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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

There Ain’t No Easter Bunny… – Update for September 16, 2021

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

HOW’S THAT 65% BILL DOING?

After answering yet another email about the mythical 65% bill – legislation that purportedly would reduce everyone’s sentence to 65% of what the court imposed – I thought I would lead with this sad news:

There is no Santa Claus. There is no Easter Bunny. And there is no 65% Bill.

easterbunny210916While Congresswoman Sheila Jackson Lee (D-Texas) has introduced such a bill in a number of previous sessions of Congress since 2001, there is no such bill in the hopper now. When she did introduce it, the bill never even got a committee hearing. If it did exist, it wouldn’t get one now. A 65% bill would stand a chance of passage approaching zero.

In sum, the so-called 65% bill is like a pink unicorn: fun to imagine, but not real. And neither is the rumor that everyone will get a sentence cut because of COVID.

So what is real? First, a letter sent last week by 25 state attorneys general to House and Senate leadership, urging an expansion of Section 404 of the First Step Act to include people sentenced under 21 USC § 841(b)(1)(C). You recall that in Terry v. United States last June, the Supreme Court held that Section 404 did not qualify pre-2010 crack sentences for sentence reduction. The state attorneys general want legislation to change that.

Second, a lot of criticism of the President over the CARES Act. Writing in the Washington Examiner last week, Matt Schlapp – chairman of the American Conservative Union – argued that Congress should act to ensure that CARES Act home confinees stay at home after the pandemic ends. He wrote, “As a former influential senator and Judiciary Committee chairman, President Joe Biden is at least partially responsible for the explosive growth of our federal prison population. His legislative record is riddled with bills he supported, and sometimes wrote, that filled BOP cells and encouraged states to do the same. Indeed, there are thousands of Americans still serving draconian sentences authorized by some of then-Sen. Biden’s bills.”

chart210624Meanwhile, a piece in the Deseret News made the conservative argument for the EQUAL Act, which would retroactively make crack cocaine sentencing levels equal to those of powder cocaine: The EQUAL Act already passed through the U.S. House Judiciary Committee with a vote of 36-5, garnering support from both sides of the aisle. It faces another battle to pass through the rest of Congress, and Utah’s delegation should be there to vote in support. The debate over crack versus powder cocaine has no basis in science, in rationality, or in ethics. Because of this, many individuals have been needlessly imprisoned for far too long in comparison to the crime committed. Congress should pass the EQUAL Act to ensure these penalties are equalized and fairness is restored to criminal sentencing.”C

So when will Congress get to any criminal justice reform measures? No one knows. Only a few bills have been voted out of committee in the Senate – the COVID-19 Safer Detention Act, the First Step Implementation Act of 2021, and the Prohibiting Punishment of Acquitted Conduct Act. In the House, the EQUAL Act is the only criminal justice bill voted out of committee. No floor votes have been scheduled for any bills. With infrastructure and the $3.5 trillion spending bills taking center stage in Congress, it is unlikely that criminal justice reform will get any attention until next year.

Letter to Sens Charles Schumer and Mitch McConnell (September 2, 2021)

Washington Examiner, Biden promised to address over-incarceration. He’s blowing his opportunity (September 8, 2021)

Deseret News, Conservatives should support sentencing reform for crack cocaine (September 8, 2021)

– Thomas L. Root

BOP COVID Report – Update for August 10, 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.

SO WHAT ABOUT THAT COVID VARIANT?

The Bureau of Prison’s own sometimes-controversial numbers suggest the agency is holding the COVID-19 Delta line for inmates, with 310 reported ill as of last night, up only 5.4% since a week before. The BOP has complete control over that number. But it has less control over the number of ill BOP employees – up 48% from a week before, from 157 to 233 – and the number of facilities with COVID-19 present. That number jumped from 80 to 96 joints, the highest level in four months.

Raisedead210208According to data published Sunday by the U.S. Centers for Disease Control and Prevention, 50.1% of the total U.S. population is now fully vaccinated – more than 166 million people. The US now is averaging more than 100,000 new COVID-19 cases every day, the highest in almost six months. The BOP reports 55.7% of inmates and 52.5% of staff have been vaccinated.

