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Now’s Your Chance, Colette – Update for September 18, 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.

REDEMPTION FOR COLETTE PETERS IS AT HAND

kumbaya221003On Friday, I reported on last week’s furball at the Senate Judiciary Committee oversight committee hearing, at which Bureau of Prisons Director Colette Peters was soundly thrashed by senator after senator about her agency’s poor correspondence record when it comes to responding to Congressional inquiries.

Specifically, after being warned last fall (during an otherwise kumbaya hearing welcoming Peters as the new director after the unlamented departure of Michael Carvajal) that various letters and requests for information the Senate had sent to the BOP over the previous years had gone unanswered, Colette has let another year’s worth of Senate interrogatories pile up. Her excuse that answers to senators’ letters had to go through a “review process” was as lame as it sounded.

Committee chairman Sen Richard Durbin (D-IL) ended the contentious session with some good advice for Peters: “Senators take it very personally when you don’t answer their questions. More than almost any other thing that I would recommend I’d make that a high priority.” She promised to do better, albeit in a fuzzy way that promised no hard deadlines.

mail210312Lucky for Peters, her chance to turn over a new leaf on responding to Senate concerns has already arrived. Last Tuesday, Sens Durbin, Charles Grassley (R-IA), Joe Manchin (D-WV) and Shelley Moore Capito (R-WV) wrote a letter to Peters “regarding allegations of serious misconduct” occurring at FCC Hazelton. The letter asked that DOJ and the BOP “immediately investigate disturbing whistleblower reports of abusive treatment of incarcerated individuals and other employee misconduct… These reports, combined with public reporting on FCC Hazelton’s dire staffing shortages and proliferation of weapons contraband, paint a grim picture of the institution’s inability to ensure a safe environment for those in BOP custody and employees alike.”

hazelton181106The problems at “Misery  Mountain” are nothing new.  The letter to Peters, however, is quite detailed, alleging that:

  • Hazelton staff released the wrong incarcerated individual from the facility after failing to properly identify the correct individual scheduled for release.
  • A group of inmates escaped from the prison camp and supervisory staff attempted to cover it up.
  • Supervisory Hazelton staff falsified documents, encouraged inmate abuse, and covered up alleged abuse and escapes of incarcerated individuals. The falsified documents include medical assessments, incident reports, duty rosters, and time and attendance sheets, along with requests to tamper with corresponding security cameras to cover up inmate escapes. The employees engaged in these practices have not been disciplined, and, in some cases, received promotions, despite open investigations into their misconduct.
  • A staff member punched a prisoner on camera.
  • Staff members use restrictive housing punitively against prisoners and engage in a pattern of physical abuse of inmates in the SHU.
  • Staff repeatedly use racial slurs against other staff members and prisoners.
  • Staff urinated on prisoner property.
  • Staff has forced prisoners to urinate and defecate on themselves as a condition of being released from restrictive custody.
  • Staff assaulted a prisoner, breaking his ribs.
  • Staff beat a SHU prisoner so severely that he had a seizure and had to be hospitalized.
  • Staff shreds personal inmate mail and failing to provide inmates access to their mail. 
  • The existence of an internally organized group comprised of staff at various levels within FCC Hazelton facilities that are partially responsible for the misconduct at the facility, known as the “Good Ol’ Boys Club”. 

The letter asks for information regarding the investigation of abuse by no later than October 3rd, including a list of abuse allegations at FCC Hazelton since 2013, a list of FCC Hazelton staff members who have been promoted or transferred while under investigation for inmate abuse, copies of all documents regarding crimes and transfers of BOP staff who have been charged with a crime at FCC since 2013, and the number of employees who continued to work with inmates while under investigation for inmate abuse

WBOY-TV in Fairmont reported that it asked the BOP for a statement and got this:

The Federal Bureau of Prisons responds directly to Members of Congress and their staff.  Out of respect and deference to Members, we do not share our Congressional correspondence with the media. 

Unbelievable220811That’s rich. According to the Judiciary Committee, the BOP doesn’t even share its Congressional correspondence with Congress.

One would think that the BOP cannot ignore this letter.  But then, no one’s lost money yet betting against Bureau of Prisons transparency.

Senate Committee on the Judiciary, Oversight of the Federal Bureau of Prisons (September 13, 2023)

Associated Press, Senators clash with US prisons chief over transparency, seek fixes for problem-plagued agency (September 13, 2023)

Letter to Merrick Garland and Colette Peters from Sen Richard Durbin et al. (September 12, 2023)

WBOY-TV, Whistleblower alleges staff are covering up abuse, escapes at FCC Hazelton (September 13, 2023)

– Thomas L. Root

Director Peters, It’s Not Like You Weren’t Warned – Update for September 15, 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.

