Tag Archives: compassionate release

EQUAL Act Jumps Low Hurdle, High Hurdle is Next – Update for September 30, 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.

HOUSE PASSES EQUAL ACT

crackpowder160606Over 25 years ago, the United States Sentencing Commission – never a hotbed of progressive thought – concluded that the draconian drug policy of considering every gram of crack cocaine to be the equivalent to 100 grams of powder cocaine was irrational and resulted in disproportionately severe crack sentences being imposed mostly on black defendants.

But just as sex sells in the marketing ethos, outrageous punishment sells in the political world. At least until a few years ago, no member of Congress ever lost an election because he or she was too tough on crime.

Fourteen years ago, Presidential candidate Barack Obama decried the crack-to-powder disparity, and in April 2009, his Dept of Justice lobbied for the elimination of the 100:1 ratio. The House passed a 1:1 bill that year, but by the time the Senate took it up the following summer, 1:1 had become 18:1 in order to satisfy certain troglodytes in that chamber, chief among them the unlamented former senator Jefferson Beauregard Sessions III of Alabama.

Jefferson Beauregard Sessions III
Jefferson Beauregard Sessions III

The resulting Fair Sentencing Act mandated a new 18:1 crack/powder quantity disparity ratio, but without retroactivity, so that accidents of time hammered a defendant who was sentenced in July 2010, for example, with a 100:1 sentence, while one whose lawyer managed to delay sentencing until the dog days of August benefitted from a much shorter mandatory minimum. Under this formula, people caught with 28 grams of crack receive the same sentence as someone caught with 500 grams of powder cocaine, despite the American Medical Association’s findings that there is no chemical difference between the two substances.

The Fair Sentencing Act became retroactive to all defendants with crack mandatory minimums (but see United States v. Terry) by the passage of the First Step Act in December 2018.

Fast forward to last week. The EQUAL Act, pending in both houses of Congress, proposes the elimination of any disparity between crack and powder cocaine. But Sen Charles Grassley (R-Iowa) a conservative lawmaker from the heart of the corn belt but a champion of criminal justice reform, said candidly that he didn’t think he could find enough Republican votes to come up with the 60 needed to pass the EQUAL Act in the Senate.

This past Tuesday, the House decided to give Grassley the chance to try anyway, passing the EQUAL Act (H.R. 1693) by a lopsided vote of 361-66. (Grassley may have a point. All 66 nay votes in the House were from GOP lawmakers).

Surprisingly (at least to me), Representative Louie Gohmert (R-Texas), a former judge who has said some people – not without some justification, I might add – think he is the “dumbest guy in Congress,” was a sponsor of the EQUAL Act. The Congressman said the measure was “a great start toward getting the right thing done. He said during floor debate that as a judge, “Something I thought Texas did right was [to] have an up-to-12 months substance abuse felony punishment facility. Some thought it was strange that a strong conservative like myself used that as much as I did. But I saw this is so addictive, it needs a length of time to help people to change their lives for such a time that they’ve got a better chance of making it out, understanding just how addictive those substances are.”

In the Senate, at least 10 Republicans would have to join with all Democrats to advance it in the evenly divided chamber. A Senate version of the EQUAL Act, S.79, was introduced by Sen. Cory Booker (D-NJ) and currently has five cosponsors, including three Republicans: Sen. Rob Portman (Ohio), Rand Paul (Kentucky), and Thom Tillis (NC). It remains before the Committee on the Judiciary.

The House version of the EQUAL Act that just passed provides that in the case of a defendant already serving a sentence based in any part on cocaine base may return to court to receive a sentence reduction, in a procedure that appears to be similar to the Section 404 procedure for Fair Sentencing Act retroactive resentencings, but with one interesting twist: Section 404 proceedings do not require the district judge to consider whether a sentence reduction is consistent with the sentencing factors in 18 USC § 3553(a). The EQUAL Act procedure permits imposition of a sentence reduction only “after considering the factors set forth in section 3553(a) of title 18, United States Code.”

