Tag Archives: DOJ

DOJ Issues ‘Speedo’ First Step Act Report – Update for May 9, 2023

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

DOJ ISSUES FIRST STEP ANNUAL REPORT

The First Step Act required the Dept. of Justice to issue five annual reports describing the implementation of various First Step programs. Last week, the DOJ released its third of the five reports required by law.

skimpysuit230509It reminds me of the old joke about skimpy bathing suits: What they reveal is interesting, but what they conceal is vital. With the end of CARES Act home confinement tomorrow at midnight, perhaps the biggest issues I see arising – judging from the email I get – are FSA credit eligibility, timely posting of FSA credits by the BOP, and the definition of “unstructured productive activities.” The Report is chock-a-block with stats and dense prose, but it falls pretty short in providing much useful information about these three areas.

Eligibility: The Report says that 53% of prisoners have minimum or low recidivism risk. Another 20% are medium risk while 27% are high risk. When the 63-category exclusions from FSA credit listed in 18 USC § 3632(d)(4)(D) are factored in, only 57% of all BOP inmates are eligible for FSA credits. 

For much of that the under-subscription, you can blame Congress, which in its zeal to pass First Step confused the goal of putting prisoners in programs to reduce recidivism  – which is to reduce recidivism – with a reward that should be withheld from some people because of their offenses of conviction. What this means, of course, is that some of the inmates whom society most needs to have rehabilitated – like people who run around with guns committing drug crimes or bank robberies – are the ones being denied incentives for changing their evil ways.

evilways230509Timely FSA Credit Update: Monthly updating of FSA credits for inmates is important for release planning as well as psychologically (it’s easier to be enthusiastic about a program when you can see regular progress: that’s why the airlines keep sending you emails telling you how many frequent flier miles you have amassed). The BOP’s history in tabulating FSA credits and reporting accurate numbers to prisoners is littered with failure.  

Not that you can tell that from the Report. Breezing past history, the Report says that “in August 2022, the Bureau began automatically calculating credits for individuals, which promotes consistency, allows the BOP to provide accurate calculations on a routine basis, and allows individuals in custody to track their time credits and prepare for prerelease from custody.” In fact, the August auto-calc launch was a disaster. The BOP successively promised at the end of September, in October, in mid-November, and at least twice in January 2023 that auto-calc was finally working. I still get emails weekly from different institutions asking me when FSA credits will update for the preceding month.

No Structure to ‘Unstructured Productive Activities’:  The FSA credit program not only awards credits for completing programs. It also rewards participation in “productive activities.”  The BOP has defined what some of those are but also includes a catch-all for ‘unstructured productive activities’, which might include work, adult education classes, independent study or leading an inmate recreation group.

unstructuredanimals230509It might include a lot, sort of like defining mammals as elephants, giraffes, and ‘perhaps all other non-elephants and non-giraffes with mammary glands.  We get the elephants and giraffes part of it, but exactly what else might there be?

The Report does not contribute at all to answering the question of just what an “unstructured productive activity” might be. One line of the Report says, “Moreover, while structured [evidence-based recidivism reduction] programs and [productive activities] with a facilitator-led curriculum are listed in the FSA Programs Guide, other activities, such as work assignments may also be recommended by staff to address individual needs as well as qualify for time credits for eligible individuals in custody.”

“Recommended by staff” without any central guidance seems like a recipe for inconsistency among different facilities, let alone possible favoritism among individual staff and inmates. In other words, it seems that the method of defining what an unstructured PA might be is itself just a little too unstructured.

Just a week ago, a Government Accountability Office manager noted the “BOP remains unable to provide a simple list of ‘unstructured activities’” that qualify for FSA credits… And in terms of what programs that might be made available, like, there are a lot of recidivism reduction programs that just haven’t been evaluated, that haven’t been monitored. So BOP doesn’t really have a good sense for how effective they are.”

Nothing in last week’s Report even acknowledges any of these problems, let alone suggests that it is being addressed.

DOJ, First Step Annual Report – April 2023 (issued May 2, 2023)

Federal News Network, How Bureau of Prisons can escape its own cage (April 25, 2023)

– Thomas L. Root

Government Cries ‘Uncle’ on Fair Sentencing Act Retroactivity – Update for March 22, 2021

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

A MOST SIGNIFICANT CONCESSION

Last week, the Biden Dept of Justice told the Supreme Court that it would no longer argue that the § 404 of the First Step Act – the provision that made the Fair Sentencing Act of 2010 (FSA) retroactive, thus letting people given draconian sentences prior to that date a chance to bring their prison terms more in line with powder cocaine sentences – did not apply to people who did not fall under a mandatory minimum at their pre-2010 sentencing.

