Tag Archives: earned time credits

Merry (Belated) Christmas! – Update for January 14, 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.

BOP WOWS WITH FINAL EARNED TIME CREDIT RULES

christmas220114My grandfather always would say, “Christmas comes but once a year, and when it comes, it brings good cheer…”

Grandpa was never a federal inmate.

In what can only be classified as a stunning turnaround, the Federal Bureau of Prisons yesterday announced its final rules for granting federal time credits (“FTCs”) to inmates who successfully complete specified programs designed to reduce recidivism or engage in what the statute calls “productive activities.”

The First Step Act enacted the FTC program. The notion was that a scoring system – should classify inmates as to the risk that they would be recidivists – we now know it as the PATTERN score – and their programming needs to reduce that risk should be assessed. The BOP would then tell the inmate which programs he or she should complete to address those needs (for example, a course in anger management, apprenticeship training, or substance abuse treatment). Ideally, inmates who complete such EBRR programs will be less likely to commit new crimes after release.

To encourage inmate participation, the prisoners collect ten days of FTC credit for every month in which they participate in such “evidence-based recidivism reduction” – or “EBRR” – programs. If they are considered “low” or “minimum” recidivism risks, they may get an extra five FTC days a month.

The FTC credits may be used to shorten an inmate’s sentence by up to 12 months. If an inmate earns more than 12 months of FTC credits, the extras can be used to earn more halfway house or home confinement.

devil200113But as with everything, the devil’s in the details. First Step provides that “a prisoner shall earn ten days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” But precisely what is a “day?”

In its proposed rule, the BOP proposed that a “day” was eight hours long, meaning that an inmate would have to log eight hours of EBRR instruction to earn one day of programming credit. That means that 30 days of successful EBRR participation would require 240 hours. The proposal was Draconian.

The BOP’s position was even worse than that. It proposed that inmates could only start to earn FTC credits after January 15, 2020, or – horror of horrors – January 15, 2022 (yes, that’s tomorrow, for you calendar-challenged people). The number of programs considered to be EBRR-worthy was limited, and the long list of convictions that excluded inmates from participation unfairly limited the number of people who could participate.

The BOP’s deadline for full implementation of the FTC is upon us. Yesterday, I complained that the whole furball was ripe for endless litigation and that the BOP had not adopted the final rules, oppressive as they might be.

hamburger160826I am impressed at the extent of my influence. Within an hour of posting my blog, the Dept of Justice announced that the final rules had been adopted. And what a set of rules they are! I should write a blog demanding that each inmate get TWO cheeseburgers at lunch on Hamburger Day (which is Wednesday, for those of you who haven’t been locked up).

• The terrible 8-hour day standard has been jettisoned. Now, any day an inmate spends enrolled in an EBRR or productive activity is an FTC day. This means that if an inmate works at an orderly job for a couple of hours, works out for a few hours, watches some TV, goes to the chow hall, and spends an hour in an EBRR anger management class, he or she will be credited with one day of FTC credit.

• Inmates will receive credit for any EBRR program completed after December 21, 2018, the day the FSA was signed by President Trump. This is a windfall. The BOP had not even applied the PATTERN score to inmates and assessed needs until January 2020. After that date, FTC credit is only assigned if an inmate completes an EBRR course to which he or she has been assigned. But for any courses completed before the 2020 needs assessment, the BOP will assume a need. So an inmate who had been a banker with an MBA from Harvard took the “Money Smart” program in 2019 for something to do? She gets FTC credit.

• The BOP has taken to heart complaints that the EBRR programs and (especially) the productive activities were too limited. It has promised that “new funding allotments will enhance the Bureau’s course offerings, largely by permitting it to increase capacity through hiring additional staff, and will also serve to bolster the Bureau’s resources, thereby improving its ability to carry out the FSA Time Credits program.” Participation in RDAP, working at UNICOR, and taking correspondence college courses will earn FTC credit for inmates. However, the BOP has not suggested that it will remove the cap on how many FTC credits can be earned. Right now, 15 weeks in UNICOR earns an inmate 500 hours of FTC credit. So does 15 years.

For that matter, because the prior caps – all of which were expressed in terms of “hours,” a metric without any value now that the 8-hours-is-a-day standard has been abandoned – will probably have to be redone.

• The BOP will award FTC credits for successful months of participation, not only for successful completion of the EBRR courses.

• FTC credits will be available to inmates in halfway houses and home confinement (although the BOP acknowledges some difficulty in delivering such programs in halfway house or home confinement environments).

education180205Right now, only about 41% of BOP inmates (65,000) are eligible to earn FTC credits. There is little the BOP can do about that because the limitations were written into the First Step Act by Congress. However, the BOP does have some latitude in defining prior convictions as “violent,” and it has promised to “ensure that its facilities receive updated information as to which federal and state offenses qualify or are the subject of litigation and that inmate records are updated to ensure maximum participation in credit-earning EBRRs.”