Is this a good thing? Probably anything that adds structure (however slight) to the process is beneficial. Without any standard, nothing prevents a district judge from making arbitrary decisions. Even with a § 3553(a) requirement, a Sentencing Commission study of the compassionate release process has found that a defendant’s likelihood of success ranged from about 70% in Oregon to a lousy 1.5% (Western District of North Carolina).

crack-coke200804Anything that can avoid swapping one disparity for another is probably a good thing.

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

chart210624

Of course, as they say in the commercials, “actual results may vary.” But if the courts are mandated to consider § 3553(a) first, maybe they will vary less.

But first, the EQUAL Act has to pass the Senate…

– Thomas L. Root

Going Back to the Well – Update for September 24, 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.

PROCEDURAL BOOTSTRAPPING

well210924Back to the Well Once Too Often: Federal prisoners who lose their 28 USC § 2255 motions sometimes resort to filing motions to set aside the § 2255 judgment under Federal Rule of Civil Procedure 60(b), as a clever means of getting around seeking permission for a second or successive § 2255 under 28 USC § 2244. It seldom works.

A few fun facts: First, although a post-conviction motion under 28 USC § 2255 challenges a criminal conviction or sentence, the § 2255 proceeding itself is considered to be a civil action. That is how a movant even has the option to employ Fed.R.Civ.P. 60(b), or any other Federal Rule of Civil Procedure, for that matter. Second, Rule 60(b) – which governs motions to set aside the judgment – is usable after a final judgment is rendered, although that some time constraints and designated bases for invoking the Rule that are beyond today’s discussion. Third, the Anti-Terrorism and Effective Death Penalty Act – known as the AEDPA – puts severe restrictions on prisoners bringing more than a single § 2255 motion without meeting some pretty high standards (a new retroactive rule of constitutional law or some killer new evidence) and getting advance approval from a United States Court of Appeals under 28 USC § 2244. These restrictions can run headlong into a Rule 60(b) motion.

Desmond Rouse and several co-defendants were convicted based on what they called “outdated, false, misleading, and inaccurate” forensic medical evidence, testimony that had since been recanted, and juror racism. Having failed to win their § 2255 motions, they filed a motion to set aside the § 2255 judgment under Rule 60(b), arguing that a “new rule” announced in Peña-Rodriguez v Colorado would now let them “investigate whether their convictions were based upon overt [juror] racism,” and the witness recantations showed they were actually innocent.

Last week, the 8th Circuit rejected the Rule 60(b) motion as a second-or-successive § 2255 motion.

aedpa210504The Circuit held that newly discovered evidence in support of a claim previously denied and a subsequent change in substantive law “fall squarely within the class of Rule 60(b) claims to which the Supreme Court applied § 2244(b) restrictions in Gonzalez v. Crosby back in 2005. The requirement in § 2244(b)(3) that courts of appeals first certify compliance with § 2244(b)(2) before a district court can accept a motion for second or successive relief applies to Rule 60(b)(6) motions that include second or successive claims. Our prior denial of authorization did not sanction Appellants’ repackaging of their claims in Rule 60(b)(6) motions to the district court. The motions are improper attempts to circumvent the procedural requirements of AEDPA.”

Back to the Well is Just Fine: In the 7th Circuit, however, a prisoner who filed reconsideration on denial of his First Step Act Section 404 motion chalked up a procedural win. Within the 14 days allowed for filing a notice of appeal after his district court denied him a sentence reduction, William Hible filed a motion asking the district judge to reconsider his denial. The judge denied the motion, and Bill filed his notice of appeal, again within 14 days of the denial. The government argued the notice was late, because a motion for reconsideration doesn’t stop the appeal deadline from running.