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At first blush, it sounds rather arcane. Section 404 permitted anyone with a “covered offense” to apply to his or her sentencing judge for a sentence reduction. A “covered offense” is defined in § 404(a) as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010.” The Act lowered the ratio of crack-to-powder from 100:1 – which punished 5 grams of crack as though it were 500 grams (over a pound) of powder – to 18:1. This had the effect of requiring a defendant to have 28 grams of crack (instead of 5 grams) before the five-year mandatory minimum sentence of 21 USC 841(b)(1)(B) would apply, and 28 grams of crack before the 10-year mandatory minimum in 21 USC 841(b)(1)(A) would apply.

Essentially, the drug distribution penalties are hierarchical. The people with the most drug are sentenced under 21 USC 841(b)(1)(A), with penalties starting at 10 years and going up. The people with a lesser amount are punished under 21 USC 841(b)(1)(B), with penalties starting at five years. People convicted of having amounts less than the minimum needed for (b)(1)(B) – which is 28 grams for crack under the FSA – are punished under 21 USC 841(b)(1)(C), where the penalties start at zero.

A number of judicial circuits have ruled on whether a person with a pre-2010 (b)(1)(C) sentence had a “covered offense” under § 404. After all, the reasoning went, the FSA did not change the pre-2010 mandatory minimum, which was zero before the FSA and zero after. Unsurprisingly, the DOJ has fought hammer-and-tong against any (b)(1)(C) defendant getting resentenced under the FSA, and it so far has won in four circuits but lost in three.

crackpowder160606Now for Terry: In Terry v. United States, the Supremes are to weigh in on the issue, whether defendants sentenced for low-level crack-cocaine offenses under (b)(1)(C) before the FSA are eligible for resentencing under First Step. This is important for those defendants, because on resentencing, the courts are not bound to merely adjusting the sentence to reflect the FSA. Instead, they can consider post-sentence conduct and rehabilitation, and vary downward rather freely. Even if this were not so, most of those (b)(1)(C) people are nearing the end of their sentences.

The Trump DOJ consistently took positions to limit § 404 crack retroactivity as much as possible, and argued in Terry that unless a defendant had a mandatory minimum, § 404 did not apply. But in a letter to the Supreme Court last week, the DOJ said that following the change in Administration, it “began a process of reviewing the government’s interpretation of Section 404 of the First Step Act. As a result of that review, the Department of Justice has concluded that petitioner’s conviction is a “covered offense” under Section 404, that petitioner is entitled to request a reduced sentence, and that the court of appeals erred in concluding otherwise.”

The letter was filed on the day the Government’s brief was due. The petitioner filed an immediate response, criticizing DOJ for waiting to the last minute and urging the Court to decide the case without any further delay. DOJ, exhibiting the heart of a bureaucrat, noted,

According to the Federal Bureau of Prisons, petitioner is scheduled to complete the remainder of his term of imprisonment, which he will serve almost entirely on home confinement, on September 22, 2021… Were the case not to be decided before September 22, a question of mootness would arise that would need to be addressed before any decision on the merits.

wrong210322Of course, not a word about Tarahrick Terry, whose paltry 3.9 grams of crack netted him a sentence that – had the district court been told by the government that the FSA applied – would have gotten a reduction which nationally was averaging 26%. In other words, Tarahrick and the kids would have been coloring Easter eggs at home two years ago.

The Supreme Court is unwilling to delay a decision on relief for Tarahrick until it no longer matters. Last Friday, it appointed a lawyer to argue the position abandoned by the government (which is common practice when the government refuses to defend a case). Argument had been set for April. The Court postponed that but still promised a decision by the end of June.

The Terry case has drawn a lot of interest. Senators Richard Durbin, Charles Grassley, Cory Booker, and Mike Lee also filed a joint brief, as have several major think tanks and advocacy organizations spanning the spectrum from the American Civil Liberties Union to the American Conservative Union. Groups of retired federal judges, former federal prosecutors, and defense lawyers, have filed as well. None of the amici favors the government.

hope160620The DOJ confession of error is interesting for another reason more based in policy. It is still too early for any comprehensive Biden criminal justice reform legislation to have been introduced in Congress, but the DOJ letter strongly indicates interest at high levels of the Administration to favor maximizing current statutes to reduce federal sentences. Ohio State University law professor Doug Berman said last week the DOJ letter “is big news that the new Administration is open to a broader application of the First Step Act here, and I am hopeful that this kind of Justice Department new thinking may end up being applied in a whole host of other sentencing settings.”

