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EQUAL Act But Unequal Reform? – Update for April 21, 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.

EQUAL ACT MAY BE ALL WE GET

Congress was recessed all last week and for part of this one, so no legislative progress was made on the EQUAL Act (S.79), the MORE Act (H.R. 3617), or – for that matter – anything else. But nothing can stop politicians from talking, even during vacations.

crack-coke200804The good news is that all of the talk about EQUAL – which makes crack sentences equal to cocaine powder sentences – suggests it has the support for passage. The only question is when Senate Majority Leader Chuck Schumer (D-NY) will bring it up for a vote. While the Judiciary Committee held a hearing on the crack-cocaine disparity bill last year, it has yet to schedule a markup.

The bad news is everything else. Politico ran an analysis last week reporting that Sens Richard Durbin (D-IL) and Charles Grassley (R-IA), the top Democrat and Republican on the Senate Judiciary Committee, are still talking about a merger of bills such as the First Step Implementation Act (S.1014), the Smarter Sentencing Act (S.1013), and the COVID-19 Safer Detention Act (S. 312) into a single narrow follow-up bill amending the First Step Act, Durbin and Grassley are calling a Second Step Act. 

“But both senior senators acknowledge it’s not a glide path forward,” Politico said, “particularly given the GOP messaging on rising crime ahead of the 2022 midterms — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.”

Jackson was blasted last month by a few Republican senators for being too soft on sentencing child sex abuse and drug offenders. “One of the most important consequences of these confirmation hearings is there are district judges across the country who may have ambitions for elevations,” Sen. Ted Cruz (R-TX), who led the charge against Judge Jackson, told CNN. Any judges looking for future promotions “are going to think twice about letting violent criminals go or giving them a slap on the wrist, rather than following the law and imposing serious sentences for those who have committed serious crimes.”

snake220421[Editor’s note: While it is correct that Cruz has been described by one conservative columnist as being “like a serpent covered in Vaseline” who “treats the American people like two-bit suckers in 10-gallon hats,”  some maintain that there are good snakes in Texas (but Sen. Cruz is not on their list).]

Far from the only effect, the Jackson hearings have also “dampened the interest in doing what we call the Second Step Act, but we’re still seeing what can be worked out,” Grassley said in a brief interview. He added that if Democrats agree to certain provisions related to law enforcement, “that might make it possible to get something done.”

Meanwhile, Durbin said he’s concerned about a Second Step Act’s prospects for passage, ‘particularly given Republican accusations during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime. The Judiciary chair ranked criminal justice as high on his list of priorities, though he said legislation addressing crime and law enforcement “may be just as challenging as immigration” — a famously tough area of bipartisan compromise on Capitol Hill.

Durbin and Grassley both think a Second Step Act is needed to implement sentencing changes in the First Step law by making them retroactive, midterms are coming up in a little more than 6 months and “campaign-season politics surrounding criminal justice reform threaten broader GOP support. While some lonely voices are calling for passage of such a bill, with Democrats in control of the White House and both houses of Congress, expect a cacophony of Republicans claims that Democrats are to blame for rising crime rates. That should make sentencing changes that much harder, Politico said.

Senate aides on both sides of the aisle warn that EQUAL could still face a challenging path to final passage, including a potentially arduous debate over amendments. Republicans who oppose the bill would almost certainly want to force vulnerable Senate Democrats to take tough amendment votes amid reports of rising violent crime in major cities and the approaching November election. Even Grassley, who is not a co-sponsor but is unapologetically pro-reform, has outlined concerns about whether EQUAL could garner enough Republican support in the Senate to pass.

cotton190502So the climate for criminal justice reform is getting ugly. Once, only Sen Tom Cotton (R-Ark) (who calls First Step Trump’s biggest mistake) demanded longer sentences. Last week, mainstream Newsweek magazine ran an opinion piece claiming that “America, in the year 2022, does not suffer from an over-incarceration problem. On the contrary, we suffer from an under-incarceration problem.” The column called on Congress to end “the jailbreak of slashed sentences and the broader civilizational suicide of the ‘criminal justice reform’.”

Politico, Criminal justice reform faces political buzzsaw as GOP hones its midterm message (April 14, 2022)

Politico, What’s next for criminal justice reform? (April 14, 2022)

CNN, Ambitious trial judges could be wary after GOP attacks on Judge Jackson’s sentencing record (April 11, 2022)

Wichita Eagle, Former U.S. attorney tells how criminal justice could be more just (April 12, 2022)

EQUAL Act (S.79)

First Step Implementation Act (S.1014)

Smarter Sentencing Act (S.1013)

COVID-19 Safer Detention Act (S. 312)

MORE Act, (H.R.3617)

– Thomas L. Root

So Who Ties Ted Cruz’s Shoes? – Update for March 30, 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.

THREE TAKEAWAYS FROM THE JUDGE JACKSON HEARING

shoelaces220330Judge Ketanji Brown Jackson endured hours listening to stupidity spoken by power at last week’s Senate Judiciary Committee hearing on her nomination to a Supreme Court seat.

But for federal prisoners, there are three takeaways worth remembering:

First, the Republicans intend to pound on the Democrats in this year’s mid-term elections as being soft on crime.