The BOP has promised to immediately apply FTCs to people closest to release. I’ve heard that before. But last night, I called an inmate in a halfway house whose release date was in May to tell him about the new rules. Not more than an hour later, he called me back to tell me he had just been called into the office to sign immediate-release papers. He goes home today.

pony2230114

There will be many nuances to discuss in the coming weeks, but for now, the DOJ’s prediction that releases “are expected to begin this week… and that ‘thousands’ of inmates are being affected,” as the Associated Press put it, is not far off.

A late Christmas gift, but I expected new socks. Instead, we got that pony we’d always wanted.

Associated Press, Thousands of federal inmates to be released under 2018 law (January 13, 2022)

Dept of Justice, Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act (January 13, 2022)

BOP, Final Rules for Federal Time Credits Program (January 13, 2022)

BOP, First Step Act Approved Programs Guide (July 2021)

– Thomas L. Root

Forget I said What I said… – Update for January 13, 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.

GLAD TO EAT MY WORDS

Victory220113Not more than an hour after I posted the blog below, the Dept of Justice issued a press release announcing that the Bureau of Prison had adopted a final rule for application of its earned-time credit program.

I practiced administrative agency law in Washington, D.C., for a long time, but I never have seen such an agency execute such an astounding about-face on a proposed rule between the Notice of Proposed Rulemaking and final order before.

It’s Christmas Day for inmates. I will take a dive into the new rule for a blog tomorrow.  For now, suffice it to say… wow.

Ignore the following:

BOP EARNED TIME CREDIT MEMO PORTENDS LITIGATION

delay190925The Federal Bureau of Prisons has been stalling full implementation of First Step Act earned time credits for three years now, but the clock runs out in a few days. By then, the BOP is supposed to have the earned-time credit program (which the BOP is calling “Federal Time Credits”) fully implemented.

Under the FTC program, prisoners who successfully complete recidivism reduction programming and productive activities are eligible to earn up to 10 days of FTCs for every 30 days of program participation. Minimum and low-risk inmates will get 15 days. But the list of programs and productive activities is limited, the list of eligible prisoners is even more limited, and the BOP has thus far fought inmates’ efforts to win any credit.

That has resulted in decisions such as an Oregon holding from November that the BOP’s belief that “may delay awarding time credits to inmates that complete qualifying programming until January 15, 2022, is contrary to the statute.”

Forbes magazine last week published portions of an “internal memorandum posted at some prison camps.” The memo said that beginning in January 2022, the Bureau will begin applying FTC under this update. However, while inmates with high and medium PATTERN risk levels may earn FTC, only those with low and minimum levels may actually use them.

The BOP plans to apply the first 365 days of FTC time to early release, with “[a]ny FTC earned beyond that may be applied toward community placement.” The BOP plans to update sentence computations in the next few months, with the Bureau’s Designation and Sentence Computation Center to “prioritize based on those inmates we project to be immediate releases, beginning with inmates in community placement.”

confusion200424Forbes predicts that “far from clarifying things… implementation of [FTC]… will be almost impossible over the near term. This affects multiple levels of the criminal justice system; prisons, halfway houses, home confinement, and supervised release. It is an intricate web of agencies that manage the incarceration and supervision of hundreds of thousands of people in the federal criminal justice system. Thousands will file lawsuits whether they are in prison, halfway houses, home confinement, or supervised release, fighting for their right to a broadly defined, and subject to BOP discretion, FSA credit… This is going to be more complicated than anyone ever imagined.”

The great unsettled question is exactly what constitutes program participation. Inmates were jubilant when First Step passed, because everyone wrongly assumed that if one had an hour-long evening class four days a week for four weeks, he or she would have earned 16 days of programming credit on successful completion. But then the BOP proposed rule – which has not yet been adopted – holding that a day of program participation was equal to eight hours of programming. Under that metric, an hour a day four days a week for four weeks would be worth 16 hours, or two days of programming, not 16 days.

What was as bad, the credits for “productive activities” are capped. Working in UNICOR – the Federal prison industries – has a well-earned reputation for reducing recidivism. But credit for UNICOR work is limited to 500 hours. In other words, if one works in UNICOR for four months at 35 hours a week, he or she has amassed 500 FTC hours, which translates to 62 days, which translates to two months. Two months of FTC credit is worth 30 days off the sentence.

If the inmate works in UNICOR for 10 years (which would be about 17,500 hours), he or she would still get 30 days off his or her sentence. Is the favorable effect of 10 years of productive factory work on recidivism no different than four months? The BOP rule would seem to suggest so.

oddcouple210219As of today, the rulemaking proceeding has not been completed, yet another failure of the BOP to get anything done on time. What’s more, Senator Richard Durbin (D-Illinois), chairman of the Judiciary Committee, and Committee Ranking Member Senator Charles Grassley (R-Iowa) jointly blasted the proposed rule last May, asking the Attorney General to “reevaluate and amend the rule consistent with the statute’s goals of incentivizing and increasing program participation to reduce recidivism. Establishing robust programming and a fair system to earn time credits is critical to meeting the FSA’s goal of reducing recidivism.”