Such as maybe a legislative push for criminal justice reform, perhaps?

Reuters, Biden reverses course in U.S. Supreme Court drug sentencing case (March 15, 2021)

DOJ, Letter to Supreme Court in Case No 20-5904 (March 15, 2021)

Federal Public Defender, Letter to Supreme Court in Case No 20-5904 (March 15, 2021)

Washington Standard, Coalition Calls For Reform Of Drug Laws That Delivered Harsher Prison Sentences By 100–1 Ratio To Minorities For Low-Level Offenses (March 13, 2021)

Sentencing Law and Policy, Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry (March 15, 2021)

– Thomas L. Root

DOJ Moves the Cheese on Home Confinement – Update for April 22, 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.

DEPT OF JUSTICE (NOT THE BOP) MOVES THE CHEESE ON CARES ACT HOME CONFINEMENT

The authority granted to the Federal Bureau of Prisons to designate home confinement for prisoners during the COVID-19 pandemic took another hit yesterday, in an especially callous announcement of additional restrictions that literally stopped some prisoners as they were about to get into cars to return home.

cheese20042wIn an affidavit filed in a Louisiana case against FCI Oakdale earlier this month, an associate warden from that facility reported that the BOP was considering inmates for placement in home confinement without regard to the amount of sentence the inmate had served. Last week, in an undated internal guidance memorandum, the BOP directed staff that if the inmate otherwise met the home confinement criteria, other factors – including the “percentage of time served” – “should be noted, but are not a reason for denial.”

However, as Politico reported last night, BOP staff told inmates in various prisons who had been put into prerelease quarantine almost two weeks ago that the policy had changed. Now, an inmate must have completed 50% of his or her sentence to be eligible for CARES Act home confinement.

FAMM immediately sent a letter to Attorney General William Barr, blasting the BOP for its “downright cruelty.” FAMM president Kevin Ring wrote that for families of inmates “to have the promise of early release snatched away under these circumstances is simply inexcusable. They deserve to know what is happening. Even before yesterday’s outrageous bait-and-switch, we were growing concerned with the BOP’s response to this crisis. We have received numerous reports about case managers and counselors giving incorrect information and contradictory answers to people exploring early release options…”

It turns out, however, that the wrong actor may be getting the blame. In a letter filed in an inmate’s compassionate release motion proceeding on Monday, the U.S. Attorney corrected the government’s previous advice to the court that the inmate was eligible for CARES Act consideration:

The Bureau of Prisons (“BOP”) advised the Government this afternoon that the Department of Justice (“DOJ”) has just issued new guidance to the BOP requiring that an inmate serve at least fifty percent of his or her sentence in order to be eligible for placement on home confinement. Based on the new guidance, the BOP anticipates that Stahl, who has served approximately 23% of his sentence, will not be eligible for home-confinement placement at this time. With respect to Stahl’s application for compassionate release, the BOP has advised that Stahl’s application, which the BOP received on April 3, remains under review and the BOP anticipates reaching a decision on it prior to the expiration of the 30-day period set forth in Section 3582(c)(1)(A).

In a footnote, the government admitted that it “has not yet seen a copy of the new DOJ guidance, but the U.S. Attorney’s Office was advised of it by the BOP today in other cases as well.”

So the culprit is Barr’s DOJ in this one, not the BOP. Assigning blame hardly matters to the hundreds of inmates affected by the sudden change, just as it hardly means that there isn’t plenty of other blame to spread around.

movingtarget200422Yesterday, Forbes magazine blasted the BOP for its muddled handling of the CARES Act home confinement program, complaining that “inmates around the country have been informed by case managers at each facility about the existence of a ‘list’ of inmates that could be sent home to some sort of Home Confinement to complete their prison term. However, the parameters of that ‘list’ and who is eligible has been something of a mystery as have the rumors of mass release of inmates across the country… it just has not happened.”

Forbes noted that one such rumor, that everyone at FCI Otisville camp was going to home confinement, was debunked by a BOP statement:

We would like to clarify the rumor that has recently been circulating about the purported closure of satellite camp at FCI Otisville. This information is not true. The majority of inmates at the satellite camp at FCI Otisville began transferring into the main institution (a medium security facility) … Many of these inmates are minimum security and minimum risk of recidivism, which are qualifications under the Attorney General’s guidance to BOP. Staff at Otisville are currently reviewing all inmates for their suitability for home confinement or furlough. Some of these inmates may not ultimately qualify but by proactively moving the inmates into quarantine now, eligible inmates will be able to release form the institution sooner.

Forbes concluded that “If you are not confused, you should be!” Yes, confused and disheartened. But the blame for moving the 50%-completion cheese apparently lies with DOJ, not BOP.