TOLD YOU SO

shipwreck230915When Bureau of Prisons Director Colette Peters appeared for her first oversight hearing with the Senate Committee on the Judiciary about 51 weeks ago, it was an hour and a half on the Love Boat. But it’s now clear after the beating she suffered at the Committee’s hands two days ago that her ship is taking on water and the pumps can’t keep up.

Last October, I cited the friendly advice Director Peters received from the Committee about questions from legislators. I wrote

Finally, something even Peters acknowledged to be a cautionary tale: Sens Grassley, Cotton and Jon Ossoff (D-GA) all complained to her that various letters and requests for information they have sent to the BOP have gone unanswered, sometimes for years. This was a failing that former BOP Director Carvajal was beaten up with during his tenure. Not answering the mail from pesky Senators and Representatives may seem like a small thing to BOP management – it certainly has gone on for years – but if Peters wants the Judiciary Committee lovefest to go on, she should not let her staff anger Congress over something so easily corrected. Carvajal was regularly lambasted for similar failings. Peters should profit from his example.

Alas, Director Peters does not appear to be a regular reader of this blog, because she chose not to profit. The results were predictable: When she sat in front of the Committee two days ago, Peters was lambasted by friend and foe alike for a continuation of the BOP’s sorry habit of secrecy. Written questions submitted by Committee members a year ago remain unanswered, and all she could offer the senators was a milquetoast explanation that those answers must go through a “review process” and that she was as frustrated as the Committee was.

C’mon, Colette. Who’s “reviewing” these questions, most of which call for a simple factual response? (Examples from Wednesday: How many males-turned-transgender-females have been placed in federal women’s prisons? How many COs are employed by the BOP?) Providing these answers is not rocket surgery. The numbers are the numbers. How much ‘review’ of the numbers is needed?

knifegunB170404The hearing was painful. Many of the senators seemed more concerned with scoring political points on crime and LGBTQ issues than about issues broadly important to the BOP. And Director Peters seemed woefully unprepared, relying on a series of “talking points” unresponsive to the questions she should have expected. It’s as if she brought a knife to a gunfight.

The Associated Press wrote that Peters

was scolded Wednesday by members of the Senate Judiciary Committee who say her lack of transparency is hampering their ability to help fix the agency, which has long been plagued by staffing shortages, chronic violence and other problems. Senators complained that Colette Peters appears to have reneged on promises she made when she took the job last year that she’d be candid and open with lawmakers, and that ‘the buck stops’ with her for turning the troubled agency around.

After an hour and a half of senatorial belly-aching about being ghosted by Director Peters, Sen. Richard Durbin (D-IL), chairman of the Committee and as much a fan of Director Peters as he was a nemesis to former Director Carvajal, admonished her, “Senators take it very personally when you don’t answer their questions. More than almost any other thing that I would recommend I’d make that a high priority.”

Committee questions careened from the sublime to the absurd. Durbin observed that the Committee largely agreed that the BOP “needs significantly more funding” for staffing and infrastructure needs, including a $2 billion maintenance backlog. Peters told the Committee the BOP was studying how to reduce reliance on restrictive housing – read “solitary confinement” – and studying how other prison systems handle the issue.

cotton171204She also reported that the BOP had increased new hires by 60% and reduced quitting by 20%. Nevertheless, the agency still only has 13,000 correctional officers where 20,000 are needed, and it still relies on “augmentation,” using non-COs to fill CO shifts. Sen. Tom Cotton (R-AR), a professional inmate-hater who wants to increase inmate populations while excoriating the BOP for being unable to manage the load with too little money and too few staff, complained that Peters had hired too few COs (the “meat eaters,” he called them) while bringing on too many non-COs (whom he derisively called “leaf eaters”).

Cotton invited Peters to accompany him on an inspection of FCC Forrest City, an invitation she accepted with a pained smile. Spending a day with Tom Cotton, the man who tried to blow up the First Step Act… almost as nice as a root canal without novacaine.

Other senators complained that the Mexican cartels might be obtaining blueprints for BOP facilities, that transgender females were being placed in BOP female facilities and sexually terrorizing female inmates (with very little said about BOP staff sexually terrorizing female inmates), and that the BOP decided that people on CARES Act home confinement were allowed to stay home (a decision made by the Dept of Justice, not the BOP).

Sen. Sheldon Whitehouse (D-RI) invented a new word: “recidivation.” Sen. Ted Cruz (R-TX) chastised Peters for not having the facts he wanted to hear at her fingertips. Sen. Lindsey Graham (R-SC) led a Republican charge against BOP transgender policy, with more than one senator suggesting that transgender inmates number in the thousands. He also became testy when Peters failed to provide specifics about how the BOP is combatting the use of contraband phones by inmates.