Durbin and Grassley are the fathers of the First Step Act, suggesting that perhaps they know what they meant when they wrote it.

Whether anyone listened has yet to be answered. It’s a cinch that if the BOP’s 8-hour-day rule gets adopted, there will be litigation.

Forbes, Implementation of The Criminal Justice Reform Law, First Step Act, Will Likely End Up In Court (January 5, 2022)

Cazares v. Hendrix, Case No 3:20-cv-02019, 2021 U.S. Dist. LEXIS 240776 (D. Ore., November 9, 2021)

Press release, Durbin, Grassley Press DOJ to Strengthen First Step Act Rule on Earned Time Credits to Incentivize Rehabilitation (May 5, 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

BOP Adoption of Rules for Earned Time Credits Delayed – Update for October 18, 2021

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BOP IS RUNNING OUT THE CLOCK ON EARNED TIME CREDIT IMPLEMENTATION

slowwalking210226Criminal justice advocates and inmates alike cheered the passage of The First Step Act, legislation that (among other things) directed the Bureau of Prisons to grant earned-time credits to inmates who successfully complete evidence-based recidivism reduction programs (EBRRs) or so-called productive activities.

First Step made it sound like Christmas. When an inmate had completed 30 days of successful programming, he or she can get 10 to 15 days of credit, depending on PATTERN score. The credits can be used to increase the amount of time awarded for halfway house or increased home confinement at the end of a sentence. Up to 12 months of credits can be swapped for early release from custody, with the time added to supervised release.

But the devil’s in the details, and the BOP was quick to bedevil the earned-time credit program with those details. Inmates were buzzing at the of 2018 with visions of credit being awarded for programs in which they were already enrolled. Some thought that inmate employment as pedestrian as hallway orderly would qualify as a “productive activity.” Others were counting up the number of adult continuing education (ACE) classes they could take on topics as varied as creative writing or the plays of Shakespeare. Still others were figuring out how many courses they had completed prior to First Act passing, and wondering how to get retroactive credits for those.

devil180418The first detail to smack inmates in the face was the effective date of the program. As soon as it was clear that nothing was happening right away, everyone started looking at July 2019, when the PATTERN program was unveiled, as the date before which no credits would be awarded. Then the start became January 2020, when PATTERN was adopted in final form, and the BOP rolled out its list of EBRR-qualifying programs (omitting most of the ACE programs people had anticipated would count toward credits) and limiting “productive activities” to a precious few.

After January 2020, the BOP continued to deny credits to inmates. A few inmates have sued to have their credits awarded – starting with Rabbi Aryeh Goodman, an inmate at Fort Dix – seeking credits they said they had earned and demanding shortened prison sentences in the process. That was when some sharp-eyed analyst at the BOP argued that First Step did not require the award of any PATTERN earned credit until a two-year phase-in period under the statute has expired, which was January 15, 2022.

That argument got shot down. Courts have overwhelmingly found “no evidence in the statutory framework for delaying application of incentives earned by all prisoners during the phase-in program until January 15, 2022, the final date when BOP must complete the phase-in with respect to ‘all prisoners’.” (About the only inmate to lose this argument was former Trump lawyer Michael Cohen).

But the real detail – and the one that will gut the program like a fat carp – is First Step’s directive that credits be awarded “for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.”  What exactly is a “day?” The BOP has proposed adopting a rule that a “day of successful participation” means eight full hours of programming. That means that a full 240 hours of EBRR programming would be needed to earn 10 days of credit (15 days if you’re a low or minimum PATTERN).  

sisyphus211018An inmate thus would have to program eight hours a day, five days a week, for years in order to earn the 12 months of credit that can be used to cut a year off of incarceration. This assumes that the inmate has no employment (but everyone does) and can schedule multiple programs efficiently, so that one starts as soon as another one ends. With mealtimes, recalls, counts, and callouts – all part of a federal inmate’s day – even an inmate without a job would be lucky to be able to string together six hours a day of time available for taking EBRRs, even if they were available.

On top of all of that, with the BOP practicing augmentation (and with no end to the correctional officer shortage in sight), the availability of teachers on any given day is an open question.

The BOP published a proposed rule almost eleven months ago, on November 25, 2020, that would adopt the 8-hour-a-day “programming day” standard. Over 250 responses were received by the time the public comment period closed on January 25. But today, the BOP is extending even further the rulemaking proceeding, issuing a notice that “upon review of the comments, it is unclear to the Bureau whether commenters had fully considered the issue of whether DC Code offenders in BOP custody are eligible for time credits under 18 USC 3624(d)(4).”

The BOP complains that First Step is ambiguous on this point, going into detail in today’s notice on an issue it dismissed in the initial rulemaking proposal as contrary to the statute.