Two more inmate deaths were reported last week, one July 17th at Texarkana and a second, on July 28th at FMC Ft Worth. Roy Berry, who died at Ft Worth, had COVID in March but had been declared recovered by the BOP. At least 257 federal inmates have died of COVID. Due to squirrely reporting from private prisons (where reports of deceased prisoners magically disappeared from time to time), the number is certainly higher than that.

USP McCreary reported 56 sick inmates, Miami FDC 25, FCI Texarkana 25, FCI Phoenix 24, USP Yazoo City 14, FMC Butner 13; and FCI Terminal Island with 11.

NPR reported last Friday on the COVID-19 Safer Detention Act, noting that the bill – sponsored by Sens Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa) – would extend compassionate release to the ever-decreasing numbers of “old law” inmates (those sentenced before 1988) still in the system.

The bill, which has passed out of the Senate Judiciary Committee and is also pending in the House, would ease COVID-19 compassionate release procedures, make permanent CARES Act home confinement, and benefit Elderly Offender Home Detention  inmates.

home190109Meanwhile, Reason magazine argued last week that the CARES Act home confinees have proven that home detention is a viable imprisonment alternative. “The overwhelming majority of those released on home detention have not reoffended. Of the 28,881 prisoners allowed on home detention last year, only 151 individuals, less than 1%, violated the terms of their confinement. Only one person has committed a new crime… In short, home detention seems to be largely successful. Most prisoners under the program have stayed out of trouble and are working to become law-abiding citizens. In doing so, they are saving taxpayers the exorbitant price of incarceration—which, on average, costs over $37,500 per year versus $13,000 per year for home confinement and monitoring.”

BOP, COVID-19 resource page (August 9, 2021)

CDC, COVID Tracker (August 8, 2021)

BOP, Inmate Death at FCI Texarkana (August 2, 2021)

BOP, Inmate Death at FMC Ft Worth (August 3, 2021)

NPR, Some Older Prisoners Aren’t Eligible For Compassionate Release. Lawmakers Want Change (August 6, 2021)

Reason, The Pandemic Showed Home Detention Works (August 6, 2021)

– Thomas L. Root

Biden Says Trump Got It Right on CARES Act Home Confinees Going Back to Prison – Update for July 29, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

BOP’s Secret Home Confinement Memo Sows Confusion – Update for April 26, 2021

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

DUELING HOME CONFINEMENT MEMOS DRAW CRITICISM

A week ago, I wrote about a new Bureau of Prisons memo (which some said was really a Dept of Justice memo) expanding eligibility for CARES Act home confinement. I admitted that despite my efforts, I could not obtain a copy of it.

secret210426I’m not alone. FAMM was scrambling, inmates were scrambling, and even Ohio State University law professor Doug Berman, the dean of federal sentencing law if there ever was one, complained in his Sentencing Law and Policy blog last Tuesday that the memo has still not been released. That same day, Keri Blakinger of The Marshall Project released what purported to be the text of the memo, a well-meant but ultimately unhelpful post.

Meanwhile, my email was smoking. Inmates heard that the BOP had been told to send minimum-security inmates home even if they had not served half of their sentence, the standard that people with prior offenses of violence were excluded had been dropped… the institutions were rife with rumors. People complained that their case managers were stubbornly ignoring the new standards, that wardens were releasing internal memos that underpromised.

You remember the game “post office.” The message was whispered around the circle of kids until it returned to the source mangled beyond recognition. That’s what we had. And the blame can be laid at the bureaucratic feet of the Bureau of Prisons, which would classify road signs as “sensitive” and “FOIA exempt” if the agency could get away with it.

Thankfully, Washington, D.C., leaks like a screen door on a submarine. By Then, on Thursday, both FAMM and the Defenders Services Office of the Administrative Office of U.S. Court (the support agency for Federal Public Defenders nationwide) had obtained bootlegged copies of the memo – an April 13 release from Andre Mateviousian, Assistant Director of the Correctional Services Division, BOP – and posted them on the Internet. These posts, which are identical, appear to be the real deal.

So what changed? A couple of things. First, inmates with -300 and -400 series disciplinary reports shots in the last 12 months are not automatically disqualified. Second, inmates with “low” PATTERN scores are now eligible for CARES Act home confinement.

violence151213What didn’t change? At least a couple of things. First, if you have a prior conviction for a crime of violence (let’s say a bar fight back in 1985, when you were 21 years old and possessed a testosterone-addled brain), you are still disqualified from CARES Act home confinement (no matter that you’re doing 24 months for tearing the label off your mattress). Second, the BOP is adhering to its self-imposed standard that you have to have completed 50% of your sentence (or 25% of your sentence with less than 18 months to go).

