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ETC-Eligible Inmates May All Be ‘Above Average’ – Update for June 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.

BOP FILING IN HABEAS CASE EXPLAINS INTERIM EARNED-TIME CREDIT POLICY

keillor220621Back before Prairie Home Companion humorist Garrison Keillor had not yet been ‘canceled’ for lusting after women in his heart (or whatever the crime might have been), he created Lake Wobegon, a place where all the women were strong, the men were handsome, and the children were above average. The setting gave its name to the “Wobegon Effect,” a prejudice of superiority also known as illusory superiority.

The BOP – due to sloth, being overwhelmed by events, or by design – may have instituted its own version of the phenomenon. Let’s call it the ‘ETC Effect.”

Recall that the First Step Act mandated that the BOP assess all inmates for their likelihood of recidivism and programming needs.  Prisoners would then complete evidence-based recidivism reduction programming (EBRRs) that would address their needs and make them less likely to reoffend.

To encourage inmates to complete the programming, the BOP would award eligible inmates (and Congress exempted about half of all inmates from the program, probably to look good to those criminal-hating voters back home), First Step directed the BOP to issue ETCs. An inmate can earn from 10 to 15 days a month in ETCs for each 30 days spent in an EBRR or in pursuit of specified “productive activities.” The first 365 days’ worth of ETCs will reduce an eligible inmate’s sentence by up to a year.  Any ETCs beyond that can be used for extra home confinement or halfway house.

Jailbreak done right.
Early release through ETCs – a jailbreak done right.

When the BOP announced its final rules on EBRRs and ETCs in January, it specified that ETCs could be earned from the day First Step became law (December 21, 2018). This meant that a thundering herd of inmates who were close to their release date probably should already be home once their ETCs were applied. In fact, the BOP released a lot of inmates in the days and weeks following adoption of the rules.  But since then, those still in prison have been complaining loudly that their ETC credits have not been applied.

Which brings us to Bob Stewart. Bob got his ETC calculation from the BOP last January, learning he had 75 days of credit as of Christmas Day 2021. But his release falls in October 2022. He argued that this imminent date makes continuous updating of his credits necessary.  The BOP, which has been calculating ETCs inmate-by-inmate in a manual process, told Bob that he would not get an update until sometime in the future when the agency implemented a new “auto-calculation” programming.

Bob brought a habeas corpus action in federal court, arguing that had another 60 days coming as of the filing date in March 2022, and that he was continuing to earn days on a rolling basis until his release date.

The BOP moved to dismiss the action, arguing essentially that Bob would just have to wait for “auto-calc” like everyone else. Included with its filing was a fascinating declaration from Susan Giddings, a BOP official, explaining BOP interim policy.

Susan said that everyone got one manual calculation, and Bob had gotten his. After that, everyone had to wait until the BOP completed installation of its “auto-calculation application to BOP’s real-time information system (known as SENTRY) and full integration between SENTRY and BOP’s case management system (known as INSIGHT).” She estimated that  “auto-calc” would be live by about August 1.

participation220621As interesting was her revelation that every ETC-eligible inmate was getting ETC credit from the day First Step passed or the inmate’s first day in prison, whichever was later. The grant appears to be independent of whether the inmate completed any programming during that time or not.

Bob’s district court was not impressed by the BOP’s reasoning that the law would just have to wait for the agency’s programmers. It ordered the BOP to recalculate Bob’s ETCs every 60 days, whether the “auto-calculation application” was working or not.