Who’s kidding whom? The public did not consider the issue because in the original rulemaking notice, the BOP wrote that “an inmate who is in the custody of the Bureau, but is serving a term of imprisonment for a conviction under the law of one of the fifty (50) states, the District of Columbia… or any other territory or possession of the United States is not an ‘eligible inmate’.”

clockwatcher190620So, more than nine months after the comment period ending, the BOP has opened a further 30-day public comment period on the issue it rejected out of hand, and the public thus did not consider. After the additional period closes on November 18, the BOP will at some point issue a final rule. That will no doubt be on or right about January 15, 2022.

The BOP will have thus required 37 months to adopt draconian rules to implement First Step credits. And it will have run out the clock on its 3-year “phase-in” period.

Goodman v. Ortiz, Case No. 20-7582, 2020 U.S. Dist. LEXIS 153874 (D.N.J., Aug. 25, 2020)

Federal Register, FSA Time Credits, 85 FR 74268 (Nov. 25, 2020)

Federal Register, FSA Time Credits, 86 FR 57612 (Oct 18, 2021)

Reuters, U.S. Justice Dept clashes with inmates over credits to shave prison time (Aug 18)

– Thomas L. Root

Who Knows What Joe’s Thinking? – Update for August 17, 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.

ADMINISTRATION HINTS AT DRUG CLEMENCY (MAYBE)

Biden Press Secretary Jen Psaki started hearts and tongues fluttering last week when she said the Administration was looking at clemency for federal drug offenders.

clemencypitch180716“The president is deeply committed to reducing incarceration and helping people successfully reenter society,” Psaki said in a press briefing. “And he said too many people are incarcerated — too many are black and brown — and he’s therefore exploring multiple avenues to provide relief to certain nonviolent drug offenders, including through the use of his clemency power.”

As a candidate, Biden said in 2019 that he wanted to release “everyone” in prison for marijuana, but Psaki has referred questions on whether he will do so to the Justice Department, saying last April it was “a legal question.”

The New York Post reported that “Psaki’s remark thrilled clemency advocates who have been pushing for Biden to commute prison sentences and issue pardons early in his term, which is uncommon for presidents. Clemency advocate Amy Povah said, “We are elated that President Biden has expressed an interest in using his executive clemency power with an emphasis upon drug cases.”

caresbear210104Meanwhile, other advocates feel frustrated that Biden has done nothing on a matter as small as addressing the status of people on CARES Act home confinement. Last Wednesday, Senators Richard Durbin (D-Illinois) and Cory Booker (D-New Jersey) wrote to President Biden, urging him to act on keeping CARES Act home confinees at home. They suggested, in part, that the Bureau of Prisons could “provide relief for certain individuals through prerelease home confinement, under 18 USC § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 USC 6054l(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 USC § 3582(c)(l)(A). Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.”

Reuters last week reported that the Justice Department had asked an Oregon federal judge on Tuesday to deny a bid by federal inmates to qualify for early release through First Step earned time credits. Prosecutors argued that no programs or activities completed by the inmates qualified for earned time credits.

Reuters said, “The rift could increase pressure on the Justice Department, which is under fire from civil rights advocates for its inaction to prevent BOP from sending thousands of federal inmates back to prison once the pandemic emergency is lifted.”

At issue is a provision from the 2018 First Step Act, which aims to ease harsh sentencing for non-violent offenders and reduce recidivism. The BOP may award 10 or 15 days’ credit for every 30 days of participation in recidivism-reduction or activities such as academic classes or certain prison jobs.

In a November 2020 proposed rule, the BOP defined a day of participation as eight hours and limited the menu of qualifying programs.

recid160321One issue is the BOP’s definition of a day of participation as 8 hours. “The math speaks for itself,” federal defenders wrote in a January 2021 letter to BOP. “It would take 219 weeks, or over 4 years to earn a full year of credit under the BOP’s proposed rule.”

In Tuesday’s case, the lead plaintiff has held prison jobs such as a painter and an HVAC worker and completed courses such as anger management, entrepreneurship, and a residential drug abuse program. But the government argued that none of those programs is on the BOP’s EBRR program list.

“If HVAC work doesn’t qualify, what kinds of jobs do?” asked Magistrate Judge John Acosta, noting the program’s goal of reducing recidivism and facilitating reintegration into society.

“The ones that are identified by the Bureau of Prisons,” AUSA Jared Hager replied, noting the inmates have “not shown entitlement to any credit.” The list of qualifying programs and activities will be updated by Attorney General Merrick Garland, he added.

Similar suits are on file in federal courts throughout the country.

Finally, JDSupra.com reported last week that Senate Majority Leader Chuck Schumer (D-New York) has partnered with Senate Finance Committee Chairman Ron Wyden (D-Oregon) and Sen Booker to draft comprehensive federal cannabis reform legislation, which the sponsors plan to introduce this fall.

marijuanahell190918The measure, called the Cannabis Administration and Opportunity Act (the CAOA), would – among other matters – would require the federal government to expunge any arrest or conviction for a non-violent federal cannabis offense, and allow any person serving a criminal justice sentence for a non-violent federal cannabis offense to move for sentence reduction. After the hearing, the court would be required to expunge each arrest, conviction, or adjudication for a non-violent federal cannabis offense.