Politico, Trump administration reverses prisoner coronavirus release policy, advocates say (April 21, 2020)

FAMM, Letter to Attorney General William Barr (April 21, 2020)

United States v. Stahl, Case No. 18 Cr. 694 (SDNY), Letter filed by US Attorney (April 20, 2020)

Forbes, Lack Of Direction From Bureau Of Prisons Showing In Federal Court (Apr 21)

– Thomas L. Root

Bringing Forth A Mouse – Update for July 23, 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.

BOP RELEASES THOUSANDS (FROM SOMEWHERE) LAST FRIDAY

release161117The Dept. of Justice crowed last Friday that “over 3,100 federal prison inmates will be released from the BOP’s custody as a result of the increase in good conduct time under the [First Step] Act.” You’d be forgiven for believing that it had all been DOJ’s idea, and that inmates streamed through the gates of federal prisons, straight from the cell to freedom.

But perhaps First Step merely brought forth a mouse. The problem, according to what I heard from a number of people at different institutions, no one seemed to be leaving.  With over 7,700 people on the LISA email list, I expected over 100 notifications from the BOP that inmates on the subscription list no longer had Corrlinks email accounts, a notice commonly received whenever someone is released and his or her Corrlinks account is closed. Instead, I got only 17.

FAMM president Kevin Ring told the Wall Street Journal that most of the 3,100 inmates released Friday were among the 8,300 BOP inmates already in halfway houses or the 2,200 on home confinement. Thus, the effect of the mass release, while reducing BOP population overall, was not noticeable at institutions. Reason magazine confirmed this, reporting today that “Most were released from halfway houses or home confinement where they were finishing out their sentences..”

Plus, as Mother Jones magazine complained last week, not all of last Friday’s releasees got to go home. “Roughly a quarter of them are not United States citizens,” the magazine said, “and many will instead be sent straight to immigration detention to face deportation proceedings, which could take years.” As it turns out, 900 released inmates were transferred to ICE or state authorities for deportation after being convicted of felonies, a result which predictably enough shocks Mother Jones but has been the law for 102 years, since the Immigration and Nationality Act of 1917.

Most troubling are the numerous reports I have gotten that the BOP has not completed the recalculation of good time for most of the 151,000 inmates still in institutions. One source reported that the BOP is processing each inmate’s new time manually, and that it is able to complete 5,000 a month. The reason for the glacial pace of recalculations is unclear, but it is hard to avoid noting that the BOP has had seven months to prepare for award of the additional good time.

bopmath190723How the agency is unable, after seven months of preparation, to automate recalculation through a rather simple computer algorithm is puzzling.

Dept of Justice, Department Of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System (July 19)

Wall Street Journal, Justice Department Set to Free 3,000 Prisoners as Criminal-Justice Overhaul Takes Hold (July 19)

Bureau of Prisons, Population Statistics (July 18)

Mother Jones, Congress Helped Thousands of People Get Out of Prison Early. But Many of Them Will Probably Be Deported Right Away (July 19)

Reason.com,Tucker Carlson’s Unhinged Rant Against Prison Reform Makes Us All Dumber (July 23)

USA Today, Federal government releases more than 2,200 people from prison as First Step Act kicks in (July 19)

– Thomas L. Root

I Felt The Earth Move Last Friday… Or Did I? – Update for July 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.

LAST FRIDAY, SOME PRISONERS FROM SOMEWHERE WERE PERHAPS RELEASED (WHO CAN SAY?) AND DOJ ROLLED OUT PROPOSED RISK ASSESSMENT SYSTEM 

Friday, July 19th was the day – a full 210 sunrises after President Trump signed the First Step Act into law. And, as required on that day, the Bureau of Prisons at long last credited federal inmates with the additional seven days per year promised them in the Act, and the  Dept. of Justice  released the risk assessment it proposes to have the Bureau of Prisons use to determine the likelihood that inmates will commit new offenses upon release.

A really big day… or was it?

yellowribbon190722Tie a Yellow Ribbon… Rahm Emmanuel may not have said it first, but he made it famous when he counseled his then-boss, President Obama, to never let a good crisis go to waste. DOJ dragged its feet in setting up a panel to implement the risk assessment model that is at the heart of the First Step Act’s earned time credit program (which lets federal prisoners earn extra time off their sentences for successfully completing programs that reduce recidivism). The Department as well fought hammer and tong to avoid crediting inmates with the extra good time Congress always meant them to have (but did not because DOJ interpreted a poorly-written statute as harshly as possible), an error corrected in First Step. And DOJ has opposed countless motions under the newly-retroactive Fair Sentencing Act for reductions of draconian prison terms.