The Magistrate’s Report, adopted in full by the District Judge, said,

it is unclear when the automated system will be up and running. While it could be within the next 90 days, that is not guaranteed, and Respondent even hedges this statement with the caveat ‘absent unforeseen circumstances.’ Thus, the assertion that Stewart will receive these credits within the next couple months, i.e., in time for them to impact the remainder of his sentence, is speculative

Now for the interesting part. Susan revealed that the BOP is granting ETCs to every eligible inmate from the day First Step passed or the inmate’s first day in prison (whichever was later), whether any programs have been completed or not.  I have had several inmates confirm this. One disgustedly told me, “There’s this guy in the unit who is asleep in his bunk all day and night, except for meals. He got the same number of ETCs – like 540 or so – everyone else got.”

musicstops220623What this means, in other words, is that every eligible inmate is successfully reducing his or her recidivism risk, every eligible inmate is excelling in productive activities, and – in fact – every eligible inmate is not only eligible, but above average.

Far be it from me to complain when any BOP program works to the benefit of inmates, but still, this is not how it is supposed to work. Someday, maybe someday soon, the music will stop.  That will undoubtedly be an unpleasant jolt to the guy asleep in the top bunk… and to everyone else.

Stewart v. Snider, Case No. 1:22cv294, 2022 US Dist. LEXIS 100512 (N.D. Ala, May 10, 2022) (Magistrate’s Report)

Stewart v. Snider, Case No. 1:22cv294, 2022 US Dist. LEXIS 100482 (N.D. Ala, June 6, 2022( (District Court order)

Giddings Declaration, ECF 11-14, Case No. 1:22cv294, (N.D. Ala, filed Apr 29, 2022)

– Thomas L. Root

Is PATTERN Dooming First Step Programming – Update for January 31, 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.

DOES PATTERN HAVE IT ALL WRONG?

One of the jewels in the First Step Act tiara has finally started to sparkle…. and it may turn out to have just been a rhinestone all along.

tiara220131First Step had as a goal the reduction of recidivism – the prison revolving door – by assessing each federal prisoner’s likelihood of recidivism, identifying the prisoner’s needs (anger management, substance abuse education, vocational training, and the like), and then offering programming that met those needs and was based on evidence that it would reduce recidivism (called “evidence-based recidivism reduction” or “EBRR” programming). The system is called PATTERN.

To encourage inmates to participate in EBRR programs to address their needs, First Step offered earned time credits (called by the acronym-loving bureaucracy ETCs, or FTCs – federal time credits – or just TCs) to inmates who successfully complete EBRR programs or – after their needs are met – stay busy with productive activities (called PAs, of course). TCs are awarded on a daily basis – every day on which a prisoner takes a class is one day’s credit, and each day equals a third to a half of a TC. Inmates could trade in their TCs for up to a year off their sentence, or for more home confinement or more halfway house.

People with medium and high PATTERN scores can collect TCs, but only those with low and minimum PATTERN scores can spend them. Plus, the mediums and highs get one TC for every three days of programming. Lows and minimums get a half TC per day. In First Step parlance, a month of programming gets an inmate with a medium and high 10 TC days, but the prisoner with a low or minimum PATTERN scores gets 15.

TCs are sort of like airline miles: everyone can collect them, but using them can be tough.

The program only began on January 19, three years and a month after First Step enacted it. And it started with a bang, as the Bureau of Prisons retroactively awarded TCs for programs completed since December 2018. Currently, as Forbes noted a week ago, the BOP appears to be “prioritizing the release of those prisoners on home confinement or at halfway houses. Over the past 2 weeks, populations of those on home confinement and halfway house show thousands of people released from custody while the BOP populations have remained steady.”

The media have been excitedly reporting the releases, crediting the First Step Act, but Forbes poured some water on the fire: “Many advocates may be giving one another high-fives, but, as history has demonstrated, the BOP somehow finds a way to mess up a good thing.”

So what could possibly go wrong with such a wonderful program? PATTERNsheet220131We’re 12 days into the programs, and warts are already starting to appear. Let’s start with the PATTERN score.

At a House Subcommittee on Crime, Terrorism and Homeland Security hearing 10 days ago, law professor Melissa Hamilton told legislators that as many as 10.9% of male and 9.8% of female prisoners have been assigned wrong risk categories due to errors in the PATTERN system. “The BOP has no plans to correct these errors,” she said in her written statement, “until a new version of PATTERN… is formally approved by the Attorney General.”