Last week, the 7th Circuit agreed with Bill. The 7th observed that while the Federal Rules of Criminal Procedure lack any parallel to the Federal Rules of Civil Procedure 59, the Supreme Court “has held repeatedly that motions to reconsider in criminal cases extend the time for appeal. But under the Sentencing Reform Act of 1984, only Criminal Rules 35 and 36 offer any prospect of modification by the district judge. Rule 36 is limited to the correction of clerical errors. Under Federal Rule of Appellate Procedure 4(b)(5), a motion under Rule 35 does not affect the time for appeal.

 timewaits210924The government argued these rules govern sentence reduction proceedings, but the 7th disagreed. The Circuit said the First Step Act authorizes reduction of a sentence long after the time allowed by Rule 35. Thus, “the First Step Act’s authorization to reduce a prisoner’s sentence is external to Rule 35,” so the provision in Rule 4(b)(5) about the effect of Rule 35 motions does not apply here. A reconsideration motion in a 404 proceeding thus stops the running of the time to appeal, and Hible’s notice of appeal was timely.

Rouse v. United States, Case No. 20-2007, 2021 U.S. App. LEXIS 27795 (8th Cir., September 16, 2021)

United States v. Hible, Case No. 20-1824, 2021 U.S. App. LEXIS 27548 (7th Cir., September 14, 2021)

– Thomas L. Root

Nothing Extraordinary about a 312-Year Robbery Sentence, 3rd Circuit Says – Update for September 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.

A LARGELY UGLY COMPASSIONATE RELEASE DECISION FROM THE THIRD CIRCUIT

guns200304The 3rd Circuit last week joined eight other federal circuits in holding that an inmate-filed compassionate release motion is not limited by the Sentencing Guidelines § 1B1.13 policy statement. That was the good news, the only good news.

Eric Andrews is serving a 312-year sentence for a string of armed robberies, with almost all of that time due to stacked 18 USC § 924(c) convictions. If he had been sentenced after passage of the First Step Act, his § 924(c) sentences would have amounted to 91 years, still impressive but possibly a survivable sentence. But because the First Step changes were not retroactive, Rick’s only course was to file a compassionate release motion under 18 USC § 3582(c)(1)(A)(i) arguing that his excessive sentence length and the First Step Act changes were the “extraordinary and compelling reasons” supporting grant of the motion.

The district court denied Rick, and last week, the 3rd Circuit agreed.

The appeals court held that “the duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance… Considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties.”

41475-Forever-Is-A-Long-TimeLikewise, the 3rd ruled, a nonretroactive change to mandatory minimums “cannot be a basis for compassionate release. In passing the First Step Act, Congress specifically decided that the changes to the 924(c) mandatory minimums would not apply to people who had already been sentenced.” Applying rules of statutory construction to the First Step Act, the Circuit said, “we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release. Such an interpretation would sow conflict within the statute… We join the 6th and 7th Circuits in reaching this conclusion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, makes a telling point:

The very first sentence of the Andrews ruling has a Kafka-esque “only in America” quality to it: “Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen.” That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way. Specifically, as described by the panel opinion, the district court decided that “the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law.” Of course, there is no statutory text enacted by Congress that sets forth this “as a matter of law.” But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorical exclusions “as a matter of law” regarding what might qualify as extraordinary and compelling.

noquorum191016The Second, Fourth, Fifth, Ninth and Tenth Circuits have held the contrary to this opinion, which perhaps puts some wind in Thomas Bryant’s pending petition to the Supreme Court for review of the 11th Circuit’s denial of his compassionate release motion. That petition is ripe for decision at the end of this month at the Supreme Court’s “long conference.” Of course, a reconstituted Sentencing Commission could solve this circuit split by rewriting USSG § 1B1.13, but that would require that the Sentencing Commission first be repopulated with new members. President Biden has thus far shown no more interest than did his predecessor in appointing new members. By December, the Commission will have been without a quorum for three years.