Sens. Amy Klobuchar (D-MN), Thom Tillis (R-NC) and Jon Ossoff (D-GA) asked pointed but thoughtful questions. Ossoff suggested what many have long believed, that the institution audits required by the Prison Rape Elimination Act are meaningless paper exercises. As for BOP staffing, Tillis candidly observed that hiring more COs “is our job as well as yours.”

Ossoff perhaps best summarized the flavor of the hearing when he warned Peters: “You’ve now been in the post for about a year and Congress expects results.”

Senate Committee on the Judiciary, Oversight of the Federal Bureau of Prisons (September 13, 2023)

Associated Press, Senators clash with US prisons chief over transparency, seek fixes for problem-plagued agency (September 13, 2023)

– Thomas L. Root

Congress Is Back In Town… Little Has Changed – Update for September 12, 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.

THEY’RE B-A-A-A-CK

Congress returned last week after its long August recess, ready to dig in and work on anything other than criminal justice reform.

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Last week, the right-of-center Americans For Tax Reform wrote all members of Congress urging passage of the EQUAL Act (S.524, H.R. 1062). Anti-tax advocate Grover Norquist argued that the crack/powder sentencing “unjustified disparity has resulted in the imprisonment of people who pose no greater threat than their counterparts convicted of cocaine offenses for far greater periods.”

Norquist argued that “it is a core, taxpayer-funded, government role to protect citizens from crime, and manage the criminal justice system. Taxpayers, and all Americans who cherish individual liberty, should take an interest that the criminal justice system is efficient and effective at protecting public safety, upholding the rule of law and property rights, while respecting the constitutional rights of citizens. Where there are failures, conservatives should work to fix the issue, just as we do in other areas of government.”

The Illinois Times last week reported that Sen Richard Durbin (D-IL), chair of the Judiciary Committee, said the EQUAL Act has failed to come up for a Committee vote “because of the opposition of a Republican member of the committee, whom he declined to identify.”

“One Republican wouldn’t go for 1-to-1, and we deal with consensus on the committee,” Durbin said. “I have him down lower – substantially lower than 18-to-1 – and I’m trying to get the other side that wants it to be 1-to-1 to accept a different figure. But that’s where we’ve been stuck for over a year. I’m going to do my best to get this moving.”

The unidentified Republican is undoubtedly Sen Charles Grassley (R-IA), ranking Republican on the Committee and co-sponsor with Durbin of a number of reform measures, most notably the First Step Act. Last December, Grassley’s proposal of 2.5-1 and nonretroactivity except with Dept of Justice consent in the so-called SMART Cocaine Sentencing Act (S.4116) killed EQUAL’s passage in the last Congress. Now, 9 months later, nothing seems to have changed.

Meanwhile, in the wake of last week’s recommendation by the Dept of Health and Human Services that marijuana be rescheduled from a Schedule I to a Schedule III drug, the White House last week asserted that President Biden has “always supported the legalization of marijuana for medical purposes,” she said. “He’s been very clear about that, where appropriate, consistent with medical and scientific evidence.

potscooby180713Marijuana Moment noted that “it’s not accurate to say that Biden has “always” backed cannabis reform. As a senator, he championed several pieces of legislation that ramped up the war on drugs.” Nevertheless, “if DEA goes along with HHS’s Schedule III recommendation, that would represent a major shift in federal marijuana policy, with an acknowledgment that cannabis is not a drug of high abuse potential and no medical utility.”

On the other hand, The Hill reported that advocates and policy experts say rescheduling marijuana under the Controlled Substances Act does not address the plethora of racial justice issues caused by current law.

“Rescheduling doesn’t address … the harm to marginalized communities,” said Natacha Andrews, executive director for the National Association of Black Cannabis Lawyers. “It doesn’t address the over-policing, it doesn’t address the immigration issues, it doesn’t address the access to federal services, and it’s not in alignment with what 38 states have done to regulate and legalize.”

“My initial reaction is that this is less than what the Biden administration promised specifically,” Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance, told The Hill.

MSNBC reported, “To be sure, moving marijuana to Schedule III wouldn’t dismantle the drug war or solve the host of problems needlessly caused by prohibition. Descheduling, or removing the plant from the government’s list of controlled substances, would make more sense and better align with Biden’s stated criminal justice views. Still, rescheduling would be historic, if only due to the historic stupidity that has kept cannabis on Schedule I to date.”