PATTERN errors include

•  PATTERN was designed to score one’s risk factors as of the date of release, not the date of assessment. For example, if a 39-year-old man comes to prison for a 15-year sentence, he has a PATTERN age risk factor of 21. But PATTERN was designed to assess his age at release, which would be age 52. The risk factor for age 52 is only 7. The difference is 14 points. “Because the empirical models were estimated using different versions of these variables,” Professor Hamilton said, “it may have influenced the coefficients obtained and the item weights assigned. In other words, this definitional discrepancy across risk factors called into question the efficacy of the entire scoring system.”

• PATTERN operates with significant rates of error and disproportionately prefers false positives over false negatives. A false positive is the incorrect prediction of higher risk, while a false negative is the incorrect prediction of lower risk. This means that “a choice has been made to design PATTERN to perform far less accurately when predicting those who are at higher risk which means placing too many individuals into the higher risk groupings than necessary,” Hamilton told the subcommittee.

• PATTERN does not perform equally based on race and ethnicity. It “overpredicts the general risk for African Americans, Hispanic Americans, and Asian Americans, while it underpredicts for Native Americans.”

• Some BOP personnel are counting disciplinary infractions occurring when prisoners are in pretrial and holdover stages. A National Institute of Justice report last December said, “This means that as BOP is implementing PATTERN, they are currently scoring these infraction variables differently than were modeled in the report… which may have an impact on the utility of these two measures.”

Hamilton told the Subcommittee that “the various errors meant that 37 out of the possible 60 items (almost two-thirds of them) had been incorrectly weighted” in the PATTERN risk assessment. Due to these errors, according to the NIJ Report, overall, 11% of the BOP population was placed in the wrong risk category. This proportion may be on the low end.”

Last week, NPR reported that “about 14,000 men and women in federal prison… wound up in the wrong risk categories. There were big disparities for people of color. Criminal history can be a problem, for example, because law enforcement has a history of overpolicing some communities of color. Other factors such as education level and whether someone paid restitution to their victims can intersect with race and ethnicity, too.” At the same time, it also underpredicted the risk for some inmates of color when it came to possible return to violent crime.

The NIJ Report concluded that some of the racial disparities could be reduced, “but not without tradeoffs” such as less accurate risk predictions. The department also said using race as a factor in the algorithm could trigger other legal concerns. Still, it is consulting with experts about making the algorithm fairer and another overhaul of Pattern is already underway.”

screwup191028And it’s not only the errors inherent in PATTERN. Those exist even if the BOP staff follows the PATTERN scoring instructions to the letter. But they don’t: The NIJ Report also indicated a significant problem with reliability. “BOP personnel incorrectly scored and classified more than 20% of the BOP population,” Hamilton testified. “An automated system has been developed to improve reliability. However, it is unclear when/if the misclassifications from manual scoring will be remedied.”

“Case managers, who have been keying in classes that prisoners have taken over the past two years, seem to have a liberal way of calculating ETC,” the Forbes writer said, “and those who I have spoken to about their release have no idea how their release date was calculated. As one man told me, ‘I was just happy to be released and don’t care how they calculated it’. However, for the man or woman sitting in prison, it makes a huge difference.”

Added to that is the fact that First Step included a number of offenses which will exempt an inmate from earning TCs. “The significance of this risk assessment tool is that it divides all federal prisoners essentially into two groups: people who can get credit for doing this programming and get out early, and people who can’t,” said Jim Felman, an attorney in Tampa, Florida, who has been following the First Step Act for years. Forbes said, “The law already has flaws as there are a number of exceptions carved out to prevent some offenses from being ineligible from earning ETC. Look for those to be challenged in court.”

