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3rd Circuit Frolics, Compassionate Release Suffers – Update for April 7, 2020

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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.

3RD CIRCUIT GOES OFF THE RAILS ON ADMINISTRATIVE EXHAUSTION

Francis Raia, a small-time Hoboken politician who tried to buy a city council seat for $50 a vote, ended up with a conviction for fraud and a very short 90-day sentence (which the government has appealed). Even a few months seemed like a lifetime to Frank, and – given the coronavirus – it might just be. So he asked his district court for compassionate release.

corona200313The district court said it would grant the motion, except that the case had been appealed by the government so it had no jurisdiction. Raia’s lawyers, rather than appealing the District Court’s decision, instead refiled the § 3582 motion with the 3rd Circuit to grant compassionate release, a truly foolish approach. (Appeals courts are for appeals, but that is an issue for another day).

Last week, the 3rd refused to grant Frank’s motion for several reasons, any of which would have been good enough by itself. But just to show it could be as foolish as the lawyers appearing before it, the Circuit then laid down some dictum on an issue that had not been briefed. The three-judge panel essentially gutted well-established exceptions to the administrative exhaustion doctrine in the process.

Exhaustion means that an inmate has to complete the administrative review process before he or she goes to court. The compassionate-release statute, 18 USC § 3582(c)(1)(A), requires that an inmate first ask the warden to recommend compassionate release, and exhaust remedies if denied. If the warden does nothing, the inmate can file directly with the court after 30 days.

Exhaustion170327There are some well-established exceptions to exhaustion. If exhaustion would be futile, if there are exigent circumstances, if the agency has already made clear that it will deny the request: all of these have excused exhaustion requirements in cases. Frank apparently did not ask the BOP for its recommendation first, but the district court never addressed that lapse, and on appeal, neither party discussed the exhaustion requirement (or Frank’s failure to meet it) in the briefs.

But the 3rd weighed in nonetheless. After paying lip service to the risks of COVID-19 to federal prison inmates like Raia, the three-judge panel said

But the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP’s statutory role, and its extensive and professional efforts to curtail the virus’s spread. See generally Federal Bureau of Prisons, COVID19 Action Plan (Mar. 13, 2020, 3:09 PM). Given BOP’s shared desire for a safe and healthy prison environment, we conclude that strict compliance with § 3582(c)(1)(A)’s exhaustion requirement takes on added — and critical — importance. And given the Attorney General’s directive that BOP “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” we anticipate that the exhaustion requirement will be speedily dispatched in cases like this one.

BOP’s action plan? How’s that working out? The BOP sends COs back to work after being exposed to an inmate with COVID-19 who later died, The BOP fudges the numbers. The BOP denies any problems with halfway houses. Strong arguments exist that the BOP’s approach to COVID-19 has been ham-handed.

coronadog200323That is hardly the only problem with the slapdash decision. The Circuit held that before defendants file a motion in court for compassionate release under § 3582(c)(1)(A), they “must ask the Bureau of Prisons (BOP) to do so on their behalf, give BOP thirty days to respond, and exhaust any available administrative appeals. See § 3582(c)(1)(A).”

Yesterday, Raia’s attorneys filed a motion for clarification with the 3rd Circuit, asking that the court at least correct that holding to require defendants to exhaust remedies or wait 30 days, but not both. The government does not oppose the motion, which argues that

It is critically important that the Court’s opinion be clear on § 3582(c)(1)(A)’s requirements. As the Court recognized, COVID-19 poses serious risks within the federal prison system, particularly to high-risk inmates such as Mr. Raia. Now more than ever, individualized determinations of compassionate release must be made as expeditiously as the law permits. Any suggestion that defendants must both wait thirty days and exhaust administrative appeals will inevitably lead to confusion among the district courts and delays in adjudicating properly filed compassionate-release motions, potentially with life-or-death consequences.

Ohio State University law professor Doug Berman argued last Saturday in his Sentencing Law and Policy blog that the Circuit’s ruling “creates the problematic impression that “30-day lapsing/exhaustion” language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion. But the language and structure of this requirement makes it appear much more like what the Supreme Court calls ‘nonjurisdictional claim-processing rules’… With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions. In other words, if and when the ‘30-day lapsing/exhaustion’ language is properly understood by courts as a claim-processing rules, then courts can… decide that the requirement need not be meet given the equities of a particular case.”

timewaits200325Berman rightly notes that “sentence reduction motions under § 3582(c)(1)(A) have become hugely important in the coronavirus world of federal sentencing. As SDNY Chief Judge Coleen McMahon astutely stated this week in US v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) ‘releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19’.”