Senate GOP leaders said in February that they’d scrutinize Jackson’s role as a former public defender, member of the Sentencing Commission, and as a district judge. But with an increase in crime making headlines this year, the Republican strategy ultimately crystallized around painting Jackson as soft on crime.

At one point, Senator Tom Cotton (R-Ark) blasted Jackson for granting compassionate release to a crack defendant who’d been hammered by a mandatory minimum. Senators Ted Cruz (R-TX) and Josh Hawley (R-MO) both accused Jackson of “a pattern of letting child pornography offenders off the hook for their appalling crimes, both as a judge and as a policymaker,” citing seven cases where, as Hawley put it, “Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors requested.”

bullshit220330It was all crap, of course. Judiciary Committee Chairman Richard Durbin (D-IL) pointed out that ABC News, CNN, and The Washington Post have defended Jackson’s sentencing read as being mainstream. Andrew McCarthy, a former federal prosecutor, writing in the conservative National Review, called Hawley’s claims “meritless to the point of demagoguery… Judge Jackson’s views on this matter are not only mainstream; they are correct in my view. Contrary to Hawley’s suggestion… she appears to have followed the guidelines, at the low end of the sentencing range, as most judges do.”

The “Republicans have rhetorically abandoned those reformist ways and instead have returned to their tough-on-crime roots to attack her credentials for the high court,” the Washington Post said. “Far from the party that followed Grassley, and President Donald Trump, into a new approach to crime, this week’s hearings signal a GOP that is ready to return to the days of Willie Horton.”

For anyone interested in significant criminal justice reform from this Congress, that’s bad news.

Second, Jackson has the credentials and background to be a worthy successor to Justice Breyer, whose seat she is taking. Breyer was one of the Guidelines’ creators, and was the Supreme Court’s dean of criminal sentencing. Jackson has more time as a district court judge (over 8 years) than Justice Sonia Sotomayor (6 years). None of the other seven Justices was served a day on the trial bench.  And no one on the Supreme Court other than Jackson was ever a public defender, although at least two of them are former prosecutors. On top of that, Jackson was a staff attorney for the Sentencing Commission and later one of the five commissioners, the only one at the Supreme Court to have such experience.

She responded to attacks on her below-Guidelines child porn sentences in a way that provides a glimpse into her sentencing philosophy:

pervert160728“Congress has decided what it is that a judge has to do in this and any other case when they sentence,” she said. “That statute doesn’t say look only at the guidelines and stop. That statute doesn’t say impose the highest possible penalty for this sickening and egregious crime… [Instead] the statute says [to] calculate the guidelines but also look at various aspects of this offense and impose a sentence that is ‘sufficient but not greater than necessary to promote the purposes of punishment’.”

Third, the child pornography mandatory minimums and Guidelines ranges – especially in non-contact cases – are absurdly high.

In a 2014 case involving a defendant who was caught with 1,500 child pornography images on his computer, Northern District of Ohio federal Judge James Gwin, asked the jurors what they thought an appropriate sentence would be. They recommended a prison term of 14 months – far shorter than the 5-year mandatory minimum, the 20 years demanded by prosecutors, and the 27 years recommended by the Guidelines. Taking the jurors’ view to heart, Gwin sentenced the defendant to the 5-year mandatory minimum.

Reason magazine reported that Northern District of Iowa federal Judge Mark W. Bennett “likewise found that jurors did not agree with the sentences that Hawley believes are self-evidently appropriate. ‘Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,’ Bennett told The Marshall Project’s Eli Hager in 2015, ‘every time – even here, in one of the most conservative parts of Iowa… – they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that’s baloney’.”

Former federal prosecutor McCarthy agreed: “But other than the fact that Congress wanted to look as though it was being tough on porn, there’s no good reason for the mandatory minimum in question — and it’s unjust in many instances.”

Jackson made a similar argument. “As it currently stands, the way that the law is written, the way that Congress has directed the Sentencing Commission, appears to be not consistent with how these crimes are committed, and therefore there is extreme disparity.”

congressbroken220330

Ohio State law professor Doug Berman wrote in his Sentencing Law and Policy blog that he has been “quite disappointed by what seemed to me to be a general failure by all of Senators on both sides of the aisle to engage thoughtfully with the deep challenges and profound humanity in any and all sentencing determinations… Critically, in federal child pornography cases, the basic facts are rarely routine, the applicable statutory law is rarely clear, and the applicable guidelines are the very opposite of helpful. In the child pornography setting, applicable statutory law is quite messy – e.g., what is the real difference between child pornography “possession” and “receipt”, how should USSC policy statements be considered here – and the applicable guidelines are widely regarded as badly broken. Those legal realities mean federal sentencing takes on extra layers of challenge in child pornography cases… But, if anything, the senators’ questions highlight Congress’ failures in erecting the sentencing structure that federal judges across the country, including Judge Jackson, operate within. Once the confirmation process is over, the Senate should fix the very system that they criticize judges for following.”

Even Judiciary Committee Chairman Durbin agrees. Last Wednesday, he said Congress was partly to blame for the outdated guidelines. “We have failed in responding to the changing circumstances,” he said, noting that at least 15 years had passed since the body reviewed the child pornography guidelines. “We should be doing our job here.”