The problem is worsened by BOP confusion in interpreting the 60-odd exceptions. Reports are rife of BOP staff errors – such as declaring an inmate ineligible over a prohibited conviction that occurred in the past rather than as the current offense, or advising inmates one that any drug trafficking offenses would exclude inmates only to withdraw the advice later. Many of the mistakes seem to be coming from the Designation and Sentence Computation Center at Grand Prairie.

As Forbes darkly predicted, “Look for those to be challenged in court.”

puzzled171201Finally, the law failed to establish any standards for assessing what needs an inmate might have. A case manager must find a prisoner has a need (such as a need for anger management) before the inmate can earn TCs for completing a program addressing the need. Hamilton pointed out that “PATTERN is not itself a needs system. Instead, the BOP is relying, and purportedly improving, upon its preexisting policies and practices of identifying individual needs. This means that to date there has been no (publicly known) validation of the needs aspect of the broader system.”

“The BOP states that it is working to identify appropriate programs,” Hamilton testified, “At this time, though, a significant divide exists between program availability and individual demand in many BOP facilities. The result is a sort of lottery system whereby the luck of the draw in facility placement means some individuals will have a greater access to achieving earned time credits than others.”

The House Subcommittee will grill outgoing BOP Director Michael Carvajal at an oversight hearing this Thursday. Expect some pointed questions about PATTERN and TCs at that time.

Forbes, Bureau Of Prisons Begins Implementing First Step Act With Release Of Thousands In Custody (January 22, 2022)

Testimony of Law Professor Melissa Hamilton, before the House Subcommittee on Crime, Terrorism, and Homeland Security (January 21, 2022)

NPR, Flaws plague a tool meant to help low-risk federal prisoners win early release (January 26, 2022)

House Subcommittee on Crime, Terrorism, and Homeland, Scheduled Hearing on Oversight of the Federal Bureau of Prisons (scheduled for February 3, 2022)

– Thomas L. Root

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

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

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

‘What Might Have Been’ Part of § 3553(a) Analysis, 9th Circuit Says – Update for September 28, 2021

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

A HOLDING OF CONSEQUENCE

A 9th Circuit decision handed down last Thursday appears arcane, but it is very consequential for current and future compassionate release and retroactive Guidelines reductions that will certainly be adopted in the future.

A decade ago, Jose Lizarraras-Chacon was convicted of heroin distribution. He entered into a Rule 11(c)(1)(C) plea agreement for 210 months. After the First Step Act passed, he filed for the 2014 Guidelines Amendment 782 two-level reduction under 18 USC § 3582(c)(2). Jose pointed out to the court that after First Step, his prior state drug conviction the government had used to enhance his sentence with a 21 USC § 851 notice no longer counted as a felony drug case.

criminalrecord2100928A § 3582(c)(2) motion requires a court to first consider whether a defendant’s sentencing range has gone down because of a retroactive Guidelines change. If it has, the court has to consider whether to reduce the sentence in light of the 18 USC § 3553(a) sentencing factors. Jose argued that the court should consider that fact he could no longer get enhanced under 21 USC § 851 if he were sentenced after First Step. The district court refused, saying it was not allowed to consider subsequent changes in the law when reaching a § 3582(c)(2) decision.

The 9th Circuit reversed, holding that a court’s discretionary decision under the § 3553(a) factors at step two of the § 3582(c)(2) inquiry “exceeds the limited scope of a resentencing adjustment applicable to step one.” While at step one, a district court may substitute only the new Guidelines amendments for the guideline provisions applied when the defendant was sentenced, “at step two, there are no similar limitations on what a district court may consider.”

“An underlying principle in federal judicial tradition is that the punishment should fit the offender and not merely the crime,” the Circuit held. “In seeking to ensure that the punishment fit the offender, the Supreme Court has explained that judges should use the fullest information possible concerning the defendant’s life and characteristics… It follows that in a § 3553(a) factor analysis, a district court must similarly use the fullest information possible concerning subsequent developments in the law, such as changes in sentencing guidelines, legislative changes to a mandatory minimum, and changes to a triggering predicate offense to ensure the punishment will fit the crime and critically, to ensure that the sentence imposed is also sufficient, but not greater than necessary to reflect the seriousness of the offense, promote respect for the law, and provide just punishment; to afford adequate deterrence; and to protect the public.”