Nevertheless, when faced with a July 19 deadline even it could not deny, DOJ did not miss the chance last Friday to trumpet its successes under First Step, chief among them that “over 3,100 federal prison inmates will be released from the BOP’s custody as a result of the increase in good conduct time under the Act. In addition, the Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions.”

tsunami190722So where was the flood of prisoner releases at the end of last week? As I heard from  people at a dozen or more institutions, no one seemed to be leaving. This was corroborated by my own observation. With over 7,700 people on the LISA newsletter email list, I expected over 100 notifications from BOP on Friday of people whose Corrlinks email accounts were closed because they had been freed (such a notice is sent whenever someone is released and his or her Corrlinks account is closed). Instead, I got only 17 such messages.

Here’s what happened. As FAMM president Kevin Ring told the Wall Street Journal,  most of the 3,100 inmates released Friday were already among the 8,300 BOP inmates in halfway houses or the 2,200 people on home confinement. Thus, alleged tsunami of prisoner releases – while reducing BOP population overall – was a barely-noticeable ripple at the institutions.

Plus, as Mother Jones magazine complained last week, not all of last Friday’s releasees got to go home. “Roughly a quarter of them are not United States citizens,” the magazine said, “and many will instead be sent straight to immigration detention to face deportation proceedings, which could take years.” As it turns out, USA Today reported, 900 released inmates were transferred to ICE or state authorities.

tortoise190722Inmate Sentence Recomputation More Tortoise Than Hare…  More troubling are the numerous reports I have gotten from inmates and their families that BOP has not yet completed the recalculation of good time for most of the 151,000 inmates still in institutions. One inmates father reported that the BOP’s Grand Prairie, Texas, Designation and Sentence Computation  Center told him that the agency is processing each inmate’s new time manually, and that it is able to complete no more than 5,000 a month.

The reason for the glacial pace of recalculations is unclear, but it is hard to avoid noting that the BOP has had seven months to prepare for award of the additional good time. How the agency is unable, after seven months of preparation, to automate recalculation through a rather simple computer algorithm is puzzling.

recid160321I see a PATTERN Here… One of First Step’s marquee accomplishments is to establish a system that ranks each inmate’s risk of being a recidivist, and then tracks that risk throughout the inmate’s sentence. The inmate (unless he or she falls in one of the 60-plus “ineligible” categories) may take programs identified by the BOP as proven to reduce recidivism, and get up to 15 days credit a month for doing so. The credit may be used to reduce the length of his or her incarceration by up to 12 months, and beyond that, to earn the inmate extra halfway house or home confinement time.

Before the program is implemented, the DOJ must adopt a system to rank prisoners’ recidivism risk. On the last afternoon of the 210-day period First Step gave DOJ for doing so, it unveiled its proposed system, which goes by the unwieldy name “Prisoner Assessment Tool Targeting Estimated Risk and Needs.” Luckily, the name collapses conveniently into the acronym “PATTERN.”

PATTERN will classify a BOP prisoner into one of four Risk Level Categories (“RLCs”) by scoring him or her in much the same way security and custody levels are calculated by the BOP. PATTERN does this by assigning points in 17 different categories. The highest possible score (like golf, no one wants a high score) is 100. The lowest score is -50.

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This is roughly how it works: PATTERN has four different predictive models, 1) general recidivism for males; 2) general recidivism for females; 3) violent recidivism for males; and 4) violent recidivism for females. The Report noted that the base recidivism rate for all offenders is roughly 47% for general and 15% for violent recidivism.

The categories in which points are scored include (1) age of first conviction, (2) age at time of assignment, (3) prison infractions, (4) serious prison infractions, (5) number of programs completed, (6) number of tech or vocational courses completed, (7) UNICOR employment, (8) drug treatment, (9) drug education, (10) FRP status, (11) whether current offense is violent, (12) whether current offense is sex-related, (13) criminal history score, (14) history of violent offenses, (15) history of escapes, (16) voluntary surrender, and (17) education.

Generally, any score of -50 to +10 is a minimum recidivism risk, 11 to 33 is a low recidivism risk, 34 to 45 is a medium recidivism risk, and 46 or higher is a high risk. Its designers say “the PATTERN assessment instrument contains static risk factors as well as dynamic items that are associated with either an increase or a reduction in risk… PATTERN is a gender-specific assessment providing predictive models, or scales, developed and validated for males and females separately. These efforts make the tool more gender responsive, as prior findings have indicated the importance of gender-specific modeling.”