So the Marshall Project text was wrong: prior violence still counts. The versions of the memo posted by FAMM and fd.org continue to say that “the inmate’s current or a prior offense” cannot be “violent, a sex offense, or terrorism-related.”

At the end of last week. FAMM President Kevin Ring wrote to the BOP complaining about its failure to officially release the memo. “I am writing to ask that you publish on the Bureau of Prisons’ (BOP) website any and all memos sent to wardens about the eligibility criteria for CARES Act home confinement,” Ring wrote. “The BOP’s failure to do so has created unnecessary confusion and frustration for incarcerated people and their families…”

There is not a bureaucratic reason on God’s green earth why the BOP could not have released the memorandum on April 13, 2021. Instead, the agency’s obsession with secrecy (or at least playing its cards close to the vest) generated a week’s worth of heat without light. In fact, if the memo had not been leaked to outside organizations, inmates would still be in a tizzy and families still confused.

winnie210426While I am on a rant, I should note the moment in BOP Director Michael Carvajal’s testimony two weeks ago before the Senate Judiciary Committee that made me shout “liar!” at my computer screen. That in turn caused my faithful and efficient office dog Winnie to cower under a table until I calmed down.

As I note, the new memorandum retains the 50%-of-sentence requirement. This is a standard that Attorney General William Barr never imposed. Instead, as you may remember, it was the BOP’s own fiat, added in the agency’s all-too-typical ham-handed way (with inmates who were literally walking out the door to return home being called back because of the new requirement).

When I heard Carvajal assure the Senators that all the BOP had done was to apply the AG’s home confinement criteria, I was disgusted at his prevarication and furious that the Senators were so ill-prepared by their staffs that no one called Carvajal out on the fib.

In Forbes last week, Walter Pavlo noted it as well. He too observed that the time-served requirement was not dictated by the Attorney General, but rather was

based on an internal BOP memorandum that stated it was screening inmates based on whether they had served 25% of their sentence with less than 18 months remaining or have served more than 50% of their sentence. The directive had little logic behind it because COVID-19 did not discriminate between those who had been in prison years or those who had just arrived. The result of the memorandum was devastating, leading to deaths and infections at everyone of the BOP facilities nationwide.

liar151213Testifying before the Senate Judiciary Committee two weeks ago, BOP Director Michael Carvajal said that “…any inmate that is eligible under the criteria presented to me by the Attorney General is on home confinement as we speak.” Pavlo called that misleading, noting that “what Carvajal failed to add were details of the internal memos that mandated that priority for a person’s transfer to home confinement be measured against the amount of time they had served…”

Carvajal’s statement was false then, and it is false now.

Sentencing Law and Policy, Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement? (April 20, 2021)

The Marshall Project, Document Cloud, Home Confinement Memo (April 20, 2021)

FAMM, BOP Home Confinement Memorandum of April 13, 2021 (posted April 21, 2021)

Federal Public Defender, BOP Home Confinement Memorandum of April 13, 2021 (posted April 21, 2021)

Sentencing Law and Policy, FAMM urges federal BOP to publish memos with home confinement criteria (April 23, 2021)

Forbes, Bureau of Prisons Director Testimony To Senate Judiciary Leaves Unanswered Questions (April 20, 2021)

– Thomas L. Root

DOJ Eases CARES Act Home Confinement Eligibility – Update for April 19, 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.

DOJ RELAXES PATTERN SCORE LIMITATION FOR CARES ACT HOME CONFINEMENT

Bureau of Prisons Director Michael Carvajal last Thursday told the Senate Judiciary Committee that the Dept of Justice has modified the CARES Act home confinement criteria to qualify people whose PATTERN recidivism scores are “low” for home confinement.

release160523A memorandum apparently has been issued, because in a FAMM press release issued on Friday, FAMM president Kevin Ring said “We’re grateful that the new administration heeded the widespread calls to make more people eligible for home confinement. The original criteria were too narrow.”

Although I tried Friday and over the weekend to obtain a copy of the memo, I was not able to. The Ring statement suggests that more than one standard may have changed, but nothing else has been confirmed. I have heard a rumor as to what that change might have been, but I try not to deal in rumors, so I am awaiting confirmation.