The Court’s analysis should apply equally to § 3553(a) factors being considered for compassionate releases. The decision means that when arguing whether a sentence is “just punishment” or provides deterrence, the fact that the sentence originally opposed would be unlawful if handed down today should have a major impact on a district court’s reasoning.

United States v. Lizarraras-Chacon, Case No. 20-30001, 2021 U.S.App. LEXIS 28823 (9th Cir., September 23, 2021)

– Thomas L. Root

Going Back to the Well – Update for September 24, 2021

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PROCEDURAL BOOTSTRAPPING

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

11th Circuit Does Addition by Subtraction on First Step Crack Resentencing – Update for May 17, 2021

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SECTION 404 – WHERE LESS IS LESS, EVEN WHEN IT’S MORE

numbersA lot of times, prisoners – who are rightly focused on the substance of their claims – skip over the finer points of procedure. After all, procedure is kind of boring. But paying attention can bring dividends, or – as the old proverb goes – “God is in the details.”

Ask Nolan Edwards. He was doing life for a crack offense when the First Step Act passed, letting him seek retroactive application of the Fair Sentencing Act. First Step Act § 404(b) provides that the court that originally sentenced a defendant for a crack offense may, when certain conditions are met, “impose a reduced sentence.” Meanwhile, 18 USC § 3582(c)(1)(B) (the section many § 404 motions cite), is similar but not identical. It authorizes a district court to “modify an imposed term of imprisonment to the extent otherwise permitted by statute…”

Nolan filed a motion under First Step Act § 404 and § 3582(c)(1)(B). The district court reduced his sentence to time served, but concluded the First Step Act required it to impose an 8-year supervised release term. Nolan appealed the supervised release term, arguing that § 404 only empowers a court to subtract from a sentence, not add to one.

Last week, the 11th Circuit agreed. A § 404 motion “is self-contained and self-executing,” the Circuit said, and does not need to rely on 18 USC § 3582(c)(1)(b) to be granted. Therefore, a district court is entitled only to reduce a prisoner’s overall sentence pursuant to a § 404 motion.

goddetails210517But that didn’t help Nolan. The 11th said that the focus was on the overall sentence, not just the components. So if the “unitary” sentence – imprisonment and supervised release considered together – was reduced, First Step Act § 404’s requirements were met. Here, Nolan’s life sentence was cut to 260 months and eight years of supervised release. That was clearly a reduced sentence, the Circuit said, despite the fact supervised release went from zero to 8 years.

United States v. Edwards, Case No. 19-13366, 2021 U.S.App. LEXIS 14140 (11th Cir., May 13, 2021)

– Thomas L. Root

Two Very Distinguished Cases – Update for May 13, 2021

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

A SOLITARY RAY OF LIGHT…

There was a single bright spot in otherwise dreary judicial news last week.

light210513When an appeals court 3-judge panel issues a precedent-making opinion, no other 3-judge panel can invalidate it. Only the court of appeals sitting en banc (all of the active judges as one court) can do that.

So when a 3-judge panel does something stupid, what can another 3-judge panel do about it?

Last week, a 6th Circuit panel employed one method of finessing a way around a lousy opinion: it distinguished it. That means the judges found some factual difference that let them rule the way they thought they should rule, regardless of the prior opinion.

Ian Owens was charged with one count of bank robbery. He wouldn’t take a deal, so the government added an 18 USC § 924(c) count for using a gun in the commission of a violent crime. He still wouldn’t deal, so the government added another. By the time Ian went to trial, the government had heaped five § 924(c) counts on top of the robbery. Because the case was decided much before the First Step Act changed things around, the § 924(c) counts were stacked, with the second through fifth counts each carrying a mandatory 300 months. Ian was sentenced to 1370 months (114 years).