The drafting of the bill is in its early stages. The sponsors are actively soliciting comments prior to CAOA’s introduction. Comments may be submitted through September 1, 2021, at Cannabis_Reform@finance.senate.gov.

New York Post, Biden ‘exploring’ clemency for federal drug crimes, Psaki says (August 11, 2021)

Letter from Senators Durbin and Booker to President Biden (August 12, 2021)

Reuters, U.S. Justice Dept clashes with inmates over credits to shave prison time (August 10, 2021)

JDSupra.com, US Senators Seeking Input on Comprehensive Federal Cannabis Reform Legislation (August 11, 2021)

 

– Thomas L. Root

Some Short Notes From the News – Update for July 15, 2021

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

THE SHORT ROCKET

rocket190620
A couple of short takes from last week’s news (and one update to yesterday:

Pardon Me: The June 2021 Federal Sentencing Reporter was devoted entirely to the presidential pardon power. In one essay, the authors found that of President Trump’s 238 clemency grants, only 25 (11%) were recommended by the DOJ Pardon Attorney.

New York magazine reported last week that Trump’s 238 clemency grants was a 50-year low. While Biden has hinted he’ll started granting clemency next year (before the midterm elections), the magazine was skeptical:

“The appearance of being “soft on crime,” and the possibility that someone you free re-offends in some politically inopportune way, makes it hard for presidents to rationalize pardoning people or commuting sentences with any regularity… The effect is that clemency has become really unusual. And when something is unusual, each decision becomes freighted with dramatic significance and scrutinized to the nth degree.”

Meanwhile, law professors Rachel Barkow (New York University) and Mark Osler (University of St. Thomas School of Law) sounded the alarm this week that contrary to its campaign pledges, the Biden Administration is poised to resume the errors of the past.

Inexplicably, however, the Biden administration… wants to leave clemency under the control of the Justice Department. Doing so will undermine the administration’s stated hope of achieving criminal justice reform and reducing racial bias in the federal system….

In conversations with activists, the administration has, at most, expressed some desire to use the pardon power before the 2022 midterm elections. That tells us two things, both dispiriting: that this is a low priority for the president, and that the administration does not yet have a handle on how this all could work. That’s far too long for reforms that don’t need congressional approval and when there is a backlog of petitioners who have waited too long for justice.

Federal Sentencing Reporter, Vol 33, Issue 5, After Trump: The Future of the President’s Pardon Power

Lawfare, Trump and the Pardon Power (July 6, 2021)

New York Magazine, When Will Joe Biden Start Using His Clemency Powers? (July 5, 2021)

The New York Times, We Know How to Fix the Clemency Process. So Why Don’t We? (July 13, 2021)

DOJ Inspector General Calls Out BOP on Faith-Based Support: A report issued last week by the DOJ Office of Inspector General found that a 30% shortage in BOP chaplains as well as “a lack of faith diversity” among the chaplaincy staff “leaves some inmate faith groups significantly underrepresented,” causing “many institutions to rely on alternative religious services options, such as inmate-led services.”

religion191230

The IG said “One particular concern was the potential for an inmate to use a religious leadership role to engage in prohibited activities or as a method to obtain power and influence among the inmate population.” The report concluded that “in the absence of a fully staffed and diverse chaplaincy, BOP institutions are unable to adequately administer their religious programs, prompting many BOP institutions to turn to alternatives that pose enhanced risks, such as inmate-led services and reliance on minimally vetted volunteers.”

DOJ, Audit of the Federal Bureau of Prisons’ Management and Oversight of its Chaplaincy Services Program (July 7, 2021)

readup210715Read Up on EBRRs: The BOP has issued a Program Statement on how staff is to determine inmate programming needs. This is important, because – contrary to the rumor mill, so-called inmate.com – earned time credits (ETCs) are only awarded for completion of approved programs that address needs previously identified by BOP staff. The new program statement guides you on how to get needs identified that will lead to ETCs.

PS 5400.01, First Step Act Needs Assessment (June 25, 2021)

– Thomas L. Root

Dog Bites Man: Judge Says NYC BOP Facilities Run By Morons – Update for May 14, 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.

JUDGE SAYS “DISGUSTING, INHUMAN” BOP NYC FACILITIES ARE RUN BY MORONS

moron210514A senior Federal judge who navigated her Manhattan-based court through the pandemic denounced conditions at MDC Brooklyn and MCC New York as “disgusting” and “inhuman” during the sentencing last month of a woman who spent months in solitary confinement after contracting COVID-19.

US District Court Judge Colleen McMahon said in a transcript just obtained by the Washington Post that the facilities are “run by morons.” During the sentencing, McMahon castigated the BOP, saying the agency’s ineptitude and failure to “do anything meaningful” at the MCC in Manhattan and MDC Brooklyn amounted to the “single thing in the five years that I was chief judge of this court that made me the craziest.”

