step Act time credits and most recently the question of granting clemency to all prisoners who are at home confinement under the CARES Act. And these are just a few of the many issues that plague the BOP.

turkeyprison161114The Minneapolis Post argued that “

While campaigning for president last year, however, Biden promised sweeping changes to the criminal justice system. And Biden could not have been more clear that he was committed to reform — promising, “as president” to “strengthen America’s commitment to justice and reform our criminal justice system. Then Biden got elected. And he’s been busy with other things…”

The Hill called it Biden’s “do-nothing” approach to clemency, which

he seems to have delegated entirely to the DOJ… Most of the Democratic candidates for president endorsed this change because the DOJ had proven itself incapable of handling clemency impartially and efficiently for decades… So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War? The only apparent answer is that Biden does not want to look like he is interfering with DOJ. But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.

New York Times, Boosted, Not Basted: Biden Pardons 2 Turkeys in Thanksgiving Tradition (November 19, 2021)

New York Post, Biden laughs off question about clemency for humans before pardoning turkeys (November 19, 2021)

Minneapolis Star-Tribune, When it Comes to Human Pardons, Thanks for Nothing (November 19, 2021)

Interrogating Justice, The Biden Administration Has Gone Quiet on Justice Reform at the BOP (November 15, 2021)

Minneapolis Post, When will Biden make good on his promise to reform criminal justice? (November 15, 2021)

The Hill, Biden can’t let Trump’s DOJ legacy stifle reform (November 17, 2021)

 Thomas L. Root

Clemency Should Be ‘Easy Lift’ For Biden, Some Say – Update for October 1, 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 CARES ACT CLEMENCY CALLED INADEQUATE

We know a little more about the Biden Administration’s plan to solicit commutation applications from some CARES Act prisoners on home confinement, and as more is known, the criticism is mounting.

clemencypitch180716A few weeks ago, the Department of Justice started sending out commutation applications to about 1,000 people (about one out of four those on CARES Act home confinement). Biden is targeting people who have been convicted of a drug offense and have four years or less remaining on their sentences, directing them to apply to DOJ’s Office of the Pardon Attorney.

Last week, The New Republic observed that “Biden is wedded to an inefficient process that’s created a backlog of close to 16,000 petitions. The administration is going out of its way to frame its approach as the opposite of Trump’s chaotic one, which bypassed the Justice Department and freed people seemingly based on the president’s whims.” The New York Times reported last spring that Biden intends to “rely on the rigorous application vetting process,” as opposed to Trump’s approach, “empowering friends, associates and lobbyists to use their connections to the president, his family and his team to push favored requests to the front of the line…”

clemencybacklog190904

But the need to rely on the DOJ pardon system doesn’t sit well with some. Last week, Amy Povah, founder of the Can-Do Clemency Project, told Forbes, “President Biden has been handed an easy political gift. There are 4,000 inmates functioning in society, obeying the laws, bonding with family and held accountable for their past actions. There is no better group vetted to be given clemency than this group of CARES Act inmates… If those at home under CARES Act don’t all qualify to stay there, I’m concerned that we’re dealing with an overly conservative mindset, not consistent with the will of those who voted for President Biden.”

“This should be an easy lift for the Biden administration,” law professor Mark Osler, a former Assistant U.S. Attorney, told The New Republic. “They were handed a carefully vetted group of people who even Attorney General Barr thought should be out in society.”

Osler said the system Biden wants to rely on doesn’t work. “The fact that their commitment to a broken process is going to undermine this is really disappointing,” Osler told TNR. He has long argued that clemency cases should be taken away from DOJ. Before a case makes it to the President, Osler said, “the first thing the pardon attorney’s staff do is seek out the opinion of the local prosecutor and then give that opinion substantial weight. What do you think is going to happen?”

clemency170206No one is saying whether special considerations will be applied to CARES Act home confinees, allowing them to skip DOJ Pardon Attorney review and that office’s embarrassing backlog of cases. FAMM president Kevin Ring complained last week that outside of what they’ve seen in the media, no one knows what Biden plans. “It’s a crazy lack of transparency,” Ring said. “Friday afternoon, there’s a phone call to BOP halfway houses saying, this person should fill out a clemency petition in the next couple of days. Who? Why? What [are] the criteria?”