When Ian filed a compassionate release motion claiming that he wouldn’t get that kind of time after the First Step Act ended § 924(c) stacking and that his co-defendants all got a lot less time than he did, he ran into two prior 6th Circuit decisions, United States v. Tomes and United States v. Wills. Both of those cases said First Step changes in 18 USC § 924(c) could not be used as extraordinary and compelling reasons for a compassionate release sentence reduction. The district court did not consider Ian’s evidence of rehabilitation, any other bases for a finding of extraordinary and compelling reasons, or the 18 USC § 3553(a) sentencing factors.

hares210513Last week, the 6th Circuit split hairs in a split decision, and explained away Tomes and Wills. In those cases, the Circuit said, the prisoner argued only that the First Step Act changed § 924(c) stacking. But Ian had three reasons supporting his extraordinary and compelling showing, not just one. That made his case “factually distinguishable,” the 6th said. “Owens points to the fact that his lengthy sentence resulted from exercising his right to a trial and to his rehabilitative efforts as additional factors that considered together constitute an extraordinary and compelling reason meriting compassionate release,” the Circuit said. “Further, the district court in Owen’s case did not consider these other factors and, instead, summarily concluded that his First Step Act 403 argument was meritless.”

It was not necessarily meritless, the 6th said. “In making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied…”

The decision seems to have jumped onto a rather technical difference between Ian’s situation and the prior cases, but those prior decisions largely stink. Now, the odor has been contained, or – as lawyers like to say – Tomes and Wills have been “limited to their facts.”

United States v. Owens, Case No 20-2139, 2021 US App LEXIS 13656 (6th Cir May 6, 2021)

– Thomas L. Root

10th Circuit Greenlights Compassionate Release for Over-Long Sentences – Update for April 5, 2021

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PEELING THE COMPASSIONATE RELEASE ONION

peelingOnion210405A trio of appellate decisions last week – two from the 10th and one from the 4th – continue to peel away the uncertainty from the scope of 18 USC § 3582(c)(1)(A)(i) sentence reduction and the factors relevant to whether a reduction will be granted or denied.

You recall that 18 USC § 3582(c)(1)(A)(i) permits the district court that sentenced a defendant to reduce the sentence at any time if the defendant can show “extraordinary and compelling” reasons for doing so, if the reduction is consistent with Sentencing Commission policy statements, and if the reduction is not too much of an affront to the factors listed in 18 USC § 3553(a) that a court is to consider at sentencing.

First, the 10th Circuit joined the 4th in holding that district courts are entitled to broadly interpret “extraordinary and compelling” reasons for granting compassionate release. In two decisions, the 10th reversed district court holdings that the fact Congress had not made First Step Act drug and § 924(c) sentencing changes retroactive does not mean that those changes cannot figure in a compassionate release motion.

Malcom McGee was sentenced to mandatory life back in 2000 for a drug trafficking offense, the stratospheric minimum sentence because he had prior state convictions for drug use and sale. Section 401 of the First Step Act cut the mandatory life minimum in 21 USC § 841(b)(1)(A) to 25 years, but Congress decided against making the change retroactive (a sop Senate Majority Mitch McConnell (R-Kentucky) threw Sens Ted Cruz (R-Texas), Tom Cotton (R-Klingon Empire) and their fellow troglodytes who thought there was nothing wrong with forcing someone sentenced on December 20, 2018, to get life while someone being sentenced two days later to get 25 years).

klingons210405Because First Step did not make the mandatory minimum change retroactive, Malcom found himself in the middle: Congress didn’t cut him a break, and the district court said it could not use compassionate release to grant him a sentence reduction because of Congress’s refusal to apply retroactivity.