This is an awful decision, and what’s worse, an unnecessary one. The Court has already denied the appeal when it adds its “oh, by the way,” that the defendant had not exhausted administrative remedies (and does so in a misstatement of the statute that would earn a first-year law student a failing grade).

My belief that the Raia decision is an intellectual “drive-by shooting” of established administrative exhaustion waiver law is shared by others. In the New Jersey Law Journal, Christopher Adams, chairman of the criminal defense and regulatory practice group at Greenbaum, Rowe, Smith & Davis in Woodbridge, New Jersey, observed that prisoners may be able to sidestep § 3582(c)(1)’s 30-day requirement based on vulnerability to the coronavirus, because Raia fails to address a 1992 U.S. Supreme Court case, McCarthy v. Madigan, allowing prisoners to bypass administrative procedure based on equitable considerations. The 1992 case found exceptions to the 30-day requirement where such a waiting period would prejudice the subsequent court action, where the administrative process lacks authority to grant adequate relief, and where pursuing the administrative remedy would expose the petitioner to undue prejudice.

“I will continue to make these applications to district court. I would encourage people to try,” the NJLJ quoted Adams as saying. “Raia doesn’t close the door to compassionate relief applications, even when the administrative remedy is not observed. I admit, the circuit, in Raia, makes it much harder, but it doesn’t close the door completely.”

screwpooch200407I am glad Raia’s counsel – who screwed this pooch to begin with – at least sought clarification of the ruling. It would be far better to seek a rehearing pointing out to the court that it should withdraw the exhaustion portion of the opinion altogether.

United States v. Raia, 2020 U.S. App. LEXIS 10582 (3rd Cir. Apr 2, 2020)

Unopposed Motion to Amend Opinion, United States v. Raia (filed Apr 6, 2020)

Sentencing Law and Policy, Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A) (Apr 4)

New Jersey Law Journal, After 3rd Circuit Setback, Defense Lawyers Look for New Path for COVID-19 Compassionate Release (Apr. 6)

– Thomas L. Root

BOP Records First COVID-19 Death As Congress OKs Expanded Home Confinement – Update for March 30, 2020

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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.

BARR AND THE CARES ACT

death200330A week ago, America had 35,000 COVID-19 cases with 40 deaths. As of this morning, the nation has over 143,000 cases and 2,052 deaths. The Federal Bureau of Prisons’ very questionable numbers, as of yesterday, showed 14 inmates and 13 staff down with the virus. The actual inmate number is undoubtedly much higher than what the BOP is willing to admit.

On Saturday night, a low-security inmate at FCI Oakdale I, 49-year old Patrick Jones, became the BOP’s first COVID-19 death. Jones, 49, was transferred to a hospital on March 19, days before the BOP admitted to having any inmates who had tested positive for COVID-19. He was placed on a ventilator the next day. Jones, who suffered from “long-term, pre-existing medical conditions” considered risk factors for severe coronavirus illness, died Saturday at the hospital, a BOP news release said.

Last Thursday, Attorney General William Barr instructed the Bureau of Prisons to “prioritize the use of your statutory authorities to grant home confinement for inmates” in response to the virus.

That “statutory authority” got a lot broader the next day, when Congress passed The CARES Act, which President Trump signed the same day. Buried in its 373 pages is a single section devoted to the BOP.  Section 12003(b)(2) provides that

(2) HOME CONFINEMENT AUTHORITY.—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.

emergency200330The “covered emergency period” began when Trump declared a national emergency and ends 30 days after he declares that the emergency has ended.

Under 18 USC § 3624(c)(2), the BOP can send an inmate to home confinement for not more than 10% of his or her sentence, up to a maximum of 6 months. The CARES Act provision has lifted the 10%/6-month limitation. This means that the BOP can send anyone with anything short of a life sentence to home confinement right away.

Sec. 12003 provides no guidance whatsoever as to how the BOP should pick the people to go to home confinement, or even if it should send anyone at all. However, Sec. 12003(c)(2) exempts any BOP rules on how to do it from the notice-and-comment requirements of the Administrative Procedure Act, which means the BOP can roll out its own rules immediately.

The CARES Act passage makes Barr’s Thursday memo much more important. While the only authority the BOP has to wield as of Thursday was the Elderly Offender Home Detention Program (34 USC § 60541(g)(5)), it can now move many more people. Barr’s memo specified what the BOP should consider in making its decisions:

• inmate’s age and vulnerability to COVID-19 under Centers for Disease Control and Prevention (CDC) guidelines;

• The inmate’s security level, with priority given to inmates residing in low and minimum security facilities;

• The inmate’s conduct in prison, with inmates who have engaged in violent or gang-related activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment;

• The inmate’s PATTERN score, with inmates who have anything above a minimum score not receiving priority treatment;

• Whether the inmate has a “demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;” and

• The inmate’s crime of conviction, and assessment of the danger posed by the inmate to the community.

