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Trick or Treat – Update for October 28, 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.

Today, a little early Halloween…

TREAT: SENATE BILL AIMED AT HELPING PREGNANT PRISONERS

treat221028Not that introduction of a bill this late in the Congressional season is much more than symbolism, but legislation introduced a few weeks ago by Sens Amy Klobuchar (D-MN) and Susan Collins R-ME) aims to improve care in federal prisons for pregnant and postpartum women and their babies.

The Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act (S.5027) would establish care standards for federal facilities across the country, requiring access to medical and mental health services, as well as education about parental rights and lactation.

The act would restrict when pregnant women can be placed in restrictive housing, ban the Bureau of Prisons and U.S. Marshal Service from placing pregnant women in solitary confinement during the third trimester, and require the BOP to evaluate pregnant women to determine if their pregnancy is high-risk.

Companion legislation in the House was introduced by Reps Karen Bass (D-CA) and Guy Reschenthaler (R-PA).

Sadly, the likelihood that this bill will be considered before the 117th Congress expires on January 2, 2023, is remote.

Gov’t Executive, Senate Bill Aims to Improve Care for Pregnant Women and Babies in Federal Prisons (October 18, 2022)

S. 5027, Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act

TRICK: IF AT FIRST YOU DON’T SUCCEED…

trick221028After Dan Kordash got caught at the airport by Customs and Border Protection officers after declaring he was carrying $12,000 in currency that turned out to be more like $33,000 (money which he forfeited), he was detained and questioned by CBP on at least two subsequent occasions. What’s worse, CBP officers told Dan that because of the money incident, he could count on always getting the third degree when he passed through the airport.

Dan filed Bivens claims against the CBP officers who detained him. The district court found that the officers had qualified immunity and dismissed the complaint. Not to be deterred, Dan then filed a Federal Tort Claims Act complaint for false imprisonment, battery, assault, intentional infliction of emotional distress, and negligence. The district court dismissed the new complaint as well for failure to state a claim, and Kordash appealed.

Last week, the 11th Circuit upheld the FTCA dismissal, holding that the doctrine of collateral estoppel meant that the Bivens suit determination that the officers acted lawfully in furtherance of federal policy should apply to the FTCA suit as well.

The 11th held that the issue in the FTCA case – whether the officers’ acts had a “nexus” with furthering federal policy and complied with federal law – was identical to the issue in the Bivens action. “In the Bivens action,” the Circuit said, “the district court determined for each incident when Kordash or Nilsen were stopped whether the officers acted within their discretionary authority and whether the detentions complied with federal law. Here, the same legal inquiries govern the application of the Supremacy Clause as a bar to liability for claims arising out of these incidents under the Federal Tort Claims Act.”

Because the issue met the test for issue preclusion, “Kordash is barred from relitigating these issues under the doctrine of collateral estoppel.”

Kordash v. United States, Case No. 21-12151, 2022 U.S.App. LEXIS 29420 (11th Cir., Oct. 21, 2022)

TREAT: MINNESOTA DRUG SALE STATUTES OVERBROAD

treatB221028The 8th Circuit ruled last week that because Minnesota’s definitions of “narcotic drug” and cocaine“ include drugs that the federal controlled-substance schedules do not, convictions under those statutes are not predicate “serious drug offense” under the Armed Career Criminal Act.

While the defendant was still convicted of a felon-in-possession count under 18 U.S.C. § 922(g)(1), his sentence exposure fell from 15 years to life all the way down to zero to 10 years.

United States v. Owen, Case No. 21-3870, 2022 U.S.App. LEXIS 28979 (8th Cir., Oct. 19, 2022)

– Thomas L. Root

First Step 2.0 Already Being Planned – Update for January 30, 2019

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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.

NEXT STEP ACT ALREADY IN WORKS

The bipartisan team that rallied House support for the First Step Act is drafting new legislation to clean up the existing criminal records of nonviolent drug offenders, a centerpiece of their efforts to pass further reforms.

Reps. Hakeem Jeffries (D-New York) and Douglas Collins (R-Georgia) are looking at how to expunge the criminal records of people convicted of drug crimes before minimum sentencing requirements were reduced, to restore their eligibility to apply for certain jobs. Nationally, one out of five jobs requires some kind of license, which excludes just about everyone with a prior felony. “’What is being contemplated is removing the stain that has been put on their life’s journey as a result of a nonviolent drug offense, often occurring at a very adolescent stage of their life,” Jeffries said.

jeffries-collinsA190130The bipartisan legislation could form the basis for what Collins said might be called a ”Next Step Act,” to follow up on the pair’s successful efforts to pass a First Step last year. Both lawmakers hope to continue their established partnership with President Donald Trump’s son in law and senior adviser Jared Kushner, with whom they worked on last year’s criminal justice reforms.