Unsurprisingly, the pressure remain high for Biden to do more. A week ago, five members of the Maryland congressional delegation wrote to Attorney General Merrick Garland and BOP Director Michael Carvajal, asking for reconsideration of the Trump-era legal opinion (which the Biden DOJ has agreed with) that CARES Act people have to return to prison after the COVID-19 emergency passes. And last Friday, three national law enforcement organizations – the Law Enforcement Leaders to Reduce Crime & Incarceration, Law Enforcement Action Partnership, and Fair and Just Prosecution — wrote to the President to urge him “to use your clemency power to ensure that all people successfully placed on home confinement under the CARES Act do not return to full custody.”

While all of the attention seems to be on CARES Act people, any focus on a re-do of the DOJ pardon system will ultimately benefit prisoners whether still in prison or at home.

Forbes, Biden Considering Options To Avoid Returning Federal Inmates To Prison Post Covid-19 (September 19, 2021)

The New Republic, Biden’s Conservative Vision on Clemency (September  21, 2021)

Maryland Congressional Delegation, Letter to Attorney General (September 17, 2021)

Law Enforcement Action Partnership, Letter to President Biden (September 24, 2021)

– Thomas L. Root

Biden Proposes Clemency Lite – Update for September 20, 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.

ADMINISTRATION TROTS OUT COMMUTATION PLAN THAT IS OPAQUE AND TINY

clemencypitch180716President Biden’s administration last week announced something that looks like a clemency plan, only much smaller. Last Monday, White House spokesman Andrew Bates said the Administration “will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve.”

Those who have been invited to apply fall into a specific category: drug offenders released to CARES Act home confinement who have four years or less on their sentences. Neither the White House nor the Dept of Justice would say how many people have been asked to submit commutation applications or whether it would be expanding the universe of prisoners who would be considered.

However, according to news reports, about 1,000 home confinees – about 25% of the people on CARES Act home confinement – are included in the batch the White House wants to review. Weldon Angelos, who was pardoned for a marijuana conviction by President Donald Trump last year and works with the current administration on criminal justice reform, told Marijuana Moment that about 1,000 people were asked to report to their designated halfway houses to fill out the clemency form in recent days.

Udi Ofer, the ACLU’s deputy national political director, said he was troubled by the possibility that the White House was cleaving off CARES Act recipients into those deserving commutation and those who didn’t, arguing that the Bureau of Prisons, in originally releasing inmates under the CARES Act, had already made a determination between those who posed a threat of violence and those who didn’t.

clemency170206“We are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency,” Ofer told Politico.

Others disagree that then BOP’s decisions on home confinement – which have largely been delegated to 122-odd executive officers at BOP facilities – are a consistent or reliable indicator of who should get clemency. “It’s not clear how the Bureau of Prisons chose people for this home confinement program, which raises the question of whether it’s fair to give a special benefit to these folks not available to those who have filed clemency petitions sometimes years ago and have been patiently waiting,” said former DOJ Pardon Attorney Margaret Love.

Biden’s limited clemency plan appears not to be enough for some lawmakers. Last Friday, 28 House Democrats called on Biden to commute the sentences of all 4,000 CARES Act home confinees, as well to establish a review board for pending clemency petitions.

“We urge you to use your authority as President to immediately commute the sentences of the 4,000 people who, under the [CARES Act], are currently on home confinement and at risk of being sent back to federal prison, and further, to create an independent clemency board to review the more than 15,000 pending clemency petitions,” the letter, spearheaded by Reps. Cori Bush (Missouri), Bonnie Watson Coleman (New Jersey), Pramila Jayapal (Washington), and David Trone (Maryland), said.

The President had announced in May that he would tackle clemency in 2022.

noplacelikehome200518A BOP spokesperson told The Hill last week that the agency is focused on the “expanded criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred… The BOP and the [Department of Health and Human Services] continue to explore all potential authorities that could be exercised after the end of the pandemic to help address this issue.”

Politico, Biden starts clemency process for inmates released due to Covid conditions (September 13, 2021)

CNN, Administration to start clemency process for some federal inmates on home confinement due to Covid conditions (September 13, 2021)

Marijuana Moment, Biden Administration Asks Prisoners with Certain Federal Drug Convictions to Apply for Clemency (September 13, 2021)

The Hill, Democrats urge Biden to commute sentences of 4K people on home confinement (September 17, 2021)

– Thomas L. Root