Americans for Tax Reform, Support for the EQUAL Act (September 8, 2023)

Illinois Times, Unjust Sentencing (September 7, 2023)

Marijuana Moment, Biden Has ‘Always Supported The Legalization Of Marijuana For Medical Purposes,’ White House Says Amid Rescheduling Recommendation (September 4, 2023)

The Hill, Marijuana rescheduling falls short of expectations on Biden (September 8, 2023)

MSNBC, What the federal ‘rescheduling’ of cannabis would (and wouldn’t) mean (September 4, 2023)

– Thomas L. Root

BOP Oversight Bill Resurrected – Update for May 4, 2023

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BILL TO ESTABLISH BOP OVERSIGHT RE-INTRODUCED

A bipartisan group of congressional lawmakers introduced legislation last week to establish a new oversight system for the BOP.

adult220225The Federal Prison Oversight Act (no bill number yet) is sponsored by Senators Jon Ossoff (D-GA), Mike Braun (R-IN), and Richard Durbin (D-IL), in the Senate and Representatives Lucy McBath (D-GA) and Kelly Armstrong (R-ND) in the House. The same legislators sponsored the same legislation when it was introduced last fall, but the measures died at the end of the 117th Congress.

The bills are a response to press reports that exposed systemic corruption in the BOP, several sex abuse scandals involving male BOP staff and female inmates, and increased congressional scrutiny. Ossoff, Braun and Durbin are founding members of the Senate Bipartisan Prison Policy Working Group.

“It’s no secret that BOP has been plagued by misconduct,” Durbin said. “One investigation after another has revealed a culture of abuse, mismanagement, corruption, torture, and death that reaches to the highest levels. And yet it still operates without any meaningful independent oversight.”

investigate170724FOPA would require DOJ to create a prisons ombudsman to field complaints about prison conditions and compel the Department’s Inspector General to evaluate risks and abuses at all 122 BOP facilities. Under the bill, the DOJ Inspector General would conduct risk-based inspections of all federal prison facilities, provide recommendations to address deficiencies and assign each facility a risk score. Higher-risk facilities would then receive more frequent inspections.

The IG would report findings and recommendations to Congress and the public, and the BOP would be required to respond with a corrective action plan within 60 days.

Press Release, Sens. Ossoff, Braun, Durbin Introduce Bipartisan Legislation to Overhaul Federal Prison Oversight (April 26, 2023)

The Appeal, Congress Seeks to Create New Independent Federal Prison Oversight Body (April 26, 2023)

ABC News, After investigating abuse in prison system, senators propose new oversight law (April 26, 2023)

– Thomas L. Root

Three First Step Reform Retread Bills Introduced – Update for April 24, 2023

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DÉJÀ VU ALL OVER AGAIN

deja171017Senate Majority Whip Richard Durbin (D-IL), chairman of the Judiciary Committee, and Sen. Charles Grassley (R-IA) last Wednesday reintroduced three of the biggest criminal justice of the last Congress, reform bills that made it out of Senate committee but never got voted on in 2021-2022.

Yogi Berra might say, “It’s déjà vu all over again.”

Durbin and Grassley sponsored First Step five years ago. Now, they have reintroduced the First Step Implementation Act (FSIA) (S. 1251) and Safer Detention Act (S.1248) – both of which were approved by the Committee in 2021 but did not pass the Senate the last Congress – as well as rolled out the Terry Technical Correction Act (S. 1247).

The FSIA would allow courts to apply First Step sentencing reform provisions to reduce sentences imposed prior to First Step’s December 2018 enactment and broaden the drug safety valve (18 USC § 3553(f)) to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses, if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism.

The Safer Detention Act of 2023 would reform the Elderly Home Detention Pilot Program (34 USC § 60541(g)(5)) by clarifying that the time served required for the Program should be calculated based on an inmate’s net sentence – including reductions for good conduct time credits; lowering eligibility to include nonviolent offenders who have served at least 50% (instead of 66.7%) of their terms; and making D.C. Code offenders in BOP custody eligible for the Elderly Home Detention Pilot Program. The bill would also make federal prisoners sentenced before November 1, 1987 eligible for compassionate release.

jordan230425The Terry Technical Corrections Act (S. 1247) broadens the scope of crack cocaine offenders who are eligible for a retroactive sentencing reduction under the First Step Act of 2018. The First Step Act authorized sentencing reductions for crack cocaine offenders convicted and sentenced before the Fair Sentencing Act became effective, as long as their conduct triggered a mandatory minimum sentence. This bill extends eligibility for the retroactive sentencing reduction to all crack cocaine offenders sentenced before the Fair Sentencing Act became effective, including low-level offenders whose conduct did not trigger a mandatory minimum sentence.

Remember that this same trio of modest proposals did not pass even when the Democrats ran the House, the Senate and the White House. Now, the Republicans run the House, with Rep. Jim Jordan (R-OH) chairing a House Judiciary Committee more interested in attacking Democrats for being soft on crime and hard on former President Trump than it is in addressing criminal justice reform.