Bloomberg Law, Crime Focus at Jackson Hearing Most Intense Since Marshall (March 23, 2022)

Sentencing Law and Policy, In praise of the continued sentencing sensibility of the National Review’s Andrew McCarthy (March 24, 2022)

Washington Post, Republicans, after years of pushing for softer criminal sentences, return to the party’s law-and-order posture in Jackson’s confirmation hearing (March 23, 2022)

Baltimore Sun, Senators questioning of Judge Jackson’s sentencing history during Supreme Court confirmation hearings reveals their own failures (March 25, 2022)

National Review, Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography (March 20, 2022)

Reason, Josh Hawley Absurdly Suggests That Ketanji Brown Jackson Has a Soft Spot for ‘Child Predators’ (March 18, 2022)

Wall Street Journal, Ketanji Brown Jackson Hearings Shine Spotlight on Child Pornography Law (March 25, 2022)

– Thomas L. Root

EQUAL Act Now Has Path To Passage – Update for March 28, 2022

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

EQUAL ACT AND MORE ACT MOVING FORWARD IN CONGRESS

It now looks like the EQUAL ACT (S.79), a bill to equalize crack and powder sentences, may have a ready path to passage.

crackpowder160606Last week, Senate Majority Leader Chuck Schumer (D-NY) signed onto the bill as a co-sponsor, although his plans to bring the bill to a floor vote are still not clear. The bill passed the House, 361-66, in September and President Joe Biden, who campaigned on criminal justice reform, is expected to sign the measure when it reaches his desk.

Ten Senate Republicans, including Sen. Richard Burr (R-NC), who added his name last week, are co-sponsoring the bill, that would eliminate the federal sentencing disparity between drug offenses involving crack and powder cocaine. This paves the way for likely passage in the evenly divided Senate chamber, where 60 votes are required to pass most legislation.

It now “looks like you’d get to 60, really,” said Sen. Rand Paul (R-KY), one of the ten GOP EQUAL Act sponsors. “This is the Democrats’ prerogative, it’d be nice if they would bring it to the floor.”

The bill, primarily sponsored by Judiciary Chairman Richard Durbin (D-IL) and Sen. Cory Booker (D-NJ), lowers the punishment for crack cocaine to match the thresholds for powder cocaine. In 2020, the Sentencing Commission found that 77% of crack cocaine trafficking offenders were black and 6% were white. Yet whites are more likely to use cocaine in their lifetime than any other group, according to the 2020 survey. Current law sets an 18-to-1 ratio between crack and powder cocaine, meaning anyone found with 28 grams of crack cocaine would face the same five-year mandatory prison sentence as a person found with 500 grams of powder cocaine.

crack211102Sentencing disparities between crack and powder cocaine were originally created with a 100-to-1 ratio, but in 2010, Congress reduced the sentencing disparity to 18-to-1 in the Fair Sentencing Act, but advocates have fought to further narrow the sentencing gap.

EQUAL is likely to get a vote in the Senate before the midterms given the support of Schumer and the 10 GOP lawmakers, according to the Washington Times. The GOP support means the legislation is able to overcome a filibuster, provided all 50 Senate Democrats unite behind the effort. Sen. Joe Manchin (D-WV), who has been a maverick so far in this Session, also became a cosponsor last week.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that it now seems the EQUAL Act “may have a ready path to passage.”

If enacted, the EQUAL Act would not only level federal sentences for future crack offenses but would retroactively slash prison time for those already doing time. The U.S. Sentencing Commission, which has analyzed the impact of the bill, estimates about 7,600 prisoners – nearly 5% of the federal prison population – would receive a sentence reduction. In most cases, overall crack prison sentences would be cut by at least one-third.

Meanwhile, a marijuana reform newsletter last week reported that a bill to federally legalize marijuana may be coming up for another House floor vote next week, The newsletter’s sources said that “nothing is yet set in stone, despite recent calls to bring the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act to the floor again this month.

marijuana160818Nevertheless, rumors of a floor vote – the second time that the MORE Act reached the full chamber after being approved in 2020 – are rife after congressional Democrats held a private session at a party retreat that included a panel centered on the reform legislation. The bill, which would remove cannabis from the list of controlled substances, cleared the House Judiciary Committee last September.

Bloomberg, GOP Support Clears Senate Path for Bill on Cocaine Sentencing (March 23, 2022)

Washington Times, Schumer joins bipartisan push to cut federal prison time for nearly 7,800 crack cocaine traffickers (March 22, 2022)

Sentencing Law and Policy, Is Congress finally on the verge of equalizing crack and powder cocaine sentences? (March 23, 2022)

Marijuana Moment, Federal Marijuana Legalization Bill May Receive House Floor Vote Next Week, Sources Say (March 23, 2022)

– Thomas L. Root

Senators Decide BOP Needs Adult Supervision – Update for February 25, 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.

MIKE CARVAJAL’S LEGACY

adult220225The Associated Press reported last Friday that a bipartisan group of senators led by Jon Ossoff (D-GA) and Mike Braun (R-IN) has launched a working group “aimed at developing policies and proposals to strengthen oversight of the beleaguered federal prison system and improve communication between the Bureau of Prisons and Congress.”

Senator Ossoff said in a press release that the Senators will “examine conditions of incarceration in U.S. Federal prisons, protect human rights, and promote transparency.”

The AP says the task force – which calls itself the Senate Bipartisan Prison Policy Working Group – formed “following reporting by The Associated Press that uncovered widespread corruption and abuse in federal prisons.”