The DOJ decision to expand CARES Act home confinement at this time suggests that the Administration does not intend to stop COVID home confinement placement anytime soon, despite the fact that all inmates will have access to vaccine within the next month. Carvajal told the Committee, “We are working to get as many people as are appropriate out within the criteria we are given.”

Sen Charles Grassley (R-Iowa) complained to Carvajal that the BOP’s use of “home confinement fails to comply with the First Step Act.”

mismanagement210419Committee Chair Richard Durbin (D-Illinois) was even blunter, asking Carvajal whether he had been directed to make eligibility for CARES Act home confinement as restrictive as possible. He said of the 230 BOP inmate COVID deaths, “These were preventable deaths. It is clear that the Bureau has been far too rigid in approving transfers to home confinement and to approve compassionate release. This is part of a broader issue of mismanagement.”

Carvajal told the Committee that the BOP, which has about 4,500 prisoners on home confinement under the CARES Act, has always followed DOJ guidance. No one asked him about the BOP’s own gloss on those criteria, which was the April 22, 2020, BOP memo requiring 50% of the sentence to be served (a standard from which the BOP said it could deviate “in its discretion,” if, for example, your name is Paul Manafort or Chaka Fattah).

Carvajal said the home confinement program has been a success. Right now, over 4,500 inmates are at home under the CARES Act, while only 151 have been returned to prison, 26 of which for escape from monitoring, and only three for new crimes (only one of which was violent).

return161227Many Committee members expressed dismay at the January 15 DOJ Office of Legal Counsel opinion that CARES Act confinees have to return to prison when the pandemic ends. Carvajal said about 2,400 of the CARES Act confinees have more than a year left on their sentences, and about 310 of those have more than five years to do. He said the BOP just wants guidance: “I ask that the statute be changed, or that we work with the DOJ… I don’t want somebody to believe that the Bureau of Prisons somehow doesn’t want to let someone out.”

But if the confinees are sent back, Carvajal said the BOP is prepared to handle the influx. Not everyone agrees. “We don’t have the staff,” Council of Prison Locals Southeast Regional Vice President Joe Rojas told Reuters. “We are already in chaos as it is, as an agency.”

Durbin and Grassley said they would ask the new Attorney General to withdraw the January OLJ memorandum, or – if that failed – they would seek to change the statute.

Courthouse News Service, Federal Prisons Flunked the Pandemic, Senators Say (April 15, 2021)

Reuters, U.S. has no plans to order inmates released in pandemic back to prison-official (April 15, 2021)

Reason, Pressure Grows on Biden To Rescind Memo That Would Send Thousands Released on Home Confinement Back to Federal Prison (April 16, 2021)

FAMM, FAMM releases statement on Department of Justice expanding home confinement (April 16, 2021)

Senate Judiciary Committee, Oversight of the Bureau of Prisons (April 15, 2021)

– Thomas L. Root

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

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

WHEN WILL BIDEN TACKLE CRIMINAL JUSTICE REFORM?

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

CARES Act Extended, But Does the BOP ‘Cares’? – Update for March 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.

COVID AND CARES ACT HOME CONFINEMENT TO GO ON… FOR NOW

caresbear210104CARES Act Re-upped, As If the BOP Cares: The CARES Act, passed in March 2020, dumped truckloads of money on the coronavirus pandemic. More important that piles of dough (for our purposes, at least), Section 12003 authorized the Federal Bureau of Prisons to place inmates in home confinement as long as the nation is under a COVID emergency and the Attorney General has determined that the “emergency conditions will materially affect the functioning of the Bureau.” President Trump declared a COVID emergency under the National Emergencies Act a few weeks before CARES passed, and Attorney General William Barr made the materiality finding on April 4th.

Under the National Emergencies Act, an emergency only lasts a year unless the President extends it. That means the emergency would have ceased today, and with it, the CARES Act authority would expire.

Last week, President Biden extended the COVID emergency without specifying an end date (which is common). In essence, the COVID emergency will be over with Biden says it is. Biden wrote, “The COVID-19 pandemic continues to cause significant risk to the public health and safety of the Nation. More than 500,000 people in this Nation have perished from the disease, and it is essential to continue to combat and respond to COVID-19 with the full capacity and capability of the Federal Government.”