The memo stated that “some offenses, such as sex offenses, will render an inmate ineligible for home detention. Other serious offenses should weigh more heavily against consideration for home detention.”

BOP proposes holding anyone it releases in quarantine for 14 days prior to release to home confinement.

corona200313How much of this will happen? The devil’s in the details. The U.S. Probation Office has to approved residences for people going to home confinement, and Probation monitors people once they go home (usually with ankle monitors). There is a real possibility for a bottleneck as the U.S. Probation Office runs short of people to approve residences and of ankle monitors with which to take home confinement detainees.

Yesterday, the Marshall Project complained that Barr’s memo blocks anyone convicted of a sex offense or violent crime from being released to home confinement. DOJ policy also bars all non-citizens convicted of immigration-related offenses from serving out their time at home. Neither “sex crime” nor “violent crime” is defined in the memo, leaving the interpretation to the BOP. Note that The CARES Act leaves implementation of expanded home confinement to the BOP’s discretion.

Of course, nothing in the Barr memo or The CARES Act limits anyone’s right – even people with sex offenses or violent crimes – to seek compassionate release under 18 USC § 3582(c)(1)(A)(i).

Washington Post, An explosion of coronavirus cases cripples a federal prison in Louisiana (Mar. 29, 2020)

William Barr, Prioritizarion of Home Confinement as Appropriate In Response to COVID-19 Pandemic (Mar. 26, 2020)

The CARES Act, H.R. 748 (signed into law Mar. 27, 2020)

The Marshall Project, How Bill Barr’s COVID-19 Prisoner Release Plan Could Favor White People (Mar 28, 2020)

– Thomas L. Root

The Prisoners Envy The Turkeys… – Update for November 26, 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.

PARDONS, COMMUTATIONS, SENTENCE REDUCTIONS…

At some point in the next 48 hours, President Trump will likely pardon a pair of turkeys. The turkeys will be given silly names (past recipients have included birds named Mac and Cheese), some children and White House staffers will look on, and there will be forced jokes and stiff laughter.

turkey181128“It’s painful to watch,” Minnesota law professor Mark Osler wrote in the Washington Post last week. “Worse, it mocks the raw truth that the federal clemency system is completely broken. While those two turkeys receive their pardons, nearly 14,000 clemency petitions sit in a sludgy backlog. Many of the federal inmates who have followed the rules, assembled documents, poured out their hearts in petitions and worked hours at a prison job just to pay for the stamps on the envelope have waited for years in that queue.”

Osler and the students in his law school clinic have helped people file clemency petitions for almost a decade. “Many of them are well-deserving,” Osler wrote. “It was rewarding to tell their stories of rehabilitation and hope… [But now,] most of my mail is from people who have already filed a petition. They want to know what is happening, and what else they can do. Too many of them have unrealistic plans — often, and very specifically, the plan is that Kim Kardashian West will help them. Or, as one man put it ‘I’ll take any Kardashian.’ It is true that Kardashian West advocated for Alice Marie Johnson, and that Johnson did get clemency from President Trump. But that is a sample size of precisely one, while thousands wait.”

Meanwhile, a government pleading in a compassionate release motion filed under 18 USC 3582(c)(1)(A)(i) last week provided an object lesson for people seeking to get a sentence cut or home confinement because of illness. Federal prosecutors argued that a claim of dementia filed by Bernie Ebbers, former CEO of Worldcom, was bogus.

The government argued that the 78-year-old Ebbers may not be in as bad shape as indicated in his own filings, citing a note from a prison psychologist who listened in on phone calls between the inmate and his daughter in recent weeks. The daughter has claimed in an affidavit that her father has dementia.

fake191126

“In the calls, he was alert, aware and oriented to person, place, time and situation,” a Bureau of Prisons psychologist is quoted as saying, adding that the inmate was asking about his daughter’s efforts to get him out of prison. The psychologist notes that the inmate has presented a much different persona when he knows he is being observed. “The conversations between him and his daughter were very different than how he presented to this writer during our last encounter on 10/11/19 when he presented to this writer as though he didn’t know he was in a prison nor the date and time,” the psychologist writes.

Remember inmates, the BOP knows more about you than you may think. And what the BOP knows, the government knows, which means the U.S. Attorney knows it too. Rather tautological, but very true.