The chairman of the Senate Judiciary Committee, Senator Richard Durbin (D-IL) will be part of the group.

prisoncorruption2310825AP has called the federal prison system “a hotbed of corruption and misconduct… [that] has been plagued by myriad crises in recent years, including widespread criminal activity among employees, systemic sexual abuse at a federal women’s prison in California, critically low staffing levels that have hampered responses to emergencies, the rapid spread of COVID-19, a failed response to the pandemic and dozens of escapes.”

“The COVID-19 pandemic exposed serious weaknesses in our federal prison system, but also provided a blueprint for reform. Congress should take an active role in ensuring that BOP builds on the lessons of the pandemic to ensure the safety of incarcerated persons and the community, promote rehabilitation and reentry, and maximize alternatives to incarceration,” Kyle O’Dowd, Associate Executive Director for National Association of Criminal Defense Lawyers said. “The Prison Policy Working Group can open a bipartisan dialogue on these issues and lead the way in creating a more humane and rational prison system.”

accountable220225David Safavian, General Counsel, American Conservative Union, said, “It is high time that Congress addresses issues facing both federal prisoners and correctional officers alike. The newly created Senate Prison Policy Working Group must help develop policies that strengthen public safety, advance human dignity, and ensure that the prison bureaucracy is held accountable for the results it delivers to the taxpayers.”

Ossoff and Braun recently introduced legislation recently that will require the director of the BOP to be confirmed by the Senate, legislation co-sponsored by a bipartisan group of senators including Senate Minority Leader Mitch McConnell (R-KY).

Associated Press, Senate launches group to examine embattled US prison system (February 17, 2022)

Senator Jon Ossoff, Sens. Ossoff, Braun Launch Bipartisan Working Group to Examine U.S. Prison Conditions, Promote Transparency (February 17, 2022)

The Hill, Senate group to examine federal prison system after corruption, abuse allegations (February 18, 2022)

– Thomas L. Root

Senate Takes on BOP, and Other Short Rockets – Update for February 18, 2022

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rocket-312767

Some short takes to end the week:

Mike Carvajal’s Legacy: The Associated Press yesterday reported that a bipartisan group of senators, led by Jon Ossoff (D-Georgia) and Mike Braun (R-Indiana) has launched a working group “aimed at developing policies and proposals to strengthen oversight of the beleaguered federal prison system and improve communication between the Bureau of Prisons and Congress.”

prisoncorruption2310825Giving itself a well-deserved victory lap, the AP says the task force – which calls itself the Senate Bipartisan Prison Policy Working Group – formed “following reporting by The Associated Press that uncovered widespread corruption and abuse in federal prisons.”

The chairman of the Senate Judiciary Committee, Sen. Richard Durbin (D-Illinois) also will be part of the group. I’m hoping to see Senator Chuck Grassley (R-Iowa)

AP called the federal prison system “a hotbed of corruption and misconduct… [that] has been plagued by myriad crises in recent years, including widespread criminal activity among employees, systemic sexual abuse at a federal women’s prison in California, critically low staffing levels that have hampered responses to emergencies, the rapid spread of COVID-19, a failed response to the pandemic and dozens of escapes.”

Advocates from across the spectrum lauded the announcement. “The COVID-19 pandemic exposed serious weaknesses in our federal prison system, but also provided a blueprint for reform. Congress should take an active role in ensuring that BOP builds on the lessons of the pandemic to ensure the safety of incarcerated persons and the community, promote rehabilitation and reentry, and maximize alternatives to incarceration,” Kyle O’Dowd, Associate Executive Director for National Association of Criminal Defense Lawyers said. “The Prison Policy Working Group can open a bipartisan dialogue on these issues and lead the way in creating a more humane and rational prison system.”

David Safavian, General Counsel, American Conservative Union, said, “It is high time that Congress addresses issues facing both federal prisoners and correctional officers alike. The newly created Senate Prison Policy Working Group must help develop policies that strengthen public safety, advance human dignity, and ensure that the prison bureaucracy is held accountable for the results it delivers to the taxpayers.”

More BOP accountability… Ironically, that may be BOP Director Mike Carvajal’s legacy.

Associated Press, Senate launches group to examine embattled US prison system (February 17, 2022)

Senator Jon Ossoff, Sens. Ossoff, Braun Launch Bipartisan Working Group to Examine U.S. Prison Conditions, Promote Transparency (February 17, 2022)

And This is Kind of What the Senators Are Talking About: A BOP employee pleaded guilty Thursday to charges he sexually abused at least two inmates at FCI Dublin, the first conviction in a wave of arrests resulting from what prisoners at the women’s facility and employees called “the rape club.”

sexualassault211014The latest, a recycling technician, is one of four employees, including the warden and chaplain, who’ve been arrested for sexually abusing Dublin inmates. The Associated Press said last week that several other Dublin workers are under investigation.

The employee pled guilty to three counts of sexual abuse of a ward. Sentencing guidelines in similar cases have ranged from three months to two years, the AP said. The employee, on administrative leave since last April, remains “currently employed with the Bureau of Prisons,” the agency said last Friday. He had been allowed to transfer to another BOP facility while under investigation.