This means that as an inmate goes without getting disciplinary reports for infractions of prison rules, completes programs, keeps up with payment of fines and restitution, takes drug classes and gets older, his or her RLC category should fall. Even high and medium RLCs can earn credit for taking programs at the rate of 10 days per month, but once the RLC falls to low, that rate increases to 15 days per month.

PATTERNA190722So what BOP programs will build earned time credit? No one has said yet, but the PATTERN report offers clues. The PATTERN categories suggest that UNICOR employment, drug classes, GED and vocational programs ought to count, given PATTERN’s emphasis on importance of completion of those courses in the point system.

PATTERN is not yet a done deal. What happens next is a 90-day public comment period on PATTERN rules. Final rules will issue by Thanksgiving, with BOP staff being trained in applying PATTERN. Do not expect any PATTERN assessment to be done for real until Martin Luther King Day.

Dept. of Justice, Department of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System (July 19)

Wall Street Journal, Justice Department Set to Free 3,000 Prisoners as Criminal-Justice Overhaul Takes Hold (July 19)

Bureau of Prisons, Population Statistics (July 18)

Mother Jones, Congress Helped Thousands of People Get Out of Prison Early. But Many of Them Will Probably Be Deported Right Away (July 19)

USA Today, Federal government releases more than 2,200 people from prison as First Step Act kicks in (July 19)

Dept. of Justice, The First Step Act of 2018: Risk and Needs Assessment System (July 19, 2019)

– Thomas L. Root

Will President Circumvent DOJ With White House Pardon Attorney? – Update for June 13, 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.

RUMOR FLOATED THAT TRUMP WILL APPOINT HIS OWN NON-DOJ PARDON ATTORNEY

The Washington Examiner reported last week that “worried clemency advocates are urging President Trump to select his own pardon attorney as the Justice Department reviews a stack of resumes collected on short notice” to fill its own Pardon Attorney slot.

pardonme190123There hasn’t been a politically appointed Pardon Attorney in over 40 years, but advocates say it could enhance the position’s stature and ensuring that Trump’s interest in giving second chances extends beyond isolated cases. “I think it makes a lot of sense to have the pardon attorney job be a political one,” said Margaret Love, U.S. pardon attorney from 1990 to 1997.

The job posting was open for just a month, closing May 10, suggesting that DOJ may already have a candidate in mind, probably another career prosecutor. “I wonder if they are going to make Trump aware of [the search]. Shouldn’t the president have some say over who his pardon attorney is?” said Sam Morison, who worked for 13 years as a staff attorney in the DOJ’s Office of the Pardon Attorney. “If they are just going to the U.S. attorneys’ offices, they are going to get someone who’s a company man, and that’s the idea,” he said.

Rosalind Sargent-Burns, a long-time Office of the Pardon Attorney staffer, was named acting Pardon Attorney on May 28. She has never been a line prosecutor, to her credit, and has held various  positions in the OPA over the past decade, including Designated Agency Ethics Officer, Team Lead, Senior Attorney Advisor over the pardon portfolio, Acting Deputy Pardon Attorney, and Deputy Pardon Attorney.

yesman190613Morison wants Trump to pick his own pardon attorney and move the office into the White House, citing institutional weight against clemency in cases DOJ itself prosecuted. He is hopeful based on President Trump’s public remarks, including that there are “a lot of people” in prison for “no reason.” “Trump gets a lot of criticism, but I think it’s refreshing for him to admit something everyone knows to be truth: The Justice Department is not perfect, and prosecutions are not perfect. Most presidents aren’t actually willing to acknowledge that,” Morison said. “I think Trump does not trust DOJ, and in this particular instance he’s probably correct.”

Heritage Foundation scholar Paul Larkin, who wants Trump to create a White House Office of Executive Clemency, participated in a private group discussion on clemency reform two months ago. CAN-DO founder Amy Povah also wants the pardon attorney separated from DOJ. “We are relying on President Trump to finally be the hero we’ve been waiting for because he is an outsider who doesn’t worry about shaking up the status quo,” she said.

Trump has now fallen behind President Obama on clemency, having granted only 12 people pardons or commutations, nearly all at the urging of politicians or celebrities. At this point in his presidency, Obama had granted clemency to 17 people.

Washington Examiner, Trump urged to pick his own pardon attorney (June 6)

– Thomas L. Root

3rd Circuit Issue Rare FOIA Rebuke of DOJ – Update for October 10, 2018

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3RD CIRCUIT SHUTS DOWN SOME GOVERNMENT FOIA GAMESMANSHIP

bread181011Anyone who has ever sought government records under the Freedom of Information Act knows how maddening the experience can be. Government agencies take much longer than the law allows because they’re so busy (which is like saying it is all right to steal bread from the store because you’re so hungry). Then, they ask you to rewrite your request to make it more specific. If you don’t, your FOIA request gets dismissed. If you do, the agency has you narrow it until it releases nothing. And if you do get any of the records you request, pages are omitted and lines blacked out with only vague references to FOIA exemptions.