United States v. Andrews, Case No 20-2768, 2021 US App LEXIS 26089 (3d Cir. August 30, 2021)

Sentencing Law and Policy, Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A) (August 30, 2021)

– Thomas L. Root

Compassionate Release Gets Uglier – Update for September 3, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

10th CIRCUIT DISRESPECTS ITS PRECEDENT ON COMPAssionate release – Update for August 12, 2021

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10TH CIRCUIT FLIPS UP ITS OWN 4-MONTH OLD COMPASSIONATE RELEASE PRECEDENT

flipflop170920It seems like only four months ago that the 10th Circuit ruled in United States v. Maumau and United States v. McGee that the plain language of the compassionate release statute (18 USC 3582(c)(1)(A)(i)) creates a three-step test: ”At step one . . . a district court must find whether extraordinary and compelling reasons warrant a sentence reduction… At step two . . . a district court must find whether such reduction is consistent with applicable policy statements issued by the Sentencing Commission… At step three, § 3582(c)(1)(A) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by steps one and two is warranted in whole or in part under the particular circumstances of the case…”

Pretty straightforward, isn’t it? Maybe not. Last week, the 10th ruled in a case deciding three compassionate release cases that despite what Maumau and McGee said, “district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others.”

respect210812The Circuit now thinks that Maumau’s and McGee’s detailed discussion of a three-step test – “although we have no doubt that the statements in those opinions were carefully considered by the panels (and are therefore entitled to our respect)” – are nothing more than dicta. Some respect “The language of § 3582(c)(1)(A) certainly requires that relief be granted only if all three prerequisites are satisfied,” the 10th now thinks, “but it does not mandate a particular ordering of the three steps (much less the ordering Hald and Sands urge). Since it mentions step three first, the natural meaning could well be that the court is to first determine whether relief would be authorized by that step and then consider whether the other two steps are satisfied. We think it persuasive, if not binding, that our well-considered reading of the statutory language in McGee declared that the three steps could be considered in any order.”

To make matters more chaotic? The decision drops a footnote noting that “as of oral argument in May 2021, all three men had either been vaccinated or been offered the opportunity to be vaccinated against COVID-19. Although we do not consider this development in resolving their appeals, there is certainly room for doubt that Defendants’ present circumstances would support a finding of ‘extraordinary and compelling reasons’.”

United States v. Hald, Case No 20-3195, 2021 U.S.App. LEXIS 23451 (10th Cir. August 6, 2021)

– Thomas L. Root

No Vax, No Love, 7th Circuit Says – Update for July 27, 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.

ANTI-VAXXERS GET NO COMPASSION, 7TH CIRCUIT SAYS

District Courts have been struggling with what to do with prisoners seeking compassionate release under 18 USC § 3582(c)(1)(A)(i) because of COVID-19, now that vaccines are generally available. You might think all of this is akin to perfecting buggy whips, what with the COVID pandemic over with, but the virus has a way of sticking around like that dinner-party guest who just won’t leave.

antivax210727The BOP numbers of sick inmates are climbing again, with 214 sick as of last night. More ominous: three weeks ago, the number of BOP institutions with COVID present had fallen to a 13-month low of 64. As of last night, it had shot up to 84. Something tells me COVID behind the fence is soon to become an issue again.

Other numbers you should know: 53.9% of federal prisoners had been vaccinated. A good number of those who have not taken the vaccine still have § 3582(c)(1)(A)(i) compassionate release motions pending. Last week, the 7th Circuit warned them that they may have nothing coming.

Brian Broadfield filed a compassionate release motion, claiming his medical conditions made him susceptible to COVID-19. His district court denied him, finding that a prior weapons conviction made him a danger to the community. That was error: Brian had no prior weapons conviction. But when he appealed, and asked the 7th Circuit to remand the case, the appeals court declined.

“A remand would be appropriate only if reconsideration could produce a decision in Broadfield’s favor,” the 7th said, “and it could not. When Broadfield filed his application for compassionate release, and when the district judge denied it, COVID-19 was a grave problem in America’s prisons, where people cannot engage in social distancing. Today, however, effective vaccines are available.”