“It is the finding of this court that the conditions to which the defendant was subjected are as disgusting, inhuman as anything I’ve heard about any Colombian prison,” McMahon said on the record, “but more so because we’re supposed to be better than that.”

The BOP responded in a statement that it “takes seriously our duty to protect the individuals entrusted in our custody, as well as maintain the safety of correctional staff and the community.”

plague200406Meanwhile, The Trentonian reported last week that FCI Fort Dix set as COVID-19 record for the worst outbreaks of any federal facility. New Jersey US Senators Bob Menendez and Cory Booker, both Democrats, called on the BOP last month to “prioritize the vaccination program” at FCI Fort Dix. More than 70% of the 2,800 prisoners at Fort Dix have tested positive for COVID-19 since the pandemic began. As of last week, 52% of Fort Dix inmates have been vaccinated.

Also last week, the Legislative Committee of the Federal Public and Community Defenders wrote a 16-page letter to Senate Judiciary Chairman Richard Durbin (D-Illinois) and Ranking Member Charles Grassley (R-Iowa) asking for Congressional action to reform the BOP in areas as varied as inmate healthcare to compassionate release to First Step Act programming credits.

“Although the Biden Administration has taken significant steps to beat back COVID-19 in the community,” the letter said, “individuals in BOP custody remain at high risk. Over a year into the pandemic, they are subject to harsh and restrictive conditions of confinement and lack adequate access to medical care, mental health services, and programming. The improvements to programming promised by the First Step Act  generally stand unfulfilled.”

Most significant was criticism of BOP healthcare that went beyond the pandemic: “Dr. Homer Venters, a physician and epidemiologist who has inspected several BOP facilities to assess their COVID-19 response, identified a “disturbing lack of access to care when a new medical problem is encountered” and is concerned that “[w]ithout a fundamental shift in how BOP approaches… health services, people in BOP custody will continue to suffer from preventable illness and death, including the inevitable and subsequent infectious disease outbreaks.”

COVIDvaccine201221The letter also took aim at the high vaccine refusal rate by BOP staff (currently 50.5% refused), staffing shortages, and the BOP’s poor record on granting compassionate release.

The letter complains that the BOP’s proposed rule on awarding earned time credit “impermissibly restricts an individual’s ability to earn time credits, makes it too easy to lose those credits, and unduly excludes broad categories from the earned time credit system. In short, these provisions kneecap the FSA’s incentive structure and make it less likely individuals will participate in programs and activities to reduce recidivism and increase public safety.” The letter notes that if a prisoner programmed 40 hours a week, it would take more time to earn a year’s credit than the length of the average federal sentence.

The Trentonian, Ft Dix FCI has largest total COVID-19 cases among U.S. federal prisons (May 4, 2021)

Federal Public and Community Defenders, Letter to Sens Durbin and Grassley (May 4, 2021)

Washington Post, Judge says ‘morons’ run New York’s federal jails, denounces ‘inhuman’ conditions (May 7, 2021)

– Thomas L. Root

We’ve Got The Shorts – Update for April 30, 2021

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

Today, this being the end of the month, we’re cleaning off our desktop…

SOME ODDS AND ENDS FROM LAST WEEK

Banned in Moscow: In response to President Biden’s expulsion of Russian diplomats because of the massive Solar Winds computer hack discovered last December, Vladimir Putin last week banned eight US officials from entering Russia.

The excluded government honcho include current top intelligence officials, former National Security Advisor John Bolton, FBI Director Christopher Wray, and… BOP Director Michael Carvajal.

carvajal210430Huh? The media covering the story have explained the reasons for all of the expulsions except for Carvajal’s, which is usually noted as an afterthought.

Putin knows why Carvajal is on the list. Carvajal maybe knows. But no one else seems to have any idea.

The Hill, Russia blocks key Biden Cabinet officials from entering in retaliation for sanctions (April 16, 2021)


FMC Carswell Catching Heat for Inmate Death: The Ft Worth, Texas Star-Telegram reported last week on the death of Martha Evanoff at FMC Carswell.  The paper said that Evanoff “begged for medical attention for months, fellow inmates say, but was denied help until she died” on April 12.

Evanoff had surgery last November, but, according to a fellow inmate as well as Evanoff’s own emails to me, her intestines protruded through the surgical incision into her abdominal wall that had opened up. Ultimately the protrusion pinched the intestines shut, blocking them completely.

medmal170127“It was totally unnecessary. They could have done something to help her,” an inmate told the paper. “She is not the first person to die here from intestinal blockage.”