Many inmates eligible for serving the last one-third of their sentences under the Elderly Home Detention Offender program have complained that their case managers will not even submit an application for them to be a part of the program until they qualify by reaching the two-thirds mark of their sentences. Approval may take six months, meaning that an elderly offender may well miss much of the time he or she could be on home confinement, and the BOP continues to spend $100 a day to house someone who could be confined at home on his or her own dime.

Last week, a reliable inmate correspondent reported that his case manager  said BOP Central Office had issued “new guidance” that Elderly Offender Home Detention packages should be prepared and submitted six months prior to the inmate’s eligibility for the program (age 60 and two-thirds of total sentence completed). This way, he reported his case manager reported, everything will be in place so that the prisoner can leave for home detention on his or her earliest eligibility date.

I have not been able to confirm the report through the BOP yet.

Osler, Let’s Pardon Prisoners, Not Turkeys, Washington Post (Nov. 21)

CNBC, NY prosecutors suggest former WorldCom CEO is faking illness to get out of jail (Nov. 19)

– Thomas L. Root

Too Many Questions, Too Few Commissioners – Update for October 16, 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.

DENIAL HIGHLIGHTS JUDICIAL SPLIT ON COMPASSIONATE RELEASE

compassion160208A key provision of the First Step Act allows federal courts to reduce sentences under the so-called compassionate release statutory provisions of 18 USC § 3582(c)(1)(A)(i) – which establishes an ‘extraordinary and compelling” reason standard – without needing a motion from the Bureau of Prisons. Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that “if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.”

A decision last week in the Southern District of Iowa denying Les Brown compassionate release illustrates the conundrum. Under 28 USC § 994(t), the Sentencing Commission is directed to define “the criteria to be applied and a list of specific extraordinary and compelling examples” for grant of § 3582(c)(1)(A)(i) motions. The Commission defined four examples, one medical, one due to age, one due to family circumstances, and one catch-all (that “there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C)).”

Now the problem: The USSC has not updated its definition since the First Step Act passed. Instead, its policy statement still simply guides the Bureau of Prisons (which has traditionally been very resistant to an Sentencing Commission guidance). The new procedure mandated by the First Step Act calls for new guidance, but the Commission remains mute.

noquorum191016Sadly, there’s a reason for the USSC’s quiescence. The Commission cannot amend its policy statement because the agency lost its quorum last December, about two weeks before First Step passed, and it is still two commissioners short of a quorum. The Trump Administration apparently sees the Commission as a backwater for which no urgency exists in nominating replacement commissioners. For the foreseeable future, the Commission remains impotent, and the compassionate release policy cannot not be updated.

Some district courts have concluded this means the Commission lacks any applicable policy statement dictating when a judge can grant compassionate release. These courts have decided that this means the district judge can consider anything — or at least anything the BOP could have considered (whether it did or not) — when assessing a defendant’s motion.

But others have held that First Step merely lets them grant a motion for compassionate release if the BOP Director could have done the same under the guidelines and the old Program Statement. These courts hold that judges may not stray beyond the four bases listed in USSG §1B1.13.

Sentencestack170404Last week’s ruling by Senior Judge Robert Pratt is a thoughtful opinion about compassionate release, issued in response to defendant Les Brown’s motion to reduce his 510-month sentence. That sentence was pumped up by a 300-month second 18 USC §924(c) sentence, one that could no longer be imposed since passage of the First Step Act. While Judge Pratt finds that “much about Defendant’s situation is extraordinary and compelling,” he concluded “the Court cannot exercise its discretion to grant release at this time.”

The Judge calculated that even if First Step let him retroactively reduce the second § 924(c) sentence from 300 months to 60 months (which the Act doe not permit), Les would still face a total of 210 months in prison. As of now, he has served only 167 months, “a long stretch by any measure, and perhaps more than appropriate for Defendant’s crimes. Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an ‘extraordinary and compelling reason’ for compassionate release.”

Judge Pratt suggested that Les could come back at 210 months to make his argument. For what it’s worth, I believe that by then, Congress will have revisited the issue and made the § 924(c) sentencing change retroactive, just as it did with the Fair Sentencing Act’s changes to crack minimums.

Prof. Berman complained that “Judge Pratt refuses to use the legal tool available to him to reduce Brown’s sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.” He is correct. However, until higher courts resolve the conundrum of the missing USSC guidance (or the Commission regains a quorum, and fixes the statement on its own), the present confusion is going to work to the detriment of a lot of inmates.