The AP published results of its investigation of FCI Dublin a week ago, saying it had found “a permissive and toxic culture at the Bay Area lockup, enabling years of sexual misconduct by predatory employees and cover-ups that have largely kept the abuse out of the public eye.” Inmates told AP they had been subjected to years of “rampant sexual abuse by correctional officers and even the warden, and were often threatened or punished when they tried to speak up.”

Federal News Network, Worker pleads guilty to abusing inmates at US women’s prison (February 11, 2022)

Associated Press, AP investigation: Women’s prison fostered culture of abuse (February 6, 2022)

Violent Offender Recidivism: The US Sentencing Commission last week released a study suggesting that violent federal offenders committed new crimes at double the rate of nonviolent offenders.

welcomeback181003Over an 8-year period, 64% of violent offenders released in 2010 were rearrested, compared to 38% of non-violent offenders. The median time to rearrest was 16 months for violent offenders and 22 months for non-violent offenders. What’s more, while recidivism dropped with age, in all categories violent offender committed new crime at a higher rate than nonviolent. For ages 60+, violent offenders’ recidivism rate was 25%, compared to 12% for nonviolent.

Violent offenses were defined based on the sentencing guidelines applied. By the definitions used, 9% of federal prisoners are serving time for violent crimes and 34% have prior violent-crime convictions.

US Sentencing Commission, Recidivism of Violent Federal Offenders Released in 2010 (February 10, 2022)

– Thomas L. Root

COVID Outlasts Carvajal – Update for January 10, 2022

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BOP DIRECTOR DISCOVERS HOW LONELY IT CAN BE AT THE TOP

snowball220110I wrote a little last week about the resignation of Federal Bureau of Prisons director Michael Carvajal, but it’s worth revisiting, if only to round up the reaction and context. Summed up neatly, he was rolled by events he didn’t see coming.

Recall that Carvajal last week announced he’s retiring, a decision that came six weeks after Sen. Richard Durbin (D-Illinois), Chairman of the Senate Judiciary Committee, demanded that Attorney General Merrick Garland fire him. Carvajal, a 30-year BOP veteran, was appointed director in February 2020.

A day after Carvajal’s announcement, BOP deputy director Gene Beasley announced his retirement effective May 31.

The BOP said Carvajal will stay on for an interim period until a successor is named. It is unclear how long that process would take.

The Associated Press said that Carvajal has “been at the center of myriad crises within the federal prison system.” To a certain extent, he stepped into the messes rather than made them himself. For example, the AP reported that more than 100 Bureau of Prisons workers have been arrested, convicted, or sentenced for crimes since the start of 2019, including a warden charged with sexually abusing an inmate. Those problems have been long festering. The scandal at MCC New York – brought to public attention with the 2019 suicide of Jeffrey Epstein – hardly started when Carvajal became director. Likewise, BOP employees misbehaving is not a new phenomenon. But for better or worse, the bad press came down on the BOP while Carvajal was at the helm.

Carvajal was hardly a BOP virgin. He served as assistant director from 2018 to 2020, so one could reasonably conclude he was aware of messes in Atlanta, New York, and elsewhere when he took office.

But the one epic fail that belongs solely to Carvajal is COVID. He took office just as COVID-19 was taking off, and one could argue he never took his blinders off. “I don’t think anybody was ready for this Covid, so we’re dealing with it just as well as anybody else and I’d be proud to say we’re doing pretty good,” Carvajal told CNN in April 2020.

flatten200609“Doing pretty good?” Two months into the pandemic (about 48,000 inmate COVID cases ago), Carvajal confidently told the Judiciary Committee that “at this point, we have more recoveries than new infections. And I believe that this shows that we are now flattening the curve.” Six months later, the total number of inmate COVID cases had climbed to over 24,000. Nevertheless, Carvajal told the House Subcommittee that “the Bureau has a sound pandemic plan in place and a well-established history of managing and responding to various types of communicable disease outbreaks.”

As of today, more than 50,000 BOP inmates have contracted COVID, at least 290 federal inmates are dead, and the BOP’s ham-handed response has been successfully challenged in court in Connecticut, Ohio, and California, to mention a few locations.

The AP reported that Carvajal’s term included “a failed response to the pandemic, dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies.” The Washington Post reported, “With Carvajal presiding over the agency for effectively the entirety of the pandemic so far, about one in three Bureau of Prisons inmates has tested positive for the virus, according to agency data, a rate nearly double that of the general U.S. population.”

Jose Rojas, president of the Southeast Council of Prison Locals, AFGE – federal correctional officers’ union – was derisive. “Destructive actions by Carvajal have crippled this agency to the point of uncertainty, like a tornado leaving destruction behind… He was a disgrace to our agency. Good riddance.”

notdonegood220110Durbin issued a statement that was no more flattering: “For years, the Bureau of Prisons has been plagued by corruption, chronic understaffing, and mismanagement. In the nearly two years since Director Carvajal was handpicked by then-Attorney General Bill Barr, he has failed to address the mounting crises in our nation’s federal prison system, including failing to fully implement the landmark First Step Act. His resignation is an opportunity for new, reform-minded leadership at the Bureau of Prisons.”

That’s the best observation: No matter whether Carvajal was a victim, a rapscallion, or a bumbler, perhaps the Administration will seize this opportunity to pick “new, reform-minded leadership,” someone from outside the Bureau, someone who will be a champion of what Congress has mandated in the First Step Act, the CARES Act, and other prison reform measures.