Brian said he had refused to get vaccinated because he feared an allergic reaction, but he did not show he had ever had such a reaction before. Even if he had, the Circuit said, “the policy statement provides that prisoners with a history of allergic reactions to vaccines will receive extra evaluation before vaccination and additional observation afterward.”

coffee210521(An aside: That policy and $3.75 will get you a Starbucks frappe menu. Dr. Homer Venters – an epidemiologist who, among other positions, has been designated by the U.S. District Court for the Central District of California to inspect FCI Lompoc – reported to that Court that

[i]t is apparent that BOP has performed well in their efforts to secure, distribute and offer COVID-19 vaccine, a significant accomplishment… there appears little effort focused on engaging staff and incarcerated people about their questions or concerns regarding the vaccine. In speaking with the leadership, it was clear that they view the periodic, mass offering of the vaccine as more than adequate. They reported no efforts to identify and follow up with high-risk patients who refused vaccination, and stated several times that because those people would be re-offered again at a later time, in the same manner as before, that the process was adequate. This is consistent with the reports of patients themselves, many of whom reported that despite having questions about the vaccine and their own health issues, these questions were not addressed during the vaccine offer or afterwards. The CDC has entire toolkits and guidance documents designed to increase vaccine update, but the basic foundation of these efforts is engaging with patients; ‘By taking time to listen to their concerns and answer their questions, we can help people become confident in their decision to be vaccinated.’ The approach of BOP Lompoc not only fails to engage with patients, it has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients. Many of these high-risk patients were initially offered the vaccine 3 or 4 months ago, and the insistence by BOP leadership that their very valid and predictable questions and concerns go unaddressed during this time significantly increases the risk of preventable death from COVID-19.

[Note: Hyperlink to CDC guidance not in Dr. Venters’ statement – I added it]. In other words, any prisoner with questions about the vaccine had better not hope for any wise counsel from the quackery that is BOP Health Services. End of aside.)

sthup210727The 7th concerned itself only with the policy statement, not with its execution. It ruled that “for the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer relief far more effective than a judicial order. A prisoner who can show that he is unable to receive or benefit from a vaccine still may turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release.”

Ohio State law professor Doug Berman said in his Sentencing Law and Policy blog, “Critically, by using the phrase “the vast majority of prisoners,” this final sentence still suggests that, at least for a few prisoners, the risk of COVID-19 can still provide an “extraordinary and compelling” reason for compassionate release. Even more important may be whether lower courts might read this paragraph to mean that COVID risks cannot be combined with other factors to make out extraordinary and compelling reasons. Even if COVID risks are low for the vaccinated, they are not zero and so should be, as I see it, still a potential contributor to assessing what qualifies as an extraordinary and compelling reason when combined with other factors.”

United States v, Broadfield, Case No 20-2906, 2021 US App LEXIS 21580 (7th Cir. July 21, 2021)

Second Report of Dr. Homer Venters, ECF 239, filed May 12, 2021, in Torres v. Milusnic, Case No. 20-cv-4450 (C.D.Cal.)

Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (, May 20, 2021)

Bureau of Prisons, COVID-19 Vaccine Guidance: Federal Bureau of Prisons Clinical Guidance (Jan. 22, 2021)

Sentencing Law and Policy,  Seventh Circuit panel states (in dicta?) that vaccine availability “makes it impossible” for COVID risks to create eligibility for compassionate release (July 22, 2021)

– Thomas L. Root

Flip-Flops in Cincinnati – Update for June 10, 2021

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IF THIS IS MONDAY, ‘YES, YOU CAN…’ IF IT’S TUESDAY, ‘NO, YOU CAN’T’

Confusion reigns in the Queen City, nestled on the banks of the Ohio River (and home of the United States Court of Appeals for the Sixth Circuit, a few professional sports teams, and some pretty good brewskis).