United States v. Brown, 2019 U.S. Dist. LEXIS 175424 (SD Iowa Oct. 8, 2019)

– Thomas L. Root

Judge Holds Change in Drug Sentence Minimums “Extraordinary” Grounds for Sentence Reduction – Update for July 10, 2019

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We’re back after a well-deserved week off in Iceland (where the country’s five prisons each house about 30 (not a typo) inmates, who make an average of 28,000 ISK ($290.00) a month.

COURT GRANTS COMPASSIONATE RELEASE BECAUSE OF CHANGE IN DRUG MINIMUMS

A Houston federal district judge two weeks ago re-sentenced Arturo Cantu-Rivera to time served, negating two life sentences in a grant of an 18 USC 3582(c)(1)(A)(i) compassionate release motion.

Art was doing time on a drug charged, which had been enhanced by an 851 motion to mandatory life in 1990. The court cited his having completed over 4,000 hours of programming, his tutoring GED classes, his age of 69, and his health, calling all of this an “extraordinary degree of rehabilitation.”

extraordinary190710But as well, the judge noted that the change in the drug mandatory minimums under the First Step Act was part of the “extraordinary and compelling” analysis: “Finally, the Court recognizes as a factor in this combination the fundamental change to sentencing policy carried out in the First Step Act’s elimination of life imprisonment as a mandatory sentence solely by reason of a defendant’s prior convictions… The combination of all of these factors establishes the extraordinary and compelling reasons justifying the reduction in sentence in this case.”

Memorandum Opinion and Order, United States v. Canto-Rivera, Case No. H 89-204 (SD Tex, June 24, 2019)

– Thomas L. Root

Compassionate Release Gains Legs – Update for June 26, 2019

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SHOWING COMPASSION

Last week was a good one for compassionate release, the shorthand way of referring to “extraordinary and compelling” reasons for a sentence reduction under 18 USC 3582(c)(1).

compassion160208FAMM, the Washington Lawyers’ Committee, and the National Association of Criminal Defense Lawyers announced the launch of the “Compassionate Release Clearinghouse,” a collaborative pro bono effort among the organizations designed to match qualified prisoners with legal counsel should they need to fight a compassionate release denial or unanswered request in court.

“People who can barely make it out of their beds in the morning should not have to go into court alone against the largest law firm in the nation,” said Kevin Ring, president of FAMM. “Congress was clear that it wanted fundamental changes in compassionate release, yet we’ve seen prosecutors continue to fight requests from clearly deserving people, including individuals with terminal illnesses.”

The Clearinghouse will recruit, train, and provide resources to participating lawyers. It has already matched pro bono attorneys with prisoners in more than 70 cases. The Clearinghouse is actively recruiting additional attorneys and law firms to join in the effort.

Regular readers know that I have been calling the First Step Act’s changes to 3582(c)(1) a ‘killer’ provision, because while Congress may have been focused on getting terminally ill inmates home, it wrote the amendment much more broadly than that. The momentum to use the sentence reduction subsection to its full potential is increasing.

Sentencestack170404Georgetown law professor Shon Hopwood last week published an article at Prison Professors arguing that “there is a viable argument for why federal district court judges can use the compassionate release statute, as amended by the First Step Act, as a second look provision to reduce a sentence for people in federal prison if “extraordinary and compelling reasons” are present.” Shon has written a law review article and a sample brief he will be using to challenge a 213-year federal sentence consisting of stacked 18 US 924 convictions. Both discuss the reasons “why federal judges can and should give sentence reductions in cases where people in federal prison have a demonstrated record of rehabilitation in addition to compelling reasons why they were sentenced too harshly.”

NACDL, FAMM, Washington Lawyers Committee, NACDL Launch Compassionate Release Clearinghouse (June 19)

Prison Professors, A Second Look at a Second Chance: Seeking a Sentence Reduction under the Compassionate Release Statute, 18 U.S.C. § 3582(c)(1)(A), as Amended by the First Step Act (June 18)

– Thomas L. Root

A Trio of Sentencing Cases – Update for May 22, 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.

2-0-1 ON SENTENCING ACTIONS LAST WEEK

Three separate proceedings on sentencing or sentence reduction came to our attention last week, unrelated except for the possibilities they represent.

colostomy190523First, Steve Gass asked his court for a compassionate release. While doing 106 months for six bank robberies (Mr. Gass preferred using a note rather than a gun in each of them), Steve was diagnosed with a malignant tumor located in his rectal wall. The tumor was successfully removed, but along with it, he lost his rectum and anus. The procedure left him dependent on a colostomy bag and subject to what the Court euphemistically called “special hygiene requirements” and heightened medical monitoring. (Having had a colostomy bag for six terrible weeks once, I have some sense of those “special” requirements – a gas mask and a gasoline-powered power washer are on the list).