Jeffries said he also hopes to address marijuana as part of any future criminal justice package. “There’s a growing number of conservatives, libertarians and Republicans who are in agreement with Democrats, who believe that we should at least take a hard look at descheduling marijuana,” he said. “[It] shouldn’t actually be that controversial, and it’s consistent with Republican principles of states’ rights and federalism.”

Washington Post, Next step in criminal justice reform could target jobs for ex-convicts, marijuana law (Jan. 17, 2019)

Chicago Tribune, Bipartisan authors of federal sentencing reform have new goal (Jan. 23)

– Thomas L. Root

Sentencing Reform, We Hardly Knew Ye – Update for March 21, 2018

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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.

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COALITION TO PASS SENTENCING REFORM IS FALLING APART

The bipartisan sentencing reform movement is breaking apart in the face of President Trump’s prison reform proposals, which focus on prisoners re-entering society instead of reducing mandatory minimums. The division between prison reform and sentencing reform advocates, especially in the Senate, could threaten the momentum behind either proposal.

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President Trump counts the number of high officials he has fired or who have left his Administration… could the Attorney General be next?

Trump and Attorney General Jefferson Beauregard Sessions III have no interest in anything more than prison reform right now. And Jared Kushner, the White House’s sentencing reform advocate, has reportedly decided prison reform is the only way forward. Senate Majority Whip John Cornyn (R-Texas) won’t support Sen. Charles Grassley (R-Iowa) on the Sentencing Reform & Corrections Act – which Grassley’s Judiciary Committee passed last month 15-5 — despite his prior support. Cornyn is pushing instead for his bill, the CORRECTIONS Act with Sen. Sheldon Whitehouse (D-Rhode Island) that calls only for prison reforms aimed at aiding re-entry and reducing recidivism. An aide to a Judiciary Committee member told Axios last week that “McConnell isn’t going to put sentencing reform on the floor, particularly now that the administration opposes it. So the options are the Whitehouse-Cornyn bill, or nothing.” 

reform160201On the House side, Rep. Doug Collins (R-Georgia), whose Redemption Act mirrors the Cornyn-Whitehouse bill and has the most momentum in the House, told Axios he supports some kind of broader, more comprehensive criminal justice reforms, but right now, “prison reform can get the votes in Congress… but sentencing reform can’t.” Reps. Bobby Scott (D-Virginia) and Jason Lewis (R-Minnesota, who are cosponsoring a bipartisan House sentencing reform bill, are still optimistic about the chances for sentencing reform. The odds of getting any bill through the House Judiciary Committee, whose chairman Bob Goodlatte (R-Virginia) is so notoriously slow at moving legislation that the Committee has become known as the place bills go to die, are considered slim. “This guy just refuses to move legislation,” said a senior Republican lawmaker. “I can’t think of a single thing he’s actually accomplished,” added a top GOP Republican aide.

Progressive groups and senators like Grassley, Dick Durban (D-Illinois), Lindsey Graham (R-South Carolina) continue to push for sentencing reform.

sessions180322There’s some good news coming out of the Washington rumor mill. After Secretary of State Rex Tillerson was fired and Trump economic advisor Gary Cohn quit last week, several publications reported that the President had Sessions on his short list of people to be fired. Vanity Fair said that according to two Republicans in regular contact with the White House, there have been talks that Trump could replace Sessions with EPA Administrator Scott Pruitt, former Oklahoma attorney general, who would not be recused from overseeing the Russia probe. Such a replacement could soften Trump Administration opposition to SRCA, inasmuch as Pruitt is not reputed to be as hidebound as Sessions.

Axios, The criminal justice reform coalition is breaking up (Mar. 15, 2018)

Politico, The Place Bills Go to Die (Mar. 15, 2018)

Just Security, How Trump Might Replace Sessions with Pruitt as Attorney General (Mar. 15, 2018)

Vanity Fair, “Trump wants them out of there”: After swinging the axe at Tillerson, Trump mulls what to do with McMaster, Sessions, Jared, and Ivanka (Mar. 14, 2018)

– Thomas L. Root

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