Associated Press, US prisons director resigning after crises-filled tenure (January 6, 2022)

Washington Post, Bureau of Prisons director to resign after scandal-plagued tenure during pandemic (January 6, 2022)

CNN, Bureau of Prisons leader retiring under political pressure from lawmakers seeking his ouster (January 5, 2022)

Testimony of Michael Carvajal before the Senate Judiciary Committee (June 2, 2020)

Statement of Michael D. Carvajal before House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security (December 2, 2020)

Northwest Arkansas Democrat-Gazette, Two execs of prisons resigning (January 7, 2022)

Durbin Statement on Resignation of Director Carvajal from Federal Bureau of Prisons (January 5, 2022)

– Thomas L. Root

Congress Passes on Pot Reform in NDAA Bill – Update for December 10, 2021

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SENATE MANEUVERS COULD JEOPARDIZE DRUG LAW REFORM

marijuana160818With only a handful of legislative days left this year, Senate Majority Leader Chuck Schumer (D-NY) is demanding that the chamber pass the National Defense Authorization Act (NDAA), a federal budget, a debt-ceiling increase, and the Build Back Better Act before Christmas. There’s no room in Santa’s bag for any criminal justice reform with that very ambitious agenda.

Last September, the House of Representatives attached the Secure and Fair Enforcement (SAFE) Banking Act to its version of the NDAA. The SAFE Act would shield national banks from federal criminal prosecution when working with state-licensed marijuana businesses — a potentially significant achievement for the industry. That wasn’t enough to secure its inclusion in the final NDAA, which was intensely negotiated between the two Congressional chambers. But on Tuesday, the final NDAA bill text was released without SAFE Banking Act language.

(The House passed the SAFE Banking Act this past April, as it did in 2019, but it again stalled before making headway in the Senate.)

marijuanahell190918Schumer and Booker had already said they want to hold off on the banking measure until Congress passes the more comprehensive reform. Wyden said last week the trio hasn’t shifted from their position. “We’re going to keep talking, but Sen. Schumer, Sen. Booker, and I have agreed that we’ll stay this course,” Wyden said last Monday. “The federal government has got to end this era of reefer madness.”

The split over marijuana policy raises the genuine possibility that Congress could again fail to pass any meaningful changes to marijuana law, despite polls showing large majorities of Americans support at least partial legalization of the drug. While the SAFE Banking Act did not directly address the Controlled Substance Act penalty statutes, its passage would have paved the way for sentence reform.

Meanwhile, the EQUAL Act – which would retroactively reduce penalties for crack cocaine – isn’t yet on life support, but it’s not healthy, either. A coalition of Iowa advocacy groups last week urged. Sen Charles Grassley (R-Iowa) and other lawmakers to pass the bill, already overwhelmingly approved by the House.

The ranking Republican on the Senate Judiciary Committee, Grassley has been pushing the First Step Implementation Act and COVID-19 Safer Detention Act. He co-sponsored the 2010 Fair Sentencing Act that reduced the crack-cocaine ratio from 100:1 to 18:1.

crack-coke200804In September, Grassley told reporters he was doubtful eliminating the sentencing disparity would fly in the Senate. “I think there’s a possibility of reducing the 18 to 1 differential we have now,” he said, “but I don’t think one-to-one can pass.”

Grassley said he was unwilling to push the EQUAL Act if it would sink the criminal justice reform package he and Durbin have been working to pass.

Cannabis Wire, SAFE Banking Scrapped from NDAA Despite Major Push (December 8, 2021)

Wall Street Journal, Will Santa Claus Visit Chuck Schumer? (December 1, 2021)

The Intercept, Marijuana Banking Reform in Defense Bill on the Brink of Collapse as Democrats Split (December 2, 2021)

Quad City Times, Iowans urge Grassley, Senate to pass bill closing drug sentencing disparity (December 3, 2021)

– Thomas L. Root

Durbin Doubles Down on Dumping Director – Update for December 7, 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.

DURBIN AGAIN CALLS FOR BOP DIRECTOR’S FIRING

fired171218Arguing that Bureau of Prisons Director Michael Carvajal “has shown no intention of reforming the institution,” Senator Richard Durbin (D-Illinois) repeated his call that demanded his firing in a speech last Thursday on the floor of the Senate.

Durbin, the second-ranking member of the Senate (and chairman of the Senate Judiciary Committee), cited a recent Associated Press investigation that revealed over 100 BOP officers and employees had been criminally charged in the past two years – a rate more than double the Dept of Justice average – for crimes ranging from smuggling contraband into facilities to sexual abuse of prisoners. “For years,” Durbin said, “the Bureau of Prisons has been plagued by corruption, chronic understaffing, and misconduct by high-ranking officials.” He also cited the 2019 suicide of sex criminal Jeffrey Epstein at MCC New York, which closed earlier this year.

AP reported last Thursday that “under Carvajal’s leadership, the agency has experienced a multitude of crises, from the rampant spread of coronavirus inside prisons and a failed response to the pandemic to dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies.”

DruckDurbin, whose Judiciary Committee exercises oversight of the BOP, first called for Carvajal’s firing on November 16, after the release of the AP’s investigation. The AP found what it called “rampant criminal activity” by BOP employees and alleged the “agency has turned a blind eye to employees accused of misconduct.”