Writing in his Sentencing Law and Policy blog last Thursday, Ohio State University law prof Doug Berman said, “For a wide variety of reasons, I am not at all hopeful that any form of federal sentencing reform will be enacted in the current Congress. But I was still pleased to learn… that a pair of notable Senators are still seeking to advance some notable (previously stalled) sentencing bills.”

underthesun230424

Kohelet was an old and wise guy when he reputedly wrote the Book of Ecclesiastes. If he were still writing, it would be about these three bills.  Nothing new under the sun, indeed, as will probably be the fate of these three – demise in December 2024, just as the last three died at the end of 2022. At that time, we will be writing of the FSIA, Safer Detention Act and Terry Technical Correction Act, “Vanity of vanities! All is futile! What profit hath a man for all his toil, in which he toils under the sun?”

Reintroduction of the three measures last week came as The Crime Report complained that “after four years, the impact of the First Step Act has been mixed… In March 2022 that there were 208,000 inmates in federal prisons and jails. But only 5,000 inmates… have been released through one or more provisions of the FSA.”

The Crime Report concluded

The sheer number of reforms in the FSA that are the antithesis to the Nixon-era ‘lock-‘em-up-and-throw-away-the-key’ penal philosophy of both the Bureau of Prisons and the US Sentencing Commission make it exceedingly difficult to have the promise of the FSA fulfilled. The very magnitude of the law and its stated objectives, which include reducing recidivism and improving conditions in federal prisons, has resulted in less than what was initially promised by the supporters of FSA.

First Step Implementation Act (S.1251)

Safer Detention Act of 2023 (S.1248)

Terry Technical Corrections Act (S.1247)

Sentencing Law and Policy, Senators Durbin and Grassley introduce again set of First Step follow-up bills (April 20, 2023)

The Crime Report, The Promises Of Federal Criminal Justice Reform: Shortcomings of the First Step Act (April 17, 2023)

– Thomas L. Root

Senators Consider Sexual Assault (And How to Stop It) – Update for February 7, 2023

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GRASSLEY, DURBIN, PADILLA MEET WITH BOP DIRECTOR PETERS TO FURTHER INVESTIGATE SEXUAL MISCONDUCT

Senate Judiciary Committee Chairman Richard Durbin (D-IL) and Senators Charles Grassley (R-IA) and Alex Padilla (D-CA) met with Bureau of Prisons Director Colette Peters last Wednesday to discuss sexual misconduct by BOP personnel and the Dept of Justice’s efforts to root it out.

sexualassault211014The meeting followed letters that Grassley, Durbin, Padilla, and Senator Dianne Feinstein (D-CA) sent to DOJ last year seeking information about sexual misconduct allegations against BOP staffers.

“I appreciate that DOJ convened a Working Group to address sexual misconduct by BOP employees and that BOP has begun implementing reforms to enhance prevention, reporting, investigation, prosecution, and discipline related to staff sexual misconduct,” Durbin said. “DOJ’s report in November was evidence of the desperate need for reform and improved oversight. I will continue pushing BOP and DOJ to ensure that BOP operates federal prisons safely, securely, and effectively.”

The meeting comes as a new report released by the DOJ’s Bureau of Justice Statistics reported that prison and jail staff rarely face legal consequences for sexual assault.

BJS released data on more than 2,500 documented incidents of sexual assault in federal and state prisons and jails between 2016 and 2018. Despite federal laws intended to create zero-tolerance policies for prison sexual abuse, most notably the Prison Rape Elimination Act, the report found that staff sexual misconduct perpetrators were convicted in only 20% of jailhouse incidents and only a 6% of substantiated prison incidents. Fewer than half of the perps lost their jobs.

“Staff sexual misconduct led to the perpetrator’s discharge, termination or employment contract not being renewed in 44 percent of incidents,” the report states. “Staff perpetrators were reprimanded or disciplined following 43% of sexual harassment incidents.”

rape230207Not everyone is sanguine about BOP efforts, nor – according to the report’s findings – should they be. In a recent release, the advocacy group FAMM said, “The Department of Justice (DOJ) is stepping up prosecutions of prison sexual assault. While commendable, jailing the abusers is not enough. It won’t heal survivors’ trauma or stop this from happening in the future. We need independent oversight to make real change. The BOP has shown that it cannot be trusted to mind its own foxes in its own hen houses.”