While Steve had beaten the cancer, he argued, his current condition is nevertheless “both serious and difficult to manage in a prison setting, marked neither by enhanced sanitary conditions appropriate for colostomy-dependent patients or heightened monitoring necessary to prevent secondary effects of infection or recurrence of a malignancy.” Clearly, the tumor did not affect Steve’s remarkable capacity for understatement.

The government, being the caring and benevolent organism that it is, argued that Steve had “recovered” from colorectal cancer, so his colostomy condition – which he could and would have to manage for the rest of his life – cannot qualify as the kind of “extraordinary and compelling” reason for a reduction anticipated by 18 USC § 3582(c)(1)(A)(i).

compassion160124The district court, recognizing the government’s disingenuous argument for being the same substance that fills Steve’s colostomy bag – ruled that Steve had “shown that his physical and medical condition substantially diminishes his ability to provide self-care within the environment of a correctional facility. And this is not a condition that [he] will ever recover from — he will be device dependent and subject to enhanced hygiene and monitoring requirements for the rest of his life.” The court, with a gift for understatement the equal of Steve’s, thus held that the permanent colostomy was extraordinary and compelling enough.

Still, the court did not shorten Steve’s sentence. Rather, it creatively resentenced Steve to the time remaining on his sentence, but ordered Steve to home confinement for the remaining 28 months or so he had to serve. The decision showcases how the sentence reduction power can be employed with precision to fashion modifications that address the prisoner’s situation without simply letting recipients out to run amok

*     *     *

gunknot181009In the 6th Circuit, Dave Warren got a statutory maximum 120-month sentence for being a felon in possession of a gun in violation of 18 USC § 922(g)(1). Both he and the government sought a sentence somewhere within his 51-63 month Guidelines range. But the judge was convinced that Dave’s criminal history made him “a high risk offender… an individual that must be deterred. 51 to 63 months… considering the danger this individual poses to the community, is nowhere in my view close to what is required.”

Last week, the 6th Circuit reversed the sentence. The appeals court noted that “because the Guidelines already account for a defendant’s criminal history, imposing an extreme variance based on that same criminal history is inconsistent with the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct…”

“We do not mean to imply that only a sentence in or around that range will avoid disparities with other similar defendants,” the Court wrote. “But we do not see how the sentence imposed here avoids them.” Because the district court’s discussion of whether its 120-month sentence avoided unwarranted sentencing disparities depended only on criminal history factors already addressed by the Guidelines, the 6th said, the district court relied “on a problem common to all” defendants within the same criminal history category Dave fell into – that is, that they all have an extensive criminal history – and thus did not provide “a sufficiently compelling reason to justify imposing the greatest possible deviation from the Guidelines-recommended sentence in this case.”

*     *     *

Robber160229Finally, I recently reported on a remarkable “Holloway”-type motion in Chad Marks’ case. Chad was convicted of a couple of bank robberies, but unlike Steve Gass, Chad did carry a gun. Under 18 USC § 924(c), using or carrying a gun during a crime of violence or drug deal adds a mandatory five years onto your sentence. If you are convicted of a second 924(c) offense, the minimum additional sentence is 25 years. Unfortunately, the statute was poorly written, so that if you carry a gun to a bank robbery on Monday, and then do it again on Tuesday, you will be sentenced for the robberies, and then have a mandatory 30 years added to the end of the sentence, five years for Monday’s gun, and 25 years for Tuesday’s gun.

Congress always meant that the second offense’s 25 years should apply only after conviction for the first one, but it did not get around to fixing the statute until last year’s First Step Act adopted Sec. 403. But to satisfy the troglodytes in the Senate (yes, Sen. Tom Cotton, R-Arkansas, I mean you), the change the law was not made retroactive.

grad190524Chad has served 20 years, during which time he has gone from a nihilistic young miscreant to a college-educated inmate teacher and mentor. The federal judge who sentenced Chad 20 years ago recognizes that post-conviction procedure is so restricted that the court can do nothing, but he asked in an order that the U.S. Attorney “carefully consider exercising his discretion to agree to an order vacating one of Marks’ two Section 924(c) convictions. This would eliminate the mandatory 25-year term that is now contrary to the present provisions of the statute.”

Since then, Chad Marks’ appointed counsel has filed a lengthy recitation of the defendant’s extraordinary BOP record. Despite this, and despite the fact that over two months have elapsed since the judge’s request to the U.S. Attorney, the government has not seen fit to say as much as one word about the matter.