Another inmate reportedly said that Evanoff begged for help about the pain she was in, and “this place did nothing. Medical indifference = murder,” the inmate wrote. “And it is just as bad as having a knee on your neck…”

In an email Evanoff wrote to me in early February, she said, “I have been extremely ill — mainly bedridden with only bathroom trips. Visibly, I have these ENORMOUS, HARD TO MISS – Incision hernias all over my abdominal area… makes it impossible for me to do anything… One in particular sticks way out like I am pregnant with 8 children… Please help me out of here BEFORE I die here…”

A suit against FMC Carswell brought by over 70 named inmates alleging negligent medical care is pending in the US District Court for the Northern District of Texas.

Ft Worth Star-Telegram: Woman at Fort Worth medical prison died after staff ignored cries for help, women say (April 20, 2021)

Blake v. Carr, Case No 4:20cv807 (N.D. Texas)
Cohen Court Nixes Earned Time Credits: Former Trump lawyer Michael Cohen, on CARES Act home confinement until his sentence ends in November, brought a habeas corpus action to win earned time credits for programs he took while still locked up.

cohen200730Last week, Mike’s judge turned him down. “The statute clearly envisions that the program will be gradually implemented during the phase-in period. During this period, the [First Step] Act requires the BOP to provide evidence-based recidivism reduction activities for all prisoners before the two-year anniversary of the date that the BOP completes a risk and needs assessment for each prisoner, namely by January 15, 2022. The statute also requires the BOP during the phase-in period to develop and validate the risk and needs assessment to be used in the reassessments of risk of recidivism, while prisoners are participating in and completing evidence-based recidivism programs. But the statute does not require the BOP to begin awarding Earned Time Credits during the phase-in period. Indeed, the statute specifically leaves to the discretion of the BOP whether to expand existing programs and whether to offer to prisoners who successfully participate in such programs incentives and rewards.”

Cohen v. United States, Case No 20-CV-10833, 2021 US Dist LEXIS 75852 (S.D.N.Y. April 20, 2021)

Law and Crime, Federal Judge Denies Michael Cohen’s Petition to Cut His Sentence Under Trump’s First Step Act (April 20, 2021)

I’ll Be Watching You: In a report released last week, the Treasury Inspector General for Tax Administration said the IRS identified more than 4,500 fraudulent tax returns using a prisoner’s social security number in 2019, claiming refunds totaling over $14 million.

watching210430The amounts could have been higher, but since 2017, the IRS has set up processes to stop tax refunds from being issued to prisoners and people who steal prisoners’ SSNs. One of them involves the BOP and state departments of corrections complying with a requirement to provide the IRS with an annual list of all prisoners incarcerated within their prison system. Another program, which the Inspector General said should be expanded, is the Blue Bag Program, in which the IRS partners with the BOP and state corrections departments to identify potentially fraudulent tax returns and refunds. The IRS program automatically pulls prisoner tax returns for fraud analysis.

Accounting Today, IRS cracks down on prisoner tax fraud and identity theft (April 19, 2021)

– Thomas L. Root

Inmate Wins (Sort of) Earned-Time Suit Against BOP – Update for February 26, 2021

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IT LOOKS LIKE A VICTORY, BUT NOT MUCH OF ONE…

slowwalking210226One of the marquee features of the First Step Act is an earned time provision that permits non-excluded federal inmates (and there’s a long list of who’s excluded, from people with gun and violence charges to sex offenders to some kinds of drug dealers) to earn credits that will reduce their sentence lengths or get them more halfway house or home confinement.

The plain terms of First Step said that qualifying programs completed after the Act’s passage would be counted. But ever since First Step passed, the Bureau of Prisons has done its institutional best to slow-walk implementation of the terms.  First, it took nearly every day of the two years it was given by the statute to adopt a recidivism and needs assessment system that would classify inmates according to their risk of recidivism. Then, although the BOP is a system in which virtually no inmate works an 8-hour day, the BOP decided that a day of programming (for purposes of earned-time credits awarded in blocks of 10 or 15 days for every 30 days of programming) should constitute a full eight hours. This meant that an intensive 9- or 10-month drug program that in all devoted 500 hours to the classroom would yield a paltry 62.5 days of programming credit, which would be two 30-day blocks, which would award an inmate 20 to 30 days off a sentence that, on average, would be 10 years long.

jailhouselaw160809The BOP’s latest indignity seems to be an institutional position that none can start earning credit until after January 15, 2022, because the earned-time system is to be phased in over two years, and the two years started January 15, 2020.  Late last summer, an inmate at FCI Fort Dix won a habeas corpus action against the BOP authorizing him to get credit for programs completed since First Step was enacted in 2018. Ever since that decision, Goodman v. Ortiz, was handed down, suing the BOP for earned time credits for completed programs has become a cottage industry at various institutions. In South Dakota (where there isn’t a lot else to do in the winter, even when you aren’t locked down for COVID), there are something like 34 habeas corpus suits pending demanding earned time credit.

The inmate winner in a recent decision from the same judge who wrote Goodman v Ortiz called his victory to my attention last week. It is not quite the triumph one might think it is.