One could reasonably infer from the President’s statement that the “full capacity and capability” of the government would include continued BOP use of its CARES Act home confinement authority. Yet, as the New York Times observed last week in a scathing article about the BOP’s failure to use home confinement at FCI Danbury, “just 7,850 of the 151,735 people serving federal sentences right now have been granted home confinement — about 5%. State prison populations have fallen by 15% since the pandemic began, according to the Prison Policy Initiative, but not because inmates are being released to home confinement. Instead, many state prisons simply have stopped accepting transfers from county jails.”

The BOP website prefers to trumpet that “the total number of inmates placed in home confinement from March 26, 2020 to the present (including inmates who have completed service of their sentence) is 22,158.” But it turns out that most of those people were placed there in normal course by halfway houses or under elderly offender home detention. The CARES Act home confinees have not constituted much more than a dribble.

home210218The Times reported that “Danbury was singled out for prompt action” by Barr last April, “because it had seen an outbreak, [but] only about 100 inmates have been granted home confinement so far, many as recently as December. At least 550 are still under consideration, most of them convicted of nonviolent offenses like fraud or drug possession.”

It’s not like the problem is limited to Danbury, either. A California federal court found last summer that “[d]espite… the existence of emergency conditions facing the BOP as the result of the pandemic… there is no evidence Respondents are prioritizing their use of statutory authority under the CARES Act to grant home confinement to Lompoc inmates… or giving due consideration to inmates’ age or medical conditions in evaluating eligibility of home confinement.” And a New York federal court found that “rather than attempt to use home confinement, furloughs, and compassionate release as tools to reduce the density among the most vulnerable inmates, the prison chose to not pursue that path at all until well after the initial outbreak had subsided.”

In fact, at Danbury, the BOP settled a class action lawsuit by promising to expedite release of inmates to home confinement. But five months after the BOP and Danbury warden made the deal, a Connecticut federal court found they had “breached the provision of the Settlement Agreement requiring that they ‘endeavor to release individuals approved for home confinement to home confinement within 14 days of the approval decision.”

About 48,000 of the 105,000 inmates the BOP has tested (still, a year later, only 69% of its inmates have had the nose swab) have contracted COVID. This is despite the BOP’s self-lauded “multiphase action plan” to protect inmates and staff from COVID-19. A Pennsylvania federal court dryly observed that “[t]he government’s assurances that the BOP’s ‘extraordinary actions’ can protect inmates ring hollow given that these measures have already failed to prevent transmission of the disease.” The agency’s slow-walk implementation of CARES Act placement cases seems to be cut from the same cloth.

The COVID Curve: The BOP continued last week to report fewer COVID cases. Last Friday’s total of 1,414 was down 29% from the week before. Staff cases remain stubbornly high, 1,622 (down only 3% from the week before). COVID remains present at 128 facilities, up two from last week, but there have been no reported deaths in the last 7 days.

As of Friday, the BOP reported vaccination data for 78 facilities. It reports that about 34% of its 36,000 staff have been vaccinated, and 6.9% of inmates have gotten the shot (up from 5.3% last week). The number of vaccine doses the BOP says it has distributed suddenly froze last week at 58,300, after climbing steadily since January. This suggests the BOP is out of additional doses until it gets its next distribution.

comparison210228

Plotting the rise and fall in inmate COVID numbers against the national ebb and flow shows the graphs are nearly a perfect fit. This is troubling, because late last week, Dr. Rochelle Walensky, director of the U.S. Centers for Disease Control and Prevention warned that with relaxing restrictions and a spread of variant viruses, the declines since January “may be stalling, potentially leveling off at still a very high number. We at CDC consider this a very concerning shift in the trajectory.” The nation had an average of about 66,350 new daily coronavirus cases a day over the last week, higher than the week before which was 64,000 new cases a day.

If national numbers rise again, history suggests the BOP numbers will, too.

Equally troubling is the fact that BOP staff COVID cases have not shown the kinds of decline that inmate and national numbers have. Beyond that, it has taken the BOP over two months to get a mere one-third of its staff vaccinated. The likelihood that staff is the primary vector for spreading COVID inside facilities thus remains high.