Inmate Jim Beiar took on the DOJ over its employment of the usual roadblocks to granting his FOIA request. Last week the 3rd Circuit gave him some relief.

When Jim requested all records that mentioned his name, the DOJ told him to provide a more specific description. When Jim did not do so, the DOJ closed the file on his request because he failed to identify the Criminal Division section he believed would have or maintain responsive records. On Jim’s FBI FOIA request, he sued after the Bureau failed to respond. After he sued, the FBI produced some 1,100+ pages, some of which were blanked out entirely and others of which had large sections excised. The district court dismissed Jim’s claim as moot because the FBI had produced documents to him.

OPRFOIA180814DOJ claimed Jim had not exhausted his FOIA rights because he did not tell the agency which section or subagency might have his records. The 3rd Circuit rejected the government’s position, saying Jim had asked for records mentioning his name, and that was specific enough. “It would be counterintuitive in the extreme,” the Court said, “to require such an individual to have sufficient knowledge of an agency’s organizational units to be able to identify the specific units of an agency that might contain the records sought.”

The Circuit also reversed the district court’s dismissal of the FBI suit, agreeing with Jim that a FOIA claim is not moot where there remain unresolved issues about the adequacy of an agency’s production. The burden of proving that an agency’s refusal to produce records rests with the agency. Where an agency has released documents, but issues about the adequacy of the release are unresolved, a district court cannot dismiss an action as moot.

Biear v. Attorney General, Case No. 15-3873 (3rd Cir. Oct. 1, 2018)

– Thomas L. Root

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#themtoo: BOP Not Doing Right By Female Inmates, DOJ Says – Update for September 26, 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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A LITTLE BIT OF NOTHING FOR THE LADIES

womenprison170821Sure, they’re all inmates. But only the most callous observer would suggest that forcing female inmates to undergo strip searches in front of male Bureau of Prisons personnel is all right, because, after all, “if you can’t do the time, don’t do the crime…” and all that claptrap. It turns out that a critical shortage of BOP correctional officers is having a disparate effect on the 10,567 female inmates held in the system, the Dept. of Justice Inspector General reported last Thursday. “The lack of sufficient staff is most noticeable at larger female institutions,” the OIG Report said.

As of September 2016,  female inmates represented 7% of the BOP sentenced inmate population of 146,084. The OIG review was sparked in part by Congress and public interest groups raising concerns with DOJ about deficiencies in BOP’s current management of female inmates.

magicrabbit180927Although BOP policy requires that female prisoners can only be searched by female correctional officers, the BOP is unable to ensure a female officer is available at each post where such searches are required, the report says. The report also concluded that 90% of the female inmate population would benefit from trauma treatment, but staffing shortages make it nearly impossible to provide eligible inmates with the care they need, according to the report.

In a response attached to the report, Hugh Hurwitz, acting BOP director, said he agrees with the IG’s recommendations and vowed to improve both staffing and training.  How he is going to pull that off in light of the BOP’s budget reductions ought to be a neat trick.

Washington Times, Staffing shortages blocking female inmates from critical services (Sept. 18, 2018)

Dept. of Justice Office of Inspector General, Review of the Federal Bureau of Prisons’ Management of Its Female Inmate Population (Sept. 17, 2018)

– Thomas L. Root

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DC Circuit Slams DOJ Information Shell-Game – Update for August 14, 2018

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DC CIRCUIT HAMMERS DOJ OVER FREEDOM OF INFORMATION ACT ARROGANCE

foia160930Who hasn’t had this happen? You file a Freedom of Information Act request seeking documents showing prosecutorial misconduct, only to wait many months for a two-page letter claiming that all of the requested material is exempt law-enforcement stuff. And it’s hard to appeal, because you cannot tell what records were not included, so you cannot argue that the withheld records were non-exempt.

That happened to Greg Bartko. After he was convicted in a case “beset by prosecutorial misfeasance,” as the DC Circuit put it, he filed multiple Freedom of Information Act requests with the Dept. of Justice Office of Professional Responsibility and other relevant agencies trying to get records of other times the Assistant U.S. Attorney assigned to his case had cut corners. OPR categorically refused to acknowledge the existence of, let alone disclose any, potentially relevant documents outside of Greg’s own case. And even with respect to Greg’s case, OPR held back a lot of material, asserting a sweeping exemption for law enforcement records under FOIA Exemption 7(C) and providing a “Glomar” response that it could neither confirm or deny the records existed, because that would implicate law enforcement activities.