Four weeks ago, I reported that the 6th Circuit had decided in United States v. Owens that despite two contrary Circuit decisions – United States v. Tomes and United States v. Wills – a prisoner with stacked 18 USC § 924 sentences could rely on First Step Act changes in 18 USC § 924 as one of several extraordinary and compelling reasons for a compassionate release sentence reduction.

flipflop170920But a week ago, a different 6th Circuit panel said despite Owens, the deal is off. In a 2-1 decision, the Court ruled that “non-retroactive changes in the law [can] not serve as the ‘extraordinary and compelling reasons’ required for a sentence reduction.” However, if movants have some other fact that is an extraordinary and compelling reason for a sentence reduction, “they may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors — above all with respect to the community safety factor.”

Ohio State University law professor Doug Berman, writing in his Sentencing Policy and Law blog, called “the majority ruling problematic from a straight-forward application of textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute “extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. The majority here, presumably based on its own sense of sound policy, seems to be just inventing an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.”

United States v. Jarvis, Case No. 20-3912, 2021 U.S. App. LEXIS 16596 (6th Cir. June 3, 2021)

Sentencing Law and Policy, Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a) (June 3, 2021)

– Thomas L. Root

Good, Bad… But Not Indifferent – Update for May 27, 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.

EITHER GOOD OR BAD

Maybe you’ve noticed our good-and-bad theme this week. Here are some shorts:

thumbsup210526Good: The DC Circuit last week joined seven other circuits in holding that Guideline 1B1.13 does not limit compassionate release motions when those motions are brought by prisoners instead of the BOP.

The Circuit just joins seven other circuits since last September to so hold.  Only the 11th Circuit disagrees.

United States v. Long, Case No 20-3064, 2021 U.S. App. LEXIS 14682 (DC Cir., May 18, 2021)

thumbsdown210526Bad: The two Federal Bureau of Prisons Correctional Officerss who were supposed to be watching Jeffrey Epstein, later charged for lying to investigators and phonying up records to hide the fact they were cruising the Web instead, last week entered guilty pleas in the U.S. District Court for the Southern District of New York under deferred prosecution deals that will cost them 100 hours of community service but no prison time.

Forbes, Federal Prison Guards Admit To Filing False Records During Jeffrey Epstein’s Suicide (May 21, 2021)

thumbsup210526Good: Senators Amy Klobuchar (D-Minnesota and John Cornyn (R-Texas), and House Reps. Karen Bass (D-California) and Guy Reschenthaler (R-Pennsylvania) introduced the One Stop Shop Community Reentry Program Act last week, a bill that would set up reentry centers to help coordinate access to job training, medical and mental health services, and financial counseling. The centers would also help individuals land jobs, gain job-skill training, obtain driver’s licenses, fill out college and student loan applications and receive financial counseling.

The bill passed the House in the last session of Congress, but never came to a vote in the Senate.

NPR, Congress Wants To Set Up One-Stop Shops To Help Ex-Inmates Stay Out Of Prison (May 20, 2021)

thumbsdown210526Bad:  Dr. Homer Venters, an epidemiologist tasked by a federal court with inspecting FCC Lompoc reported last week that the facility has “an alarmingly low vaccination acceptance rate among the inmate population,” due to prison staff neglecting to address inmates’ “very valid and predictable concerns” about the effects the vaccine might have on their underlying health conditions.

Rather than address inmate fears, Venters said, prison staff dismissively told the inmates to either “take the vaccine or sign a refusal form.” He reported to the Court that “many of the people who reported refusing the vaccine told me they were willing to take it but simply had questions about their own health status.”

“The approach of BOP Lompoc not only fails to engage with patients; it has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients,” he wrote. “In other detention settings I have worked in, a COVID-19 refusal by a high-risk patient would result in a prompt session with a physician or mid-level provider because the consequences of infection are so grave.”

Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (May 20)

– Thomas L. Root

Fascinating District Court Use of Compassionate Release to Correct Sentencing Error – Update for May 21, 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.