Order, United States v. Gass, Case No. 10-60125-CR (SDFL Apr. 30, 2019)

United States v. Warren, 2019 U.S. App. LEXIS 14005 (6th Cir. May 10, 2019)

Order, United States v. Marks, Case No. 03-cr-6033 (WDNY, Mar. 14, 2019)

– Thomas L. Root

If You Want to Go Home, Die Faster – Update for May 16, 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.

CAN’T TEACH AN OLD DOG NEW TRICKS

die190513The Bureau of Prisons has been notorious for refusing to make sentence reduction recommendations to courts because dying inmates seemed to be in pretty good health, and surely able to finish their sentences, no matter what doctors might say. The First Step Act tried to remedy the BOP’s convenient myopia by letting inmates file for sentence reductions with district courts if the BOP refused to do so for them.

You’ll be glad to know that the government remains just as oblivious to medical reality and insensitive to impending death as ever. When Steve Brittner’s BOP doc told him that his Stage IV brain tumor was bad enough to withdraw further treatment and sign him up for hospice care, Steve filed for an 18 USC § 3582(c) sentence reduction so he could die at home.

The government opposed the reduction, arguing Steve did not have a terminal illness within the meaning of the guidelines because his medical records “do not indicate that the tumor has metastasized.” Plus, the government contended, Steve could not show “extraordinary and compelling” circumstances because his medical records did not indicate an inability to care for himself.

Last week, Steve’s district court swept aside the government’s opposition and said Steve could die at home. First, the court said, the Guidelines on sentence reduction do not require that Steve show that his tumor has metastasized for his condition to be terminal. Instead, the guidelines provide a number of examples of medical conditions that would meet the standard for a “terminal illness.”’ A metastatic solid-tumor cancer” is just example.

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Second, to show extraordinary and compelling circumstances, an inmate does not have to show both a terminal illness and inability to care for oneself. “The Government reads a conjunctive requirement into the guideline comment where none occurs,” the district court observed. The Guidelines provide that “extraordinary and compelling” reasons exist “under any of the circumstances set forth below,” of which a terminal condition is one and inability to care for oneself is another.”

“Of importance,” the court wrote, “the treatment options available to Brittner have been exhausted. According to the last treatment note available to the Court, dated November 15, 2018… the plan… was to hold, or discontinue further therapy, and it was recommended to Brittner that he consider comfort measures, specifically hospice, which his treating oncologist “considered very reasonable due to worsening performance status… It is clear from the nature of his disease and his worsening condition as documented above, that Brittner’s prognosis is grim, his disease is terminal, and the length of his life can be measured most likely in weeks, as opposed to months.”

United States v. Brittner, 2019 U.S. Dist. LEXIS 73653 (D.Mont. May 01, 2019)

Reason.com, A Terminally Ill, Wheelchair-Bound Inmate Applied for Compassionate Release. The Justice Department Argued He Wasn’t Dying Fast Enough to Qualify (May 3)

– Thomas L. Root

Justice Dept. Picks First Step Foe to Spearhead Recidivism Risk Standard Adoption – Update for April 15, 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.

HAS DOJ SENT THE FOX TO GUARD THE HENHOUSE?

As we observed last Tuesday, the Dept. of Justice has announced that it had appointed the Hudson Institute, a right-of-center think tank best known for its national security work, to design a risk-assessment tool that must be in place before prisoners can receive earned-time credit for completing BOP programs designed to reduce recidivism.

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The appointment, required by the First Step Act to be in place by Jan. 21, was only 78 days late.

First Step requires that a prisoner’s risk of recidivism (different from security and custody levels) be assessed before he or she starts programming. The risk can go up or down, depending on the inmate’s progress. The lower a prisoner’s risk, the more credit that can be earned.

However, the Act does not specify how a person’s recidivism risk level should be calculated. Instead, it instructs the attorney general to consult with an “independent review committee” to design the system.

DOJ said that Hudson Institute will host the independent review committee. Hudson has the discretion to appoint committee members, who will work to advise on the shape of the final risk-adjustment tool.

henhouse180307Some lawmakers from both parties who backed First Step Act expressed concern late last week at Hudson’s appointment. “I’m a little bit worried that we just let a fox in the chicken coop here,” Sen. Richard Durbin (D-Illinois) said during a confirmation hearing last week. “This… think tank… published an article entitled, ‘Why Trump Should Oppose Criminal-Justice Reform…’ [and has] now been chosen by the Department of Justice and Trump administration to be part of this so-called independent review system.”