OPRFOIA180814Last week, the DC Circuit slammed OPR’s reckless use of Exemption 7(C) and its arrogant “Glomar” claim (which exists to enable agencies to dodge making admissions about records for national security reasons). To qualify as law-enforcement records, the Circuit said, “the documents must arise out of investigations which focus directly on specifically alleged illegal acts which could, if proved, result in civil or criminal sanctions. Records documenting only government surveillance or oversight of the performance of duties of its employees do not qualify.

The Circuit held that an agency must establish a rational nexus between the investigation and one of the agency’s law enforcement duties, and a connection between an individual or incident and a violation of federal law. OPR does not do law enforcement, but instead internal DOJ discipline. Plus, one of OPR’s primary responsibilities is not to generate reports, but rather just to obtain reports from others that arise as a result of internal agency monitoring and review allegations of non-law violations by DOJ attorneys for internal disciplinary purposes. Thus, the Court said, OPR bears the burden of showing on a case-by-case basis that requested records were actually compiled for law-enforcement, rather than employment-supervision purposes.

In defense of its Glomar response, OPR offered only a bare-bones declaration that the records Greg requested consist of complaints or allegations of misconduct which, if they exist at all, would have been compiled as part of OPR’s investigations of DOJ attorneys “who are alleged to have committed specific acts of professional misconduct which, if proved, could result in civil or criminal penalties.” The Court said that “is not even in the ballpark.” OPR “cannot rely on a bare assertion to justify invocation of an exemption from disclosure.” A “near-verbatim recitation of the statutory standard is inadequate” to justify the use of an exemption.

foia160328Greg’s FOIA request was broadly worded to include a wide variety of actual or alleged violations by the AUSA of the U.S. Attorney’s Manual, the North Carolina Code of Professional Conduct, and other ethical and legal obligations. While violations of some of those standards could conceivably result in civil or criminal sanctions, the Court said, many of them would not and would bear only on internal disciplinary matters.

Bartko v. DOJ, Case No. 16-5333 (D.C.Cir., Aug. 3, 2018)

– Thomas L. Root

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Running Out of Prison Industry Workers? – Update for February 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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THE HARVEST IS GREAT, BUT THE LABORERS ARE FEW AT BOP, DOJ

USA Today reported last week that hundreds of secretaries, teachers, counselors, cooks and medical staffers were tapped last year to fill CO posts across the BOP because of acute officer shortages and overtime limits. The assignments, known as “augmentation,” were made despite warnings that the assignments placed unprepared employees at risk.

harvest180221As recently as last July, a House committee told the agency to “curtail its over-reliance” on augmentation, once reserved only for emergency operations. Instead, the practice has become common at some institutions where even s plumbers, electrical workers, budget analysts and commissary staffers have been patrolling prison yards and filling officer vacancies in maximum-security units. “While BOP reports that there is a higher incidences of serious assaults by inmates on staff at high and medium security institutions than at the lower security facilities, to meet staffing needs the BOP still routinely uses a process called augmentation whereby a non-custody employee is assigned custody responsibilities,” the Senate Appropriations Committee reported last summer.

The BOP told USA Today that all employees are regarded as “correctional workers first.”

Worker shortages abound, and not just at BOP. The Washington Post reported last week that the sudden departure of the Justice Dept’s No. 3 official is adding to the turmoil at an agency already lacking permanent leaders for important divisions.

Help-Wanted180221Associate Attorney General Rachel Brand resigned, reportedly because she did not want to be sucked into the Robert Mueller Russia investigation, to take a position in Walmart’s legal department. Meanwhile, Attorney General Jefferson Beauregard Sessions III is blaming a single Republican senator, Cory Gardner of Colorado, for blocking confirmations of key figures, including the head of DOJ’s criminal divisions, over Session’s memo lifting Obama-era protections for states that have legalized marijuana.

Twelve U.S. Attorney picks still await confirmation, and 36 more have yet to be nominated. That’s a problem for DOJ, because, as an ex-official put it, “if someone is perceived as temporary and doesn’t have the full legitimacy that comes with Senate confirmation, they are less able to successfully advocate the interests and positions of their agency to the rest of the government.”

USA Today, As federal prisons run low on guards, nurses and cooks are filling in (Feb. 13, 2018)

Washington Post, Official’s departure adds to strain of vacancies at Justice (Feb. 13, 2018)

– Thomas L. Root

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