The 10th Circuit disagreed:

“The plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A). But nothing in § 401(c) or any other part of the First Step Act indicates that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants…The possibility of a district court finding the existence of “extraordinary and compelling reasons” based, in part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.”

Two days later, the 10th Circuit shut down government arguments in another compassionate release case. Kepa Maumau was convicted of three stacked § 924(c) convictions, receiving a 55-year sentence. The district court granted him compassionate release based on the First Step Act’s change of § 924(c) which was to not impose the 25-year sentence for a subsequent § 924(c) conviction unless the defendant had already been convicted of a prior one. The court also considered Kepa’s youth at the time he committed the crimes and his rehabilitation in prison.

But Kepa stayed in prison because the government appealed, arguing that the U.S. Sentencing Commission alone, not the courts, has power to determine what constitutes an extraordinary and compelling reason for compassionate release. What’s more, the government complained, a district court has no authority to grant compassionate release based on its disagreement with the length of a mandatory sentence.

Sentencestack170404The Circuit bluntly rejected these arguments, holding that the government’s “underlying premise is incorrect. Nothing in the district court’s decision indicates that the district court granted relief to Maumau based upon its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions. Nor was the district court’s decision based solely upon its disagreement with the length of Maumau’s sentence in particular. Rather, the district court’s decision indicates that its finding of “extraordinary and compelling reasons” was based on its individualized review of all the circumstances of Maumau’s case and its conclusion “that a combination of factors” warranted relief, including: “Maumau’s young age at the time of” sentencing; the “incredible” length of his stacked mandatory sentences under § 924(c); the First Step Act’s elimination of sentence-stacking under § 924(c); and the fact that Maumau, “if sentenced today… would not be subject to such a long term of imprisonment.”

Kepa went home last Friday.

Finally, the 4th Circuit handed Ryan Kibble a loss, but in an opinion interesting for its concurring opinion discussing § 3553 factors. Ryan was locked up at FCI Elkton, a notorious BOP COVID-19 hotbed, for 87 months after a conviction for soliciting sex from a female cop (whom Ryan thought was a 14-year old girl).

One of the sentencing factors set out in § 3553(a) is that the sentence be “just punishment” for the offense. District courts have grappled with § 3582(c)(1)(A)’s directive that they “consider[]” the § 3553(a) factors, and more than one has said it already applied the factors at sentencing, and it would stand on its previous position.

lockdowncovid210405But “[s]ection 3582(c)(1) necessarily envisions that the § 3553(a) factors may balance differently upon a motion for compassionate release than they did at the initial sentencing,” Chief Judge Roger Gregory wrote in his concurrence. “An individual requesting compassionate release will, in all cases, be serving a sentence that a district court once held was ‘sufficient but not greater than necessary’. If a district court’s original § 3553(a) analysis could always prove that a sentence reduction would intolerably undermine the 3553(a) factors, then 18 U.S.C. § 3582(c)(1) would, in effect, be a nullity. There is good reason to believe that, in some cases, a sentence that was “sufficient but not greater than necessary” before the coronavirus pandemic may no longer meet that criteria. A day in prison under the current conditions is a qualitatively different type of punishment than one day in prison used to be. In these times, drastically different. Some facilities house inmates who now serve their sentences knowing that they are not equipped to guard against a virus that may result in serious illness or death. Other facilities keep COVID-19 at bay by placing inmates in solitary confinement, ending prison programs, restricting visitation, and limiting access to nonessential medical care… These conditions, not contemplated by the original sentencing court, undoubtedly increase a prison sentence’s punitive effect.”

United States v. McGee, Case No. 20-5047, 2021 U.S. App. LEXIS 9074 (10th Cir. March 29, 2021)

United States v. Maumau, Case No 20-4056, 2021 U.S. App. LEXIS 9510 (10th Cir.  April 1, 2021)

United States v. Kibble, Case No 20-7009, 2021 U.S. App. LEXIS 9530 (4th Cir.  April 1, 2021)

– Thomas L. Root