Sen. Charles Grassley, Grassley, Durbin, Padilla Meet With BOP Director Peters to Further Investigate Sexual Misconduct (February 2, 2023)

DOJ Bureau of Justice Statistics, Substantiated Incidents of Sexual Victimization Reported by Adult Correctional Authorities, 2016–2018 (February 2, 2023)

Reason, New Data Show Prison Staff Are Rarely Held Accountable for Sexual Misconduct (February 3, 2023)

FAMM, How the Department of Justice is Failing Victims of Sexual Assault in Prison (January 24, 2023)

– Thomas L. Root

EQUAL Act Rises, Phoenix-Like, In New Congress – Update for January 30, 2023

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EQUAL ACT COMING AROUND AGAIN

People are still asking about the status of various criminal justice bills that have been pending in Congress for the past few years. So let’s review some high school government class notes…

Every Congress lasts two years, beginning in the January of an odd year and ending at the end of the next year (and even year). The last Congress was the 117th Congress since the adoption of the U.S. Constitution. The one that started on January 3, 2023, is the 118th Congress.

phoenix230130Any bill that was pending but not passed when the last Congress ended died on January 2. This included the EQUAL Act, a bill that would have equalized the penalties for crack and powder cocaine. EQUAL passed the House last session, but while declaring its support for the measure, Senate leadership (and I’m talking about Sen. Charles Schumer [D-NY], Senate majority leader) inexplicably failed to bring EQUAL to a vote.

So the EQUAL Act – like marijuana reform, 18 USC 924(c) retroactivity, expungement, and every other criminal justice issue before Congress – now must start over. No new EQUAL Act has yet been introduced in either the House or Senate, but last week, talk of crack-powder equality rose like a phoenix from the ashes of the 117th Congress. FAMM and 20 other criminal justice reform groups wrote to Senate Judiciary Committee Chairman Richard Durbin (D-IL) and the new Ranking Member of the Committee, Sen. Lindsey Graham (R-SC), urging them to have the Committee schedule a markup for the measure as soon as it is introduced (whenever that is).

The letter said

Last Congress, the EQUAL Act was one of only a few pieces of legislation to enjoy clear bipartisan support. The House of Representatives passed the bill in September 2021 with an overwhelmingly bipartisan vote of 361-66. The Senate version of the bill enjoyed the support of more than 60 senators, but never received a vote in committee or on the floor. To ensure this strong bipartisan bill reaches President Biden’s desk, we urge you and your committee to begin work on this urgent piece of legislation immediately.

Signers of the letter included criminal justice rights groups from the left and right, as well as a gallimaufry of organizations including Americans for Tax Reform, the National Association of Criminal Defense Lawyers, Association of Prosecuting Attorneys, the Major Cities Chiefs Association, and the NBA’s National Basketball Social Justice Coalition.

canoe230130

In his Sentencing Law and Policy blog, Ohio State University law professor Douglas Berman wrote last week that “notably, but not surprisingly, this letter to Congress makes no mention of the fact that… US Attorney General Garland released last month new federal charging guidelines that includ[ed] instructions to federal prosecutors to treat crack like powder cocaine at sentencing. Though these new charging guidelines do not have the legal force of statutory reform, they might readily lead members of Congress to see less urgency in advancing reform or even to be more resistan[t] to reform as we saw late last year. Fingers crossed that EQUAL can gather momentum again and actually finally eliminate the pernicious and unjustified crack/powder disparity once and for all.”

FAMM, Coalition of law enforcement, justice reform, and civil rights organizations urge Congress to pass the EQUAL Act (January 26, 2023)

FAMM, Letter to Senate Judiciary Committee Chairman (January 26, 2023)

Sentencing Law and Policy, New year and new Congress brings a new effort to advance new EQUAL Act (January 26, 2023)

– Thomas L. Root

Santa’s Bringing Lumps of Coal for the BOP – Update for December 15, 2022

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COAL IN THE BOP’S STOCKING


forcedsex161202Senate Subcommittee Blasts BOP Response to Sexual Assault on Inmates: The Federal Bureau of Prison’s clunky and backlogged system for investigating sexual assault has provided protection to a vulnerable population. That’s the good news. The bad news is that those protected have been BOP employees who commit sexual assault, while the inmates – who, of course, are seldom if ever believed – suffer the indignity of being thrown to the curb after suffering the violence and degradation of sexual assault.

Reduced to its essence, that was the conclusion of a bipartisan report issued Tuesday by the Senate Permanent Subcommittee on Investigations.

The investigation found that the BOP has utterly failed to implement the Prison Rape Elimination Act, and that its ineffectual investigation protocol has led to an 8.000-case backlog of sexual assault complaints. The report says that BOP management failures have “allowed serious, repeated sexual abuse in at least four facilities to go undetected.”

“BOP’s internal affairs practices have failed to hold employees accountable, and multiple admitted sexual abusers were not criminally prosecuted as a result,” the report concluded. “Further, for a decade, BOP failed to respond to this abuse or implement agency-wide reforms.”

The investigation found that BOP employees sexually abused female inmates in at least two-thirds of federal women’s prisons over the last decade. The report focused on four prisons — MCC New York, MDC Brooklyn, FCC Coleman, and FCI Dublin — where it says multiple BOP employees abused multiple women.

sexualassault211014Three former inmates testified before the subcommittee, describing “years of horrific abuse by prison staffers who used their unfettered access to vulnerable inmates and threatened them with retaliation if they reported the attacks,” USA Today reported. All three accused the BOP of “often shielding attackers from accountability.”