In his speech, Durbin cited the BOP’s appointment of Lamine N’Diaye as warden at FCI Fort Dix. N’Diaye was warden at MCC New York when celebrity child molester Jeffrey Epstein died, allegedly as a suicide. The AP reported that the BOP previously tried to place N’Diaye in the Fort Dix job, “but the move was stopped by then-Attorney General William Barr after the AP reported the transfer.” In January 2020, the BOP said it would defer the N’Diaye’s transfer to the FCI Fort Dix position until the Epstein investigation was completed but later made the switch anyway.”

“In the nearly two years since Director Carvajal took control of the Bureau, he has failed to address the mounting crises in our nation’s federal prison system,” Durbin said Thursday. “It is far past time for new, reform-minded leadership in the Bureau of Prisons.”

Trump Administration Attorney General William Barr appointed Carvajal. However, current Deputy Attorney General Lisa Monaco said recently that she still had confidence in his leadership.

The AP reported last June that the Biden administration was considering replacing Carvajal, one of the few remaining Trump administration holdovers at DOJ.

bureaucracy180122Many think it’s time to do so. BOP is “an agency that is largely unaccountable to the public,” the “people that it purports to protect” and even its staff, Amy Fettig, executive director of the Sentencing Project told the Washington Post last week. “We should never have a government agency that operates with so little public accountability,” Fettig said about the BOP. When we do, she said, “bad things happen.”

As if to put an exclamation point to that, the US Attorney for Northern California announced last Friday that John Bellhouse has been charged with several counts of sexual abuse of a woman prisoner at FCI Dublin.

Business Insider, Top Democrat calls on Biden administration to fire the Trump-era head of federal prisons, citing inmate abuse and the death of Jeffrey Epstein (December 2, 2021)

AP, Durbin: Prisons chief has ‘no intention of reforming’ system (December 2, 2021)

AP, AP Exclusive: Feds backtrack on transfer of Epstein warden (January 28, 2020)

Washington Post, Lawbreakers in federal prisons include prison staff, report finds; senators demand accountability (December 1, 2021)

Press Release, US Attorney for Northern California, Federal Correctional Officer Charged With Sexual Abuse of an Inmate (December 3, 2021)

– Thomas L. Root

Durbin to Carvajal: ‘Drop Dead’ – Update for November 18, 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.

BOP, ALREADY A ‘HOTBED OF ABUSE’, DITHERS WHILE INMATES SUFFER, INSPECTOR GENERAL SAYS

Turkeys may not be the only creatures with heads on the chopping block.

dropdead211118US Senate Majority Whip Dick Durbin (D-Illinois), chairman of the Senate Judiciary Committee, last Tuesday publicly demanded that Attorney General Merrick Garland fire Federal Bureau of Prisons Director Michael Carvajal, who was appointed during the Trump Administration.

Durbin’s call came after the Associated Press reported that since the beginning of 2019, over 100 federal prison workers have been arrested, convicted or sentenced for crimes, including the warden of FCI Dublin – a women’s prison in central California – indicted for sexual abuse, an associate warden at MDC Brooklyn charged with killing her husband last August, guards taking cash to smuggle drugs and weapons, and supervisors stealing property such as tires and tractors.

The Associated Press said its investigation revealed that the BOP “is a hotbed of abuse, graft and corruption, and has turned a blind eye to employees accused of misconduct. In some cases, the agency has failed to suspend officers who themselves had been arrested for crimes.” While the BOP workforce amounts to one-third of Dept of Justice personnel, its employees account for two-thirds of the criminal cases against DOJ workers in recent years. Of 41 DOJ employee arrests this year, 28 were of BOP employees or contractors.

The AP report was too much for Durbin, who said,

Director Carvajal… has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic,failing to address chronic understaffing, failing to implement the landmark First Step Act, and more. It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded Director who is not a product of the BOP bureaucracy.

choppingblock211118On Wednesday, the DOJ Inspector General put an exclamation point on Durbin’s well-justified rant. An IG report found that three years after passage of the First Step Act, the BOP has yet to implement one of the linchpins of the legislation, to reduce recidivism by giving prisoners incentives to successfully certain educational programs and productive activities. The primary holdup? BOP management and union staff have been unable to come up with ground rules for meetings to discuss how the educational and incentives programs should be implemented.

Remember how the 1968 Paris Peace Talks were stalled for months over whether the table over which “official conversations” would be held should be round or rectangular? Yeah, this has been something like that. BOP’s national union won’t conduct formal policy negotiations on Zoom, but rather demanded in-person negotiations. BOP management refused. The disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which has stalled the development of more than 30 BOP policies, about half of which were created or revised because of First Step.

The First Step Act requires the BOP to provide Evidence-Based Recidivism Reduction (EBRR) programs and productive activities to all inmates in its custody no later than January 15, 2022. The BOP has taken the position that this means that no credits need be awarded until then. No one believes that. In litigation, even the United States Attorney’s Offices defending the BOP have abandoned that tortured interpretation of the Act. The IG’s report said:

In August 2021, the BOP told us that the [First Step Act] contemplates a phased-in approach to time credit implementation and requires that all inmates be assigned to programming based on their assessments no later than January 15, 2022. As a result, the BOP stated that “implementation of time credits is fully permissible as a phased approach.” While we agree that the FSA affords the BOP a 2-year phase-in period to provide all inmates with EBRR programs and productive activities, we also note that the phase-in statute makes no reference to delaying the use of incentives and rewards, including time credits. Instead, the statute states that by January 15, 2020, the BOP “may offer to prisoners who successfully participate in such programs and activities [with] incentives and rewards.”