Jeremy Hare filed a habeas action under 28 USC § 2241 against his warden, demanding a shortened sentence or other benefit for having completed programs since the passage of the First Step Act. The government, predictably enough, argued that Jeremy could not get credit for any program completed before January 15, 2020 (although to its credit, the US Attorney was unwilling to adopt the BOP’s position that no credits would be awarded until 2022). But the government did take the untenable position that the First Step Act was not really “enacted” until the BOP said it was, a position the Court dispatched handily:

Enactment means “the action or process of making into law.” ENACTMENT, Black’s Law Dictionary (11th ed. 2019).  The FSA was enacted on December 21, 2018, and nothing in subchapter D indicates a different effective date for the subchapter… Thus, 18 U.S.C. § 3632(d)(4)(B)(i) unambiguously directs that “[a] prisoner may not earn time credits… for an evidence-based recidivism reduction program that the prisoner successfully completed… prior to” December 21, 2018… There is no ambiguity here. As a result, if Petitioner successfully completed an EBRR [Evidence-Based Recidivism Reduction] program or PA [Productive Activity] pursuant to the FSA on or after December 21, 2018, he is entitled to earn Time Credits.

The District Court thus agreed with Jeremy that he was entitled to credit for programs completed after “enactment” of the First Step Act, regardless of how long it may have taken the BOP to actually adopt PATTERN.

humpty210226But that was the high-water mark for Jeremy. The Court ruled that Jeremy could only get credit for programs that addressed needs BOP staff had already identified for him. That could include substance abuse, basic education and whatever else may have been listed in his Program Review by BOP staff. That holding dramatically limited the courses he might otherwise get credit for, because before January 15, 2021, the staff did not routinely make such determinations.

But what really limited the reach of Jeremy’s win was the Court’s conclusion that the BOP calculation that one program day should equal eight full hours of programming was a reasonable one. Jeremy wanted credit for any day on which he might have attended a program, even if that program only lasted an hour. The court found the BOP’s calculation that a “program day” should be 8 hours long was completely reasonable.

The most liberal read of this decision is that inmates might get some credit for programs completed since December 21, 2018, but they will have to jump through plenty of hoops first, and the amount of credit they get may be slight.

Hare v, Ortiz, Case No 20-14093, 2021 US Dist LEXIS 21270 (DNJ Feb 4, 2021)

– Thomas L. Root

Pinching a Statute ‘Til It Hollers: BOP and Earned Time – Update for December 2, 2020

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

BOP ROLLS OUT PROPOSED FSA EARNED TIME RULES

Twenty-three months after passage of the First Step Act authorized the Federal Bureau of Prisons to give earned time credits to inmates who complete programs that have been shown to reduce recidivism, the BOP is finally getting around to adopting rules on how such credits will be rewarded. And, unsurprisingly, the BOP is making Ebenezer Scrooge look like Santa Claus.

scrooge201202First Step focused on assessing each prisoner’s likelihood of recidivism and rolling that assessment into a recidivism and needs assessment system known as PATTERN. The BOP was then to determine which of the programs identified as likely to reduce recidivism each inmate needed. As the inmate completed the programs, he or she would see the PATTERN score – ranging from “high risk” down to “minimum risk” – decrease. To encourage the prisoners to complete the programs, First Step authorized the award of “earned time credits,” equal to 10 to 15 days for each 30 days of programming completed. The earned-time credits can be used for more halfway house, more home confinement, or up to 12 months of early release.

Of course, the devil’s in the details. The language in the Act says:

A prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.

rules201202What exactly does First Step mean by “30 days of successful participation?” The BOP has finally announced proposed rules to define that, and the definition is a doozy.

The proposed rule figures that “30 days” means 30 program days. A “program day” is eight hours, the BOP says. In other words, a 500-hour program would be worth 500 hours/8 hours-to-a-day, or 62.5 program days. Completion of the 500-hour program would award an inmate two months (60 days) of program credit, which is worth 20 days earned time credit for inmates with medium or high recidivism risk, and 30 days credit for inmates with minimum or low risk.

In the BOP, a 500-hour program takes 12-18 months to complete.  That may seem like a fairly substantial commitment for a month more of home confinement. But it is consistent with what we’ve come to expect from the BOP: given a chance to interpret the extent of its authority to be lenient, it invariably interprets that authority in the most chary way possible.

results201202The proposed rule does settle one question which has been coming up often in the last few months: FSA earned time credits may only be earned for successful completion of an Evidence-Based Recidivism Reduction Program and Productive Activity assigned to the inmate based on the inmate’s risk and needs assessment, and only for those successfully completed on or after January 15, 2020.

The proposed rule does not address the procedures for determining whether an individual inmate will have FSA earned time credits applied towards prerelease custody, early transfer to supervised release, a combination of both, or neither. Instead, it only addresses the procedures for earning, awarding, loss, and restoration of FSA credits.

The public may submit comments to the BOP on the proposed rule until January 25, 2021.

Federal Register, Proposed Rule: FSA Time Credits (November 25, 2020)

– Thomas L. Root