BOP Director Colette Peters testified that “[a]s an agency, and through the ranks of its dedicated employees, the Bureau continuously works to ensure the safety and wellbeing of our employees, those in our care and custody, and our surrounding communities,” a statement that Ms. Peters should be grateful has not been submitted to the Washington Post Fact Checker.

“As I have said before,” Ms. Peters testified, “I welcome accountability and oversight; and I welcome this hearing.” One suspects she welcomes root canals without novocaine as well.

Senate Permanent Subcommittee on Investigations, Sexual Abuse of Female Inmates in Federal Prisons (December 13, 2022)

Reason, Senate Investigation Finds Federal Prisons Fail to Prevent or Investigate Rapes (December 13, 2022)

USA Today, ‘A living hell’: Former federal inmates describe years of sexual abuse by prison officers (December 13, 2022)

Written Testimony of Colette S. Peters before Senate Permanent Subcommittee on Investigations (December 13, 2022)

lumpofcoal221215

Associated Press Documents BOP “Mess Up and Move Up” Culture: AP’s report last Friday on the Bureau of Prisons “Mess Up and Move Up” employee culture, is resonating.

On Tuesday, Sen. Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, said he plans to question Director Peters about an Associated Press investigation that found the agency has repeatedly promoted and continues to stand by Thomas R. Hinkle, a high-ranking official who beat  inmates in the 1990s.

hinkle221215“I am very concerned about the allegations in this article and whether BOP will address abuses, prioritize safety, and improve their flawed approach to misconduct investigations,” Sen. Durbin tweeted in the wake of the story.

The AP reported that the BOP had repeatedly promoted Hinkle, 57, Deputy Western Regional Director, “despite numerous red flags, rewarding him again and again over a three-decade career while others who assaulted inmates lost their jobs and went to prison.”

Responding to the AP’s questions, Hinkle “acknowledged that he assaulted inmates in the 1990s but said he regrets that behavior and now speaks openly about it ‘to teach others how to avoid making the same mistakes.’” BOP Director Colette Peters defended Hinkle, telling reporters he’s a changed man and a model employee, according to AP.

According to AP, those “mistakes” included inmate beatings, sexual assault, and a public drunkenness arrest in Houston that was later dropped.

AP said its investigation showed “that while the BOP has vowed to change its toxic culture in the wake of Dublin and other scandals — a promise recently reiterated by the agency’s new director, Colette Peters — it has continued to elevate a man involved in one of the darkest, most abusive periods in its history… Hinkle’s rise is a stark example of what BOP employees call the agency’s ‘mess up, move up’ policy — its tendency to promote and transfer troubled workers instead of firing them.”

My prediction:  Hinkle’s last day at the BOP is only a few weeks away at most.

AP,  U.S. Senators demand answers after BOP investigation (December 13, 2022)

AP, The story so far: AP’s investigation into federal prisons (December 9, 2022)

AP, AP Investigation: Prison boss beat inmates, climbed ranks (Dec ember 9, 2022)

lumpofcoal221215

Ex-Warden Garcia Convicted: The former warden of FCI Dublin was convicted in Oakland federal court last week of sexually molesting female inmates and forcing them to pose naked in their cells.

Ray Garcia was found guilty of all eight charges and faces up to 15 years. He was among five workers charged with abusing inmates at Dublin, who claimed they were subjected to rampant sexual abuse including being forced to pose naked in their cells and suffering molestation and rape. The trial was noteworthy for the government arguing to jurors that they should believe inmates and former inmates over Garcia, a position diametrically opposed to Bureau of Prisons policy to not accept uncorroborated inmate testimony under any circumstances.

rapeclub221215Garcia, 55 years old, retired from the BOP last year after the FBI found nude photos of inmates on his government-issued phone. Garcia was charged with abusing three inmates between December 2019 and July 2021.

“Instead of ensuring the proper functioning of FCI Dublin, he used his authority to sexually prey upon multiple female inmates under his control,” U.S. Attorney Stephanie Hinds said, calling Garcia’s crimes a betrayal of the public trust and his obligations as a warden.

Santa Rosa Press-Democrat, Ex-Dublin prison warden convicted of sexually abusing inmates (December 8, 2022)

– Thomas L. Root

The Last Chapter for EQUAL Act Gets Written This Week – Update for December 12, 2022

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

THIS WEEK MAY BE EQUAL ACT’S LAST STAND

noteasycongress221212Politico, a website covering Capitol Hill goings-on, reported last week that efforts to attach the EQUAL Act (S.79) – a bill that would make crack and powder cocaine the same for sentencing, to the National Defense Authorization Act (H.R.8900) – are “no longer expected.”