As a result of the BOP’s failure to talk to its union, as many as 60,000 inmates have not properly received earned-time credits for successful completion of First Step Act’s recidivism programs, the Department of Justice inspector general found. “We are concerned that the delay in applying earned time credits may negatively affect inmates who have earned a reduction in their sentence or an earlier placement in the community,” the report stated.

unsupervised211118Inmates around the country have filed petitions for habeas corpus against the BOP, demanding credit, with mixed results. Even now, the BOP stands firm. The courts are wrong. The US Attorneys are wrong. And, the latest, the Inspector General is wrong:

BOP disagrees with OIG’s characterization of the agency’s delayed implementation of FSA requirements… Although the COVID- 19 pandemic has created unprecedented challenges for the federal government, BOP has taken significant steps in implementing the FSA’s requirements, consistent with the FSA’s phased approach, and has complied with all mandatory statutory guidelines to-date.

Happy Thanksgiving, Director Carvajal. Use some of the long weekend to dust off your resume.

Press release, Durbin Calls On AG Garland To Dismiss BOP Director Carvajal (November 16)

Associated Press, Workers at federal prisons are committing some of the crimes (November 14, 2021)

Associated Press, Durbin calls for Garland to remove federal prisons director (November 17, 2021)

Forbes, Office of Inspector General Critical of Federal Prison Implementation of First Step Act (November 17, 2021)

ABC, DOJ finds Bureau of Prisons failed to apply earned time credits to 60,000 inmates (November 17, 2021)

Dept of Justice, Office of Inspector General, Management Advisory Memorandum 22-007 (November 16, 2021)

– Thomas L. Root

Crack-Powder Equality Gains Traction in the Senate – Update for November 2, 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.

EQUAL ACT MAY HAVE FOUND FAVORABLE WINDS IN SENATE

The EQUAL Act, S.79, which would eliminate all disparities between crack and powder cocaine (and make those changes retroactive) received a much-needed boost in the Senate last week.

crackpowder160606Last month, the House of Representatives passed the EQUAL Act (H.R. 1693) on a bipartisan vote of 361-66. But the same legislation in the Senate, S.79, has not yet even gotten a Committee hearing. In fact, Sen Charles Grassley (R-IA) – a supporter of the Act – has said he doubts he can find the votes for passage of EQUAL in the Senate.

Things may be looking up. But last Wednesday, Sen Lisa Murkowski (R-AK) became the 9th co-sponsor of S.79 (and the 5th Republican to do so). And last week, Durbin – who as chairman of the Judiciary Committee controls its docket – issued a press release urging his colleagues to support EQUAL.

Wednesday, by the way, was the 35th anniversary of the passage of the Anti-Drug Abuse Act. The country was reeling from the tragic death of University of Maryland basketball star Len Bias, who died of a drug overdose just days after being drafted by the Boston Celtics. Assuming that the drug that killed Bias was crack, Congress passed a law that would impose harsher penalties on crack offenses. It later became known that Len overdosed on powder cocaine, not crack, but the narrative that crack was more dangerous than powder had already found its legs. The Sentencing Commission and the Obama Administration both called for crack-powder equity, but it hasn’t yet happened.

Sen Murkowski’s support is significant. With at least six Republican votes in the bag for EQUAL (and several more quite likely), the magic number of 60 (needed to avoid a filibuster) is within reach. A Judiciary Committee hearing will make the level of support clearer.

crack211102Holly Harris, President and Executive Director of criminal justice reform group Justice Action Network, issued a statement saying, “The EQUAL Act has strong conservative support, from Senators Murkowski, Graham, Paul, Portman, and Tillis, and from more than 150 Republicans in the House. It has the backing of law enforcement, prosecutors, civil rights groups, and advocates from the far left to the far right and everywhere in between. The EQUAL Act may be Congress’s last chance to pass bipartisan legislation squarely focused on racial injustice, and it’s time for a vote in the Senate.”

A commentator in an Iowa newspaper, wrote last week that “law enforcement leaders, including US attorneys with whom I worked during the Trump Administration, as well as the National District Attorneys Association and the Major Cities Chiefs Association, all support the EQUAL Act because they believe it builds trust between law enforcement and the communities they serve.”

Support like that will help swing Republican votes in the Senate toward EQUAL.

Interrogating Justice, EQUAL Act Gets Much-Needed Path Forward in Senate (October 28, 2021)

Sen Richard Durbin, Durbin: The Senate Must Follow the House’s Lead & Eliminate the Federal Crack and Powder Cocaine Sentencing Disparity (October 28, 2021)

The Hill, After 35 years, Congress should finally end the sentencing disparity between crack and powder cocaine (October 27, 20231)

Justice Action Network, Marking 35th Anniversary of Infamous “War on Drugs” Bill, Sen Lisa Murkowski is First Woman in Senate to Sign Onto Equal Act (October 27, 2021)

Mason City, Iowa, Globe Gazette, Chuck Grassley is back, as is criminal justice reform (October 27, 2021)

– Thomas L. Root