Sen. Mike Lee (R-Utah) described the institute as an “opponent of the First Step Act… I don’t see a lot of good faith in implementing this law right now,” Lee said. “And it’s become increasingly clear to me in the last few days that some Department of Justice officials at least don’t like the First Step Act, and they seem not to care that Congress passed this law and that President Trump signed this into law.”

The Hudson Institute, founded in 1961, is known for its work on national security and foreign policy, though it also focuses on economics and domestic policy. For the First Step Act, it has announced six committee members so far who will develop the risk assessment program, one of whom is Hudson’s chief operating officer, John Walters.

Walters once wrote that it was a “great urban myth” that the country was imprisoning too many people for drug possession and that the 100:1 crack-to-powder cocaine disparity was merely a “perceived,” not a real, racial injustice. In 2015, Walters wrote that the concept of “mass incarceration” was a myth, and that “the great majority of federal prisoners appear to be incarcerated because they were, properly, adjudged guilty and justly sentenced.”

release160523The New York Times reported last Tuesday that First Step’s retroactive application of the 2010 Fair Sentencing Act has already “prompt[ed] 800 sentencing reductions already, according to the Justice Department. Of that group, nearly 650 inmates have been released from prison. Another 22 inmates have received sentencing reductions under a compassionate release program that is part of the law.” It reported last Saturday that since First Step was passed, 10 prisoners of 23 that have so far been deemed eligible have been released under the First Step’s Elderly Offender Home Detention (EOHD) program.

Testifying last Tuesday before the Appropriations Subcommittee of the House Committee on Commerce, Justice, Science, and Related Agencies, Attorney General William Barr promised “to robustly fund and diligently implement [First Step] at the Department.”

If you want to know where the real headwinds to First Step will come from, look no further that last Saturday’s Times. It’s one thing to support criminal justice reform in the abstract. But when it comes to individuals, the Gray Lady makes it clear that her anti-felon “lock-’em-up” biases are every bit as finely honed as Sen. Tom Cotton’s ever were.

unforgivenfelon190415The newspaper breathlessly reported on one inmate released under EOHD: “The First Step Act offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities. But one person who benefited from the law was Hassan Nemazee, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.” The Times reported that “Mr. Nemazee was charged in 2009 with orchestrating a scheme that defrauded banks of nearly $300 million,” and it complained that home detention “feels a lot like freedom.”

Once the media start picking at the offenses for which inmates who benefit from First Step were convicted, public outrage will not be far behind.

Washington Free Beacon, “DOJ Taps Conservative Think Tank to Help Implement FIRST STEP Act” (Apr. 8)

Mother Jones, Trump Keeps Celebrating Prison Reform. His Administration’s Latest Move Could Sabotage It (Apr. 11)

New York Times, Justice Dept. Works on Applying Sentencing Law as Critics Point to Delays (Apr. 8)

New York Times, He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul (Apr. 13)

– Thomas L. Root

Inmate Celebs Jump on First Step Act – Update for January 2, 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.

IT’S WHO YOU KNOW…

A few connected people did not let the ink dry on President Trump’s signature before deploying their lawyers to make hay out of the First Step Act’s modification to the compassionate release provisions of 18 USC § 3582(c)(1).

whoknows190102On the last Friday of 2018, a federal judge reduced former Birmingham, Alabama, mayor Larry Langford’s sentence for corruption to time served, a day after Ebony magazine reported that he was near death and being denied release. He had served a little more than half of a 15-year sentence for bribery and corruption, but the family and friends in Congress were able to convince the U.S. Attorney and BOP to move for his compassionate release.

U.S. District Court Judge Scott Coogler ordered that Langford “shall be released from the custody of the Federal Bureau of Prisons as soon as his medical condition permits, the release plan is implemented, and travel arrangements can be made.”

iknowyou190102Meanwhile, lawyers for Annette Bongiorno, Bernie Madoff’s former secretary, raced into court a day after First Step became law to ask her judge to order the BOP to send her to home confinement on March 19, the day on which she will have served two-thirds of her sentence. Not content to have the BOP process her Elderly Offender Home Detention program request (probably a wise idea), her lawyers want Judge Laura Taylor Swain – who is already on record favoring Bongiorno’s home confinement – to tell the BOP to get it done.

The government has not yet weighed in on Bongiorno’s request, which was picked up in the national media as soon as it was filed (no doubt because the defendant’s lawyers made sure of the publicity.)

The Birmingham News, Larry Langford will be freed after sentence reduction (Dec. 28)

ABC News, Bernie Madoff’s secretary wants to use new Trump law to get out of jail early (Dec. 25)

United States v. Bongiorno, Case No. 10-cr-228, Letter Motion (Dec. 22)

– Thomas L. Root