DISTRICT COURT GRANTS COMPASSIONATE RELEASE DUE TO SENTENCING ERRORS

There’s a precedential pecking order that few do-it-yourselfer prisoner litigants appreciate.

coffee210521It’s easy… a Supreme Court decision binds every lower federal court in America. A “published” decision of a federal court of appeals (and “published” means the court declares it to be published, not just that you can find a copy of it on the Internet) binds every district court in that particular circuit. But the opinion of a district court only binds the parties to the action. If the Chief Judge of the Federal District Court for the Eastern District of Northern South Dakota rules that red is really green, the judge in the office next to hers is nonetheless entitled to rule the next day in a different case that red is more blue than green.

So district court decisions ultimately are sometimes interesting, sometimes illuminating, occasionally infuriating and usually boring, but whatever they might be, $5.00 and the combined output of the best district court in America will get you a Strawberry Funnel Cake Frappuccino at Starbucks, but little else.

oracle210521That doesn’t stop prisoners, many of whom breathlessly cite opinions from some knuckleheaded district court a thousand miles away like they are the immutable words of the oracle descended from Mt. Olympus.

But while district court decisions are not binding precedent, they can be what lawyers like to call “persuasive authority.” That kind of authority says to a district court, ‘look how smart Judge Elihu Smails held in this similar case, and don’t you want to look as bright as he does?’ Sometimes that kind of persuasion works, sometimes it doesn’t.

With that prologue, we were impressed with a decision handed down last week by a judge in the District of Massachusetts, granting compassionate release to a man doing life for a 1991 bombing that killed one cop and injured another.

The movant had discovered an error many years after his conviction which made the life sentence unlawful. He filed a motion with the District Court back in 2007 pointing out the error, and the sentencing court granted him relief. Unfortunately for the defendant, the First Circuit reversed the district court on procedural grounds, specifically that the prisoner had no right to bring what was in effect a second 28 USC § 2255, so the sentencing error was unreviewable.

The prisoner tried again 13 years with a motion for compassionate release under 18 USC § 3582(c)(1)(A)(i).  The motion turned on the prevalence of COVID-19 at USP Tucson and the 65-year old prisoner’s vulnerability to it, but as well raised arguments that the conviction and sentence were tainted by the government having played on the homophobia of the jury, and the sentencing error that was argued futilely in 2007.

The district court rejected the COVID-19 argument due to the fact that the prisoner had received the vaccine, and it characterized the evidence of innocence and homophobia as “serious but not overwhelming arguments” that “raise questions and perhaps even doubts – but no more.”

But the court was convinced by the sentencing error. It rejected the government’s argument that the First Circuit had already settled the issue:

The First Circuit’s holding was premised upon a strict application of AEDPA… But now Congress has spoken again. And this time it has given trial judges broad authority – indeed it has imposed a statutory duty, upon a defendant’s motion – to conduct an individualized review of the defendant’s case for extraordinary and compelling circumstances that call out for correction… Moreover, at the time of this writing, there is a growing consensus among courts that there are few if any limitations on what may be considered an extraordinary and compelling reason warranting release, even those claims that have been rejected on direct appeal or collateral attack.

compassion160208The district court used compassionate release to do what it could not do in a § 2255 motion: it ruled that “it is both extraordinary and compelling that (1) a judge sentenced a defendant to life imprisonment using a preponderance of the evidence standard where the controlling statute provided that a life sentence could be imposed only by the jury; and (2) there exists no available avenue for relief from this legal error.”

The court ruled that there was “no question that this Court may conclude that a legal error at sentencing constitutes an extraordinary and compelling reason, and reduce the sentence after conducting an individualized review of the case. Here, the Court is deploying the broad discretion provided in one statute – § 3582(c)(1)(A) – to effectuate Congress’s clearly stated intent in a separate statute, see 18 USC § 34, as incorporated by 18 USC § 844.”

United States v. Trenkler, Case No 92-10369, 2021 U.S. Dist. LEXIS 87567 (D. Mass. May 6, 2021)

– Thomas L. Root