Federal Register, Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic (86 FR 11599, Feb 26, 2021)

CARES Act (Mar 26, 2020)

New York Times, Vulnerable Inmates Left in Prison as Covid Rages (Feb 27, 2021)

Torres v. Milusnic, 472 F.Supp.3d 713 (C.D. Cal. July 14, 2020)

Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323 (S.D.N.Y. July 2, 2020)

Whitted v. Easter, Case No. 3:20-cv-569 (D.Conn. December 11, 2020), 2020 U.S. Dist. LEXIS 232843

Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) (Cole, C.J., dissenting).

United States v. Rodriguez, 451 F.Supp.3d 392 (E.D. Pa. 2020).

Los Angeles Times, New fears of next coronavirus wave as case declines slow and variants grow (February 27, 2020)

– Thomas L. Root

$timulus Bill Is Cash-Rich But Justice-Poor – Update for February 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.

IT’S ALL ABOUT THE BENJAMINS

benjamins210222The House of Representatives finally released the text of the new stimulus package last Thursday, the 591-page American Rescue Plan, which includes billions of dollars for vaccine, unemployment benefits, state coffers, small businesses and stimulus checks, not to mention a grab-bag of special interest goodies like $15.00 an hour for the kid assembling sandwiches at the neighborhood McDonalds.

The American Rescue Plan contains something for almost everyone. Almost. For federal prisoners, the bad news is this: unlike the CARES Act (adopted 11 months ago) and the HEROES Act (a House measure last May that never passed the Senate), the American Rescue Plan contains nothing easing compassionate release, fixing the elderly offender home detention plan, or addressing any other criminal justice program.

The good news: inmates will be eligible for the $1,400 stimulus payment, just as they were eligible for the prior $1,200 and $600 payments.

[How to get stimulus payments, old and new]

The reasons that the ARP left out in a criminal justice measures are complex. Primarily, it is because Congress wanted to move rapidly, and the Democrats are pushing hard for Republican support in the evenly divided Senate. The New York Times reports that the House may pass the ARP this week, and the goal is to have President Biden sign the bill by March 14 (when existing federal unemployment money runs out). ARP is all about money, and sponsors want to keep it that way, because as a money bill, ARP has broad public support.

The Biden administration clearly plans some sort of comprehensive criminal justice reform this year. At a townhall meeting in Milwaukee last week, Biden said, “No one should go to jail for the use of a drug. They should go to drug rehabilitation.” The sentencing system should be changed to one that focuses on making sure that there are rehabilitation plans for inmates more generally, Biden said, adding that prison systems should have access to vocational programs that help those behind bars learn the career skills they need to succeed outside of prison.”

booker210222Meanwhile, Sen. Cory Booker (D-New Jersey) has been picked to chair the Senate Judiciary Committee’s Subcommittee on Criminal Justice and Counterterrorism. The subcommittee’s jurisdiction includes the Dept of Justice Criminal Division; the Drug Enforcement Administration, Bureau of Prisons, Sentencing Commission, and other law enforcement agencies.

This is significant, because a subcommittee chairman controls the subcommittee’s agenda, and can bring substantial pressure – even without writing legislation – on the agencies it oversees. “Our nation’s broken criminal justice system is a stain on the soul of our country, the result of decades of failed policies that have broken apart families and communities and have not made us safer,” Booker said. “I look forward to continuing and strengthening my partnership with Chairman Durbin [Sen Richard Durbin (D-Illinois), chair of the Senate Judiciary Committee] to further advance reforms to our policing and criminal justice system.”

letter161227Finally, interest groups finally have sympathetic ears in Congress and at DOJ. In an open letter to the not-yet-confirmed Attorney General, Merrick Garland, the ACLU urged him “to make clear, on-the-record commitments on five critical issues: mass incarceration; policing; COVID-19 in federal detention; the death penalty; and solitary confinement.” The ACLU asked that the “Trump DOJ’s efforts to thwart Congressional intent behind the FIRST STEP Act of 2018 should also be reversed: DOJ should support application of the Act’s reduced penalties at all sentencings, including resentencings in cases where an illegal sentence was vacated.”

HR -____, American Rescue Plan (reported to the House), Feb 18, 2021

New York Times, Republicans Struggle to Derail Increasingly Popular Stimulus Package (February 19, 2021)

Washington Examiner, Biden: ‘No one should go to jail for the use of a drug’ (February 16, 2021)

NJInsider, Booker to Chair Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism (February 14, 2021)

ACLU, Open Letter to Merrick Garland (February 18, 2021)

– Thomas L. Root