However, Senate Judiciary Committee chairman Richard Durbin (D-IL) confirmed to Bloomberg that Democrats are still considering attaching the bill to the NDAA, which Congress must approve every year to fund the military. If attaching EQUAL to NDAA fails, the Senate might instead attach it to a package of spending bills to fund the federal government that must pass by this Friday.

Taylor Foy, a spokesperson for Grassley, told Bloomberg that it appears unlikely that a deal will be reached to include a measure on cocaine sentencing in the NDAA, but there might be an opportunity to include the provision in the upcoming government funding package.

Sen Cory Booker (D-NJ), one of the EQUAL Act’s sponsors, admitted, “we’re in a tough negotiation moment right now. I just want to make sure that I focus on doing what I can to get something over the line, as opposed to talking about strategy.”

EQUALgone221212Time is short, with only a few weeks until this congressional session ends on January 3. When the session ends, all unpassed bills – including EQUAL – will disappear.

Although EQUAL passed the House overwhelmingly last summer, it stalled in the Senate as Sen Charles Grassley (R-IA) proposed the SMART Cocaine Sentencing Act (S.4116), an alternative that would maintain a 2.5:1 ratio of crack to powder, and put all retroactivity decisions in the hands of the Dept of Justice. Current talks seem to be adopting Grassley’s 2.5:1 ratio. Senate Democrats have rejected Grassley’s proposal that DOJ should be the sole authority to decide which prisoners should have EQUAL’s benefits applied to their sentences retroactively. As a result, Politico reports, “negotiators are now discussing removing retroactivity altogether, according to a Democratic aide.”

FAMM President Kevin Ring said it would be “immoral to pass a bill that did not provide relief to those whose sentences were so bad that it convinced Congress to change the law.” Holly Harris, president of the Justice Action Network, said, “The thought that this would die at the last minute in a procedural machination in the Senate is unconscionable to me. The obituary on this bill would be the greatest indictment of Washington that you have ever read.”

lameduck221114Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman said, “Given that the House so overwhelming passed the EQUAL Act last year, I want to believe there is a chance for some kind of reforms in the next Congress even with the GOP in control of the House. But that might be crazy talk, so maybe this lame-duck period is the last best chance for crack sentencing reform. But at this late date, I am certainly not optimistic.”

Politico, Cocaine sentencing reform hits ‘tough negotiation moment (December 6, 2022)

National Defense Authorization Act (H.R. 8900)

EQUAL Act (S.79)

SMART Cocaine Sentencing Act (S.4116)

Bloomberg, Senators Seek Deal to End Cocaine Sentencing Disparity Before Year-End (December 6, 2022)

Sentencing Law and Policy, Discouraging report on a possible last gasp for this Congress to pass the EQUAL Act (December 6, 2022)

– Thomas L. Root

SCOTUS to Review Identity Theft Overreach Claim – Update for November 17, 2022

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

SCOTUS WILL DECIDE MEANING OF IDENTITY THEFT

The aggravated identity theft statute (18 U.S.C. § 1028A) provides in part that anyone who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.”

Who could be opposed to that? Everyone knows what identity theft is. Computer hacking, tricking old people, credit card skimming… those bums have it coming, and § 1028A is what’s going to give it to them.

Except… as with any good federal statutory idea, there are those people who will run it into the ground. Look at the PATRIOT Act.  Everyone in Congress thought the expanded police powers were a wonderful thing, because of course law enforcement would never use those tools against Americans in plain vanilla criminal cases.  It was only the terrorists who needed to look out.

The same with identity theft.  You may think you know what identity theft is, using some other person’s identity in the process of committing another crime. David Dubin was convicted of Medicaid fraud. He was also convicted under 18 U.S.C. § 1028A for aggravated identity theft, Federal prosecutors contend that Dubin’s use of his patient’s name on false Medicaid claims violated the aggravated identity statute, adding an extra two years to his one-year sentence for fraud.

Dubin’s conviction and sentence were upheld by the 5th Circuit in a very divided en banc decision, but last week, the Supreme Court granted review.

IDthief221117In an amicus brief supporting grant of certiorari, The National Association of Criminal Defense Lawyers complained that the 5th Circuit, “disregarding this Court’s directive, the reasoning of the majority of its sister circuits that have considered the issue, and the statute’s title and unmistakable purpose, the 5th Circuit adopted the broadest possible reading of Sec. 1028A to bring appellant’s conduct within the statute. This approach defies common sense and sanctions the ill-advised prosecutorial overreach that this Court has continually rejected.”

The case will be decided by the end of next June.

Dubin v. United States, Case No. 22-10, 2022 U.S. LEXIS 4925 (Nov. 10, 2022) (certiorari granted)

– Thomas L. Root